Great Britain and the Confederacy

In the second of his three articles in this special issue of the British Journal of American Legal Studies, Professor Robert M. Jarvis details how the U.S. Civil War (1861–65) affected Key West. ⁽¹⁾ The War's impact, however, was not limited to America. Throughout Europe, the conflict also was a matter of grave concern.

The struggle particularly worried Great Britain. A victory by the Confederate States of America (“CSA”) posed serious threats to Britain's food supply; its efforts to end global slavery; and its overseas territories (due to the likelihood of increased adventurism by France and Spain). In contrast, a victory by the United States carried with it the prospect of economic ruin as Britain's all-important textile industry would no longer have access to cheap Southern cotton.

As its title suggests, this essay discusses the major elements of Britain's CSA policy. Much of what Britain did came in response to decisions by President Abraham Lincoln that challenged existing international law norms. This essay also will discuss why Britain nearly took up arms against the United States—an action that would have triggered a world war—as well as how the outcome of the Civil War set the stage for a lasting friendship between the two nations.

As is well known, the United States was created following a violent break between Great Britain and 13 of its 15 North American colonies. ⁽²⁾ Until 1774, the White inhabitants of these colonies considered themselves to be English. The Revolutionary War (1775–83) was in many ways America's first civil war, pitting not just the forces of the British Crown against Americans but significant portions of the American population against each other. Pro-British Americans (“Loyalists”), being on the losing side of this conflict, often suffered severe punishments, including the confiscation of their property, even though the United States had promised, as part of the Treaty of Paris (1783), that such retributions would be avoided. ⁽³⁾ As a result, many Loyalists ended up leaving the United States, either voluntarily or through banishment.

In the meantime, the peace between Britain and the United States proved to be a cold one. Britain still controlled large swaths of North America, including Canada and various western territories that eventually would become part of the United States. In addition, Britain continued to occupy forts in the Great Lakes region, the Northwest Territory, and Upper New York, even though the Treaty of Paris required these installations to be turned over to the United States. ⁽⁴⁾

Further conflict was threatened by the 1792 war between Britain and France. Although the United States eventually sided with Britain, resulting in the Quasi-War with France (1798–1800), it had been a close call. Many Americans supported France (the United States’ principal ally in the Revolutionary War) and favored starting a new war with Britain. ⁽⁵⁾

Subsequently, a series of escalating commercial, diplomatic, and maritime disputes between Britain and the United States resulted in the War of 1812. ⁽⁶⁾ This confrontation was notable for its naval battles; a second attempt by the United States to capture Canada; ⁽⁷⁾ and a concluding battle that, although a tremendous American victory, ⁽⁸⁾ occurred two weeks after the war's official end. ⁽⁹⁾

From its inception, the United States was divided economically, geographically, and morally by the institution of slavery. However, in 1776 the Northern states began to make slavery illegal. Thereafter, the economy of the two regions, although interdependent in many ways, developed radically different models. The Northern states became industrial powerhouses that would prove to be serious rivals to Europe. In contrast, the Southern states chose to remain agriculturally based, dependent upon enslaved labor. At the time of the Civil War, there were approximately four million enslaved persons in the United States, all of African descent and nearly all of whom lived in the American South.

The Southern states were vitally important to Britain because of the tremendous success that Southerners had growing cotton. Cotton was one of the principal raw resources that fueled Britain's industrial revolution. ⁽¹⁰⁾ As has been explained elsewhere:

By 1860, slave labor in the U.S. South was producing over two billion pounds of cotton per year. . . . Between the years 1820 and 1860, approximately 80 percent of the global cotton supply was produced in the United States. Nearly all the exported cotton was shipped to Great Britain, fueling its burgeoning textile industry and making the powerful British Empire increasingly dependent on American cotton and southern slavery. ⁽¹¹⁾

The dependence on the South's cotton put the British in a truly uncomfortable position. In 1833, Britain had made slavery illegal nearly everywhere in its empire, ⁽¹²⁾ thereby transforming itself from a major slave holding society ⁽¹³⁾ into a nation determined to fight slavery everywhere in the world. ⁽¹⁴⁾

In seceding from the Union, the CSA counted on Britain's dependence on “King Cotton” to force it to both recognize and support the CSA. In fact, the CSA's expectation of victory was based largely on its belief that cotton was so indispensable that Britain (and the rest of Europe) would have no choice but to come to the aid of the CSA. ⁽¹⁵⁾

While the South was an invaluable economic partner to Britain because of its production of cotton, the North developed diverse industries that became a significant rival to Britain and the rest of Europe. Indeed, “by 1860, the United States was second only to Great Britain and France in manufacturing [output].” ⁽¹⁶⁾

Business competition between nations often results in political and sometimes military conflict. It was clear that the British and the Americans viewed each other as significant rivals for control of the world's economy. Either side would consider the industrial failure of the other as a positive outcome. This was particularly the case in Britain because American industrial output was growing by leaps and bounds. The British therefore understood that the Americans, with their access to abundant natural resources and a seemingly inexhaustible supply of immigrant labor, would one day surpass them as the world's top industrial power.

Thus, while the British economy needed the American South, the British knew they would benefit from the harm that would result to their chief economic rival if the Southern states succeeded in leaving the Union and forming their own nation.

The epic story of the decades of conflict which led to the decision by 11 Southern states to secede from the United States and form a new nation based on the perpetual protection of the institution of slavery is beyond the scope of this essay. ⁽¹⁷⁾

The secession of the South, and the hostilities it engendered, presented Europe with a host of challenges and questions, as well as certain opportunities. ⁽¹⁸⁾ Britain, however, faced a particularly vexing conundrum: should it support a vitally important economic partner that also was a bastion of slavery? By now, slavery had become anathema to the British government and an abomination to the British people, especially the working class. On the other hand, the British economy stood to gain from the break-up of the United States. The British therefore found themselves caught in a vise pitting their financial gain against their moral indignation.

When the Civil War began, Lincoln made it clear that his sole goal was to restore the Union. ⁽¹⁹⁾ Thus, Lincoln's preliminary Emancipation Proclamation, issued on September 22, 1862, gave the seceded states 100 days to return to the Union with slavery intact. ⁽²⁰⁾ Lincoln's initial refusal to make ending slavery the war's objective presented a plausible justification for the British to support the CSA, because as long as the war was only a war to restore the Union and not a war to end slavery, the British could claim they were not supporting a foe of freedom. However, this calculus changed when the final version of the Emancipation Proclamation, known as Proclamation 95, went into effect on January 1, 1863. ⁽²¹⁾ The war now was a war to free the South's slaves. As such, British sensibilities could no longer permit any possibility of officially recognizing the CSA.

The 11 Southern states that chose to secede from the Union wasted no time in declaring themselves to be an independent nation. Having their self-declared nation recognized as an independent country was a critical goal of the fledgling CSA, because this would entitle it to a host of privileges and rights under international law, including, most importantly, the right to make alliances with other nations.

Lincoln was adamant that the secession of the Southern states was a mere rebellion without legal authority and therefore had no right to either domestic or international legal protection. He therefore was determined to do all he could to see that the CSA was denied foreign recognition. This would require the United State to walk a legal, military, and political tightrope that was likely put it in conflict with international law and might lead to war with Britain and the rest of Europe. ⁽²²⁾

In 1861, international law consisted largely of common law practices, bolstered by a few multiple-nation treaties. Largely undefined were the rights of belligerents, with a sharp distinction existing between American and European practice. Americans supported the idea that U.S.-style democracy should be encouraged throughout the world. As a result, the country had a liberal test for granting recognition to new nations, including those seeking independence through revolution. ⁽²³⁾

The liberal policy of the United States put it squarely at odds with the more conservative interpretation favored by European officials. ⁽²⁴⁾ However, when faced with its own secession crisis during the Civil War, the United States abandoned its previous liberal approach and embraced the tougher European standard. ⁽²⁵⁾ This interpretation greatly favored Lincoln's position that no nation should recognize the independence of the CSA. The fact that the United States was actively fighting the CSA provided strong support for its argument that the CSA's independence should not be recognized.

With international law rules unclear regarding the recognition of a new state claiming independence during a civil war, and with a country as powerful as the United States threatening retaliation against any nation that did recognize the CSA, Britain and the other nations of Europe faced a diplomatic dilemma that resulted in a reinterpretation of their own rules governing recognition:

During the American Civil War, Great Britain had occasion once more to formulate principles of recognition including the indirect acknowledgment of the duty to recognize the seceding community as soon as it fulfills the necessary requirements. In the British answer to the pressing demands of the Confederacy for recognition we find the following passage: “In order to be entitled to a place among the independent nations of the earth, a State ought to have not only strength and resources for a time, but afford promise of stability and permanence.”

The French view admitting the right to recognition was also expressed at that time. While assuring the United States that no hasty or precipitate action would be taken with regard to the recognition of the independence of the Confederacy, the French Government affirmed that “the practice and usage of the present century had fully established the right of de facto Governments to recognition when a proper case was made out for the decision of foreign Powers.” ⁽²⁶⁾

By this time, Lincoln had decided to adopt a hybrid strategy that prioritized taking whatever steps were necessary to win the war, but with a nod to international law, even if generally accepted international rules would not be followed. In effect, Lincoln was daring the British and other nations to acquiesce, or at least not interfere, with what he was doing. The consequences for any nation strictly following the rules of international law would be war with the United States.

Lincoln's war policies included a demand that there be no recognition of, or official support for, the CSA; a naval blockade that would defy the conventional rules of international law; the treatment of captured rebels as prisoners of war rather than traitors; and the confiscation of property of both Americans and foreigners even if this violated international law customs.

One of Lincoln's first major strategic decisions was to declare a blockade against the CSA's coast. ⁽²⁷⁾ Under international law at this time, however, a blockade was legal only when directed against another nation and was not considered a legitimate option in a civil war. The option that was available under international law was to close the rebel ports. However, the United States could not close the CSA's ports because they were heavily guarded by the CSA's military. ⁽²⁸⁾ As Jarvis points out in his article, Key West was a notable exception and remained in Union hands throughout the war.

International law authorized a nation establishing a legal blockade to interdict and seize foreign ships on the high seas if they were suspected of trading with the enemy, something Lincoln believed was vital to stem the flow of imported goods to the rebels. However, Lincoln was running a tremendous risk in establishing what, under international law, appeared to be an illegal blockade, because an illegal blockade was considered an act of war that gave other nations the right to go to war against the United States.

There was strong sentiment in favor of the CSA among many in the British government—including Lord Palmerston, the country's prime minister (1855–58; 1859–65). ⁽²⁹⁾ All of these politicians, however, hoped that the CSA could win without Britain being drawn into the conflict.

In responding to the United States’ blockade, Queen Victoria accepted the advice of Lord John Russell, Britain's foreign secretary, who believed that the best course was neutrality. ⁽³⁰⁾ Yet despite being officially neutral, ⁽³¹⁾ Britain recognized the CSA as a “belligerent”—meaning that it was engaged in a war and not a mere rebellion—due to its clear government structure; economic strength; and significant military power. ⁽³²⁾ Although Lincoln privately fumed at Britain's decision to grant the CSA belligerent status, ⁽³³⁾ he did not publicly challenge it. ⁽³⁴⁾

Despite their country's official position, British nationals surreptitiously sold the CSA arms and other articles of war; built it warships; and supplied other needed goods. Many of the “blockade runners” who brought these items to the CSA were British citizens. The British also provided sanctuary in Canada for the CSA's Secret Service; sheltered CSA warships and privateers in safe harbors; ⁽³⁵⁾ and refused to extradite CSA fugitives. As is explained later in this essay, the United States did not call the British to account for these actions until after the Civil War.

Lincoln's decision to blockade the CSA's ports was not merely suspect under international law. It also led to a domestic legal challenge, dubbed The Prize Cases, that eventually reached the U.S. Supreme Court. This constituted a serious threat as the Court could declare Lincoln's action to be unconstitutional, a result that might possibly stop the war.

Particularly worrisome for Lincoln was the fact that Roger B. Taney, who had been appointed chief justice in 1836 by President Andrew Jackson, was still on the bench. In 1857, Taney had authored the infamous Dred Scott decision, which had held that Congress could not prohibit slavery in U.S. territories. ⁽³⁶⁾

Lincoln and Taney were far from friends. Lincoln had made a reputation for himself by criticizing the Dred Scott decision and claiming the Justices were part of a conspiracy designed to make slavery legal everywhere in the United States. Lincoln and Taney also had clashed in Ex parte Merryman, ⁽³⁷⁾ a decision in which Taney, while “riding circuit,” had found illegal Lincoln's executive order suspending the writ of habeas corpus. Lincoln responded by ignoring Taney's ruling. Because of this history, Lincoln knew that his blockade of the CSA's ports would not have an easy time at the Court.

The appellants in The Prize Cases argued that Lincoln's Proclamation 81 (Apr. 19, 1861), which gave the U.S. Navy the authority to interdict and, if necessary, seize ships suspected of attempting to bring goods in or out of the CSA, was illegal. The blockade also authorized the U.S. Navy to board ships on the high seas suspected of trading with the CSA. Ships so captured were turned over to the U.S. federal district courts for adjudication. If found guilty, the ships and their cargoes would be sold and the proceeds given to the United States, out of which prize shares would be awarded to the capturing crew.

Lincoln implemented the blockade, and took several other constitutionally questionable actions, while Congress was in recess. ⁽³⁸⁾ However, when he called it back into session on July 4, 1861, it

passed resolutions granting the President the prospective power to declare parts of the country in “insurrection” and to proscribe commerce to and from such parts. . . . For reasons that remain obscure, Congress did not enact a specific statute ratifying Lincoln's measures but rather approved them in a roundabout rider tacked onto a statute increasing pay for federal troops. ⁽³⁹⁾

In The Prize Cases, the owners of four merchant ships (Amy Warwick, Brilliante, Crenshaw, and Hiawatha) brought suits challenging various condemnation orders that had been issued pursuant to Proclamation 81 before Congress's approval of the blockade. The Hiawatha, for example, was a British-flagged barque. While on a voyage from Richmond to Liverpool with a cargo of tobacco owned by British and Virginia interests, it was seized by the USS Minnesota (the flagship of the North Atlantic Blockading Squadron) in Hampton Roads, Virginia, on May 20, 1861.

At the U.S. Supreme Court, several legal theories were relied on by the appellants, including inadequate notice of the commencement of the blockade and the absence, under both United States and international law, of any right to institute a blockade. On March 10, 1863, by a 5–4 vote, the Court upheld the blockade. ⁽⁴⁰⁾ In a lengthy dissent, Justice Nelson, joined by Chief Justice Taney and Justices Catron and Clifford, excoriated Lincoln for abusing his authority and usurping Congress's powers.

Pride and resentment had a great deal of influence on the relations between Great Britain and the United States during the American Civil War. These traits were most pronounced in two of the most powerful politicians in their respective countries.

British Prime Minister Lord Palmerston (Henry John Temple, 3rd Viscount Palmerston) had little respect or affection for the United States. As such, he had a strong desire to support the CSA because it would hurt (perhaps irreparably) the United States. Born in Westminster on October 20, 1784, Palmerston had been Britain's Secretary at War during the War of 1812.

Palmerston's chief antagonist was U.S. Secretary of State William H. Seward. ⁽⁴¹⁾ Seward's bellicosity towards the British proved to be an ongoing problem for Lincoln and Charles F. Adams, the latter of whom was serving as the United States’ ambassador to Great Britain. ⁽⁴²⁾ Both men engaged in considerable efforts to blunt Seward's comments and, in Adams's case, to calm British officials incensed by Seward's incendiary views.

The spark of actual military conflict between Britain and the United States nearly was lit by the Trent Affair. In an effort to obtain recognition and support from Britain and Europe, the CSA had ordered two of its most able statesmen—former U.S. Senators James M. Mason and John Slidell—to travel to England and France to lobby for support. ⁽⁴³⁾ Getting them to Europe, however, meant running the Union blockade.

On October 12, 1861, Mason and Slidell began their trip by boarding the Theodora, a merchant ship, in Charleston, South Carolina. Slipping past the U.S. Navy, the Theodora made her way to Nassau, in The Bahamas, where Mason and Slidell were supposed to transfer to a British ship. The pair missed their connection, however, forcing the Theodora to head to Cuba. Once in Havana, Mason and Slidell arranged berths on the British mail packet Trent.

By this time, Mason and Slidell's plans had come to the attention of Captain Charles Wilkes, the commander of the USS San Jacinto. Thus, on November 8, 1861, just one day after the Trent had left Havana, Wilkes intercepted her in the Bahama Channel and forcibly removed Mason and Slidell and their secretaries (respectively, James E. McFarland and George Eustis, Jr.). On November 24, 1861, Wilkes delivered the quartet to Fort Warren in Boston Harbor, a Union prison for captured rebels.

Americans loyal to the Union cheered the arrests and Congress passed a resolution expressing its appreciation to Wilkes and his crew. In contrast, CSA sympathizers were dismayed by the news but hoped the event would bring Britain into the war on their side. The British response was sheer outrage. Palmerston, believing it was time to teach the United States a lesson, ⁽⁴⁴⁾ ordered 12,000 British troops to Canada. In addition, Palmerston's cabinet created a War Committee to plan an attack on the United States. ⁽⁴⁵⁾ The British demanded both an apology and the freeing of Mason and Slidell so that they could continue their journey to Europe. It was made clear that the only other alternative was war.

Upon learning of the incident, Lincoln remarked to Attorney General James Speed:

I am not getting much sleep out of that exploit of Wilkes’, and I suppose we must look up the law of the case. I am not much of a prize lawyer, but it seems to me pretty clear that if Wilkes saw fit to make that capture on the high seas he had no right to turn his quarter-deck into a prize court. ⁽⁴⁶⁾

Lincoln clearly understood the harm that might result from the seizure and told his cabinet he was willing to fight only one war at a time.

Two letters were prepared by the British, both harsh in their condemnation of the United States’ actions. Neither left much room for a peaceful resolution. The drafts were sent to Queen Victoria for her approval. Although dying from typhoid fever, Prince Albert, the queen's beloved husband, edited the drafts and added language that gave the two sides a graceful way out of the crisis. ⁽⁴⁷⁾ It was Prince Albert's last service to his nation and one of his most important.

After considerable debate—and the realization that a war with Britain while fighting the CSA would be disastrous—the United States accepted Prince Albert's view that Wilkes had acted without orders. Although a formal apology was not issued, Mason and Slidell and their secretaries were released from Fort Warren on January 1, 1862, and reached Southampton, England, four weeks later. Feelings on both sides of the Atlantic continued to be hurt, but war had been avoided.

Despite Queen Victoria's decree of neutrality forbidding British subjects to support either side,

supplies and money still flowed from Britain into the southern states throughout the Civil War. These resources were vital to sustaining the Confederate war effort, especially following the North's imposition of the blockade of the South, beginning in April, 1861. Obtaining a supply of goods and money from Britain required only private business relationships with British merchants and factory owners, not popular or government approval. Britain's premier port of Liverpool offered a trading environment that was favorable to dealing with the renegade states of the Confederacy, and this city soon became a primary base of southern support. ⁽⁴⁸⁾

The most important aid given by the British to the CSA involved the building of warships:

James Dunwoody Bulloch, the Confederacy's chief foreign agent in Great Britain, led [the] effort to obtain Confederate ships in Liverpool. He particularly negotiated with John Laird Sons & Co. in Birkenhead, across the Mersey River estuary from Liverpool, to build warships for the South. British neutrality meant that warships could not legally be built in the country for either side, but Bulloch circumvented this problem by ensuring that the ships, while clearly designed for battle, were not actually fitted with armaments in Britain. Through this strategy, the ships could be presented as civilian vessels when they left British jurisdiction, but they would then travel to Terceira, a Portuguese island located in the North Atlantic archipelago of the Azores, where they were armed. Bulloch's subterfuge was blatant, but it successfully confused the legal definition of what could be defined a warship in Great Britain. ⁽⁴⁹⁾

Britons also participated in the fighting. According to British-American historian Amanda L. Foreman, 50,000 British citizens served in various capacities in the American Civil War. ⁽⁵⁰⁾ The vast majority of these men fought in the Union Army, presumably due to the antipathy most Britons had towards slavery.

The first year of the war (April 1861 to April 1862) saw a string of CSA military victories. France had been pressuring the British to join it in insisting that the two American sides submit to international mediation to end the conflict. ⁽⁵¹⁾ This was something to which Lincoln would never agree. Palmerston leaned toward supporting forced mediation ⁽⁵²⁾ and by September 1862 hoped that one more decisive CSA victory would be the catalyst to force it on the United States.

As noted earlier in this essay, it was during this time that Lincoln made his fateful decision to turn the war from simply a battle to save the Union into a war for freedom by issuing his preliminary Emancipation Proclamation.

Fearing that the proclamation might be viewed as little more than an act of desperation given how the war was going, Lincoln decided to hold off announcing it until he had a Union victory in hand. That victory came at the Battle of Antietam on September 17, 1862. ⁽⁵³⁾

The reaction among the British working class and liberals in Parliament was electric. Although many in the British press were skeptical and viewed Lincoln's announcement as a mere ploy to gain European sympathy, the British people now considered the Civil War a war for freedom. ⁽⁵⁴⁾ As a result, any possibility that Britain would recognize the independence of the CSA or provide it with direct support was extinguished.

The CSA believed that Britain's economy could not survive without Southern cotton. As a result, the CSA felt it was inevitable that Britain (and the rest of Europe) would join its fight for independence. In making this calculation, the CSA overlooked three important facts.

First, due to a food shortage in Europe, the British desperately needed corn and wheat from the Northern United States. These items were much more critical to the maintenance of daily life in Britain than Southern cotton. Second, prior to the commencement of the Civil War, the British had realized that the flow of Southern cotton would be imperiled. As a result, its merchants had gone on a buying binge. This stockpile helped to mitigate the subsequent damage to Britain's economy. Third, recognizing that no stockpile would be enough, the British began to encourage the expansion of cotton growing in Egypt and India. This effort proved highly successful in replacing Southern cotton during the latter stages of the war. ⁽⁵⁵⁾

By the spring of 1865, the CSA's armies had been defeated and the Southern economy was in shambles. Four years of civil war had resulted in at least 720,000 military deaths and an unknowable number of civilian casualties. The war's final chapter saw the tragic assassination of Lincoln by Southern stalwart John Wilkes Booth (Apr. 14, 1865) followed by a torturous period referred to as “Reconstruction” (1865–77). Hard feelings between the victorious North and the vanquished South resulted in decades of estrangement. Freedom for the enslaved was made permanent by the passage of the Thirteenth Amendment to the U.S. Constitution, which Lincoln had championed. However, a bitter period of racial segregation and discrimination known as “Jim Crow” would last nearly a century. ⁽⁵⁶⁾

Although the war was over, the U.S. Congress could neither forget nor forgive the surreptitious support the British had given the CSA. Even though the British argued that any such support had been illegal and was unsanctioned by the Crown, Congress believed otherwise and demanded that the British be held to account.

As explained earlier in this essay, British shipyards had built several ships for the CSA. ⁽⁵⁷⁾ The most successful of these ships, the CSS Alabama, was credited with 58 captures of U.S. merchantmen before it was sunk in an 1864 battle with the USS Kearsarge off the coast of Cherbourg, France. Other CSA ships built by the British included the Florida, Georgia, Rappahannock, and Shenandoah. ⁽⁵⁸⁾

The resulting dispute over these ships became known as the Alabama Claims. Taking a hard stance, the United States demanded exorbitant compensation:

Charles Sumner, Chairman of the Senate Foreign Relations Committee, argued that British aid to the Confederacy had prolonged the Civil War by 2 years, and indirectly cost the United States hundreds of millions, or even billions of dollars (the figure Sumner suggested was $2.125 billion). Some Americans adopted this argument and suggested that Britain should offer Canada to the United States in compensation. ⁽⁵⁹⁾

Following six years of negotiation, Britain agreed to arbitrate the matter and eventually paid the United States $15.5 million (the equivalent today of $389 million). ⁽⁶⁰⁾ Although not recognized at the time, the settlement of the Alabama Claims began a period of reproachment between Britain and the United States that eventually would forge, in the words of Prime Minister Winston Churchill, a “special relationship” between the two former enemies. ⁽⁶¹⁾

The U.S. Civil War, of course, was a uniquely American event. But the vital role played by Great Britain—and the decisions it made as the conflict raged on—should not be overlooked. Indeed, the war cannot be fully understood without a careful examination of Britain's actions and inactions.