Reconstruction at Sea: The American Campaign to Reform International Neutrality, 1865-1871

The CSS Alabama sank off the coast of France in June 1864. For two years, the Confederate commerce raider had prowled the world’s oceans, capturing and burning dozens of Union merchant vessels. Yet when the Alabama met its end, it left behind more than a devastated U.S. merchant fleet; it also left behind a complex international legal dispute: the “Alabama Claims.” In the years that followed, American jurists and policymakers would seize on the Alabama Claims case as an opportunity to “reconstruct” the laws of international neutrality. Thus, at the very same time that Republicans were building a new political and legal order at home, they were also trying to create a new political and legal order for the world. These parallel post-war projects had more in common than we might assume.

The controversy over the Alabama hinged on the ship’s origins. Since the Confederacy lacked proper shipbuilding facilities, the Alabama was constructed in Great Britain. It was also outfitted with British armaments and manned by a largely British crew. While British neutrality rules should have prevented such overt help for a foreign combatant, Confederates were able to skirt the law thanks to loopholes and lax enforcement.^[1]

The British government’s negligence sparked outrage in the United States. “As news arrived of the plunder and the burning by the Alabama of one ship after another,” one observer later recalled, “there was not a soldier at the front . . . whose wrath was not kindled against the English Government.”^[2] Nor did American anger die down when the Civil War ended. Spurred on by northern commercial interests, the U.S. government pressed Britain to pay tens of millions of dollars in compensation for lost ships and cargo. In response, British officials offered only minor concessions. A diplomatic stalemate ensued, and only in 1872 was the dispute finally, peacefully resolved.

For one group of legal thinkers and policymakers, the Alabama Claims dispute presented an opportunity to overhaul the laws and norms that governed how neutral states should conduct themselves in foreign wars. Charles Sumner, Francis Lieber, Theodore Dwight Woolsey, George Bemis, and other leading American jurists had long complained that existing national laws regulating neutrality were inadequate. In their view, what was needed were new international rules capable of restraining neutrals and preventing future Alabama-like schemes. Since treaty-making was the principal way in which international law was enacted in the nineteenth century, a treaty with Britain represented the most promising vehicle for introducing such rules.

To this end, American jurists proposed a spate of new, more stringent neutrality rules that they hoped would form part of any agreement with Britain. Much of their energy went toward closing the loopholes in British law that had allowed for the construction and deployment of the Alabama. But some jurists went further, arguing (for example) that neutral states should no longer be allowed to sell arms to foreign combatants, and that permanent courts of arbitration should be created for the purpose of settling neutrality disputes. Ultimately, several of these ideas were incorporated into a pivotal 1871 treaty between the United States and Britain.

Some jurists also attempted to lay down new rules about when states should declare neutrality, particularly in cases of foreign civil war. Britain had issued its proclamation of neutrality for the U.S. Civil War in May 1861, two months before large-scale fighting broke out. To American jurists, this “hasty” proclamation seemed in retrospect to have been a critical boost for the Confederacy, setting the fledgling nation on its feet and “warming [it] into life.”^[3] In the future, they argued, foreign states should declare neutrality toward intra-state wars only after fighting had begun, and then only if the insurgent party met certain criteria. In this way, American jurists hoped to create a new international order less hospitable to rebels, and more hospitable to established states—an international order, in short, that supported and reaffirmed the Westphalian principle of national sovereignty.

It is in this sense that American jurists’ campaign for international neutrality reform complemented the more familiar process of Reconstruction inside U.S. borders. Political theorists describe sovereignty as having two sides or “faces”: an internal one, concerning a state’s authority over its own territory, and an external one, concerning a state’s authority to act independently on the world stage.^[4] During Reconstruction, the United States consolidated its internal sovereignty by suppressing many of the “counter-sovereignties” that had previously served as rival centers of power and authority.^[5] The campaign for international neutrality reform that accompanied the Alabama Claims dispute with Britain represented a parallel consolidation of external sovereignty. By placing limits on other states’ ability to interfere in U.S. domestic affairs, it shored up national sovereignty abroad, at the same time that Reconstruction was shoring up national sovereignty at home.

Ultimately, this “Reconstruction at Sea” was partial and incomplete; many of its most ambitious proposals went unrealized (at least at the time). Yet the campaign for neutrality reform reminds us that the problems that confronted post-Civil War policymakers were not merely domestic in scope. What Charles Sumner had observed in the midst of the Civil War—that “Foreign Relations have been hardly less absorbing than Domestic Relations”—remained just as true in the Reconstruction Era.^[6]