[Footnote 90: Correspondence with the United States minister to France
relative to the quintuple treaty of December 20, 1841, and the Ashburton
treaty of August 9, 1842.]
WASHINGTON, _February 27, 1843_.
_To the House of Representatives_:
In compliance with the resolution of the House of Representatives of
the 22d instant, requesting me to communicate to the House "whatever
correspondence or communication may have been received from the British
Government respecting the President's construction of the late British
treaty concluded at Washington as it concerns an alleged right to visit
American vessels," I herewith transmit a report made to me by the
Secretary of State.
I have also thought proper to communicate copies of Lord Aberdeen's
letter of the 20th December, 1841, to Mr. Everett, Mr. Everett's letter
of the 23d December in reply thereto, and extracts from several letters
of Mr. Everett to the Secretary of State.
I can not forego the expression of my regret at the apparent purport of
a part of Lord Aberdeen's dispatch to Mr. Fox. I had cherished the hope
that all possibility of misunderstanding as to the true construction of
the eighth article of the treaty lately concluded between Great Britain
and the United States was precluded by the plain and well-weighed
language in which it is expressed. The desire of both Governments is to
put an end as speedily as possible to the slave trade, and that desire,
I need scarcely add, is as strongly and as sincerely felt by the United
States as it can be by Great Britain. Yet it must not be forgotten
that the trade, though now universally reprobated, was up to a late
period prosecuted by all who chose to engage in it, and there were
unfortunately but very few Christian powers whose subjects were not
permitted, and even encouraged, to share in the profits of what was
regarded as a perfectly legitimate commerce. It originated at a period
long before the United States had become independent and was carried on
within our borders in opposition to the most earnest remonstrances and
expostulations of some of the colonies in which it was most actively
prosecuted. Those engaged in it were as little liable to inquiry or
interruption as any others. Its character, thus fixed by common consent
and general practice, could only be changed by the positive assent of
each and every nation, expressed either in the form of municipal law
or conventional arrangement. The United States led the way in efforts
to suppress it. They claimed no right to dictate to others, but they
resolved, without waiting for the cooperation of other powers, to
prohibit it to their own citizens and to visit its perpetration by them
with condign punishment. I may safely affirm that it never occurred
to this Government that any new maritime right accrued to it from the
position it had thus assumed in regard to the slave trade. If before our
laws for its suppression the flag of every nation might traverse the
ocean unquestioned by our cruisers, this freedom was not, in our
opinion, in the least abridged by our municipal legislation.
Any other doctrine, it is plain, would subject to an arbitrary and
ever-varying system of maritime police, adopted at will by the great
naval power for the time being, the trade of the world in any places
or in any articles which such power might see fit to prohibit to its
own subjects or citizens. A principle of this kind could scarcely be
acknowledged without subjecting commerce to the risk of constant and
harassing vexations.
The attempt to justify such a pretension from the right to visit and
detain ships upon reasonable suspicion of piracy would deservedly be
exposed to universal condemnation, since it would be an attempt to
convert an established rule of maritime law, incorporated as a principle
into the international code by the consent of all nations, into a rule
and principle adopted by a single nation and enforced only by its
assumed authority. To seize and detain a ship upon suspicion of piracy,
with probable cause and in good faith, affords no just ground either for
complaint on the part of the nation whose flag she bears or claim of
indemnity on the part of the owner. The universal law sanctions and the
common good requires the existence of such a rule. The right under such
circumstances not only to visit and detain but to search a ship is a
perfect right and involves neither responsibility nor indemnity. But,
with this single exception, no nation has in time of peace any authority
to detain the ships of another upon the high seas on any pretext
whatever beyond the limits of her territorial jurisdiction. And such,
I am happy to find, is substantially the doctrine of Great Britain
herself in her most recent official declarations, and even in those now
communicated to the House. These declarations may well lead us to doubt
whether the apparent difference between the two Governments is not
rather one of definition than of principle. Not only is the right of
_search_, properly so called, disclaimed by Great Britain, but even that
of mere visit and inquiry is asserted with qualifications inconsistent
with the idea of a perfect right.
In the dispatch of Lord Aberdeen to Mr. Everett of the 20th of December,
1841, as also in that just received by the British minister in this
country made to Mr. Fox, his lordship declares that if in spite of
all the precaution which shall be used to prevent such occurrences an
American ship, by reason of any visit or detention by a British cruiser,
"should suffer loss and injury, it would be followed by prompt and ample
remuneration;" and in order to make more manifest her intentions in this
respect, Lord Aberdeen in the dispatch of the 20th December makes known
to Mr. Everett the nature of the instructions given to the British
cruisers. These are such as, if faithfully observed, would enable the
British Government to approximate the standard of a fair indemnity.
That Government has in several cases fulfilled her promises in this
particular by making adequate reparation for damage done to our
commerce. It seems obvious to remark that a right which is only to be
exercised under such restrictions and precautions and risk, in case of
any assignable damage to be followed by the consequences of a trespass,
can scarcely be considered anything more than a privilege asked for and
either conceded or withheld on the usual principles of international
comity.
The principles laid down in Lord Aberdeen's dispatches and the
assurances of indemnity therein held out, although the utmost reliance
was placed on the good faith of the British Government, were not
regarded by the Executive as a sufficient security against the abuses
which Lord Aberdeen admitted might arise in even the most cautious and
moderate exercise of their new maritime police, and therefore in my
message at the opening of the last session I set forth the views
entertained by the Executive on this subject, and substantially affirmed
both our inclination and ability to enforce our own laws, protect our
flag from abuse, and acquit ourselves of all our duties and obligations
on the high seas. In view of these assertions the treaty of Washington
was negotiated, and upon consultation with the British negotiator as to
the quantum of force necessary to be employed in order to attain these
objects, the result to which the most deliberate estimate led was
embodied in the eighth article of the treaty.
Such were my views at the time of negotiating that treaty, and such, in
my opinion, is its plain and fair interpretation. I regarded the eighth
article as removing all possible pretext on the ground of mere necessity
to visit and detain our ships upon the African coast because of any
alleged abuse of our flag by slave traders of other nations. We had
taken upon ourselves the burden of preventing any such abuse by
stipulating to furnish an armed force regarded by both the high
contracting parties as sufficient to accomplish that object.
Denying as we did and do all color of right to exercise any such general
police over the flags of independent nations, we did not demand of Great
Britain any formal renunciation of her pretension; still less had we the
idea of yielding anything ourselves in that respect. We chose to make
a practical settlement of the question. This we owed to what we had
already done upon this subject. The honor of the country called for it;
the honor of its flag demanded that it should not be used by others to
cover an iniquitous traffic. This Government, I am very sure, has both
the inclination and the ability to do this; and if need be it will not
content itself with a fleet of eighty guns, but sooner than any foreign
government shall exercise the province of executing its laws and
fulfilling its obligations, the highest of which is to protect its flag
alike from abuse or insult, it would, I doubt not, put in requisition
for that purpose its whole naval power. The purpose of this Government
is faithfully to fulfill the treaty on its part, and it will not permit
itself to doubt that Great Britain will comply with it on hers. In this
way peace will best be preserved and the most amicable relations
maintained between the two countries.