“P. S. Though it be sufficiently implied by the above words,
_all reasonable satisfaction, as far as his Majesty can with
honor_, that there are things which his Majesty could not
possibly on any account comply with, I have thought it may
not be improper, for your more certain guidance, expressly
to signify to you that any personal mark on a great Admiral
who has done so essential a service to his country, or on
any one under his command, is totally inadmissible, _as well
as the idea of restoring the ships of war taken_. You will
therefore, in case, in your conversation with the Portuguese
ministers, any suggestion pointing to either of those methods
of satisfaction should be thrown out, _take especial care to
say enough to shut the door entirely against any expectation
of that kind_,--being at the same time particularly attentive
to avoid, in the manner, everything that can carry the air of
peremptoriness or harshness which may interest the delicacy of
the King of Portugal. I am further to give you to understand,
for your private information, that, if the circumstances of
the supposed grievance should come out to be of sufficient
magnitude, such is the King’s strong desire to give the most
public and ostensible satisfaction to the King of Portugal,
that his Majesty will not, I believe, even be averse to sending
an extraordinary mission on this occasion.”[31]
The extraordinary embassy promised in this postscript was despatched
to Lisbon; and here we have another letter of Mr. Pitt, dated at
Whitehall, May 30, 1760, and marked “Most secret,” where he declares
anew “the King’s immutable and affectionate concern for the dignity
and independence of the crown of Portugal,” and enjoins upon his
ambassador to “forbear entering into much controversial reasoning,” and
to “accompany his answer with all possible gentleness and cordiality of
manner, and with the most conciliating and amicable expressions.” It
seems that the Portuguese minister had demanded the restitution of the
ships, but accompanied by “the friendly and confidential declaration
_that a compliance therewith was not expected_.” Mr. Pitt was anxious
to avoid any such demand, as “an invidious use would not fail to be
made of it by enemies, and perhaps by neutral powers.”[32] From the
Memoirs of Pombal we learn how the British ambassador acquitted himself.
“The King of England sent an ambassador extraordinary to
Lisbon to give the satisfaction which was demanded. It was
Lord Kinnoul who was charged with it, and who acquitted
himself of this commission as the Count de Oeyras [Marquis
of Pombal] required. This lord declared openly and in full
audience, composed of the foreign ministers, that the English
officers who burnt the French vessels on the coast of Lagos
were reprehensible, and that on this account the King, his
master, sent him to Lisbon, in order to testify that he had
no part in it, and that it was contrary to his orders that
they had committed that act of hostility for which he made
reparation.”[33]
_The ships were not restored_, nor was there any indemnity. But the
case did not end here. In 1762 France declared war against Portugal,
and in its declaration made the failure to obtain restoration of these
ships one of the causes of war. These are the words:--
“Every one knows the utmost and violent attack made by the
English in 1759 on some of the [French] King’s ships under
the cannon of the Portuguese forts at Lagos. His Majesty
demanded of the Most Faithful King to procure him restitution
of those ships; but that Prince’s ministers, in contempt of
what was due to the rules of justice, the laws of the sea,
the sovereignty and territory of their master (all which were
indecently violated by the most scandalous infraction of the
rights of sovereigns and of nations), in answer to the repeated
requisitions of the King’s ambassador on this head, made only
vague speeches, with an air of indifference that bordered on
derision.”[34]
Thus, while Great Britain was saved from the restitution of the ships,
Portugal was compelled to suffer.
* * * * *
Such are historic precedents furnished by Great Britain to illustrate
the case of the Florida. In face of this long array, it is difficult to
see how British critics or British ministers can venture to reproach us.
From this review it appears, that, where ships have been captured
in neutral waters, their restitution was at least on one occasion
positively refused by a British minister of commanding authority, while
on other occasions it was avoided from destruction of the ships. If
the American commander who undertook this business at Bahia had done
it completely, there would be little difficulty now. There were fire
and water both at his service. He might have burned the Florida or
scuttled her at once, and his offence would have been no greater than
now, while, according to the precedents, his Government would have been
relieved from embarrassment.
But there are peculiar circumstances which distinguish this instance
from every other. They may be mentioned under two heads: I shall only
allude to them.
_First._ The Florida was illegitimate and piratical in origin and
conduct, being little more than a lawless gypsy of the sea,--born
contrary to the Law of Nations, and living in constant defiance of that
law.
_Secondly._ The Florida pretended to belong to a Rebel combination
of slave-masters, now engaged in rebellion for the sake of Slavery.
Though certain foreign powers, including Brazil, have conceded to
this Rebel combination what are called “belligerent rights,” yet the
extent of this concession is undecided. Of course, it is much less
than a recognition of national independence. Every presumption must be
against such a Rebel combination, having such an object. The indecent
haste with which “belligerent rights” were originally conceded cannot
be forgotten now; nor can we neglect the well-founded argument, that,
in the absence of prize courts belonging to the pretended power, any
such concession _on the ocean_ was flagrantly unjust, and, when we
consider its wide-spread consequences, to be reprehended always by
our Government, as it must be by impartial history. Assuming that the
restitution of a ship belonging to an independent power, as to France
or England, might be properly required, it does not follow that such
restitution should be required in a case like the present, where the
pretended owner is not an independent power, and where the ship was
lawless in origin and conduct,--or, in other words, that Brazil should
expect the United States to restore the Florida, that it might be
handed over again to the support of a slaveholding Rebellion and to
burn more ships.
* * * * *
I call attention to these considerations without expressing any final
opinion. The case of Koszta, forcibly taken by an American frigate from
an Austrian ship-of-war in the territorial waters of Turkey, shows
how the conduct of governments is sometimes inconsistent with strict
law. An explanation and apology were promptly offered to Turkey, whose
neutrality had been violated; but this was all. There was no offer on
our part to surrender Koszta; nor was there any demand by Turkey for
his restitution. But the present case is stronger than that of Koszta.
It is well understood that the seizure of the Florida was wrong only
with respect to Brazil, and not with respect to the Rebel enemy. There
can be no demand, therefore, unless Brazil steps forward. Whatever is
done must be in her name and at her instance. The enlightened Emperor
of Brazil is of the royal house of Braganza, which reigned in Portugal
when her great minister, Pombal, forbore to press the restitution of
ships captured by the British in Portuguese waters. Here is a precedent
of his own family, completely applicable. I venture to add that he
would do an inconsiderate and unfriendly act, if he should press the
restitution of a ship obnoxious not only as a public enemy, but as the
piratical agent of a wicked Rebellion. Even admitting that the capture
was null by the Law of Nations, yet the nature of the reparation to
be demanded rests absolutely in the discretion of Brazil, and in this
age no power can be justified in any exercise of discretion adverse to
human freedom.