The recent correspondence between Mr. Seward and the Brazilian Chargé
d’Affaires at Washington seems to bring the case of the Florida to
a close. Our Government has distinctly recognized the inviolability
of territorial sovereignty, and made reparation for the original act
of violence, so much discussed. The vessel itself, out of which the
question arose, was no longer in existence; so that the only important
point not already settled by principle and precedent was eliminated
from the case. There was no vessel to be claimed on the one side or
refused on the other, and nothing was said of damages on account of its
loss. Of course, had the Florida belonged to Brazil, any reparation
would have been incomplete which did not embrace the vessel or its
value.
But Mr. Seward has been careful to exclude the assumption that the
Rebels have belligerent rights on the ocean, and also the other
assumption that the Florida was anything but a pirate. It is clear
that the position taken on these two points must have influenced any
decision with regard to the vessel itself, or damages on account of its
loss.
As the case is now settled, it is unnecessary to consider objections
adduced against the view presented by me in the “Advertiser” some weeks
ago. What is now certain was then uncertain. The Government has spoken,
and the country accepts the result. But it may not be unprofitable to
return for one moment to the original discussion.
My object at that time was to furnish materials for final judgment,
and especially to repel British objurgations which befogged the
whole question. It was important that our national conduct should be
determined calmly, according to the best principles, and with perfect
knowledge of the past. But it is difficult to deal with this or any
kindred question without repairing to British history. There are
precedents to be shunned as well as to be followed, and both should
be studied. It is strange that such an attempt should have been
misunderstood. Perhaps it is stranger still that anybody should have
insisted on our humble submission to the most opprobrious epithets,
without reminding the objurgators of the history of their own country,
bristling with incidents _having in them all that was indefensible in
the Florida case without any of its exceptional circumstances_. A Roman
poet exclaims:--
“Quis tulerit Gracchos de seditione querentes?”[35]
And another authority, which will not be questioned, expressly enjoins
on the censor to extract the beam from his own eye before he complains
of the mote in the eye of another.
In the excess of dissent from what I said, it was even suggested that
the vessel should be surrendered to Brazil,--of course as trustee
of Rebel Slavery. But this was a very hasty suggestion, forgetting
the piratical origin of the vessel, and forgetting the piratical
slavemonger character of its pretended owners, having no _ocean_
rights. Admitting the inviolability of neutral waters, it does not
follow that such a vessel could be claimed, or, if Brazil were so
ill-advised as to make such a claim, that our Government could
hearken to it. It was because I saw this clearly that I sought to set
up a breakwater against such claim, and to prepare public opinion on
the subject. It is noble in a nation to acknowledge wrong; but it is
weakness to sacrifice a great cause.
The Statute of Limitations has been set up against some of the historic
instances adduced, and the very recent date of the Congress of Paris,
at the close of the Crimean War in 1856, is declared to fix the line
of demarcation, marking an altered policy in Great Britain. As a
lover of peace and a student of International Law, anxious for its
advancement,--yielding to nobody in this regard,--I wish that such an
alteration could be shown. Joyfully should I welcome it, as one of
the signs of a new order of ages. Unhappily, it cannot be shown, and
I feel sure that it can be brought about only by a frank exhibition
of transactions demonstrating its necessity. Truth is illustrated by
error, health is maintained by knowledge of disease, and crime itself
is made repulsive by bringing its perpetrators to judgment.
It is an old adage of the law, that no statute of limitations runs
against the sovereign,--_Nullum tempus occurrit regi_. This, of course,
is for the protection of his interests. But, assuming that such a
statute may be pleaded against British responsibility for historic
precedents more than eight years old, there is no question with regard
to what has occurred since. Here the responsibility is admitted. Now,
confining ourselves to the brief period since the Crimean Peace,
there are instances identical in character with those which occurred
previously; and these are the more remarkable as Great Britain had not
the apology of war to disturb her equanimity.
A well-informed person, writing from Berlin, furnishes the following
instance, which occurred as late as 1860. “Two British men-of-war took,
or at least threatened to take, the Paraguayan war-steamer Tacuaril,
in the port of Buenos Ayres. They laid themselves on each side of
the Paraguayan war-steamer, in order to enforce a claim which proved
afterwards to be fallacious.” The writer adds, that “this case, if
looked into closely, will probably serve as a counter argument, should
England have anything to say on the Florida-Bahia affair.” True enough;
and such is the recent judgment of a German publicist.
There is also that other historic instance which has among its
incidents the suspension of diplomatic relations between Brazil
and Great Britain. It began with a demand by the latter power for
reparation on account of a vessel pillaged after shipwreck on the coast
of Brazil, in June, 1861. This was complicated soon after by a quarrel
between certain officers of a British frigate in the harbor of Rio
Janeiro and a sentry on shore, which ended in taking the officers into
custody. The British minister demanded reparation for these two alleged
wrongs; and the British admiral, who was at hand, seized five Brazilian
merchant-vessels in the harbor of Rio Janeiro, declaring that he would
not release them until £6,500 had been paid on account of the pillaged
vessel, and satisfaction afforded for the detention of the officers.
Thus, in time of peace, without any declaration of war, the British
admiral performed an act of war, like that in the case of the Florida,
but without the apology of the captors of the latter vessel. In short,
he undertook, within the territorial jurisdiction of Brazil, to seize,
not one vessel, but five vessels,--and all these innocent, neither
piratical in origin nor belonging to people without _ocean_ rights.
Brazil, succumbing to superior force, paid the money demanded, and
referred the question of reparation in the case of the officers to the
arbitration of King Leopold of Belgium, who has since rendered judgment
for the weaker power. The question of responsibility for the five
innocent vessels seized within the territorial jurisdiction of Brazil
was left unsettled. The mild and accomplished minister of Brazil in
London, M. Carvalho Moreira, made a reclamation on this account, in a
careful note, dated May 5, 1863, where he submitted, that “the English
Government should express its regret at the acts which accompanied the
reprisals, and declare that it had no intention to offend the dignity
or to violate the territorial sovereignty of the empire,” and that
it should consent to refer the question of damages to arbitration.
Earl Russell declining to reopen any part of the questions between
the two Governments, or to enter into any explanations, the Brazilian
minister at once demanded his passports and left London. This case
will be found at length in an authentic publication, which has only
recently appeared.[36] I leave it, simply quoting from the work these
pertinent words: “The question was with regard to the reparation and
compensation which Brazil demanded from England for the seizure of her
merchant-vessels and for the violation of her territorial waters.… It
was, unhappily, easy to foresee the issue of this question,--England
being always more disposed to demand reparation and indemnities than to
accord them.”[37] Such is the recent judgment of a French publicist.
There is another case, which has not yet found its way into the books,
nor did it occur after the Crimean War; but it is so very recent,
and so curious, that I venture to adduce it. I am indebted for it to
the Hon. John B. Alley, one of our Representatives in Congress, to
whom it was communicated by one of his constituents.[38] The bark
Home, of Boston, was on her way from Calcutta to Boston, when, on
or about August 22, 1849, she fell in with a vessel, first supposed
to be a pirate, but at last proved to be the Polka, prize to the
British steamer Sharpshooter, with the crew in a starving condition.
The prize-master, on coming aboard, said that the prize was taken
in Port Macahé, near Cape Frio, in Brazil, for being engaged in the
slave-trade; that, to escape the fire of the fort, which opened on
the captors, they slipped the cable, and cut adrift the boat which
was made fast astern; that at the time of the capture there was no
person aboard, except a single negro; and that a midshipman with ten
men was put aboard to take her to St. Helena. The famished crew were
supplied by the American bark with bread, beef, water, and other small
stores, for which the British Government paid, in 1852, the cost price,
being all that was asked. On this case the master of the bark, in his
communication to Mr. Alley, remarks: “This is another instance where
a vessel was taken in a port by the British, and this in a time of
profound peace; and as the fort fired on them, I presume the capture
was not made by consent of the Brazilian Government.” Such is the mild
conclusion of an American shipmaster, who seems to see the conduct
of Great Britain in the same light as it is seen by the publicist of
Germany and the publicist of France.
Such instances, so recent, show how little the injunction of
International Law has been regarded by Great Britain, whether before
or after the Crimean War; and yet British censors have not hesitated
to arraign the United States in brutal terms. I do not admit their
competency to sit in judgment on us; I plead to the jurisdiction. If
they would teach correct principles, they must begin by a correct
example. Meanwhile the abuses for which Great Britain is responsible
cannot be forgotten by those who sincerely desire a new era in
International Law. I say this in no spirit of reproach or controversy,
but simply to serve the cause of my country and of truth.