MR. PRESIDENT,--Every principle of International Law, when justly and
authoritatively settled, is a safeguard of peace and a landmark of
civilization. It constitutes part of that code which is the supreme
law, above all municipal laws, binding the whole Commonwealth of
Nations. Such a settlement may be by a general Congress of Nations,
as at Munster, Vienna, or Paris; or it may be through the general
accord of treaties; or it may be by a precedent established under such
conspicuous circumstances, with all nations as assenting witnesses,
that it becomes at once a commanding rule of international conduct.
Especially is this the case, if disturbing pretensions, long maintained
to the detriment of civilization, are practically renounced. Without
congress or treaty, such a precedent is now established.
Surely it ought to be considered and understood in its true character.
Undertaking to explain it, I shall speak for myself alone; but I shall
speak frankly, according to the wise freedom of public debate, and the
plain teachings of history on the question involved, trusting sincerely
that what I utter may contribute something to elevate the honest
patriotism of the country, and perhaps to secure that tranquil judgment
under which this precedent will be the herald, if not the guardian, of
international harmony.
* * * * *
Two old men and two younger associates, recently taken from the British
mail packet Trent, on the high seas, by order of Captain Wilkes of the
United States Navy, and afterwards detained in custody at Fort Warren,
are liberated and placed at the disposition of the British Government.
This is at the instance of that Government, made on the assumption that
the original capture was an act of violence constituting an affront
to the British flag, and a violation of International Law. This is a
simple outline of the facts. To appreciate the value of the precedent,
other matters must be brought into view.
These two old men were citizens of the United States, and for many
years Senators. Arrogant, audacious, persistent, perfidious,--one was
author of the Fugitive Slave Bill, and the other was chief author of
the filibustering system which has disgraced our national name and
disturbed our national peace. Occupying places of trust and power
in the service of the country, they conspired against it, and at
last the secret traitors and conspirators became open rebels. The
present Rebellion, surpassing in proportions and in wickedness any
rebellion in history, was from the beginning quickened and promoted
by their untiring energies. That country to which they owed love,
honor, and obedience, they betrayed and gave over to violence and
outrage. Treason, conspiracy, and rebellion, each in succession, acted
through them. The incalculable expenditures now tasking the national
resources,--the untold derangement of affairs, not only at home,
but abroad,--the levy of armies without example,--the devastation
of extended spaces of territory,--the plunder of peaceful ships on
the ocean, and the slaughter of fellow-citizens on the murderous
battle-field,--such are some of the consequences proceeding directly
from them.
To carry forward still further the gigantic crime of which they were
so large a part, these two old men, with their two younger associates,
stole from Charleston on board a Rebel steamer, and, under cover of
darkness and storm, running the surrounding blockade and avoiding the
national cruisers, succeeded in reaching the neutral island of Cuba,
where, with open display and the knowledge of the British consul, they
embarked on board the British mail packet Trent, bound for St. Thomas,
whence they were to embark for England, in which kingdom one of them
was to play the part of Ambassador of the Rebellion, while the other
was to play the same part in France. The original treason, conspiracy,
and rebellion, of which they were so heinously guilty, were all
continued on this voyage, which became a prolongation of the original
crime, destined to still further excess through their ambassadorial
pretensions, which it was hoped would array two great nations against
the United States, and enlist them openly in support of an accursed
Slaveholding Rebellion. While on their way, the pretended ambassadors
were arrested by Captain Wilkes, of the United States steamer San
Jacinto, an accomplished officer, already well known by scientific
explorations, who on this occasion acted without instructions from his
Government. If in this arrest he forgot for a moment the fixed policy
of the Republic, which has been from the beginning like a frontlet
between the eyes, and transcended the Law of Nations, as the United
States have always declared it, his apology will be found in the
patriotic impulse by which he was inspired, and the British examples he
could not forget. They were the enemies of his country, embodying in
themselves the triple essence of worst enmity,--treason, conspiracy,
and rebellion; and they bore a professed ambassadorial character,
which, as he supposed, according to high British authority, rendered
them liable to be stopped, while, as American citizens, they were
liable to seizure by the National Government in strict conformity with
long continued British practice. If, in the ardor of an honest nature,
Captain Wilkes erred, he might well say,--
“Who can be wise, amazed, temperate and furious,
Loyal and neutral, in a moment? No man.
The expedition of my violent love
Outran the pauser reason.…
… Who could refrain,
That had a heart to love, and in that heart
Courage to make his love known?”
If this transaction be regarded exclusively in the light of British
precedents, if we follow the seeming authority of the British
Admiralty, speaking by its greatest voice, and especially if we accept
the oft repeated example of British cruisers, upheld by the British
Government against the oft repeated protests of the United States, we
find little difficulty in vindicating it. The act becomes questionable
only when brought to the touchstone of those liberal principles which
from the earliest times the American Government has openly avowed
and sought to advance, and other European nations have accepted with
regard to the sea. Great Britain cannot complain, except by adopting
those identical principles; and should we undertake to vindicate the
act, it can be only by repudiating those identical principles. Our two
cases will be reversed. In the struggle between Laertes and Hamlet,
the combatants exchanged rapiers, so that Hamlet was armed with the
rapier of Laertes, and Laertes with the rapier of Hamlet. And now,
on this sensitive question, a similar exchange occurs. Great Britain
is armed with American principles, while to us are left only those
British pretensions which throughout our history have been constantly,
deliberately, and solemnly rejected.
Earl Russell, in his despatch to Lord Lyons, communicated to Mr.
Seward, contents himself by saying that “it appears that certain
individuals have been forcibly taken from on board a British vessel,
the ship of a neutral power, _while such vessel was pursuing a lawful
and innocent voyage_,--an act of violence which was an affront to
the British flag, and a violation of International Law.”[33] Here is
positive assertion that the ship, notoriously having on board the Rebel
emissaries, was pursuing a lawful and innocent voyage; but there is no
specification of the precise ground on which the act is regarded as a
violation of International Law. Of course, it is not an affront; for an
accident can never be an affront to an individual or to a nation.
But public report, authenticated by various authorities, English and
Continental, forbids us to continue ignorant of the precise ground on
which this act is presented as a violation of International Law. It
is admitted that a United States man-of-war, meeting a British mail
steamer beyond the territorial limits of Great Britain, may subject
her to visitation and search; also that such man-of-war might put a
prize crew on board the British steamer, and take her to a port of
the United States for adjudication by a Prize Court there; but it
is alleged that she would have no right to remove the individuals,
not apparently officers in the military or naval service, and carry
them off as prisoners, leaving the ship to pursue her voyage.[34]
Under the circumstances, in the exercise of a belligerent right, the
British steamer, with all on board, might have been captured and
carried off; but, according to the British law officers, on whose
professional opinion the British Cabinet acted, the whole proceeding
was vitiated by failure to take the packet into port for condemnation.
This failure is the occasion of much unprofessional objurgation; and
we are emphatically and constantly reminded that the custody of the
individuals in question could not be determined by a navy officer on
his quarter-deck, so as to supersede the adjudication of a Prize Court.
This is confidently stated by an English writer, assuming to put the
case for his Government, as follows.
“It is not to the right of search that we object, _but to the
following seizure without process of law_. What we deny is _the
right of a naval officer to stand in place of a Prize Court_,
and adjudicate, sword in hand, with a _sic volo, sic jubeo_, on
the very deck which is a part of our territory.”[35]
The same authority flourishes the same objection again.
“If Captain Wilkes and his irresponsible supporters imagine
that we shall submit to the _arbitrary, semi-barbarous
practice_, they will in a few days be undeceived; for our
Government has instructed Lord Lyons to demand reparation for
so wanton a breach of friendly relations.”[36]
Such declarations in an important journal, and in precise harmony
with the opinions of the British law officers, seem semi-official in
character.
Thus it appears that the present complaint of the British Government
is not founded on any assumption by the American war steamer of the
belligerent right of search,--nor on the ground that this right was
exercised on a neutral vessel between two neutral ports,--nor that
it was exercised on a mail steamer, sustained by subvention from the
Crown, and officered in part from the royal navy,--nor that it was
exercised in a case where the penalties of contraband could not attach;
but it is founded simply and precisely on the idea that persons other
than apparent officers in the military or naval service cannot be taken
out of a neutral ship at the mere will of the officer exercising the
right of search, and without any form of trial. Therefore the Law of
Nations has been violated, and the conduct of Captain Wilkes must be
disavowed, while men who are traitors, conspirators, and rebels, all in
one, are allowed to go free.
Surely, that criminals, though dyed in guilt, should go free, is better
than that the Law of Nations should be violated, especially in any rule
by which war is restricted and the mood of peace is enlarged; for the
Law of Nations cannot be violated without overturning the protection of
the innocent as well as the guilty. On this general principle there
can be no question. It is but an illustration of that important maxim,
recorded in the Latin of Fortescue, “Better that twenty guilty should
escape than one innocent man should suffer,”[37] with this difference,
that in the present case four guilty ones escape, while the innocent
everywhere on the sea obtain new security. And this security becomes
more valuable as a triumph of civilization, when it is considered that
it was long refused, even at the cannon’s mouth.
Remember, Sir, that the question in this controversy is _strictly a
question of law_,--precisely like a question of trespass between two
neighbors. The British Cabinet began proceedings by taking the opinion
of their law advisers, precisely as an individual begins proceedings
in a suit at law by taking the opinion of his attorney. To make such a
question _a case of war_, or to suggest that war is a proper mode of
deciding it, is simply to revive, on a gigantic scale, the exploded
Ordeal by Battle, and to imitate those dark ages when such proceeding
was openly declared to be the best and most honorable mode of deciding
even an abstract point of law. “It was a matter of doubt and dispute,”
says a mediæval historian, “whether the sons of a son ought to be
reckoned among the children of the family, and succeed equally with
their uncles, if their father happened to die while their grandfather
was alive. An assembly was called to deliberate on this point, and it
was the general opinion that it ought to be remitted to the examination
and decision of judges. But the Emperor, following a better course, and
desirous of dealing honorably with his people and nobles, appointed
the matter to be decided by battle between two champions.”[38] In
similar spirit has it been latterly proposed, amidst the amazement of
the civilized world, to withdraw the point of law, now raised by Great
Britain, from peaceful adjudication, and submit it to Trial by Combat.
The irrational anachronism becomes more flagrant from the inconsistency
of the party making it; for it cannot be forgotten, that, in times
past, _on this identical point of law_, Great Britain persistently
held an opposite ground from that she now takes. Hereafter, in a
happier moment, this exacting power may regret the swiftness with which
she undertook to gird herself for unnatural combat, on a mere point
of law, with a friendly nation already struggling against domestic
enemies,--especially as impartial history must record that her heavy
sword was to be thrown into the scale of Slavery.
* * * * *
The British complaint seems narrowed to a single point, although there
are yet other points, on which, had the ship been carried into port for
adjudication, controversy must have arisen. The four following have
been presented in the case.
1. That the seizure of the Rebel emissaries, without taking the ship
into port, was wrong, _inasmuch as a navy officer is not entitled to
substitute himself for a judicial tribunal_.
2. That, had the ship been carried into port, it would not have been
liable on account of the Rebel emissaries, inasmuch as neutral ships
are free to carry all persons not apparently in the military or naval
service of the enemy.
3. Are despatches contraband of war, so as to render the ship liable to
seizure?
4. Are neutral ships, carrying despatches, liable to be stopped between
two neutral ports?
These I shall consider in their order, giving special attention to
the first, which is the pivot of the British complaint. If, in this
discussion, I expose grievances which it were better to forget, be
assured it is from no willingness to revive the buried animosities they
once so justly aroused, but simply to exhibit the proud position which
the United States early and constantly maintained.
* * * * *
A question of International Law should not be presented on any mere
_argumentum ad hominem_. It would be of little value to show that
Captain Wilkes was sustained by British authority and practice, if
he were condemned by International Law as interpreted by his own
country. It belongs to us now, nay, let it be our pride, at any cost
of individual prepossession or transitory prejudice, to uphold that
law in all its force, as it was often declared by the best men in our
history, and illustrated by national acts; and let us seize the present
occasion to consecrate its positive and unequivocal recognition. In
exchange for the prisoners set free, we receive from Great Britain a
practical assent, too long deferred, to a principle early propounded
by our country, and standing forth on every page of our history. The
same voice that asks for their liberation renounces in the same breath
an odious pretension, for whole generations the scourge of peaceful
commerce.
Great Britain, throughout her municipal history, has practically
contributed to the establishment of freedom beyond all other nations.
There are at least seven institutions or principles which she has
given to civilization: first, the trial by jury; secondly, the writ of
_Habeas Corpus_; thirdly, the freedom of the press; fourthly, bills
of rights; fifthly, the representative system; sixthly, the rules and
orders of debate, constituting Parliamentary Law; and, seventhly,
the principle that the air is too pure for a slave to breathe,--long
ago declared, and first made a conspicuous reality, by British law.
No other nation can show such peaceful triumphs. But, while thus
entitled to gratitude for glorious contributions to Municipal Law, we
turn with dissent and sorrow from much which she has sought to fasten
upon International Law. In municipal questions, Great Britain drew
inspiration from her own native Common Law, instinct with freedom; but,
especially in maritime questions arising under the Law of Nations, this
power seems to have acted on that obnoxious principle of the Roman Law,
positively discarded in municipal questions, _Quod principi placuit
legis vigorem habet_, and too often, under this inspiration, imposed
upon weaker nations her own arbitrary will. A prerogative of the
English monarch, mentioned in very express and pompous terms by early
writers, was “the Custody of the Sea,” and he is frequently styled “The
Sovereign Lord and Proprietor of the Sea.” But beyond these titles,
the time has been when she pretended to actual sovereignty over the
seas surrounding the British Isles, as far as Cape Finisterre to the
south, and Vanstaten in Norway to the north. Driven from this lordly
pretension, other pretensions, less local, but hardly less offensive,
were avowed. The boast of “Britannia rules the waves” was practically
adopted by British Prize Courts, and universal maritime rights were
subjected to the special exigencies of British interests. In the
consciousness of strength, and with an irresistible navy, this power
has put chains upon the sea.
The commerce of the United States, as it began to whiten the ocean, was
cruelly decimated. American ships and cargoes, while, in the language
of Earl Russell, “pursuing a lawful and innocent voyage,” suffered from
British Prize Courts more than from rock or tempest. Shipwreck was less
frequent than confiscation, and, when it came, was easier to bear.
But the loss of property stung less than the outrage of impressment,
by which foreigners, under protection of the American flag, and also
American citizens, without any form of trial, and at the mere mandate
of a navy officer, who for the moment acted as a judicial tribunal,
were dragged from the deck which should have been to them a sacred
altar. This outrage, insolently vindicated by the municipal claim of
Great Britain to the services of her subjects, was enforced arrogantly
and perpetually on the high seas, where Municipal Law is silent and
International Law alone prevails. The belligerent right of search,
derived from International Law, and justly applicable to enemy property
or contraband only, and not to men, was employed for this purpose,
and the quarter-deck of every English cruiser became a floating
judgment-seat. The leading organ of opinion in England, on the morning
after the news that the Rebels had been taken from a British ship, thus
confessed the precedents of British history:--
“Unwelcome as the truth may be, it is nevertheless a truth,
that we have ourselves established a system of International
Law which now tells against us. In high-handed and almost
despotic manner, we have, in former days, claimed privileges
over neutrals which have at different times banded all the
maritime powers of the world against us. _We have insisted even
upon stopping the ships of war of neutral nations and taking
British subjects out of them._”[39]
The practice began early and was continued constantly; nor did it
discriminate among its victims. It is mentioned by Mr. Jefferson,
and repeated by an excellent British writer on International Law,
that two nephews of Washington, on their way home from Europe,
were ravished from the protection of the American flag, without
any judicial proceedings, and placed, as common seamen, under the
ordinary discipline of British ships of war.[40] The victims were
counted by thousands. Lord Castlereagh himself admitted, on the floor
of the House of Commons, that an inquiry instituted by the British
Government had discovered in the British fleet three thousand five
hundred men claiming to be impressed Americans,--claiming only. But
while unwilling to accept this large number as all Americans, his
Lordship could not deny, “that, in the great extent of the British
navy, there were sixteen or seventeen hundred individuals who were
there contrary to the wishes of His Majesty’s Government, and who had
some rational ground for demanding their liberation, on the ground
of their being subjects of the United States,”--which, I take it, is
a pleonastic circumlocution to denote that at least sixteen hundred
American citizens were originally kidnapped and stolen from American
ships on the high seas, to undergo the servitude of the British
navy: all of which can be read in the Parliamentary Debates.[41] At
our Department of State upwards of six thousand cases were recorded,
and it was estimated that at least as many more might have occurred,
of which no information had been received.[42] Thus, according to
official admission of the British minister, there was reason to
believe that the quarter-deck of a British man-of-war had been made
a floating judgment-seat three thousand five hundred times, while,
according to the records of our own State Department, it had been made
a floating judgment-seat six thousand times and upwards, and each time
some citizen or other person was taken from the protection of the
national flag without any form of trial whatever. If a pretension so
intrinsically lawless could be sanctioned by precedent, Great Britain
would have succeeded in interpolating it into the Law of Nations.
The numbers sacrificed have been often denied on the other side;
but candid Englishmen have made admissions which are on record. The
“Edinburgh Review,” at a moment when its authority was at its height,
and truth prevailed above controversy, said:--
“The two lists made out in 1801 and 1812 of impressed Americans
can be but a small part of the American case against us. From
that fraction of their case we may, however, form some opinion
on the extent to which freemen, who would be a scandal to their
English ancestry, unless liberty was as dear as life, must have
writhed under our practice of impressment. Prior to September,
1801, 1,132 native American sailors were set at liberty by
the English Government, as having been wrongfully impressed.
On the war with America in 1812, another division of 1,422
native Americans, every one of them having been so taken, were
transferred out of our men-of-war into our prisons. This is
proved from English documents. Here are nearly two thousand six
hundred sufferers, victims of a greater outrage than one free
nation ever assumed the privilege of inflicting on another,--an
outrage which no nation deserving the name of a nation, and
solemnly bound to protect its meanest members, can be expected
patiently to endure.”[43]
Such words by one of us might be treated as the exaltation of patriotic
indignation. Here, it is history written by the other side.
Even assuming, that, according to frequent British allegation, the
persons taken were British subjects and not American citizens, which
would make the act identical with that of Captain Wilkes, this only
presents in stronger relief the precise point now in issue. Whether the
victims were American citizens or British subjects, there was in each
case the same forcible entry of our ships and taking from our decks.
Protest, argument, negotiation, correspondence, and war
itself--unhappily the last reason of republics, as of kings--were all
employed by the United States in vain to procure renunciation of the
intolerable pretension. The ablest papers in our diplomatic history
are devoted to this purpose; and the only serious war in which we have
been engaged, until summoned to subdue the Rebellion, was to overcome
by arms this very tyranny, which would not yield to reason. Beginning
in the last century, the correspondence is at length closed by the
recent reply of Mr. Seward to Lord Lyons. The long continued occasion
of conflict is now happily removed, and the pretension disappears
forever,--to take its place among the barbaric curiosities of the past.
But I do not content myself with asserting the persistent opposition
of the American Government. It belongs to the argument that I should
exhibit this opposition, and the precise ground on which it was
placed,--being identical with that now adopted by Great Britain. Here
the testimony is complete. If you will kindly follow me, you shall see
it from the beginning in the public life of our country, and in the
authentic records of the National Government.
This British pretension aroused and startled the administration of
Washington, and the pen of Mr. Jefferson, his Secretary of State,
was enlisted against it. In a letter to Thomas Pinckney, Minister at
London, dated June 11, 1792, he announced the American doctrine.
“The simplest rule will be, that the vessel being American
shall be evidence that the seamen on board her are such.”[44]
In another letter to the same minister, dated October 12, 1792, he
calls attention to a case of special outrage.
“I enclose you a copy of a letter from Messrs. Blow and
Melhaddo, merchants of Virginia, _complaining of the taking
away of their sailors_ on the coast of Africa by the commander
of a British armed vessel. So many instances of this kind have
happened, that it is quite necessary that their Government
should explain themselves on the subject, and be led to disavow
and punish such conduct.”[45]
At a later day, also under the administration of Washington, Mr.
Pickering, at that time Secretary of State, in a letter to Rufus King,
Minister at London, dated June 8, 1796, after repeating the rule
proposed by Mr. Jefferson, says:--
“But it will be an important point gained, _if, on the high
seas, our flag can protect those, of whatever nation, who shall
sail under it_. And for this humanity, as well as interest,
powerfully pleads.”[46]
The same pretension was put forth under the administration of John
Adams, and was again encountered. Mr. Marshall, afterwards the
venerated Chief Justice of the United States, and at the time Secretary
of State, in his instructions to Rufus King, at London, dated September
20, 1800, says:--
“The impressment of our seamen is an injury of very serious
magnitude, which deeply affects the feelings and the honor of
the nation.… Alien seamen, not British subjects, engaged in our
merchant service, ought to be equally exempt with citizens.…
Britain has no pretext of right to their persons or to their
service. _To tear them, then, from our possession is at the
same time an insult and an injury._ It is an act of violence
for which there exists no palliative.”[47]
The same pretension showed itself constantly under the administration
of Mr. Jefferson. Throughout the eight years of his Presidency, the
repeated outrages of British cruisers never for a moment allowed it
to be forgotten. Mr. Madison, during this full period, was Secretary
of State, and none of the varied productions of his pen are more
masterly than those in which he exposed this tyranny. In the course
of the discussion he showed the special hardship found in the fact
that sailors were taken from the ship at the mere will of an officer,
without any form of judicial proceedings, and thus early presented
against the pretension of Great Britain the precise objection now
adopted by her. Here are his emphatic words, in the celebrated
instructions to Mr. Monroe, our Minister at London, dated January 5,
1804:--
“Taking reason and justice for the tests of this practice,
_it is peculiarly indefensible, because it deprives the
dearest rights of persons of a regular trial_, to which the
most inconsiderable article of property captured on the high
seas is entitled, and _leaves their destiny_ to the will of
an officer, sometimes cruel, often ignorant, and generally
interested, by his want of mariners, in his own decisions.
Whenever property found in a neutral vessel is supposed to be
liable, on any grounds, to capture and condemnation, the rule
in all cases is, that the question shall not be decided by the
captor, but be carried before a legal tribunal, where a regular
trial may be had, and where the captor himself is liable to
damages for an abuse of his power. Can it be reasonable, then,
or just, that a belligerent commander, who is thus restricted
and thus responsible in a case of mere property of trivial
amount, should be permitted, _without recurring to any tribunal
whatever, to examine the crew of a neutral vessel, to decide
the important question of their respective allegiances_, and
to carry that decision into instant execution, by forcing
every individual he may choose into a service abhorrent to his
feelings, cutting him off from his most tender connections,
exposing his mind and his person to the most humiliating
discipline, and his life itself to the greatest dangers?
Reason, justice, and humanity unite in protesting against so
extravagant a proceeding.”[48]
Negotiations on this principle, thus distinctly enunciated, were
intrusted at London to James Monroe, afterwards President of the United
States, and William Pinkney, the most accomplished master of Prize Law
our country has produced. But they were unsuccessful. Great Britain
persisted. In reply to a proposal of the British commissioners, as
reported in a joint letter to Mr. Madison, dated at London, September
11, 1806, the plenipotentiaries declared,--
“That it was impossible that we should acknowledge, in favor
of any foreign power, _the claim to such jurisdiction on
board our vessels_ found upon the main ocean _as this sort
of impressment implied_,--a claim as plainly inadmissible in
its principle, and derogatory from the unquestionable rights
of our sovereignty, as it was vexatious in its practical
consequences.”[49]
In another joint letter, dated at London, November 11, 1806, the same
plenipotentiaries say:--
“The right [of the crew to protection under the flag] was
denied by the British commissioners, _who asserted that of
their Government to seize its subjects on board neutral
merchant vessels on the high seas_, and who also urged that
the relinquishment of it at this time would go far to the
overthrow of their naval power, on which the safety of the
state essentially depended.”[50]
Again, in letter dated at London, April 22, 1807, Messrs. Monroe and
Pinkney say of the British commissioners:--
“They stated that the prejudice of the navy, and of the country
generally, was so strong _in favor of their pretension_, that
the ministry could not encounter it in a direct form, and
that, in truth, the support of Parliament could not have been
relied on in such a case.”[51]
The British commissioners were two excellent persons,--Lord Holland
and Lord Auckland; but, though friendly to the United States in their
declarations, and Liberals in politics, they were powerless.
At home the question continued to be discussed by able writers. Among
those whose opinions were of the highest authority was the former
President, John Adams, who, from his retirement at Quincy, sent forth
a pamphlet, dated January 9, 1809, in which the British pretension was
touched to the quick, and again was presented the precise objection now
urged by Great Britain against the seizure of the two Rebels. Depicting
the scene, when one of our ships is boarded by a British cruiser, he
says:--
“The lieutenant is to be the judge, … the midshipman is to be
clerk, and the boatswain sheriff or marshal.… It is impossible
to figure to ourselves in imagination this solemn tribunal and
venerable judge without smiling, till the humiliation of our
country comes into our thoughts and interrupts the sense of
ridicule by the tears of grief or vengeance.”[52]
At last all redress through negotiation was found impossible; and this
pretension, aggravated into multitudinous tyranny, was openly announced
to be one of the principal reasons for the declaration of war against
Great Britain in 1812. In his message to Congress, dated June 1 of that
year, Mr. Madison, who was now President, thus exposed its offensive
character; and his words, directed against a persistent practice,
are now echoed by Great Britain in the single instance which has
accidentally occurred on our side.
“Could the seizure of British subjects in such cases be
regarded as within the exercise of a belligerent right, the
acknowledged laws of war, which forbid an article of captured
property to be adjudged without a regular investigation before
a competent tribunal, _would imperiously demand the fairest
trial where the sacred rights of persons were at issue. In
place of such a trial, these rights are subjected to the will
of every petty commander._”[53]
While the war was waging, the subject was still discussed. Mr. Grundy,
of Tennessee, in the House of Representatives, in a report from the
Committee on Foreign Affairs, said:--
“A subaltern or any other officer of the British navy ought not
to be arbiter in such a case. The liberty and lives of American
citizens ought not to depend on the will of such a party.”[54]
Such was the American ground, occupied from the beginning without
interruption, and from the beginning most persistently contested by
Great Britain.
The British pretension was unhesitatingly proclaimed in the Declaration
of the Prince Regent, afterwards George the Fourth, given at the palace
of Westminster, January 9, 1813.
“The President of the United States has, it is true, since
proposed to Great Britain an armistice: not, however, on
the admission that the cause of war hitherto relied on was
removed, but on condition that Great Britain, as a preliminary
step, should do away a cause of war now brought forward _as
such_ for the first time,--namely, _that she should abandon
the exercise of her_ UNDOUBTED RIGHT _of search to take from
American merchant vessels British seamen, the natural-born
subjects of His Majesty_.…
“His Royal Highness can never admit, that, in the exercise of
_the_ UNDOUBTED _and hitherto undisputed right of searching
neutral merchant vessels in time of war, the impressment
of British seamen_, when found therein, _can be deemed any
violation of a neutral flag_. Neither can he admit that
the taking such seamen from on board such vessels _can be
considered by any neutral state as a hostile measure or a
justifiable cause of war_.”[55]
In the semi-official counter statement presented by Alexander J.
Dallas, at the time Secretary of the Treasury, entitled “Exposition
of the Causes and Character of the late War,” this pretension is thus
described:--
“But the British claim, expanding with singular elasticity, was
soon found to include _a right to enter American vessels on
the high seas_, in order to search for and seize all British
seamen; it next embraced the case of every British subject; and
finally, in its practical enforcement, it has been extended to
every mariner who could not prove upon the spot that he was a
citizen of the United States.”[56]
The war was closed by the Treaty at Ghent; but, perversely, the British
pretension was not renounced. Other negotiations, in 1818 under
President Monroe, in 1823 also under Monroe, and again in 1827 under
John Quincy Adams, expressly to procure its renunciation, were all
unavailing. Of these various negotiations I forbear all details; but
the language of Mr. Rush, our Minister at London, who pressed this
question assiduously for several years, beginning with 1818, should not
be omitted. The case was never stated more strongly.
“Let the steps by which the enforcement proceeds be attended
to. A British frigate, in time of war, meets an American
merchant vessel at sea, boards her, and, under terror of her
guns, takes out one of the crew. The boarding lieutenant
asserts, and, let it be admitted, believes, the man to be a
Briton. By this proceeding the rules observed in deciding upon
any other fact, where individual or national rights are at
stake, are overlooked. _The lieutenant is accuser and judge.
He decides upon his own view, instantly._ The impressed man
is forced into the frigate’s boat, and the case ends. _There
is no appeal, no trial of any kind_; more important still,
there is no remedy, should it appear that a wrong has been
committed.”[57]
At last, in 1842, at the Treaty of Washington, Mr. Webster, calmly
setting aside all idea of further negotiation on this pretension, and
without even proposing any stipulation with regard to it, deliberately
announced the principle irrevocably adopted by our Government. It was
that announced at the beginning by Mr. Jefferson. This document is one
of the most memorable in our history, and it bears directly on the
existing controversy, when, in exposing the British pretension, it
says:--
“But the lieutenant of a man-of-war, having necessity for men,
_is apt to be a summary judge_, and his decisions will be quite
as significant of his own wants and his own power as of the
truth and justice of the case.”[58]
At a later day still, on the very eve of recent events, we find
General Cass, as Secretary of State, in elaborate instructions to our
ministers in Europe, dated June 27, 1859, declaring principles which
may properly control the present question. He says:--
“It is obvious, from the temper of the age, that the present is
no safe time to assert and enforce pretensions on the part of
belligerent powers affecting the interest of nations at peace,
_unless such pretension are clearly justified by the Law of
Nations_.… The stopping of neutral vessels upon the high seas,
their forcible entrance, and the overhauling and examination
of their cargoes, the seizure of their freight _at the will of
a foreign officer_, the frequent interruption of their voyages
by compelling them to change their destination in order to
seek redress, and, _above all, the assumption of jurisdiction
by a foreign armed party over what has been aptly termed the
extension of the territory of an independent state, and with
all the abuses which are so prone to accompany the exercise of
unlimited power_, where responsibility is remote,--these are,
indeed, serious ‘obstructions,’ little likely to be submitted
to in the present state of the world, without a formidable
effort to prevent them.”[59]
Such is an authentic history of this British pretension, and of the
manner in which it has been met by our Government. And now the special
argument formerly employed by us against an intolerable pretension
is invoked by Great Britain against the error of taking two Rebel
emissaries from a British packet ship. If Captain Wilkes is right,
then, throughout all these international debates, extending over at
least two generations, have we been wrong.
It is sometimes said, that the steam packet, having on board the Rebel
emissaries, was on this account liable to capture, and therefore
the error of Captain Wilkes in taking the emissaries was simply of
form, and not of substance. I do not stop to consider whether an
exercise of summary power, against which our nation has so constantly
protested, can, under any circumstances, be an error of form merely;
for the national policy, most positively declared in diplomacy, and
also attested in numerous treaties, leaves small room to doubt that
a neutral ship with enemy passengers, not in the military or naval
service, is not liable to capture, and therefore the whole proceeding
was wrong, not only because the passengers were taken from the ship,
but also because the ship, howsoever guilty morally, was not guilty
legally, in receiving such passengers on board. If this question were
argued on English authorities, it might be otherwise; but according
to American principles, the ship was legally innocent. Of course, I
say nothing of the moral guilt which an indignant patriotism will find
forever indelible in that ship.
In the middle of the last century, the Swiss publicist Vattel declared,
that, on the breaking out of war, we are no longer under obligation to
leave the enemy in free enjoyment of his rights; and this principle he
applied loosely to the transit of ambassadors.[60] Sir William Scott,
afterwards known in the English peerage as Lord Stowell, quoting this
authority, at the beginning of the present century, let fall these
words:--
“You may stop the ambassador of your enemy on his passage.”[61]
And this curt proposition, though in some respects indefinite, has
been often since repeated by writers on the Law of Nations. On its
face it leaves the question unsettled, whether the emissaries of an
unrecognized Government can be stopped. But there is another case
in which the same British judge, who has done so much to illustrate
International Law, has used language which seems to embrace not only
authentic ambassadors, but also pretenders to this character, and
all others who are public agents of the enemy. Says this eminent
magistrate:--
“It appears to me on _principle_ to be but reasonable, that,
whenever it is of sufficient importance to the enemy that _such
persons should be sent out on the public service, at the public
expense_, it should afford equal ground of forfeiture against
the vessel that may be let out for a purpose so intimately
connected with the hostile operations.”[62]
Admit that the emissaries of an unrecognized Government cannot be
recognized as ambassadors, with the liabilities as well as immunities
of this character, yet, in the face of these words, it is difficult to
see how a Government bowing habitually to the authority of Sir William
Scott, and regarding our Rebels as “belligerents,” can assert that a
steam packet, conveying emissaries from these belligerents, “sent out
on the public service, at the public expense,” was, according to the
language of Earl Russell, “pursuing a lawful and innocent voyage.” At
least, in this assertion, the British Government seems to turn its
back again upon its own history, or it sets aside the facts so openly
boasted with regard to the public character of these fugitives.
On this question British policy may change with circumstances, and
British precedents may be uncertain, but the original American policy
is unchangeable, and the American precedents which illustrate it are
solemn treaties. The words of Vattel and the judgments of Sir William
Scott were well known to the statesmen of the United States; and yet,
in the face of these authorities, which have entered so largely into
this debate, the National Government at an early day deliberately
adopted a contrary policy, to which for half a century there was steady
adherence. It was plainly declared _that only soldiers or officers
could be stopped_, thus positively excluding the idea of stopping
ambassadors, or emissaries of any kind, not in the military or naval
service. Mr. Madison, who more than any other person shaped our
national policy on Maritime Rights, has stated it on this question.
In his remarkable despatch to Mr. Monroe, at London, dated January 5,
1804, he says:--
“The article renounces the claim to take from the vessels of
the neutral party, on the high seas, any person whatever _not
in the military service of an enemy_, an exception which we
admit to come within the Law of Nations, on the subject of
contraband of war. _With this exception, we consider a neutral
flag on the high seas as a safeguard to those sailing under
it._”[63]