Early in the spring of 1862, Mr. Seward conferred with Mr.
Sumner on a treaty with Great Britain for a mutual and
restricted right of search and mixed courts, with a view to the
suppression of the slave-trade. The negotiation was opened and
proceeded successfully. April 7th, Mr. Sumner, being at the
State Department, had the happiness of witnessing the signature
of this treaty by Mr. Seward and Lord Lyons. April 11th, it was
communicated to the Senate in Executive Session, and referred
to the Committee on Foreign Relations. April 15th, it was
reported to the Senate by Mr. Sumner, with the recommendation
that the Senate advise and consent thereto. April 22d, it
was brought up in the Senate, when Mr. Sumner moved the
usual resolution of ratification. April 24th, on motion of
Mr. Sumner, the Senate proceeded to consider the resolution
of ratification. The yeas and nays were dispensed with by
unanimous consent, and the resolution was agreed to without a
dissenting vote.
MR. PRESIDENT,--Already a slave-trader has been executed at New
York, being the first in our history to suffer for this immeasurable
crime.[290] English lawyers dwell much upon treason to the king, which
they denounce in a term borrowed from ancient Rome as _lese_-majesty;
but the slave-trade is treason to man, being nothing less than
_lese_-humanity. Much as I incline against capital punishment, little
as I am disposed to continue this barbarous penalty, unworthy of a
civilized age, I see so much of good in this example at the present
moment, that I reconcile myself to it without a pang. Clearly it will
be a warning to slave-traders, and also notice to the civilized world
that at last we are in earnest, while it helps make the slave-trade
detestable. Crime is seen in the punishment, and the gallows sheds upon
it that infamy which nothing short of martyrdom in a good cause can
overcome.
* * * * *
The important treaty now before the Senate is to enforce on a large
scale final judgment against the slave-trade. It is to do with many
what has just been done with an individual. Our flag is desecrated
by this hateful commerce; ships equipped in New York are tempted by
its cruel gains. To stop this has been impossible, while Slavery
prevailed in the National Government. How could our courts judge the
slave-trader, how could the National Government set itself against the
hateful commerce, while Slavery occupied all the places of power? But
this is changed. If Emancipation is yet longer delayed, Slavery is at
least dislodged from its predominant influence. Therefore is the way
free for action against the slave-trade.
The treaty proceeds on the idea of earnest work, and it recognizes two
especial agencies, each of which has been discussed between the two
Governments in former years, but has always failed of adoption. The
first is a mutual and restricted right of search, and the second is the
well-known system of mixed courts, for the enforcement of the treaty.
The treaty has just been read, so that I need not recite in detail the
terms of these two provisions. I pass at once to the consideration of
their origin and necessity.
* * * * *
There was a time when our country was open and earnest against the
slave-trade. A well-known provision of the Constitution, classed among
original compromises, restrained Congress from prohibiting it prior
to the year 1808; but, just so soon as it had the power, Congress
acted. Its promptitude justified the enthusiasm with which Judge Story
in his Commentaries remarks: “It is to the honor of America that she
should have set the first example of interdicting and abolishing the
slave-trade in modern times.”[291] By Act of Congress, bearing date
as early as March 2, 1807, and to take effect January 1, 1808, the
importation of slaves into the United States was prohibited, under
penalties of imprisonment, fine, and forfeiture. These were increased
by Act of Congress of April 20, 1818. But mild and moderate enactments
were not enough; and at length, by Act of May 15, 1820, Congress was
constrained to declare the slave-trade piracy, and to punish it with
death. Since then this offence has stood in the catalogue of capital
crimes.
Already this immense subject had occupied the attention of the great
European powers. In the Treaty of Paris in 1814, Great Britain and
France united against what was denounced as “a species of commerce
equally repugnant to the principles of natural justice and the lights
of the times.”[292] This was followed by the Treaty of Ghent, at the
close of the same year, in which the United States and Great Britain
denounced the traffic in slaves as “irreconcilable with the principles
of humanity and justice,” and promised their best endeavors for its
suppression.[293] Then came the Treaty of Vienna, where the great
powers joined in declaring it “repugnant to the principles of humanity
and of universal morality.”[294] These were declarations only. The
next attempt was to find a system of action, which should be effective
against the Protean monster in the many metamorphoses it was able to
assume, and here England nobly took the lead.
Lord Castlereagh instructed the Duke of Wellington, the British
ambassador at Paris, to obtain from France the concession of a mutual
right of search for the enforcement of the denunciation in which they
were agreed; but this was found unwelcome to the French Government,
and therefore not pressed at the time. Such was the beginning of the
proposition, which, after various fortunes, is at last recognized in
the treaty now before us.
Meanwhile negotiations were opened on our side particularly with
Great Britain. These seem for a time to have had the sanction not
only of the Executive, but of Congress, or at least of the House of
Representatives. Messages from the President, calling attention to
the slave-trade, were answered by reports from special committees of
the House of Representatives. One of these, made February 9, 1821,
concluded with a resolution, “That the President of the United States
be requested to enter into such arrangements as he may deem suitable
and proper with one or more of the maritime powers of Europe for the
effectual abolition of the African slave-trade.” The report, while
declaring that “to efface this reproachful stain from the character of
civilized mankind would be the proudest triumph that could be achieved
in the cause of humanity,” proceeds to announce, in words applicable
to the present moment, that “this happy result, experience has
demonstrated, cannot be realized by any system, except a concession by
the maritime powers to each other’s ships of war of a qualified right
of search.”[295] Another report, by a select committee of the House,
April 12, 1822, adopted the resolution of the previous committee,
and also the recommendation of a mutual right of search, adding,
that it could not be doubted “that the people of America have the
intelligence to distinguish between the right of searching a neutral
on the high seas in time of war, claimed by some belligerents, and
that mutual, restricted, and peaceful concession by treaty, suggested
by your Committee, and which is demanded in the name of suffering
humanity.”[296]
Then came the devoted efforts of Charles Fenton Mercer, an admirable
representative of Virginia, who exposed this terrible traffic with
a pathos not to be forgotten. On his motion, another resolution was
adopted, February 28, 1823, by a vote of one hundred and thirty-one
yeas to only nine nays, calling upon the President to enter into
negotiations “for the effectual abolition of the African slave-trade,
and its ultimate denunciation as piracy, under the Law of Nations,
by the consent of the civilized world.”[297] The character of this
resolution was impaired by the rejection of an amendment, “and that
we agree to a qualified right of search,”[298] which was a falling off
from the recommendations of the two committees.
The Executive responded to Congress, and, under instructions from
John Quincy Adams, Secretary of State, a treaty was negotiated with
Great Britain, bearing date March 13, 1824, in which it was stipulated
that the ships of the two powers might “cruise on the coasts of
Africa, _of America_, and of the West Indies, for the suppression of
the slave-trade,” and empowering them under certain restrictions to
detain and capture vessels engaged in this traffic.[299] Important
in substance, this treaty became important historically. Although
the clause quoted appeared in the original draught sent out from
Washington, yet the treaty was ratified by the Senate only on the
condition that the words “of America” were struck out, thus excluding
operations of British cruisers along the whole extent of American
coast.[300] This was fatal to the treaty, as the British Government
would not accept the condition. The case is memorable, not only as a
check to negotiations for the suppression of the slave-trade, but as a
conspicuous instance, where the Senate, in dealing with a power like
Great Britain, did not shrink from asserting its prerogative under the
Constitution, not less decisive than the tribunitial veto.
Thus it stood. Our own Government had proposed a modified search on
the coast of America, but this was point-blank refused by the Senate.
It appears that the proposition was made contrary to the judgment
of Mr. Adams. His sense of wrong from the long-continued search
exercised by British cruisers was so keen that he would not willingly
furnish any excuse for its revival; and such, it was feared, might
be the concession. Afterwards, in the revelations which he sometimes
made to the House of Representatives, he declared his repugnance to
this negotiation, and the way it was overcome. The same repugnance,
doubtless, influenced Senators in the vote on the treaty, increased
by a growing sentiment for Slavery, which the debates on the Missouri
Compromise had quickened.
Mr. Adams’s statement made in debate at a later day lets us behind the
scenes at an important period. After describing the proposition for a
mutual right of search, the veteran said:--
“It was utterly against my judgment and wishes; but I was
obliged to submit, and I prepared the requisite despatches to
Mr. Rush, then our minister at the court of London. When he
made his proposal to Mr. Canning, Mr. Canning’s reply was,
‘Draw up your convention, and I will sign it.’ Mr. Rush did so,
and Mr. Canning, without the slightest alteration whatever,
without varying the dot of an _i_ or the crossing of a _t_,
did affix to it his signature,--thus assenting to our own
terms in our own language. The convention came back here for
ratification; but in the mean while another spirit came over
the feelings of this House, as well as of the Senate. A party
had been formed against the Administration of Mr. Monroe;
the course of the Administration was no longer favored, and
the House came out in opposition to a convention drawn in
conformity to its own previous views.… The Senate ratified the
treaty, giving the right of search in the fullest manner to
Great Britain, with the exception, I think, of one article,
which extended the right to the coast of the United States:
that was rejected.”[301]
This statement from an eminent quarter shows how at another time the
opposition to a mutual right of search became manifest. It is for the
Senate to determine if the time has not come for this opposition to
cease.
Not disheartened by failure with the United States, Great Britain
pursued her honorable policy, enlisting Government after Government,
until nearly all the maritime powers of Europe, moved by a common
sentiment of humanity, had conceded a mutual and restricted right of
search, with the single object of suppressing the slave-trade. The
famous Quintuple Treaty of 1841 between the great powers consecrated
the same principle on a wider theatre; but, owing to the extraordinary
efforts of General Cass, our Minister at Paris, France was induced to
withhold her assent, yielding, I fear, to an irritated Anglophobia and
to the growing pretensions of Slavery. The treaty was duly ratified
by Great Britain, Russia, Prussia, and Austria. As a substitute,
stipulations for naval coöperation were adopted between Great Britain
and France,--also between Great Britain and the United States. And
still Great Britain persevered in this glorious championship, until,
in 1850, it was her boast that she stood party to no less than
twenty-four treaties denouncing the slave-trade, of which ten conceded
a mutual right of search and mixed courts, twelve conceded search
with trial only before home tribunals, and two provided for naval
coöperation.[302]
This summary brings us to the present treaty, where we find a mutual
and restricted right of search and mixed courts for certain purposes,
but with the trial of criminals only before home tribunals.
If at an earlier day there was reason to be sensitive about any
concession of the right of search, especially to Great Britain, always
so exacting on the ocean, that day has happily passed. The reason
ceasing, so also should the opposition cease. Even if the acknowledged
power of the United States and the enlightened opinion of the civilized
world did not remove the liability to abuse, making it so absolutely
impossible as not to be an element in the case, we cannot forget
a recent signal event, when Great Britain openly renounced that
tyrannous pretension which so stirred the soul of the whole American
people, never again to assert it. This was done in solemn demand for
the rendition of Mason and Slidell, who had been taken by a national
cruiser, acting in precise conformity with early and constant British
practice. Therefore on this account there need be no solicitude.
Conceding search for the suppression of the slave-trade, we furnish
no excuse and open no door for that other search, always so justly
offensive, which finally brought war in its train. Such a concession
now is only an addition to international policy demanded by the
civilization of the age.
Nor need there be any jealousy on account of Slavery; for this power
is disappearing. If, unhappily, it is not yet extinct, if it still
lingers in prolonged malignant existence, it has ceased to sway the
National Government. Therefore I see no reason why the sensibilities of
its partisans should be consulted.
* * * * *
Another possible objection to the treaty is more technical. This also
was presented by John Quincy Adams, when he spoke of mixed courts
“as inconsistent with our Constitution,”[303] because the judges are
not appointed, nor do they hold office, according to its well-known
requirements. But this objection, if entitled to any consideration, is
mitigated in the present treaty, which hands over the slave-trader for
trial in the home courts of the captor, leaving to the mixed courts
only the condemnation and destruction of the slave-ship. But whatever
doubts might have prevailed at an earlier period, when the question
was less understood, it is plain now that this objection is wholly
superficial and untenable. Besides courts known to the Constitution and
subject to its requirements, there are others extra-constitutional,
like courts in the Territories, where the judges hold for four years
instead of during good behavior, and yet are recognized by the Supreme
Court of the United States.[304] Like Territorial courts, mixed courts
are plainly extra-constitutional, standing on the treaty power and the
practice of nations,--as courts martial are also extra-constitutional,
standing on the war power and the practice of nations.
Among frequent means for the determination of international questions
are mixed courts or mixed commissions in various forms, where
different nations are represented. Such tribunals are the natural
incident of treaties, and were recognized as such at the beginning of
our history. Nor is it easy to see how treaties can be consummated
without their ancillary help. A mixed commission, where our country
was represented, sat at London under Jay’s Treaty, deciding numerous
cases; and similar commissions have been sitting ever since. The Jay
Commission was originally criticized on the ground that judicial power
cannot be vested except according to the Constitution,[305]--being
the very objection to mixed courts in anti-slave-trade treaties, that
occupied so much attention at a later day, and to which I am now
replying. But nobody now doubts that this commission was proper. The
proposed tribunal, though differing in purpose, proceeds from the same
fountain of power. It is kindred in character and origin. Now, without
considering if the objection to mixed courts is not equally strong
against a crowned head as arbitrator, as when the French Emperor sat
in judgment on the long-pending litigation between the United States
and Portugal in the _General Armstrong_ case, it is obvious that all
the international tribunals constituted by treaty, whether an emperor
or a commissioner, are sustained by unbroken usage as well as by
reason. To insist that the restrictions of the Constitution, evidently
intended for the national judicature, are applicable to these outlying
tribunals, is to limit the treaty power and to curtail the means of
justice beyond the national jurisdiction. Mixed courts are familiar to
International Law, and our country cannot afford to reject them, least
of all on a discarded technicality which would leave us isolated among
nations.
* * * * *
It remains only that we make haste to ratify the treaty, nor miss the
great opportunity. A moment lost is a concession to crime. Therefore
must we be prompt.
Foreign nations will not fail to recognize this open pledge to Human
Rights, and the Rebels will discern a new sign of the national purpose.
Abroad and at home we shall be strengthened. The Rebellion itself will
feel the blow, and ambitious Slavery foresee its doom.
As soon as the vote was announced in the Senate, Mr. Sumner
hastened to Mr. Seward at the State Department. It was five
o’clock in the afternoon, and the Secretary was reposing
on a sofa. On hearing the words, “The treaty is ratified
unanimously,” he exclaimed, “Where ---- were the Democrats?”
His joy was great, and Lord Lyons, on learning the result, was
not less happy. It is much in a diplomatic career to sign any
treaty, but it was an event to have signed a treaty promising
the final extinction of an infinite scandal and curse to
humanity.
Subsequent action was prompt. The treaty was ratified by the
Senate April 24th; ratifications were exchanged in London May
25th; the treaty was proclaimed by the President June 7th, 1862.
June 10th, a message of the President, transmitting a copy of
the treaty, with correspondence between Mr. Seward and Lord
Lyons in relation to it, was laid before the Senate, and on
motion of Mr. Sumner referred to the Committee on Foreign
Relations, and ordered to be printed.
June 13th, Mr. Sumner reported from the Committee a bill to
carry the treaty into effect, providing for the appointment,
with the advice and consent of the Senate, of a judge and also
an arbitrator on the part of the United States to reside at
New York, a judge and also an arbitrator to reside at Sierra
Leone, and a judge and also an arbitrator to reside at the Cape
of Good Hope,--all the judges to be paid $2,500 annually, the
arbitrator at New York $1,000, and the arbitrators at Sierra
Leone and the Cape of Good Hope $2,000 respectively.
Owing to the pressure of business incident to the latter days
of a very crowded session, Mr. Sumner was not able to call it
up immediately. June 26th, on his motion, it was considered and
passed: Yeas, 34; Nays, only 4.