SPEECH IN THE SENATE, ON THE TREATY WITH GREAT BRITAIN, APRIL 24, 1862.

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.

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