_Mr. Webster to Mr. Everett._
Department of State, Washington,
March 28, 1843.
Sir,--I transmit to you with this despatch a message from the President
of the United States to Congress, communicated on the 27th of February,
and accompanied by a report made from this department to the President,
of the substance of a despatch from Lord Aberdeen to Mr. Fox, which was
by him read to me on the 24th ultimo.
Lord Aberdeen's despatch, as you will perceive, was occasioned by a
passage in the President's message to Congress at the opening of its
late session. The particular passage is not stated by his Lordship; but
no mistake will be committed, it is presumed, in considering it to be
that which was quoted by Sir Robert Peel and other gentlemen in the
debate in the House of Commons, on the answer to the Queen's speech, on
the 3d of February.
The President regrets that it should have become necessary to hold a
diplomatic correspondence upon the subject of a communication from the
head of the executive government to the legislature, drawing after it,
as in this case, the further necessity of referring to observations made
by persons in high and responsible stations, in debates of public
bodies. Such a necessity, however, seems to be unavoidably incurred in
consequence of Lord Aberdeen's despatch; for, although the President's
recent message may be regarded as a clear exposition of his opinions on
the subject, yet a just respect for her Majesty's government, and a
disposition to meet all questions with promptness, as well as with
frankness and candor, require that a formal answer should be made to
that despatch.
The words in the message at the opening of the session which are
complained of, it is supposed, are the following: "Although Lord
Aberdeen, in his correspondence with the American envoys at London,
expressly disclaimed all right to detain an American ship on the high
seas, even if found with a cargo of slaves on board, and restricted the
British pretension to a mere claim to visit and inquire, yet it could
not well be discerned by the Executive of the United States how such
visit and inquiry could be made without detention on the voyage, and
consequent interruption to the trade. It was regarded as the right of
search, presented only in a new form and expressed in different words;
and I therefore felt it to be my duty distinctly to declare, in my
annual message to Congress, that no such concession could be made, and
that the United States had both the will and the ability to enforce
their own laws, and to protect their flag from being used for purposes
wholly forbidden by those laws, and obnoxious to the moral censure of
the world."
This statement would tend, as Lord Aberdeen thinks, to convey the
supposition, not only that the question of the right of search had been
disavowed by the British plenipotentiary at Washington, but that Great
Britain had made concessions on that point.
Lord Aberdeen is entirely correct in saying that the claim of a right of
search was not discussed during the late negotiation, and that neither
was any concession required by this government, nor made by that of her
Britannic Majesty.
The eighth and ninth articles of the treaty of Washington constitute a
mutual stipulation for concerted efforts to abolish the African
slave-trade. The stipulation, it may be admitted, has no other effects
on the pretensions of either party than this: Great Britain had claimed
as a _right_ that which this government could not admit to be a _right_,
and, in the exercise of a just and proper spirit of amity, a mode was
resorted to which might render unnecessary both the assertion and the
denial of such claim.
There probably are those who think that what Lord Aberdeen calls a right
of visit, and which he attempts to distinguish from the right of search,
ought to have been expressly acknowledged by the government of the
United States. At the same time, there are those on the other side who
think that the formal surrender of such right of visit should have been
demanded by the United States as a precedent condition to the
negotiation for treaty stipulations on the subject of the African
slave-trade. But the treaty neither asserts the claim in terms, nor
denies the claim in terms; it neither formally insists upon it, nor
formally renounces it. Still, the whole proceeding shows that the object
of the stipulation was to avoid such differences and disputes as had
already arisen, and the serious practical evils and inconveniences
which, it cannot be denied, are always liable to result from the
practice which Great Britain had asserted to be lawful. These evils and
inconveniences had been acknowledged by both governments. They had been
such as to cause much irritation, and to threaten to disturb the
amicable sentiments which prevailed between them. Both governments were
sincerely desirous of abolishing the slave-trade; both governments were
equally desirous of avoiding occasion of complaint by their respective
citizens and subjects; and both governments regarded the eighth and
ninth articles as effectual for their avowed purpose, and likely, at the
same time, to preserve all friendly relations, and to take away causes
of future individual complaints. The treaty of Washington was intended
to fulfil the obligations entered into by the treaty of Ghent. It stands
by itself; is clear and intelligible. It speaks its own language, and
manifests its own purpose. It needs no interpretation, and requires no
comment. As a fact, as an important occurrence in national intercourse,
it may have important bearings on existing questions respecting the
public law; and individuals, or perhaps governments, may not agree as to
what these bearings really are. Great Britain has discussions, if not
controversies, with other great European states upon the subject of
visit or search. These states will naturally make their own commentary
on the treaty of Washington, and draw their own inferences from the fact
that such a treaty has been entered into. Its stipulations, in the mean
time, are plain, explicit, and satisfactory to both parties, and will be
fulfilled on the part of the United States, and, it is not doubted, on
the part of Great Britain also, with the utmost good faith.
Holding this to be the true character of the treaty, I might, perhaps,
excuse myself from entering into the consideration of the grounds of
that claim of a right to visit merchant-ships for certain purposes, in
time of peace, which Lord Aberdeen asserts for the British government,
and declares that it can never surrender. But I deem it right,
nevertheless, and no more than justly respectful toward the British
government, not to leave the point without remark.
In his recent message to Congress, the President, referring to the
language of Lord Aberdeen in his note to Mr. Everett of the 20th of
December, 1841, and in his late despatch to Mr. Fox, says: "These
declarations may well lead us to doubt whether the apparent difference
between the two governments is not rather one of definition than of
principle."
Lord Aberdeen, in his note to you of the 20th of December, says: "The
undersigned again renounces, as he has already done in the most explicit
terms, any right on the part of the British government to search
American vessels in time of peace. The right of search, except when
specially conceded by treaty, is a pure belligerent right, and can have
no existence on the high seas during peace. The undersigned apprehends,
however, that the right of search is not confined to the verification of
the nationality of the vessel, but also extends to the object of the
voyage and the nature of the cargo. The sole purpose of the British
cruisers is to ascertain whether the vessels they meet with are really
American or not. The right asserted has, in truth, no resemblance to the
right of search, either in principle or practice. It is simply a right
to satisfy the party who has a legitimate interest in knowing the truth,
that the vessel actually is what her colors announce. This right we
concede as freely as we exercise. The British cruisers are not
instructed to detain American vessels under any circumstances whatever;
on the contrary, they are ordered to abstain from all interference with
them, be they slavers or otherwise. But where reasonable suspicion
exists that the American flag has been abused for the purpose of
covering the vessel of another nation, it would appear scarcely
credible, had it not been made manifest by the repeated protestations of
their representative, that the government of the United States, which
has stigmatized and abolished the trade itself, should object to the
adoption of such means as are indispensably necessary for ascertaining
the truth."
And in his recent despatch to Mr. Fox his Lordship further says: "That
the President might be assured that Great Britain would always respect
the just claims of the United States. That the British government made
no pretension to interfere in any manner whatever, either by detention,
visit, or search, with vessels of the United States, known or believed
to be such, but that it still maintained, and would exercise when
necessary, its own right to ascertain the genuineness of any flag which
a suspected vessel might bear; that if, in the exercise of this right,
either from involuntary error, or in spite of every precaution, loss or
injury should be sustained, a prompt reparation would be afforded; but
that it should entertain, for a single instant, the notion of abandoning
the right itself, would be quite impossible."
This, then, is the British claim, as asserted by her Majesty's
government.
In his remarks in the speech already referred to, in the House of
Commons, the first minister of the crown said: "There is nothing more
distinct than the right of visit is from the right of search. Search is
a belligerent right, and not to be exercised in time of peace, except
when it has been conceded by treaty. The right of search extends not
only to the vessel, but to the cargo also. The right of visit is quite
distinct from this, though the two are often unfounded. The right of
search, with respect to American vessels, we entirely and utterly
disclaim; nay, more, if we knew that an American vessel were furnished
with all the materials requisite for the slave-trade, if we knew that
the decks were prepared to receive hundreds of human beings within a
space in which life is almost impossible, still we should be bound to
let that American vessel pass on. But the right we claim is to know
whether a vessel pretending to be American, and hoisting the American
flag, be _bona fide_ American."
The President's message is regarded as holding opinions in opposition to
these.
The British government, then, supposes that the right of visit and the
right of search are essentially distinct in their nature, and that this
difference is well known and generally acknowledged; that the difference
between them consists in their different objects and purposes: one, the
visit, having for its object nothing but to ascertain the nationality of
the vessel; the other, the search, by an inquisition, not only into the
nationality of the vessel, but the nature and object of her voyage, and
the true ownership of her cargo.
The government of the United States, on the other hand, maintains that
there is no such well-known and acknowledged, nor, indeed, any broad and
generic difference between what has been usually called visit, and what
has been usually called search; that the right of visit, to be
effectual, must come, in the end, to include search; and thus to
exercise, in peace, an authority which the law of nations only allows in
times of war. If such well-known distinction exists, where are the
proofs of it? What writers of authority on public law, what
adjudications in courts of admiralty, what public treaties, recognize
it? No such recognition has presented itself to the government of the
United States; but, on the contrary, it understands that public writers,
courts of law, and solemn treaties have, for two centuries, used the
words "visit" and "search" in the same sense. What Great Britain and the
United States mean by the "right of search," in its broadest sense, is
called by Continental writers and jurists by no other name than the
"right of visit." Visit, therefore, as it has been understood, implies
not only a right to inquire into the national character, but to detain
the vessel, to stop the progress of the voyage, to examine papers, to
decide on their regularity and authenticity, and to make inquisition on
board for enemy's property, and into the business which the vessel is
engaged in. In other words, it describes the entire right of belligerent
visitation and search. Such a right is justly disclaimed by the British
government in time of peace. They, nevertheless, insist on a right which
they denominate a right of visit, and by that word describe the claim
which they assert. It is proper, and due to the importance and delicacy
of the questions involved, to take care that, in discussing them, both
governments understand the terms which may be used in the same sense.
If, indeed, it should be manifest that the difference between the
parties is only verbal, it might be hoped that no harm would be done;
but the government of the United States thinks itself not justly
chargeable with excessive jealousy, or with too great scrupulosity in
the use of words, in insisting on its opinion that there is no such
distinction as the British government maintains between visit and
search; and that there is no right to visit in time of peace, except in
the execution of revenue laws or other municipal regulations, in which
cases the right is usually exercised near the coast, or within the
marine league, or where the vessel is justly suspected of violating the
law of nations by piratical aggression; but, wherever exercised, it is a
right of search.
Nor can the United States government agree that the term "right" is
justly applied to such exercise of power as the British government
thinks it indispensable to maintain in certain cases. The right asserted
is a right to ascertain whether a merchant-vessel is justly entitled to
the protection of the flag which she may happen to have hoisted, such
vessel being in circumstances which render her liable to the suspicion,
first, that she is not entitled to the protection of the flag; and
secondly, that, if not entitled to it, she is, either by the law of
England, as an English vessel, or under the provisions of treaties with
certain European powers, subject to the supervision and search of
British cruisers. And yet Lord Aberdeen says, "that if, in the exercise
of this right, either from involuntary error, or in spite of every
precaution, loss or injury should be sustained, a prompt reparation
would be afforded."
It is not easy to perceive how these consequences can be admitted justly
to flow from the fair exercise of a clear right. If injury be produced
by the exercise of a right, it would seem strange that it should be
repaired, as if it had been the effect of a wrongful act. The general
rule of law certainly is, that, in the proper and prudent exercise of
his own right, no one is answerable for undesigned injuries. It may be
said that the right is a qualified right; that it is a right to do
certain acts of force at the risk of turning out to be wrong-doers, and
of being made answerable for all damages. But such an argument would
prove every trespass to be matter of right, subject only to just
responsibility. If force were allowed to such reasoning in other cases,
it would follow that an individual's right in his own property was
hardly more than a well-founded claim for compensation if he should be
deprived of it. But compensation is that which is rendered for injury,
and is not commutation, or forced equivalent, for acknowledged rights.
It implies, at least in its general interpretation the commission of
some wrongful act.
But, without pressing further these inquiries into the accuracy and
propriety of definitions and the use of words, I proceed to draw your
attention to the thing itself, and to consider what these acts are which
the British government insists its cruisers have a right to perform, and
to what consequences they naturally and necessarily tend. An eminent
member of the House of Commons[1] thus states the British claim, and his
statement is acquiesced in and adopted by the first minister of the
crown:--
"The claim of this country is for the right of our cruisers to ascertain
whether a merchant-vessel is justly entitled to the protection of the
flag which she may happen to have hoisted, such vessel being in
circumstances which rendered her liable to the suspicion, first, that
she was not entitled to the protection of the flag; and, secondly, if
not entitled to it, she was, either under the law of nations or the
provisions of treaties, subject to the supervision and control of our
cruisers."
Now the question is, _By what means_ is this ascertainment to be
effected?
As we understand the general and settled rules of public law, in respect
to ships of war sailing under the authority of their government, "to
arrest pirates and other public offenders," there is no reason why they
may not approach any vessels descried at sea for the purpose of
ascertaining their real characters. Such a right of approach seems
indispensable for the fair and discreet exercise of their authority; and
the use of it cannot he justly deemed indicative of any design to insult
or injure those they approach, or to impede them in their lawful
commerce. On the other hand, it is as clear that no ship is, under such
circumstances, bound to lie by or wait the approach of any other ship.
She is at full liberty to pursue her voyage in her own way, and to use
all necessary precautions to avoid any suspected sinister enterprise or
hostile attack. Her right to the free use of the ocean is as perfect as
that of any other ship. An entire equality is presumed to exist. She has
a right to consult her own safety, but at the same time she must take
care not to violate the rights of others. She may use any precautions
dictated by the prudence or fears of her officers, either as to delay,
or the progress or course of her voyage; but she is not at liberty to
inflict injuries upon other innocent parties simply because of
conjectural dangers.
But if the vessel thus approached attempts to avoid the vessel
approaching, or does not comply with her commander's order to send him
her papers for his inspection, nor consent to be visited or detained,
what is next to be done? Is force to be used? And if force be used, may
that force be lawfully repelled? These questions lead at once to the
elemental principle, the essence of the British claim. Suppose the
merchant-vessel be in truth an American vessel engaged in lawful
commerce, and that she does not choose to be detained. Suppose she
resists the visit. What is the consequence? In all cases in which the
belligerent right of visit exists, resistance to the exercise of that
right is regarded as just cause of condemnation, both of vessel and
cargo. Is that penalty, or what other penalty, to be incurred by
resistance to visit in time of peace? Or suppose that force be met by
force, gun returned for gun, and the commander of the cruiser, or some
of his seamen be killed; what description of offence will have been
committed? It would be said, in behalf of the commander of the cruiser,
that he mistook the vessel for a vessel of England, Brazil, or Portugal;
but does this mistake of his take away from the American vessel the
right of self-defence? The writers of authority declare it to be a
principle of natural law, that the privilege of self-defence exists
against an assailant who mistakes the object of his attack for another
whom he had a right to assail.
Lord Aberdeen cannot fail to see, therefore, what serious consequences
might ensue, if it were to be admitted that this claim to visit, in time
of peace, however limited or defined, should be permitted to exist as a
strict matter of right; for if it exist as a right, it must be followed
by corresponding duties and obligations, and the failure to fulfil those
duties would naturally draw penal consequences after it, till erelong it
would become, in truth, little less, or little other, than the
belligerent right of search.
If visit or visitation be not accompanied by search, it will be in most
cases merely idle. A sight of papers may be demanded, and papers may be
produced. But it is known that slave-traders carry false papers, and
different sets of papers. A search for other papers, then, must be made
where suspicion justifies it, or else the whole proceeding would be
nugatory. In suspicious cases, the language and general appearance of
the crew are among the means of ascertaining the national character of
the vessel. The cargo on board, also, often indicates the country from
which she comes. Her log-books, showing the previous course and events
of her voyage, her internal fitting up and equipment, are all evidences
for her, or against her, on her allegation of character. These matters,
it is obvious, can only be ascertained by rigorous search.
It may be asked, If a vessel may not be called on to show her papers,
why does she carry papers? No doubt she may be called on to show her
papers; but the question is, Where, when, and by whom? Not in time of
peace, on the high seas, where her rights are equal to the rights of any
other vessel, and where none has a right to molest her. The use of her
papers is, in time of war, to prove her neutrality when visited by
belligerent cruisers; and in both peace and war, to show her national
character, and the lawfulness of her voyage, in those ports of other
countries to which she may proceed for purposes of trade.
It appears to the government of the United States, that the view of this
whole subject which is the most naturally taken is also the most legal,
and most in analogy with other cases. British cruisers have a right to
detain British merchantmen for certain purposes; and they have a right,
acquired by treaty, to detain merchant-vessels of several other nations
for the same purposes. But they have no right at all to detain an
American merchant-vessel. This Lord Aberdeen admits in the fullest
manner. Any detention of an American vessel by a British cruiser is
therefore a wrong, a trespass; although it may be done under the belief
that she was a British vessel, or that she belonged to a nation which
had conceded the right of such detention to the British cruisers, and
the trespass therefore an involuntary trespass. If a ship of war, in
thick weather, or in the darkness of the night, fire upon and sink a
neutral vessel, under the belief that she is an enemy's vessel, this is
a trespass, a mere wrong; and cannot be said to be an act done under any
right, accompanied by responsibility for damages. So if a civil officer
on land have process against one individual, and through mistake arrest
another, this arrest is wholly tortious; no one would think of saying
that it was done under any lawful exercise of authority, subject only to
responsibility, or that it was any thing but a mere trespass, though an
unintentional trespass. The municipal law does not undertake to lay down
beforehand any rule for the government of such cases; and as little, in
the opinion of the government of the United States, does the public law
of the world lay down beforehand any rule for the government of cases of
involuntary trespasses, detentions, and injuries at sea; except that in
both classes of cases law and reason make a distinction between injuries
committed through mistake and injuries committed by design, the former
being entitled to fair and just compensation, the latter demanding
exemplary damages, and sometimes personal punishment. The government of
the United States has frequently made known its opinion, which it now
repeats, that the practice of detaining American vessels, though subject
to just compensation if such detention afterward turn out to have been
without good cause, however guarded by instructions, or however
cautiously exercised, necessarily leads to serious inconvenience and
injury. The amount of loss cannot be always well ascertained.
Compensation, if it be adequate in the amount, may still necessarily be
long delayed; and the pendency of such claims always proves troublesome
to the governments of both countries. These detentions, too, frequently
irritate individuals, cause warm blood, and produce nothing but ill
effects on the amicable relations existing between the countries. We
wish, therefore, to put an end to them, and to avoid all occasions for
their recurrence.
On the whole, the government of the United States, while it has not
conceded a mutual right of visit or search, as has been done by the
parties to the quintuple treaty of December, 1841, does not admit that,
by the law and practice of nations, there is any such thing as a right
of visit, distinguished by well-known rules and definitions from the
right of search.
It does not admit that visit of American merchant-vessels by British
cruisers is founded on any right, notwithstanding the cruiser may
suppose such vessel to be British, Brazilian, or Portuguese. We cannot
but see that the detention and examination of American vessels by
British cruisers has already led to consequences, and fear that, if
continued, it would still lead to further consequences, highly injurious
to the lawful commerce of the United States.
At the same time, the government of the United States fully admits that
its flag can give no immunity to pirates, nor to any other than to
regularly documented American vessels. It was upon this view of the
whole case, and with a firm conviction of the truth of these sentiments,
that it cheerfully assumed the duties contained in the treaty of
Washington; in the hope that thereby causes of difficulty and difference
might be altogether removed, and that the two powers might be enabled to
act concurrently, cordially, and effectually for the suppression of a
traffic which both regard as a reproach upon the civilization of the
age, and at war with every principle of humanity and every Christian
sentiment.
The government of the United States has no interest, nor is it under the
influence of any opinions, which should lead it to desire any derogation
of the just authority and rights of maritime power. But in the
convictions which it entertains, and in the measures which it has
adopted, it has been governed solely by a sincere desire to support
those principles and those practices which it believes to be conformable
to public law, and favorable to the peace and harmony of nations.
Both houses of Congress, with a remarkable degree of unanimity, have
made express provisions for carrying into effect the eighth article of
the treaty. An American squadron will immediately proceed to the coast
of Africa. Instructions for its commander are in the course of
preparation, and copies will be furnished to the British government; and
the President confidently believes, that the cordial concurrence of the
two governments in the mode agreed on will be more effectual than any
efforts yet made for the suppression of the slave-trade.
You will read this despatch to Lord Aberdeen, and, if he desire it, give
him a copy.