Part 4

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:--