Part 5

“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]

Then again, in the same despatch, this statesman says:--

“Great Britain must produce, then, an exception in the Law of Nations in favor of the right she contends for. But in what written and received authority will she find it? In what usage, except her own, will it be found?… But nowhere will she find an exception to this freedom of the seas, and of neutral flags, which justifies the taking away of any person, _not an enemy in military service_, found on board a neutral vessel.”[64]

And once more, in the same despatch, he says:--

“Whenever a belligerent claim against persons on board a neutral vessel is referred to in treaties, _enemies in military service alone_ are excepted from the general immunity of persons in that situation; _and this exception confirms the immunity of those who are not included in it_.”[65]

In pursuance of this principle, thus clearly announced and repeated, Mr. Madison instructed Mr. Monroe to propose a convention between the United States and Great Britain containing the following stipulation:--

“No person whatever shall, upon the high seas and without the jurisdiction of either party, be demanded or taken out of any ship or vessel belonging to citizens or subjects of one of the parties, by the public or private armed ships belonging to or in the service of the other, _unless such person be at the time in the military service of an enemy of such other party_.”[66]

Mr. Monroe pressed this stipulation most earnestly upon the British Government; but, though treated courteously, he could get no satisfaction. Lord Harrowby, the Foreign Secretary, in one of his conversations, “expressed concern to find the United States opposed to Great Britain on certain great neutral questions, in favor of the doctrines of the Modern Law, which he termed _novelties_”;[67] and Lord Mulgrave, who succeeded this accomplished nobleman, persevered in the same dissent. Mr. Monroe writes, under date of 18th October, 1805:--

“On a review of the conduct of this Government towards the United States from the commencement of the war, I am inclined to think that the delay which has been so studiously sought in all these concerns is the part of a system, and that it is intended, as circumstances favor, to subject our commerce, at present and hereafter, to every restraint in their power.”[68]

Afterwards Mr. Monroe was joined in the mission to London, as we have already seen, by Mr. Pinkney, and the two united in again presenting this same proposition to the British Government.[69] It was rejected, although the ministry of Mr. Fox, who was then in power, seems to have afforded at one time the expectation of an agreement.

While these distinguished plenipotentiaries were pressing this principle at London, Mr. Madison was maintaining it at home. In an unpublished communication to Mr. Merry, the British minister at Washington, bearing date 9th April, 1805, which I extract from the files of the State Department, he declared:--

“The United States cannot accede to the claim of any nation to take from their vessels on the high seas _any description of persons, except soldiers_ in the actual service of the enemy.”[70]

In a reply bearing date 12th April, 1805, this principle was positively repudiated by the British minister; so that the two Governments were ranged unequivocally on opposite sides. And this attitude was continued. In the subsequent negotiations at London, intrusted to Mr. Rush, in 1818, we find the two powers face to face. The Foreign Secretary was the celebrated Lord Castlereagh, who, according to Mr. Rush, did not hesitate to complain,--

“That we gave to our ships a character of inviolability that Britain did not: that we considered them as part of our soil, clothing them with like immunities.”[71]

To which Mr. Rush replied:--

“That we did consider them as thus inviolable, so far as to afford protection to our seamen; but that we had never sought to exempt them from search for rightful purposes, viz., for enemy’s property, articles contraband of war, or _men in the land or naval service of the enemy. These constituted the utmost limit of the belligerent claim, as we understood the Law of Nations._”[72]

Two champions were never more completely opposed than were the two Governments on this question.

The treaties of the United States with foreign nations are in harmony with the principle so energetically proposed and upheld,--beginning with the Treaty of Amity and Commerce with France in 1778, and ending only with the Peruvian treaty as late as 1851. Here is the provision in the treaty with France, negotiated by Franklin, whose wise forethought is always conspicuous:--

“And it is hereby stipulated that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect, that, _although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies_.”[73]

The obvious effect of this stipulation is twofold: first, that enemies, unless soldiers in actual service, shall not be taken out of a neutral ship; and, secondly, that such persons are not contraband of war so as to affect the voyage of a neutral with illegality. Such was the proposition of Franklin, of whom it has been said, that he snatched the lightning from the skies, and the sceptre from tyrants. That he sought to snatch the trident also is attested by his whole diplomacy, of which this proposition is part.

But the same principle is found in succeeding treaties, sometimes with a slight change of language. In the treaty with the Netherlands, negotiated by John Adams in 1782, the exception is confined to “military men actually in the service of an enemy,”[74]; and this same exception is also found in the treaty with Sweden in 1783,[75] with Prussia in 1785,[76] with Spain in 1795,[77] with France in 1800,[78] with Colombia in 1824,[79] with Central America in 1825,[80] with Brazil in 1828,[81] with Mexico in 1831,[82] with Chile in 1832,[83] with Venezuela in 1836,[84] with Peru-Bolivia in 1836,[85] with Ecuador in 1839,[86] with New Granada in 1846,[87] with Guatemala in 1849,[88] with San Salvador in 1850,[89] and in the treaty with Peru in 1851.[90]

Such is unbroken testimony, in the most solemn form, to the policy of our Government. In some of the treaties the exception is simply “soldiers,” in others it is “officers or soldiers.” Observe, too, that every treaty testifies to the opinions of the Administration that negotiated it, and of at least two thirds of the Senate that ratified it,--so that this large number of treaties constitutes a mass of authority from which there can be no appeal, embracing all the great names of our history. It is true that among these treaties there is none with Great Britain; but it is also true that this is simply because our mother country refused assent, when this principle was presented as an undoubted part of International Law which our Government desired to confirm by treaty.