Part 6

Clearly and beyond all question, according to American principle and practice, the ship was not liable to capture on account of the presence of emissaries, “not soldiers or officers”; nor could such emissaries be legally taken from the ship. But the completeness of this authority is increased by the concurring testimony of the Continent of Europe. Since the Peace of Utrecht, in 1713, the policy of the Continental States has generally refused to sanction the removal of enemies from a neutral ship, unless military men in actual service. And now, since this debate has commenced, we have the positive testimony of the French Government to the same principle, given with special reference to the present case. M. Thouvenel, the Minister of the Emperor for Foreign Affairs, in a recent letter communicated to Mr. Seward, and published with the papers before the Senate, earnestly insists that the Rebel emissaries, not being military persons actually in the service of the enemy, were not subject to seizure on board a neutral ship.[91]

I leave this question with the remark, that it is perhaps Great Britain alone whose position here can be brought into doubt. Originally a party to the Treaty of Utrecht, this imperial power soon saw that its provisions in favor of Maritime Rights interfered plainly with that dictatorship of the sea which Britannia was then grasping. Maritime Rights were repudiated, and her Admiralty Courts have ever since enforced this repudiation.

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Still another question occurs. Beyond all doubt there were “despatches” on board the ship,--such “despatches” as rebels can write. Public report, the statement of persons on board, and the boastful declaration of Jefferson Davis in an official document that these emissaries were proceeding under appointment from him, which appointment would be a “despatch” of the highest character,--and necessarily with instructions also, being another “despatch,”--seem to place this beyond denial. Assuming such fact, very notorious at the time of sailing, the ship was liable to capture and to be carried off for adjudication, according to British authorities,--unless the positive judgment of Sir William Scott in the case of the Atalanta,[92] and also the Queen’s Proclamation at the commencement of the Rebellion, enumerating “despatches” among contraband articles, are treated as nullities, or so far modified in application as to be words and nothing more. Even if the judgment be uncertain and inapplicable, the Queen’s Proclamation is not. Does it not warn British subjects against “carrying officers, soldiers, _despatches_, arms, military stores or materials, … _for the use or service_ of either of the said contending parties”? And we have the authority of a recent English writer, quoted by the English press, who characterizes the conveyance of despatches as “a _service_, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature.”[93]

But however binding and peremptory these authorities in Great Britain, they cannot be accepted to reverse a standing policy of the United States. For the sake of precision in rights claimed and accorded on the ocean, our Government has explained in treaties what was meant by contraband. As early as 1778, in the treaty with France negotiated by Franklin, after specifying contraband articles, without including despatches, it is declared that

“Free goods are all other merchandises and _things_ which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods.”[94]

This was before the judgment of Sir William Scott, recognizing despatches as contraband; but in other treaties subsequent to this well-known judgment, and therefore practically discarding it, after enumerating contraband articles, without specifying “despatches,” the following provision is introduced:--

“All other merchandises and _things_ not comprehended in the articles of contraband explicitly enumerated and classified as above shall be held and considered as free.”[95]

Then again John Quincy Adams, in his admirable draught of a treaty for the reform of Maritime Rights, after declaring specifically what shall be “under the denomination of contraband of war,” without including “despatches,” adds:--

“All the above articles, _and none others_, shall be subject to confiscation, whenever they are attempted to be carried to an enemy.”[96]

Thus we have not only words of enumeration without mention of “despatches,” but also words of exception. These testimonies constitute the record of our nation on this question.

Here it may be remarked, that, while decisions of British Admiralty Courts are freely cited, there are none of our Supreme Court. If any existed, they would be of the highest value; but there are none, and I can imagine no better reason than because the question is so settled by treaties and diplomacy as to be beyond judicial inquiry.

The conclusion follows, that, according to American principle and practice, the ship was not liable on account of despatches on board. And here again we have the testimony of Continental Europe, if we may accept the statement of Hautefeuille, and it would seem also that of the French Government, in the recent letter of M. Thouvenel.

The French champion of neutral rights vindicates the immunity of despatches against English construction in pointed language.

“We must be permitted to protest against the pretension set up by the Americans of considering the transportation of despatches as an act of contraband, and consequently of maintaining that the stopping of the Trent is justified by the fact that there were found on board despatches of the Confederate Government. This pretension, which has always been maintained by England, and which even at the present day is still avowed by its journals, is wholly contrary to all the principles of International Law.”[97]

But Continental testimony is not uniform. So considerable an authority as Heffter recognizes the liability of a neutral vessel for “_voluntarily_ forwarding despatches to or for a belligerent.”[98] This is on general grounds, independent of treaty or national usage.

Even if the ship were liable, so that Captain Wilkes would have been justified in bringing the Trent into port for adjudication, it does not follow that the two Rebels could be summarily seized and taken therefrom. Here again we are brought to that American principle which condemns the pretension of seizing even enemies on board a neutral vessel, unless they are soldiers in actual service, and has constantly cried out against the desecration of our decks by British officers seizing our peaceful sailors under claim of allegiance to the British crown.

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There is yet another question which remains. Assuming that despatches are contraband, would their presence on board a neutral ship, sailing between two neutral ports, render the voyage illegal? The mail steamer was sailing between Havana, a port of Spain, and St. Thomas, a port of Denmark. Here again, if we bow to English precedent, the answer is prompt. The British oracle has spoken. In a well-considered judgment, Sir William Scott declares that despatches taken on board a neutral ship, sailing from a neutral country and bound for another neutral country, are contraband,--but that, where there is reason to believe the master ignorant of their character, “it is not a case in which the property is to be confiscated, although in this, _as in every other instance in which the enemy’s despatches are found on board a vessel_, he has justly subjected himself to all the inconveniences of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned.”[99] Such is the Law of Nations according to Great Britain.

Even if this rule had not been positively repudiated by the United States, it is so inconsistent with reason, and, in the present condition of maritime commerce, so utterly impracticable, that it can find little favor. If a neutral voyage between two neutral ports is rendered illegal on this account, then the postal facilities of the world, and the costly enterprises by which they are conducted, are exposed to interruptions under which they must at times be crushed, to the infinite detriment of universal commerce. If the rule is applicable in one sea, it is applicable in all seas, and there is no part of the ocean which may not be vexed by its enforcement. It would reach to the Mediterranean and to the distant China seas as easily as to the Bahama Channel, and be equally imperative in the chops of the British Channel. Not only the stately mail steamers traversing the ocean would be subject to detention and possible confiscation, but the same penalties must attach to the daily packets between Dover and Calais. The simple statement of such a consequence, following directly from the British rule, throws instant doubt over it, which the eloquent judgment of Sir William Scott cannot remove.

Here again our way is clear. American principle and practice have settled this question also. Wheaton commences his statement of the Law of Contraband by saying, “The general freedom of neutral commerce with the respective belligerent powers is subject to some exceptions. _Among these is the trade with the enemy_ in certain articles called contraband of war.”[100] It will be perceived that the trade must be _with the enemy_, not with the neutral. And here the author followed the suggestions of reason and the voice of American treaties. In the celebrated treaty with Great Britain negotiated by John Jay in 1794, after an enumeration of contraband articles, it is expressly said, “And all the above articles are hereby declared to be just objects of confiscation, _whenever they are attempted to be carried to an enemy_.”[101] Of course, when on the way to neutrals, they are free. And the early treaties negotiated by Benjamin Franklin and John Adams are in similar spirit; and in precisely the same sense is the treaty with Prussia in 1828, which in its twelfth article revives the thirteenth article of our treaty with that same power in 1799, by which contraband is declared to be detainable _only when carried to an enemy_. Even if this rule were of doubtful authority with regard to articles of acknowledged contraband, it is positive with regard to despatches, which, as we have already seen, are among “merchandises and _things_” declared free; with regard to which our early treaties secured the greatest latitude. Nothing can be broader than the words in the treaty of 1778 with France:--

“So that they may be transported and carried _in the freest manner_ by the subjects of both confederates, even to places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.”[102]

But the provision in the treaty with the Netherlands of 1782 is equally broad:--

“So that all _effects_ and merchandises which are not expressly before named may, _without any exception and in perfect liberty_, be transported by the subjects and inhabitants of both allies from and to places belonging to the enemy, excepting only the places which at the same time shall be besieged, blocked, or invested; and those places only shall be held for such which are surrounded nearly by some of the belligerent powers.”[103]

If the immunity of neutral ships needed further confirmation, it would be found again in the concurring testimony of the French Government, conveyed in the recent letter of M. Thouvenel,[104]--which is so remarkable for its brief, but comprehensive, treatment of the questions involved in this controversy. I know not how others may feel, but I like to believe that this communication, when rightly understood, may be accepted as a token of friendship for us, and also as a contribution to those Maritime Rights for which France and the United States in times past have done so much together. This eminent minister does not hesitate to declare, that, if the flag of a neutral cannot completely cover persons and merchandise in a voyage between two neutral ports, then its immunity will be but a vain word.

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As I conclude what I have to say on contraband in its several divisions, I venture to assert that there are two rules in regard to it which the traditional policy of our country has constantly declared, and has embodied in treaty stipulations with every power that could be persuaded to adopt them: first, that no article is contraband, unless expressly enumerated and specified as such by name; secondly, that, when such articles, so enumerated and specified, are found by the belligerent on board a neutral ship, the neutral shall be permitted to deliver them to the belligerent, whenever, by reason of bulk or quantity, such delivery is possible, and then the neutral shall, without further molestation, proceed with all remaining innocent cargo to his destination, being any port, neutral or hostile, not at the time actually blockaded.

Such was the early fixed policy of our country with regard to contraband in neutral bottoms. It is recorded in several of our earlier European treaties. Approximation to it is found in other European treaties, showing our constant effort in this direction. But this policy was not supported by the British theory and practice of International Law, especially active during the wars of the French Revolution; and to this fact may be ascribed something of the difficulty which our Government encountered in effort to secure for this liberal policy the complete sanction of European nations. But in negotiations with the Spanish-American States the theory and practice of Great Britain were less felt; and so to-day that liberal policy, embracing the two rules touching contraband, is, among all American nations, the public law, stipulated and fixed in solemn treaties. I do not quote texts, but I refer to all these treaties, beginning with the convention between the United States and Colombia in 1824. These rules, if not directly conclusive on the question of contraband, at least help to exhibit that spirit of emancipation with which our country has approached the great subject of Maritime Rights.

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Of course this discussion proceeds on the assumption that the Rebels are regarded as belligerents, which is the character especially accorded by Great Britain. If they are not regarded as belligerents, then is the proceeding of Captain Wilkes indubitably illegal and void. To a political offender, however deep his guilt, though burdened with the undying execrations of all honest men, and bending beneath the consciousness of the ruin he has brought upon his country, the asylum of a foreign jurisdiction is sacred, whether on shore or sea; and it is among the proudest boasts of England, at least in recent days, that the exiles of defeated democracies, as well as of defeated dynasties, have found a sure protection beneath her meteor flag. And yet this lofty power has not always accorded to other flags what she claimed for her own. One of the objections made to any renunciation of impressment by Great Britain, at the beginning of the present century, was, “that facility would be given, particularly in the British Channel, by the immunity claimed for American vessels, _to the escape of traitors_”[105]: thus assuming, not only that traitors--companions of Robert Emmet, in Ireland, or companions of Horne Tooke, in England--ought to be arrested on board a neutral ship, but that impressment was needed for this purpose. This flagrant instance cannot be a precedent for the United States, which has maintained the right of asylum as firmly always as it has rejected the pretension of impressment.

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If I am correct in this review, then the conclusion is inevitable. The seizure of the Rebel emissaries on board a neutral ship cannot be justified, according to declared American principles and practice. There is no single point where the seizure is not questionable, unless we invoke British precedents and practice, which, beyond doubt, led Captain Wilkes into his mistake. In the solitude of his ship he consulted familiar authorities at hand, and felt that in Vattel and Sir William Scott, as quoted by eminent writers, he had guides, while the inveterate practice of the British navy lighted his way. He was mistaken. There was a better example: it was the constant, uniform, unhesitating practice of his own country on the ocean, conceding always the greatest immunities to neutral ships, unless sailing to blockaded ports, refusing to consider despatches as contraband of war, refusing to consider persons other than soldiers or officers as contraband of war, and protesting always against an adjudication of personal rights by summary judgment of the quarter-deck. Had these well-attested precedents been in his mind, the gallant captain would not, even for a moment, have been seduced from allegiance to those principles which constitute part of our country’s glory.

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Mr. President, let the Rebels go. Two wicked men, ungrateful to their country, with two younger confederates, are set loose with the brand of Cain upon their foreheads. Prison-doors are opened; but principles are established which will help to free other men, and to open the gates of the sea. Never before in her renowned history has Great Britain ranged herself on this side. Such an event is an epoch. “_Novus sæclôrum nascitur ordo._” To the liberties of the sea this power is at last committed. To a certain extent the great cause is now under her tutelary care. If the immunities of passengers not in the military or naval service, as well as of sailors, are not directly recognized, they are at least implied; if neutral rights are not ostentatiously proclaimed, they are at least invoked; while the whole pretension of impressment, so long the pest of neutral commerce, and operating only through lawless adjudication of the quarter-deck, is made absolutely impossible. Thus is the freedom of the sea enlarged in the name of peaceful neutral rights, not only by limiting the number of persons exposed to the penalties of war, but by driving from it the most offensive pretension that ever stalked upon its waves. Farewell to kidnapping and man-stealing on the ocean! To such conclusion Great Britain is irrevocably pledged. Nor treaty nor bond is needed. It is sufficient that her late appeal can be vindicated only by renunciation of early, long-continued tyranny. Let her bear the Rebels back. The consideration is ample; for the sea became free as this altered power went forth, steering westward with the sun, on an errand of liberation.

In this surrender, if such it may be called, the National Government does not even “stoop to conquer.” It simply lifts itself to the height of its own original principles. The early efforts of its best negotiators, the patriot trials of its soldiers in an unequal war, at length prevail, and Great Britain, usually so haughty, invites us to practise upon principles which she has so strenuously opposed. There are victories of force: here is a victory of truth. If Great Britain has gained the custody of two Rebels, the United States have secured the triumph of their principles.

As this result is in conformity with our cherished history, it is superfluous to add other considerations; and yet I venture to suggest that estranged sympathies abroad may be secured again by open adhesion to principles which have the support already of Continental Europe, smarting for years under British pretensions. The powerful organs of opinion on the Continent are also with us. Hautefeuille, whose earnest work on the Law of Nations[106] is the arsenal of neutral rights, has entered into this debate with a direct proposition for the release of the emissaries, as a testimony to the true interpretation of International Law. Another distinguished Frenchman, Agénor de Gasparin, whose impassioned love of liberty and enlightened devotion to our country impart to his voice all the persuasion of friendship, has made a similar appeal.[107] And a journal which of itself is an authority, the _Revue des Deux Mondes_, declares, in words which harmonize with what I have said to-day, that, “in disavowing a capture effected by the arbitrary initiative of a naval officer, without any of the guaranties of legal justice, without the intervention and the sanction of a Court of Admiralty, the United States, far from renouncing any of their political principles, would only render homage to the doctrine which they have ever professed on the rights of neutrals.” The same distinguished journal proceeds: “It would be in reality a true triumph for this doctrine so to apply it to the profit of a nation and of a government which have always contested or violated the rights of neutrals, but which would be henceforward constrained to the abandonment of their arbitrary pretensions by the conspicuous authority of such a precedent.”[108]

Nor is this triumph enough. The sea-god will in future use his trident less; but the same principles which led to the present renunciation of early pretensions naturally conduct to yet further emancipation of the sea. The work of maritime civilization is not finished. And here the two nations, equally endowed by commerce, and matched together, while surpassing all others, in peaceful ships, may gloriously unite in setting up new pillars, to mark new triumphs, rendering the ocean a highway of peace, instead of a bloody field.

The Congress of Paris, in 1856, where were assembled the plenipotentiaries of Great Britain, France, Austria, Prussia, Russia, Sardinia, and Turkey, has already led the way. Adopting the early policy of the United States, often proposed to foreign nations, this congress authenticated two important changes in restraint of belligerent rights: first, that the neutral flag shall protect enemy goods, except contraband of war; and, secondly, that neutral goods, except contraband of war, are not liable to capture under an enemy’s flag. This is much. Another proposition, for the abolition of Privateering, was defective in two respects: first, because it left nations free to employ private vessels under public commission as ships of the navy, and therefore was nugatory; and, secondly, because, if not nugatory, it was too obviously in the special interest of Great Britain, which, through her commanding navy, would be left at will to rule the sea. No change can be practicable which is not equal in advantage to all nations; for the Equality of Nations is not a dry dogma merely of International Law, but a vital sentiment common to all. This cannot be overlooked; and every proposition must be brought sincerely to its equitable test.