Part 2

As in that remarkable instance, there is the same indifference to _historic precedents_. I do not refer to cases decided in prize courts, where the question is of _strict law_, which must prevail,--as where Sir William Scott decreed restitution of a vessel captured by a British privateer stationed among the mud islands at the mouth of the Mississippi, and within the neutral territory of the United States. I refer to another class of precedents, not to be found in judicial decisions, but in the history of Great Britain. And as, in the instance of the Trent, it appeared that this power had for several generations, under a pretended claim, entered on board foreign ships and forcibly dragged away persons from the protection of their flag, thus doing on a large scale what was done by Commodore Wilkes on a very small scale,--so it appears that this same power, whose newspapers are now swift to condemn the act of Captain Collins, has for many generations been in the habit of seizing or destroying vessels in neutral waters.

_Judicial decisions_ exhibit the strict law obligatory on courts. _Historic precedents_ exhibit the practice of nations, where strict law is often modified by considerations of necessity or policy. The first, as a general rule, concern private rights; the second, as a general rule, concern public rights. The first are questions for the court; the second are questions for executive deliberation and for diplomacy. It is needless to add that the case of the Florida is not a case of private rights. It is an historic incident, destined hereafter to be a precedent, which will be determined by the executive, and not by the judiciary. If the Florida were an ordinary private ship, claimed by private individuals, it would naturally fall under the cognizance of a prize court. But it is claimed as a public ship, which, as is well known, is not subject to the jurisdiction of a prize court. Or, assuming its private character by reason of its piratical origin, there are questions involved which must ultimately come under the cognizance of the Executive, and which belong to the history of the country.

Of course, the general principle of International Law applicable to such an incident is beyond question. It is found in the authoritative words of the Dutch publicist, Bynkershoek, when he says, “Certainly it is by no means lawful to attack or take an enemy in the port of a neutral who is in amity with both parties.”[2] Chancellor Kent, a great authority, enforces the same principle, when he says, “It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it.”[3] General Halleck, in his excellent work on International Law, says: “Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties.” And he follows this compendious statement with the remark, that “the Government of the United States has invariably claimed the absolute inviolability of neutral territory.”[4] As early as 1793, our Government gave its adhesion to this principle in a case where Great Britain and France were the hostile parties. The British merchant-ship Grange was captured in Delaware Bay by a French frigate, and brought into Philadelphia, to which port she was bound. Mr. Jefferson, in a gossiping letter to Mr. Monroe, under date of May 5, 1793, says: “Upon her coming into sight, thousands and thousands of the yeomanry of the city crowded and covered the wharves. Never before was such a crowd seen there; and when the British colors were seen reversed, and the French flying above them, they burst into peals of exultation.”[5] The British minister, addressing himself at once to our Government, demanded restitution of the captured vessel, then within our jurisdiction. The French minister insisted that Delaware Bay was an open sea, so that the original capture was lawful. _But the ship was restored._ Washington was at the time President, and Jefferson Secretary of State. It is not known that there was any appearance in the prize court with reference to the Grange. It was settled by diplomacy, as will be seen by a formal letter of the Secretary of State addressed to the French minister, where he says: “I am charged by the President of the United States to express to you his expectation, and at the same time his confidence, that you will be pleased to take immediate and effectual measures for having the ship Grange and her cargo restored to the British owners, and the persons taken on board her set at liberty.”[6] The general principle illustrated by this striking case has been maintained by our Government ever since. If any reader is curious to see an elaborate vindication of it, I refer him to a very animated article in the “Boston Gazette” for 1814, transferred to “Niles’s Register,”[7] where the inviolability of neutral territory is upheld, especially against the open pretensions of Great Britain.

This general principle may seem at first view conclusive with regard to the Florida. If this vessel, now lying within the jurisdiction of the United States, were an ordinary private ship, cognizable in a prize court, or if it were still within the jurisdiction of Brazil, it might be so. But it remains to be seen whether there are not decisive considerations, _distinguishing this case from every other_, which will justify our Government, while recognizing the violation of Brazilian territory, and making all proper apologies, _at least in declining any restitution of the ship_. On this point it is not necessary to express an opinion. I began by allusion to the reckless judgments of British journals, tending to excite a cry against our country; and my present object will be accomplished, if I exhibit those _historic precedents_ which must close the British mouth, whenever it opens to condemn a capture like that of the Florida.

1. It was in the reign of Queen Elizabeth that England began to contest the supremacy of the seas; and it was in this same reign that this domineering power began those pretensions under which neutral rights of all kinds were set at nought. As early as 1567, Hawkins, fresh from a slave-trading voyage in the ship “Jesus,” fired at a Spanish ship in the harbor of Plymouth, and forced her to lower her flag. The Spanish ambassador said indignantly to Elizabeth: “Your mariners rob my master’s subjects on the sea; they plunder our people in the streets of your towns; _they attack our vessels in your very harbors_. I entreat your Majesty to punish this last outrage at Plymouth, and to preserve the peace between the two nations.”[8] Elizabeth gave a smooth answer, and that was all.

2. Not long afterwards Admiral Drake entered the harbor of Cadiz, where he scattered, sunk, and burned an immense fleet of Spanish transports, and then did the same thing in the harbor of Lisbon. There were apologies on the part of Elizabeth; Burleigh wrote a crafty letter; the Admiral was disavowed; but this was all.[9] Among the ships seized at Lisbon were no less than sixty belonging to the Hanse Towns. _These towns vainly demanded their restitution._ Philip of Spain, at that time sovereign of Portugal, was equally unsuccessful, although, by way of retaliation, he drove from Lisbon the factors of the Company of English Merchants.[10]

Such are some of the earliest historic precedents.

3. In similar defiance of unquestionable right, the Dutch East India fleet, in 1665, which had put into Bergen in Norway, was attacked by the English in this neutral port. On this outrage Vattel remarks: “But the Governor of Bergen fired on the assailants, and the Court of Denmark complained, perhaps too faintly, of an enterprise so injurious to its dignity and its rights.”[11]

4. Throughout the seventeenth century numerous incidents illustrate the pretensions of Great Britain; and so also in the next century. Émérigon, the famous French authority on the Law of Insurance, mentions one which deserves notice. In 1757, a French bark, La Victoire, chased by a British privateer, sought refuge in the neutral waters of Majorca, where she anchored within pistol-shot of the shore. The British privateer seized the bark, notwithstanding three shots fired from the castle. A few days later the prize was recaptured by a French privateer. The original owners of the bark claimed her, on the ground that her capture was null; but the court of prizes awarded one third to the recaptor.[12] The learned author fails to record any reparation by Great Britain.

Advancing to later times, the historic precedents multiply. I pass over a considerable period, not without examples, and come at once to those occurring in the protracted war against the French Revolution.

5. War had hardly begun, when, in 1793, the port of Genoa was the scene of an incident differing from that in Bahia only in its very aggravating circumstances, and in the bloodshed that ensued. The French frigate La Modeste was quietly at anchor in this neutral harbor when a British ship-of-the-line came alongside. Suddenly the British commander summoned the Frenchman to surrender. On his refusal, the frigate was boarded, and three hundred of the unarmed crew were massacred. The frigate was carried to England. Such is the account given by a French author, who complains bitterly that the British Government did nothing to punish the outrage. The Genoese Government was powerless; and the French Convention, in a decree marked by great moderation, proceeded to release it from all responsibility, although at a later day it appears to have paid two millions of francs as an indemnity.[13] The reader curious in dates will not fail to observe that it was in the very year when the neutrality of Genoa was thus set at defiance that the British minister in the United States claimed the surrender of a ship seized by a French frigate in defiance of our neutrality. Such are famous contradictions of national conduct. A British ship captured by France in neutral waters was surrendered at the demand of Great Britain; a French ship captured by Great Britain in neutral waters was hurried off by the captor as prize of war.

6. The same author who has described the outrage in the harbor of Genoa adds that Admiral Nelson afterwards carried off another French vessel in full view of the Genoese batteries.[14]

7. Another instance appears, where Admiral Nelson, in 1798, entered the neutral port of Leghorn, and seized a fleet of Genoese ships with rich cargoes. The author who records this outrage makes it “yet otherwise culpable on account of the high position of the personage, who, without respect for the independence and dignity of a friendly and neutral nation, assumed the moral responsibility of it.”[15]

8. The same lawlessness governing British commanders in Leghorn and Genoa appeared also this side of the Atlantic. In August, 1795, an audacious attempt was made by the British ship-of-war Africa to seize the French minister, M. Fauchet, when on his way from New York to Newport, on board the sloop Peggy, within the waters of the United States. The sloop was boarded at the entrance of Newport harbor, and within two miles of the light-house, and the trunks of the minister were overhauled; but he had already left at an intermediate port, so that the trespassers were disappointed. M. Fauchet, in a communication to his successor, M. Adet, says: “I shall express to you but one afflicting sentiment, which is, that in a free State, with a government in which England has just acquired a friend, there is no safety for myself or my papers; for, in a word, as it was from _a public packet-boat in a neutral port_ that I was to have been carried off, there is no reason why I should not be taken on the highway or in an inn, if it could be done with impunity.” Our Government vainly endeavored to obtain reparation from Great Britain for this outrage, while France, on her part, mentioned the “impunity” of its authors among her causes of complaint against us. It is only recently that the facts of this remarkable case have appeared in a document printed by order of the Senate.[16] They help swell the present testimony.

9. Taking these instances in the order of time, we come next to outrages on the coast of Norway. The British frigate Squirrel, on entering the Norwegian port of Oster-Risoer, in 1801, then belonging to Denmark, seized a Swedish ship, and put its pilot in irons. Then coming to anchor, it deliberately captured three other Swedish vessels, and, sending on shore, kidnapped several pilots. Two or three days afterwards, a boat from another British man-of-war, the cutter Achilles, entered the Norwegian port of Egvang, and seized a French prize at anchor there, while the cutter’s crew fired upon a bark having on board peaceable inhabitants, wounding one of them. The Danish Government promptly demanded reparation for these accumulated outrages, and especially the restitution of the vessels. The British minister, Lord Hawkesbury, at once declared that the guilty individuals should receive the strongest marks of disapprobation from his Government, _but that, with regard to the restitution of the vessels, it was impossible for him, in the existing circumstances of the two countries, to enter into any explanation_,--that, if the present misunderstanding should be amicably adjusted, “these cases would naturally be carried, without loss of time, _before the regular and impartial tribunals_ established for the decision of such causes, according to principles of justice and the Law of Nations.” The Danish minister at once replied, that his sovereign would never consent that the open violation of his ports and his territory should become, under any pretext, the subject of deliberation and decision in any tribunals whatever,--that his sovereign and territorial rights were assured, and he would not abandon them. Lord Hawkesbury was moved, in reply, to disapprove the conduct of the British officers, _and to order the restitution of the Swedish vessels captured in the port of Oster-Risoer_. At the very moment of this “incomplete reparation,” as it has been called, Great Britain was preparing her first expedition against Copenhagen.[17]

10. The same French author, who, in ardor for neutral rights, has exposed the conduct of Great Britain, mentions the instance of an English frigate, in 1803, which, after capturing a Swedish vessel in a Norwegian port, entered the neutral port of Bergen, where her commander attempted to seize a Dutch vessel and two French privateers. These three vessels were saved by crawling, with permission of the Governor, under the guns of the fortress; but the attempt was a violation of the neutral waters of Bergen, which passed without reparation.[18]

11. M. de Cussy also mentions, that, during this same year, a British man-of-war insulted a French vessel in the neutral port of Lisbon.[19]

12. The next instance was again on this side of the Atlantic, and in the neutral waters of our own coast. The French ship-of-the-line L’Impétueux, separated in a storm from the fleet to which she belonged, and much disabled, was discovered, September, 1806, by several British men-of-war off Cape Henry. The French ship turned her head to the land, and was actually aground before the British ships came within cannon-shot. But, though in this disabled condition, and on the very shores of the United States, she received a British broadside. The French commander vainly protested that he was on neutral territory. His crew were taken prisoners, and his ship was burned. This act was a violation of the Law of Nations doubly noticeable, as the immunity of our coast “within cannon-shot” had been expressly recognized in the Treaty of 1794 between Great Britain and the United States. As the ship was burned, there could be no question of its restitution. But it does not appear that there was reparation of any kind,--not even apology.[20]

13. The outrage upon the frigate Chesapeake properly belongs to this list, for it was a barefaced and most insulting violation of territorial jurisdiction. This was in June, 1807, while the United States were at peace with all the world. The Chesapeake, having proceeded to sea, was followed by the British frigate Leopard, lying at Hampton Roads, which, after ranging alongside, commenced a heavy fire, until the commander of the Chesapeake felt it his duty to strike his colors and to inform the British commander that the Chesapeake was his prize. It is needless to mention the details of this unparalleled enormity, or the mingled anger and humiliation which ensued in the country, as they became known. A demand for reparation was made at once; but it was only after four years of negotiation that the terms of adjustment were mutually accepted. There was no ship to restore; but the men forcibly taken from the Chesapeake were, “as far as circumstances would admit,” returned to that frigate, then lying in the harbor of Boston.[21]

14. At the time these outrages were perpetrated on our coast, another, on a larger scale, was planned and executed in the Baltic. Denmark had been “scrupulously neutral”; but the British Government feared that its fleet at Copenhagen might in some way be appropriated by Napoleon, whose Continental supremacy had recently culminated at the Peace of Tilsit. It was determined to seize this fleet, and a naval expedition of corresponding force was directed against Copenhagen. The Danes made a brave resistance; but at last, on the 7th of September, 1807, they were compelled to capitulate. The Danish fleet was surrendered to the British admiral.[22]

15. Then came the American frigate Essex, under Captain Porter, captured by a superior British force in the neutral waters of Valparaiso. The Essex had made a very successful cruise, and become a terror to British navigation. It was important to stop her victories. The newspapers of the time assert that “an Admiralty order was issued, commanding the officers of British ships in the South Seas _not to respect any port as neutral where the Essex should be found_.” It is certain that the British commander acted in this spirit. With two frigates, the Phœbe and the Cherub, March 28, 1814, he opened fire upon the Essex, then at anchor, according to her log-book, “in nine and an half fathoms water, within half-pistol shot of the shore.” After a desperate battle of two hours and a half, Captain Porter was compelled to surrender. The people glowed with admiration of his gallantry, and indignation at what was called “this glaring defiance of the clearest principle of National Law.” It was said, that, “though the country had lost a ship, it had lost nothing else.”[23] But here the matter ended. The ship was never restored; nor does it appear to have been the subject of reclamation, either by our Government upon Spain, or by Spain upon Great Britain. The President’s message at the opening of the next Congress, while commending the gallantry of Captain Porter, does not even allude to the violation of International Law in his capture. But it will be remarked, that at this time the South American colonies were beginning to be convulsed by that long revolutionary war which closed with their independence, so that there was a practical difficulty in obtaining any remedy for this outrage. We could not apply directly to England, and neither Spain nor Chile was in condition to receive any such application. Silence on our part was the only policy. But the act is not forgotten among the precedents of British history.

16. Then came the General Armstrong, an American privateer, destroyed by a British squadron in the neutral waters of Fayal, in September, 1814. There is a dispute as to certain facts in this case. On the British side it is said that the privateer fired first and killed several men. But it is clear that the privateer was pursued and attacked under the very guns of the Portuguese fortress, and, after being abandoned by her crew, was burned by the British. As war at that time existed between Great Britain and the United States, our Government was compelled to resort for reparation to Portugal, whose neutral territory had been violated. After a protracted negotiation for more than a generation, the question was submitted to the arbitration of Louis Napoleon, while President of the French Republic, who decided that nothing was due from Portugal. This was on the ground of exceptional circumstances, and among other things, that the American commander “had not applied from the beginning for the intervention of the neutral sovereign, and that, by having recourse to arms to repel an unjust aggression of which he pretended to be the object, he had himself failed to respect the neutrality of the territory of the foreign sovereign, and had thereby released that sovereign from the obligation in which he was to afford him protection by any other means than that of a pacific intervention.”[24] In this case the ship was destroyed, so that there was no question of restitution. But Great Britain made no reparation of any kind.

Such are some of the seizures actually made by Great Britain, in defiance of neutral rights, during the wars against the French Revolution and against us.

17. There is another incident, belonging to the latter period, which, though not a consummated seizure, is in the nature of testimony, especially as it concerns the very port of Bahia where the Florida was taken. Commodore Bainbridge, of the Navy of the United States, after capture of the British frigate Java, left Captain Lawrence in the Hornet to cruise off the port of Bahia, instructing him as follows: “You will cruise off here as long as in your judgment you may deem it necessary.… Be on your guard against the arrival of the Montague, seventy-four; _and I advise you not to rely too much on the protection of the neutral port of Bahia against the [British] Admiral’s influence to capture you even in port_.”[25] Captain Lawrence followed these instructions, and, though driven by the Montague into the port, at once took advantage of the night and escaped to sea, thus eluding British violence in neutral waters. The Hornet was not “gobbled up,” as her capture of the Peacock shortly afterwards amply attests; but it is evident that the will was not wanting.

18. The long interval of peace after the outrages last mentioned caused a lull in British pretensions,--to be awakened by the blast of war. In 1837, Canada was disturbed by a rebellion, soon followed by the invasion of our territorial jurisdiction at Niagara. I refer to the case of the steamboat Caroline, which, while moored to the American shore, was entered in the darkness of night by a British expedition from Canada, set on fire, and pushed into the rapids to be precipitated over the cataract. Some persons on board were killed and others wounded. For this unquestionable violation of our territory there was no offer of reparation,--“no acknowledgment, no explanation, no apology,” as Mr. Webster expressed it,--until, nearly five years afterwards, Lord Ashburton, on his special mission, expressed regret “that some explanation and apology was not immediately made.” The amiable language of the British minister was promptly accepted by Mr. Webster, who was at the time Secretary of State, and the controversy subsided. The steamboat had been destroyed; but there was no offer to restore its value, nor was this question raised by our Government.[26]