Part 3

19. The latest instance, in point of time, worth while to name in this list, is that of the Brazilian ship Santa Cruz, which, in 1850, was seized and burned, with all her lading and papers, by a British cruiser in the Brazilian waters. The excuse for the seizure was that the ship was engaged in the slave-trade, and for the burning that she was unseaworthy; but both these assertions were denied point-blank by the Brazilian Government, which branded the transaction as “Vandalism,” and gave notice that it would demand indemnity for the loss of the ship. As the ship was destroyed, there was no question of restitution. But there was formal protest against what was called “a violation of every principle of the Law of Nations by acts highly derogatory to the dignity, the sovereignty, and the independence of Brazil,--a nation as sovereign and independent as Great Britain, although it may not have the power to prevent such proceedings.”[27]

20. There is another instance, which, though earlier in time, I have reserved for the last, on account of the authentic declarations of an eminent British minister, bearing on the question now in issue between Brazil and the United States: I refer to the case of the French ships burnt or captured at Lagos, in 1759, within the territorial jurisdiction of Portugal. A British fleet under Admiral Boscawen falling in with an inferior French fleet, the latter took refuge near the coast. What ensued is thus described in the contemporary Memoirs of Horace Walpole. “They made a running fight, but could not escape the vigilance and bravery of Boscawen. Two of their largest ships were taken; two others forced on shore and burnt, in one of which was the commander, who was wounded in both legs, and expired soon after. The action passed on the 18th of August.”[28] This incident took its place among the victories of the year, which, according to the lively remark of Walpole in another place, were so numerous as to force him “to ask every morning what victory there was, for fear of missing one.”[29] But this victory was followed by an unexpected drawback. Pombal, a man of genius and courage, and the greatest administrator Portugal has produced, was at the time Prime-Minister. He complained vehemently that the Portuguese territory had been violated, and demanded satisfaction of Great Britain according to the Law of Nations.[30] In Great Britain, William Pitt, afterwards Lord Chatham, was at the head of affairs, teaching his country success in war as in commerce, and filling the world with English renown. He met this question promptly. In instructions to the British minister at Lisbon, written before the Portuguese complaint had reached him, dated at Whitehall, September 12, 1759, and marked “Most secret,” he says:--

“In case you shall find that any violence has actually been committed by his Majesty’s ships against the immunities of the coasts of Portugal, it is the King’s pleasure that you should express in the strongest terms to the Count de Oeyras [afterwards Marquis of Pombal], and to the other ministers, the extreme pain which such a most unfortunate incident must give to the King as soon as the certain knowledge of it shall reach his Majesty.… At the same time, in case there has actually been a violation of territory on our part, you will take care to avail yourself of all the circumstances of extenuation, of a nature to soften the impressions which the first sense of any insult on that coast may have made. But you will be particularly attentive not to employ any favorable circumstances to justify what the Law of Nations condemns, but you will insensibly throw the same into your conversation with insinuations and address, as considerations of alleviation, which it is to be hoped may prevent all asperity between two courts so mutually well disposed to each other, and whose interests are so inseparable.”

And the letter closes by declaring that

“His Majesty has nothing more really at heart than to give, as far as he can with honor, to the King of Portugal all reasonable satisfaction that one power in amity can desire from another upon an incident so totally unforeseen and without intention of offence.”

Then follows this postscript:--

“P. S. Though it be sufficiently implied by the above words, _all reasonable satisfaction, as far as his Majesty can with honor_, that there are things which his Majesty could not possibly on any account comply with, I have thought it may not be improper, for your more certain guidance, expressly to signify to you that any personal mark on a great Admiral who has done so essential a service to his country, or on any one under his command, is totally inadmissible, _as well as the idea of restoring the ships of war taken_. You will therefore, in case, in your conversation with the Portuguese ministers, any suggestion pointing to either of those methods of satisfaction should be thrown out, _take especial care to say enough to shut the door entirely against any expectation of that kind_,--being at the same time particularly attentive to avoid, in the manner, everything that can carry the air of peremptoriness or harshness which may interest the delicacy of the King of Portugal. I am further to give you to understand, for your private information, that, if the circumstances of the supposed grievance should come out to be of sufficient magnitude, such is the King’s strong desire to give the most public and ostensible satisfaction to the King of Portugal, that his Majesty will not, I believe, even be averse to sending an extraordinary mission on this occasion.”[31]

The extraordinary embassy promised in this postscript was despatched to Lisbon; and here we have another letter of Mr. Pitt, dated at Whitehall, May 30, 1760, and marked “Most secret,” where he declares anew “the King’s immutable and affectionate concern for the dignity and independence of the crown of Portugal,” and enjoins upon his ambassador to “forbear entering into much controversial reasoning,” and to “accompany his answer with all possible gentleness and cordiality of manner, and with the most conciliating and amicable expressions.” It seems that the Portuguese minister had demanded the restitution of the ships, but accompanied by “the friendly and confidential declaration _that a compliance therewith was not expected_.” Mr. Pitt was anxious to avoid any such demand, as “an invidious use would not fail to be made of it by enemies, and perhaps by neutral powers.”[32] From the Memoirs of Pombal we learn how the British ambassador acquitted himself.

“The King of England sent an ambassador extraordinary to Lisbon to give the satisfaction which was demanded. It was Lord Kinnoul who was charged with it, and who acquitted himself of this commission as the Count de Oeyras [Marquis of Pombal] required. This lord declared openly and in full audience, composed of the foreign ministers, that the English officers who burnt the French vessels on the coast of Lagos were reprehensible, and that on this account the King, his master, sent him to Lisbon, in order to testify that he had no part in it, and that it was contrary to his orders that they had committed that act of hostility for which he made reparation.”[33]

_The ships were not restored_, nor was there any indemnity. But the case did not end here. In 1762 France declared war against Portugal, and in its declaration made the failure to obtain restoration of these ships one of the causes of war. These are the words:--

“Every one knows the utmost and violent attack made by the English in 1759 on some of the [French] King’s ships under the cannon of the Portuguese forts at Lagos. His Majesty demanded of the Most Faithful King to procure him restitution of those ships; but that Prince’s ministers, in contempt of what was due to the rules of justice, the laws of the sea, the sovereignty and territory of their master (all which were indecently violated by the most scandalous infraction of the rights of sovereigns and of nations), in answer to the repeated requisitions of the King’s ambassador on this head, made only vague speeches, with an air of indifference that bordered on derision.”[34]

Thus, while Great Britain was saved from the restitution of the ships, Portugal was compelled to suffer.

* * * * *

Such are historic precedents furnished by Great Britain to illustrate the case of the Florida. In face of this long array, it is difficult to see how British critics or British ministers can venture to reproach us.

From this review it appears, that, where ships have been captured in neutral waters, their restitution was at least on one occasion positively refused by a British minister of commanding authority, while on other occasions it was avoided from destruction of the ships. If the American commander who undertook this business at Bahia had done it completely, there would be little difficulty now. There were fire and water both at his service. He might have burned the Florida or scuttled her at once, and his offence would have been no greater than now, while, according to the precedents, his Government would have been relieved from embarrassment.

But there are peculiar circumstances which distinguish this instance from every other. They may be mentioned under two heads: I shall only allude to them.

_First._ The Florida was illegitimate and piratical in origin and conduct, being little more than a lawless gypsy of the sea,--born contrary to the Law of Nations, and living in constant defiance of that law.

_Secondly._ The Florida pretended to belong to a Rebel combination of slave-masters, now engaged in rebellion for the sake of Slavery. Though certain foreign powers, including Brazil, have conceded to this Rebel combination what are called “belligerent rights,” yet the extent of this concession is undecided. Of course, it is much less than a recognition of national independence. Every presumption must be against such a Rebel combination, having such an object. The indecent haste with which “belligerent rights” were originally conceded cannot be forgotten now; nor can we neglect the well-founded argument, that, in the absence of prize courts belonging to the pretended power, any such concession _on the ocean_ was flagrantly unjust, and, when we consider its wide-spread consequences, to be reprehended always by our Government, as it must be by impartial history. Assuming that the restitution of a ship belonging to an independent power, as to France or England, might be properly required, it does not follow that such restitution should be required in a case like the present, where the pretended owner is not an independent power, and where the ship was lawless in origin and conduct,--or, in other words, that Brazil should expect the United States to restore the Florida, that it might be handed over again to the support of a slaveholding Rebellion and to burn more ships.

* * * * *

I call attention to these considerations without expressing any final opinion. The case of Koszta, forcibly taken by an American frigate from an Austrian ship-of-war in the territorial waters of Turkey, shows how the conduct of governments is sometimes inconsistent with strict law. An explanation and apology were promptly offered to Turkey, whose neutrality had been violated; but this was all. There was no offer on our part to surrender Koszta; nor was there any demand by Turkey for his restitution. But the present case is stronger than that of Koszta.

It is well understood that the seizure of the Florida was wrong only with respect to Brazil, and not with respect to the Rebel enemy. There can be no demand, therefore, unless Brazil steps forward. Whatever is done must be in her name and at her instance. The enlightened Emperor of Brazil is of the royal house of Braganza, which reigned in Portugal when her great minister, Pombal, forbore to press the restitution of ships captured by the British in Portuguese waters. Here is a precedent of his own family, completely applicable. I venture to add that he would do an inconsiderate and unfriendly act, if he should press the restitution of a ship obnoxious not only as a public enemy, but as the piratical agent of a wicked Rebellion. Even admitting that the capture was null by the Law of Nations, yet the nature of the reparation to be demanded rests absolutely in the discretion of Brazil, and in this age no power can be justified in any exercise of discretion adverse to human freedom.

AMERICANUS.

The article was answered by an able writer in the _Advertiser_ of December 13th, who assumed that Mr. Sumner was the apologist of seizures in neutral waters. It was also severely criticized by Professor Goldwin Smith, then travelling among us, in a letter which was given to the newspapers. Mr. Sumner, whose special object was to anticipate British criticism and to smooth the way with Brazil, said nothing until the case was understood to be settled, when he reappeared in the _Advertiser_ of January 17, 1865.

SUPPLEMENT.

The recent correspondence between Mr. Seward and the Brazilian Chargé d’Affaires at Washington seems to bring the case of the Florida to a close. Our Government has distinctly recognized the inviolability of territorial sovereignty, and made reparation for the original act of violence, so much discussed. The vessel itself, out of which the question arose, was no longer in existence; so that the only important point not already settled by principle and precedent was eliminated from the case. There was no vessel to be claimed on the one side or refused on the other, and nothing was said of damages on account of its loss. Of course, had the Florida belonged to Brazil, any reparation would have been incomplete which did not embrace the vessel or its value.

But Mr. Seward has been careful to exclude the assumption that the Rebels have belligerent rights on the ocean, and also the other assumption that the Florida was anything but a pirate. It is clear that the position taken on these two points must have influenced any decision with regard to the vessel itself, or damages on account of its loss.

As the case is now settled, it is unnecessary to consider objections adduced against the view presented by me in the “Advertiser” some weeks ago. What is now certain was then uncertain. The Government has spoken, and the country accepts the result. But it may not be unprofitable to return for one moment to the original discussion.

My object at that time was to furnish materials for final judgment, and especially to repel British objurgations which befogged the whole question. It was important that our national conduct should be determined calmly, according to the best principles, and with perfect knowledge of the past. But it is difficult to deal with this or any kindred question without repairing to British history. There are precedents to be shunned as well as to be followed, and both should be studied. It is strange that such an attempt should have been misunderstood. Perhaps it is stranger still that anybody should have insisted on our humble submission to the most opprobrious epithets, without reminding the objurgators of the history of their own country, bristling with incidents _having in them all that was indefensible in the Florida case without any of its exceptional circumstances_. A Roman poet exclaims:--

“Quis tulerit Gracchos de seditione querentes?”[35]

And another authority, which will not be questioned, expressly enjoins on the censor to extract the beam from his own eye before he complains of the mote in the eye of another.

In the excess of dissent from what I said, it was even suggested that the vessel should be surrendered to Brazil,--of course as trustee of Rebel Slavery. But this was a very hasty suggestion, forgetting the piratical origin of the vessel, and forgetting the piratical slavemonger character of its pretended owners, having no _ocean_ rights. Admitting the inviolability of neutral waters, it does not follow that such a vessel could be claimed, or, if Brazil were so ill-advised as to make such a claim, that our Government could hearken to it. It was because I saw this clearly that I sought to set up a breakwater against such claim, and to prepare public opinion on the subject. It is noble in a nation to acknowledge wrong; but it is weakness to sacrifice a great cause.

The Statute of Limitations has been set up against some of the historic instances adduced, and the very recent date of the Congress of Paris, at the close of the Crimean War in 1856, is declared to fix the line of demarcation, marking an altered policy in Great Britain. As a lover of peace and a student of International Law, anxious for its advancement,--yielding to nobody in this regard,--I wish that such an alteration could be shown. Joyfully should I welcome it, as one of the signs of a new order of ages. Unhappily, it cannot be shown, and I feel sure that it can be brought about only by a frank exhibition of transactions demonstrating its necessity. Truth is illustrated by error, health is maintained by knowledge of disease, and crime itself is made repulsive by bringing its perpetrators to judgment.

It is an old adage of the law, that no statute of limitations runs against the sovereign,--_Nullum tempus occurrit regi_. This, of course, is for the protection of his interests. But, assuming that such a statute may be pleaded against British responsibility for historic precedents more than eight years old, there is no question with regard to what has occurred since. Here the responsibility is admitted. Now, confining ourselves to the brief period since the Crimean Peace, there are instances identical in character with those which occurred previously; and these are the more remarkable as Great Britain had not the apology of war to disturb her equanimity.

A well-informed person, writing from Berlin, furnishes the following instance, which occurred as late as 1860. “Two British men-of-war took, or at least threatened to take, the Paraguayan war-steamer Tacuaril, in the port of Buenos Ayres. They laid themselves on each side of the Paraguayan war-steamer, in order to enforce a claim which proved afterwards to be fallacious.” The writer adds, that “this case, if looked into closely, will probably serve as a counter argument, should England have anything to say on the Florida-Bahia affair.” True enough; and such is the recent judgment of a German publicist.

There is also that other historic instance which has among its incidents the suspension of diplomatic relations between Brazil and Great Britain. It began with a demand by the latter power for reparation on account of a vessel pillaged after shipwreck on the coast of Brazil, in June, 1861. This was complicated soon after by a quarrel between certain officers of a British frigate in the harbor of Rio Janeiro and a sentry on shore, which ended in taking the officers into custody. The British minister demanded reparation for these two alleged wrongs; and the British admiral, who was at hand, seized five Brazilian merchant-vessels in the harbor of Rio Janeiro, declaring that he would not release them until £6,500 had been paid on account of the pillaged vessel, and satisfaction afforded for the detention of the officers. Thus, in time of peace, without any declaration of war, the British admiral performed an act of war, like that in the case of the Florida, but without the apology of the captors of the latter vessel. In short, he undertook, within the territorial jurisdiction of Brazil, to seize, not one vessel, but five vessels,--and all these innocent, neither piratical in origin nor belonging to people without _ocean_ rights. Brazil, succumbing to superior force, paid the money demanded, and referred the question of reparation in the case of the officers to the arbitration of King Leopold of Belgium, who has since rendered judgment for the weaker power. The question of responsibility for the five innocent vessels seized within the territorial jurisdiction of Brazil was left unsettled. The mild and accomplished minister of Brazil in London, M. Carvalho Moreira, made a reclamation on this account, in a careful note, dated May 5, 1863, where he submitted, that “the English Government should express its regret at the acts which accompanied the reprisals, and declare that it had no intention to offend the dignity or to violate the territorial sovereignty of the empire,” and that it should consent to refer the question of damages to arbitration. Earl Russell declining to reopen any part of the questions between the two Governments, or to enter into any explanations, the Brazilian minister at once demanded his passports and left London. This case will be found at length in an authentic publication, which has only recently appeared.[36] I leave it, simply quoting from the work these pertinent words: “The question was with regard to the reparation and compensation which Brazil demanded from England for the seizure of her merchant-vessels and for the violation of her territorial waters.… It was, unhappily, easy to foresee the issue of this question,--England being always more disposed to demand reparation and indemnities than to accord them.”[37] Such is the recent judgment of a French publicist.

There is another case, which has not yet found its way into the books, nor did it occur after the Crimean War; but it is so very recent, and so curious, that I venture to adduce it. I am indebted for it to the Hon. John B. Alley, one of our Representatives in Congress, to whom it was communicated by one of his constituents.[38] The bark Home, of Boston, was on her way from Calcutta to Boston, when, on or about August 22, 1849, she fell in with a vessel, first supposed to be a pirate, but at last proved to be the Polka, prize to the British steamer Sharpshooter, with the crew in a starving condition. The prize-master, on coming aboard, said that the prize was taken in Port Macahé, near Cape Frio, in Brazil, for being engaged in the slave-trade; that, to escape the fire of the fort, which opened on the captors, they slipped the cable, and cut adrift the boat which was made fast astern; that at the time of the capture there was no person aboard, except a single negro; and that a midshipman with ten men was put aboard to take her to St. Helena. The famished crew were supplied by the American bark with bread, beef, water, and other small stores, for which the British Government paid, in 1852, the cost price, being all that was asked. On this case the master of the bark, in his communication to Mr. Alley, remarks: “This is another instance where a vessel was taken in a port by the British, and this in a time of profound peace; and as the fort fired on them, I presume the capture was not made by consent of the Brazilian Government.” Such is the mild conclusion of an American shipmaster, who seems to see the conduct of Great Britain in the same light as it is seen by the publicist of Germany and the publicist of France.