SPEECH.
MR. PRESIDENT,—Every principle of International Law, when justly and authoritatively settled, is a safeguard of peace and a landmark of civilization. It constitutes part of that code which is the supreme law, above all municipal laws, binding the whole Commonwealth of Nations. Such a settlement may be by a general Congress of Nations, as at Munster, Vienna, or Paris; or it may be through the general accord of treaties; or it may be by a precedent established under such conspicuous circumstances, with all nations as assenting witnesses, that it becomes at once a commanding rule of international conduct. Especially is this the case, if disturbing pretensions, long maintained to the detriment of civilization, are practically renounced. Without congress or treaty, such a precedent is now established.
Surely it ought to be considered and understood in its true character. Undertaking to explain it, I shall speak for myself alone; but I shall speak frankly, according to the wise freedom of public debate, and the plain teachings of history on the question involved, trusting sincerely that what I utter may contribute something to elevate the honest patriotism of the country, and perhaps to secure that tranquil judgment under which this precedent will be the herald, if not the guardian, of international harmony.
Two old men and two younger associates, recently taken from the British mail packet Trent, on the high seas, by order of Captain Wilkes of the United States Navy, and afterwards detained in custody at Fort Warren, are liberated and placed at the disposition of the British Government. This is at the instance of that Government, made on the assumption that the original capture was an act of violence constituting an affront to the British flag, and a violation of International Law. This is a simple outline of the facts. To appreciate the value of the precedent, other matters must be brought into view.
These two old men were citizens of the United States, and for many years Senators. Arrogant, audacious, persistent, perfidious,—one was author of the Fugitive Slave Bill, and the other was chief author of the filibustering system which has disgraced our national name and disturbed our national peace. Occupying places of trust and power in the service of the country, they conspired against it, and at last the secret traitors and conspirators became open rebels. The present Rebellion, surpassing in proportions and in wickedness any rebellion in history, was from the beginning quickened and promoted by their untiring energies. That country to which they owed love, honor, and obedience, they betrayed and gave over to violence and outrage. Treason, conspiracy, and rebellion, each in succession, acted through them. The incalculable expenditures now tasking the national resources,—the untold derangement of affairs, not only at home, but abroad,—the levy of armies without example,—the devastation of extended spaces of territory,—the plunder of peaceful ships on the ocean, and the slaughter of fellow-citizens on the murderous battle-field,—such are some of the consequences proceeding directly from them.
To carry forward still further the gigantic crime of which they were so large a part, these two old men, with their two younger associates, stole from Charleston on board a Rebel steamer, and, under cover of darkness and storm, running the surrounding blockade and avoiding the national cruisers, succeeded in reaching the neutral island of Cuba, where, with open display and the knowledge of the British consul, they embarked on board the British mail packet Trent, bound for St. Thomas, whence they were to embark for England, in which kingdom one of them was to play the part of Ambassador of the Rebellion, while the other was to play the same part in France. The original treason, conspiracy, and rebellion, of which they were so heinously guilty, were all continued on this voyage, which became a prolongation of the original crime, destined to still further excess through their ambassadorial pretensions, which it was hoped would array two great nations against the United States, and enlist them openly in support of an accursed Slaveholding Rebellion. While on their way, the pretended ambassadors were arrested by Captain Wilkes, of the United States steamer San Jacinto, an accomplished officer, already well known by scientific explorations, who on this occasion acted without instructions from his Government. If in this arrest he forgot for a moment the fixed policy of the Republic, which has been from the beginning like a frontlet between the eyes, and transcended the Law of Nations, as the United States have always declared it, his apology will be found in the patriotic impulse by which he was inspired, and the British examples he could not forget. They were the enemies of his country, embodying in themselves the triple essence of worst enmity,—treason, conspiracy, and rebellion; and they bore a professed ambassadorial character, which, as he supposed, according to high British authority, rendered them liable to be stopped, while, as American citizens, they were liable to seizure by the National Government in strict conformity with long continued British practice. If, in the ardor of an honest nature, Captain Wilkes erred, he might well say,—
“Who can be wise, amazed, temperate and furious,
Loyal and neutral, in a moment? No man.
The expedition of my violent love
Outran the pauser reason.…
… Who could refrain,
That had a heart to love, and in that heart
Courage to make his love known?”
If this transaction be regarded exclusively in the light of British precedents, if we follow the seeming authority of the British Admiralty, speaking by its greatest voice, and especially if we accept the oft repeated example of British cruisers, upheld by the British Government against the oft repeated protests of the United States, we find little difficulty in vindicating it. The act becomes questionable only when brought to the touchstone of those liberal principles which from the earliest times the American Government has openly avowed and sought to advance, and other European nations have accepted with regard to the sea. Great Britain cannot complain, except by adopting those identical principles; and should we undertake to vindicate the act, it can be only by repudiating those identical principles. Our two cases will be reversed. In the struggle between Laertes and Hamlet, the combatants exchanged rapiers, so that Hamlet was armed with the rapier of Laertes, and Laertes with the rapier of Hamlet. And now, on this sensitive question, a similar exchange occurs. Great Britain is armed with American principles, while to us are left only those British pretensions which throughout our history have been constantly, deliberately, and solemnly rejected.
Earl Russell, in his despatch to Lord Lyons, communicated to Mr. Seward, contents himself by saying that “it appears that certain individuals have been forcibly taken from on board a British vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage,—an act of violence which was an affront to the British flag, and a violation of International Law.”[33] Here is positive assertion that the ship, notoriously having on board the Rebel emissaries, was pursuing a lawful and innocent voyage; but there is no specification of the precise ground on which the act is regarded as a violation of International Law. Of course, it is not an affront; for an accident can never be an affront to an individual or to a nation.
But public report, authenticated by various authorities, English and Continental, forbids us to continue ignorant of the precise ground on which this act is presented as a violation of International Law. It is admitted that a United States man-of-war, meeting a British mail steamer beyond the territorial limits of Great Britain, may subject her to visitation and search; also that such man-of-war might put a prize crew on board the British steamer, and take her to a port of the United States for adjudication by a Prize Court there; but it is alleged that she would have no right to remove the individuals, not apparently officers in the military or naval service, and carry them off as prisoners, leaving the ship to pursue her voyage.[34] Under the circumstances, in the exercise of a belligerent right, the British steamer, with all on board, might have been captured and carried off; but, according to the British law officers, on whose professional opinion the British Cabinet acted, the whole proceeding was vitiated by failure to take the packet into port for condemnation. This failure is the occasion of much unprofessional objurgation; and we are emphatically and constantly reminded that the custody of the individuals in question could not be determined by a navy officer on his quarter-deck, so as to supersede the adjudication of a Prize Court. This is confidently stated by an English writer, assuming to put the case for his Government, as follows.
“It is not to the right of search that we object, but to the following seizure without process of law. What we deny is the right of a naval officer to stand in place of a Prize Court, and adjudicate, sword in hand, with a sic volo, sic jubeo, on the very deck which is a part of our territory.”[35]
The same authority flourishes the same objection again.
“If Captain Wilkes and his irresponsible supporters imagine that we shall submit to the arbitrary, semi-barbarous practice, they will in a few days be undeceived; for our Government has instructed Lord Lyons to demand reparation for so wanton a breach of friendly relations.”[36]
Such declarations in an important journal, and in precise harmony with the opinions of the British law officers, seem semi-official in character.
Thus it appears that the present complaint of the British Government is not founded on any assumption by the American war steamer of the belligerent right of search,—nor on the ground that this right was exercised on a neutral vessel between two neutral ports,—nor that it was exercised on a mail steamer, sustained by subvention from the Crown, and officered in part from the royal navy,—nor that it was exercised in a case where the penalties of contraband could not attach; but it is founded simply and precisely on the idea that persons other than apparent officers in the military or naval service cannot be taken out of a neutral ship at the mere will of the officer exercising the right of search, and without any form of trial. Therefore the Law of Nations has been violated, and the conduct of Captain Wilkes must be disavowed, while men who are traitors, conspirators, and rebels, all in one, are allowed to go free.
Surely, that criminals, though dyed in guilt, should go free, is better than that the Law of Nations should be violated, especially in any rule by which war is restricted and the mood of peace is enlarged; for the Law of Nations cannot be violated without overturning the protection of the innocent as well as the guilty. On this general principle there can be no question. It is but an illustration of that important maxim, recorded in the Latin of Fortescue, “Better that twenty guilty should escape than one innocent man should suffer,”[37] with this difference, that in the present case four guilty ones escape, while the innocent everywhere on the sea obtain new security. And this security becomes more valuable as a triumph of civilization, when it is considered that it was long refused, even at the cannon’s mouth.
Remember, Sir, that the question in this controversy is strictly a question of law,—precisely like a question of trespass between two neighbors. The British Cabinet began proceedings by taking the opinion of their law advisers, precisely as an individual begins proceedings in a suit at law by taking the opinion of his attorney. To make such a question a case of war, or to suggest that war is a proper mode of deciding it, is simply to revive, on a gigantic scale, the exploded Ordeal by Battle, and to imitate those dark ages when such proceeding was openly declared to be the best and most honorable mode of deciding even an abstract point of law. “It was a matter of doubt and dispute,” says a mediæval historian, “whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive. An assembly was called to deliberate on this point, and it was the general opinion that it ought to be remitted to the examination and decision of judges. But the Emperor, following a better course, and desirous of dealing honorably with his people and nobles, appointed the matter to be decided by battle between two champions.”[38] In similar spirit has it been latterly proposed, amidst the amazement of the civilized world, to withdraw the point of law, now raised by Great Britain, from peaceful adjudication, and submit it to Trial by Combat. The irrational anachronism becomes more flagrant from the inconsistency of the party making it; for it cannot be forgotten, that, in times past, on this identical point of law, Great Britain persistently held an opposite ground from that she now takes. Hereafter, in a happier moment, this exacting power may regret the swiftness with which she undertook to gird herself for unnatural combat, on a mere point of law, with a friendly nation already struggling against domestic enemies,—especially as impartial history must record that her heavy sword was to be thrown into the scale of Slavery.
The British complaint seems narrowed to a single point, although there are yet other points, on which, had the ship been carried into port for adjudication, controversy must have arisen. The four following have been presented in the case.
1. That the seizure of the Rebel emissaries, without taking the ship into port, was wrong, inasmuch as a navy officer is not entitled to substitute himself for a judicial tribunal.
2. That, had the ship been carried into port, it would not have been liable on account of the Rebel emissaries, inasmuch as neutral ships are free to carry all persons not apparently in the military or naval service of the enemy.
3. Are despatches contraband of war, so as to render the ship liable to seizure?
4. Are neutral ships, carrying despatches, liable to be stopped between two neutral ports?
These I shall consider in their order, giving special attention to the first, which is the pivot of the British complaint. If, in this discussion, I expose grievances which it were better to forget, be assured it is from no willingness to revive the buried animosities they once so justly aroused, but simply to exhibit the proud position which the United States early and constantly maintained.
A question of International Law should not be presented on any mere argumentum ad hominem. It would be of little value to show that Captain Wilkes was sustained by British authority and practice, if he were condemned by International Law as interpreted by his own country. It belongs to us now, nay, let it be our pride, at any cost of individual prepossession or transitory prejudice, to uphold that law in all its force, as it was often declared by the best men in our history, and illustrated by national acts; and let us seize the present occasion to consecrate its positive and unequivocal recognition. In exchange for the prisoners set free, we receive from Great Britain a practical assent, too long deferred, to a principle early propounded by our country, and standing forth on every page of our history. The same voice that asks for their liberation renounces in the same breath an odious pretension, for whole generations the scourge of peaceful commerce.
Great Britain, throughout her municipal history, has practically contributed to the establishment of freedom beyond all other nations. There are at least seven institutions or principles which she has given to civilization: first, the trial by jury; secondly, the writ of Habeas Corpus; thirdly, the freedom of the press; fourthly, bills of rights; fifthly, the representative system; sixthly, the rules and orders of debate, constituting Parliamentary Law; and, seventhly, the principle that the air is too pure for a slave to breathe,—long ago declared, and first made a conspicuous reality, by British law. No other nation can show such peaceful triumphs. But, while thus entitled to gratitude for glorious contributions to Municipal Law, we turn with dissent and sorrow from much which she has sought to fasten upon International Law. In municipal questions, Great Britain drew inspiration from her own native Common Law, instinct with freedom; but, especially in maritime questions arising under the Law of Nations, this power seems to have acted on that obnoxious principle of the Roman Law, positively discarded in municipal questions, Quod principi placuit legis vigorem habet, and too often, under this inspiration, imposed upon weaker nations her own arbitrary will. A prerogative of the English monarch, mentioned in very express and pompous terms by early writers, was “the Custody of the Sea,” and he is frequently styled “The Sovereign Lord and Proprietor of the Sea.” But beyond these titles, the time has been when she pretended to actual sovereignty over the seas surrounding the British Isles, as far as Cape Finisterre to the south, and Vanstaten in Norway to the north. Driven from this lordly pretension, other pretensions, less local, but hardly less offensive, were avowed. The boast of “Britannia rules the waves” was practically adopted by British Prize Courts, and universal maritime rights were subjected to the special exigencies of British interests. In the consciousness of strength, and with an irresistible navy, this power has put chains upon the sea.
The commerce of the United States, as it began to whiten the ocean, was cruelly decimated. American ships and cargoes, while, in the language of Earl Russell, “pursuing a lawful and innocent voyage,” suffered from British Prize Courts more than from rock or tempest. Shipwreck was less frequent than confiscation, and, when it came, was easier to bear. But the loss of property stung less than the outrage of impressment, by which foreigners, under protection of the American flag, and also American citizens, without any form of trial, and at the mere mandate of a navy officer, who for the moment acted as a judicial tribunal, were dragged from the deck which should have been to them a sacred altar. This outrage, insolently vindicated by the municipal claim of Great Britain to the services of her subjects, was enforced arrogantly and perpetually on the high seas, where Municipal Law is silent and International Law alone prevails. The belligerent right of search, derived from International Law, and justly applicable to enemy property or contraband only, and not to men, was employed for this purpose, and the quarter-deck of every English cruiser became a floating judgment-seat. The leading organ of opinion in England, on the morning after the news that the Rebels had been taken from a British ship, thus confessed the precedents of British history:—
“Unwelcome as the truth may be, it is nevertheless a truth, that we have ourselves established a system of International Law which now tells against us. In high-handed and almost despotic manner, we have, in former days, claimed privileges over neutrals which have at different times banded all the maritime powers of the world against us. We have insisted even upon stopping the ships of war of neutral nations and taking British subjects out of them.”[39]
The practice began early and was continued constantly; nor did it discriminate among its victims. It is mentioned by Mr. Jefferson, and repeated by an excellent British writer on International Law, that two nephews of Washington, on their way home from Europe, were ravished from the protection of the American flag, without any judicial proceedings, and placed, as common seamen, under the ordinary discipline of British ships of war.[40] The victims were counted by thousands. Lord Castlereagh himself admitted, on the floor of the House of Commons, that an inquiry instituted by the British Government had discovered in the British fleet three thousand five hundred men claiming to be impressed Americans,—claiming only. But while unwilling to accept this large number as all Americans, his Lordship could not deny, “that, in the great extent of the British navy, there were sixteen or seventeen hundred individuals who were there contrary to the wishes of His Majesty’s Government, and who had some rational ground for demanding their liberation, on the ground of their being subjects of the United States,”—which, I take it, is a pleonastic circumlocution to denote that at least sixteen hundred American citizens were originally kidnapped and stolen from American ships on the high seas, to undergo the servitude of the British navy: all of which can be read in the Parliamentary Debates.[41] At our Department of State upwards of six thousand cases were recorded, and it was estimated that at least as many more might have occurred, of which no information had been received.[42] Thus, according to official admission of the British minister, there was reason to believe that the quarter-deck of a British man-of-war had been made a floating judgment-seat three thousand five hundred times, while, according to the records of our own State Department, it had been made a floating judgment-seat six thousand times and upwards, and each time some citizen or other person was taken from the protection of the national flag without any form of trial whatever. If a pretension so intrinsically lawless could be sanctioned by precedent, Great Britain would have succeeded in interpolating it into the Law of Nations.
The numbers sacrificed have been often denied on the other side; but candid Englishmen have made admissions which are on record. The “Edinburgh Review,” at a moment when its authority was at its height, and truth prevailed above controversy, said:—
“The two lists made out in 1801 and 1812 of impressed Americans can be but a small part of the American case against us. From that fraction of their case we may, however, form some opinion on the extent to which freemen, who would be a scandal to their English ancestry, unless liberty was as dear as life, must have writhed under our practice of impressment. Prior to September, 1801, 1,132 native American sailors were set at liberty by the English Government, as having been wrongfully impressed. On the war with America in 1812, another division of 1,422 native Americans, every one of them having been so taken, were transferred out of our men-of-war into our prisons. This is proved from English documents. Here are nearly two thousand six hundred sufferers, victims of a greater outrage than one free nation ever assumed the privilege of inflicting on another,—an outrage which no nation deserving the name of a nation, and solemnly bound to protect its meanest members, can be expected patiently to endure.”[43]
Such words by one of us might be treated as the exaltation of patriotic indignation. Here, it is history written by the other side.
Even assuming, that, according to frequent British allegation, the persons taken were British subjects and not American citizens, which would make the act identical with that of Captain Wilkes, this only presents in stronger relief the precise point now in issue. Whether the victims were American citizens or British subjects, there was in each case the same forcible entry of our ships and taking from our decks.
Protest, argument, negotiation, correspondence, and war itself—unhappily the last reason of republics, as of kings—were all employed by the United States in vain to procure renunciation of the intolerable pretension. The ablest papers in our diplomatic history are devoted to this purpose; and the only serious war in which we have been engaged, until summoned to subdue the Rebellion, was to overcome by arms this very tyranny, which would not yield to reason. Beginning in the last century, the correspondence is at length closed by the recent reply of Mr. Seward to Lord Lyons. The long continued occasion of conflict is now happily removed, and the pretension disappears forever,—to take its place among the barbaric curiosities of the past.
But I do not content myself with asserting the persistent opposition of the American Government. It belongs to the argument that I should exhibit this opposition, and the precise ground on which it was placed,—being identical with that now adopted by Great Britain. Here the testimony is complete. If you will kindly follow me, you shall see it from the beginning in the public life of our country, and in the authentic records of the National Government.
This British pretension aroused and startled the administration of Washington, and the pen of Mr. Jefferson, his Secretary of State, was enlisted against it. In a letter to Thomas Pinckney, Minister at London, dated June 11, 1792, he announced the American doctrine.
“The simplest rule will be, that the vessel being American shall be evidence that the seamen on board her are such.”[44]
In another letter to the same minister, dated October 12, 1792, he calls attention to a case of special outrage.
“I enclose you a copy of a letter from Messrs. Blow and Melhaddo, merchants of Virginia, complaining of the taking away of their sailors on the coast of Africa by the commander of a British armed vessel. So many instances of this kind have happened, that it is quite necessary that their Government should explain themselves on the subject, and be led to disavow and punish such conduct.”[45]
At a later day, also under the administration of Washington, Mr. Pickering, at that time Secretary of State, in a letter to Rufus King, Minister at London, dated June 8, 1796, after repeating the rule proposed by Mr. Jefferson, says:—
“But it will be an important point gained, if, on the high seas, our flag can protect those, of whatever nation, who shall sail under it. And for this humanity, as well as interest, powerfully pleads.”[46]
The same pretension was put forth under the administration of John Adams, and was again encountered. Mr. Marshall, afterwards the venerated Chief Justice of the United States, and at the time Secretary of State, in his instructions to Rufus King, at London, dated September 20, 1800, says:—
“The impressment of our seamen is an injury of very serious magnitude, which deeply affects the feelings and the honor of the nation.… Alien seamen, not British subjects, engaged in our merchant service, ought to be equally exempt with citizens.… Britain has no pretext of right to their persons or to their service. To tear them, then, from our possession is at the same time an insult and an injury. It is an act of violence for which there exists no palliative.”[47]
The same pretension showed itself constantly under the administration of Mr. Jefferson. Throughout the eight years of his Presidency, the repeated outrages of British cruisers never for a moment allowed it to be forgotten. Mr. Madison, during this full period, was Secretary of State, and none of the varied productions of his pen are more masterly than those in which he exposed this tyranny. In the course of the discussion he showed the special hardship found in the fact that sailors were taken from the ship at the mere will of an officer, without any form of judicial proceedings, and thus early presented against the pretension of Great Britain the precise objection now adopted by her. Here are his emphatic words, in the celebrated instructions to Mr. Monroe, our Minister at London, dated January 5, 1804:—
“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.
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.
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.
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.
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.
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.
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.
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.
There is a way in which privateering may be effectively abolished without shock to the Equality of Nations. A simple proposition, assuring private property on the ocean the same immunity it now enjoys on land, will at once abolish privateering, and relieve commerce on the ocean from its greatest perils, so that, like commerce on land, it will be undisturbed, except by illegal robbery and theft. Such a proposition must operate for the equal advantage of all. On this account, and in the policy of peace, always cultivated by our Republic, it has been already presented to other nations. You have not forgotten the important paper in which Mr. Marcy did this service,[109] and the favor it found with European powers, always excepting Great Britain, whose opposition was too potential. But this vast cause was never commended with more force than by John Quincy Adams, as Secretary of State, when, in a masterly despatch, he declared that “private war, banished by the tacit and general consent of Christian nations from their territories, has taken its last refuge upon the ocean, and there continues to disgrace and afflict them by a system of licensed robbery, bearing all the most atrocious characters of piracy.”[110] The Governments of Europe were invited to enter into conventions by which “all warfare against private property upon the sea is disclaimed and renounced,” and at the same time the final suppression of the slave-trade assured, so that the freedom of the sea was associated with the freedom of men.[111] In the same humane interest, Henry Clay, as Secretary of State, invited Great Britain “to agree to the abolition of privateering, and no longer to consider private property on the high seas as lawful prize of war.”[112] In such a cause the effort alone was noble.
To complete the efficacy of this reform, closing the gate against belligerent pretensions, Contraband of War should be abolished, so that all ships may navigate the ocean freely, without peril or detention from the character of persons or things on board: and here I only follow the Administration of Washington, enjoining upon John Jay, in his negotiation with England, to seek security for neutral commerce, particularly “by abolishing contraband altogether.”[113] The Right of Search, which, on outbreak of war, becomes an omnipresent tyranny, subjecting every neutral ship to the arbitrary invasion of every belligerent cruiser, would then disappear. It would drop, as the chains from an emancipated slave; or rather, it would exist only as an occasional agent, under solemn treaties, in the war waged by civilization against the slave-trade; and then it would be proudly recognized as an honorable surrender to the best interests of humanity, glorifying the flag which made it.
With the consummation of these reforms in Maritime Law, war will be despoiled of its most vexatious prerogatives, while innocent neutrals are exempt from its torments. One step further is needed to complete this exemption. Commercial Blockade must be abandoned; for, while its first effects are naturally felt by the belligerent against whom directed, it soon acts with kindred hardship upon all neutrals, near or remote, whose customary commerce is interrupted,—so that the blockade of an American port may cause distress in Liverpool and Manchester, in Lyons and Marseilles, scarcely less than if these great cities were under pressure of a blockading squadron. Neutrals, it is said, must not relieve belligerents, and therefore blockade is effectively a two-edged sword, wounding belligerents on the one side and neutrals on the other side,—often, indeed, wounding neutrals as much as belligerents. If not designedly so, it becomes thus mischievous from the essential vice of its character. Blockade may be called the elephant of naval warfare, as destructive, often, to friends as to foes. So palpable is this becoming, that it is doubtful if neutrals will much longer allow such backhanded agency, smiting the innocent as well as the guilty, to continue under sanction of International Law. Its extinction is needed to complete the triumph of Neutral Rights.[114]
Such a change, just in proportion to its accomplishment, will be a blessing to mankind, inconceivable in grandeur. The statutes of the sea, thus refined and elevated, will be agents of peace instead of agents of war. Ships and cargoes will pass unchallenged from shore to shore, and those terrible belligerent rights under which the commerce of the world has so long suffered will cease from troubling. In this work our country began early. Hardly had we proclaimed our own independence, before we sought to secure a similar independence for the sea. Hardly had we made a constitution for our own government, before we sought to establish a constitution similar in spirit for the government of the sea. If not prevailing promptly, it was because we could not overcome the unyielding resistance of Great Britain. And now, behold, this champion of belligerent rights has “changed his hand and checked his pride.” Welcome to the new-found alliance! Welcome to the peaceful transfiguration! Meanwhile, through all present excitements, amidst all trials, beneath all threatening clouds, it only remains for us to uphold the perpetual policy of the Republic, and to stand fast on the ancient ways.