“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:—