« PreviousContinue »
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 the destiny to the will of an officer, sometimes cruel, often ignorant, and generally interested, by want of mariners, in his own decisions.
“Whenever property found in a neutral vessel is supposed to be liable, on any ground, 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 a 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 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 disci pline, and his life itself to the greatest danger? Reason, justice, and humanity unite in protesting against so extravagant a proceeding.”
From year to year, from 1804 to 1812, negotiations were carried on between the representatives of the United States government and British commissioners, for the purpose of procuring a renunciation by Great Britain of this intolerable pretension, by which, in the language of John Adams, in a pamphlet issued by him upon the absorbing
theme, in January, 1809, “naval lieutenants became judges, midshipmen, became clerks, and boatswains, sheriffs or marshals.”
"At last,” resumes the senator, “all redress through negotiation was found to be 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."
The language of President Madison, in his message to Congress of June 1st, in that year, in which he designates the offensive character of the British pretension, is especially noteworthy, because singularly coincident with that used by the professional advisers of the British crown, in their exposition of the unlawfulness of the act of the commander of the San Jacinto.
President Madison says: “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 imperi. ously demand the fairest trial, when 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."
The British writers say: “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 a(judicate, sword in hand, with a sic volo sic jubeo, on the very deck which is a part of our ter. ritory.”
With what heartfelt satisfaction would such lan. guage, proceeding from the law officers of the British crown, have been hailed by the American statesmen, and how it would have cheered the hearts of the American people, of 1812.
The conclusion of the war, by the treaty of Ghent, brought with it neither renunciation nor modification of the British claim.
To effect this, other negotiations were set on foot, during the administration of President Monroe, in 1818 and in 1823, and in 1827, during the administration of John Quincy Adams. They were alike futile as those undertaken before the war. And at length, in 1842, in the negotiation of the treaty of Washington, Mr. Webster, then the American Secretary of state, announced his abandonment of all idea of further negotiation, having in view the relinquishment by Great Britain of her asserted right, and contented himself with a deliberate declaration of the principle irrevocably adopted by the government of the United States.
“Such,” continues the senator, “is an authentic history of the British pretension, and of the man. ner in which it has been met by our government. And now, the special argument, formerly directed by us against this pretension, is directed by Great Britain against the pretension of Captain Wilkes, . to take two rebel emissaries from a British packet ship.
“If Captain Wilkes is right in this pretension, then, throughout all these international debates, extending over at least two generations, we have been wrong."
Passing to the second position, of the unlawful .
ness of a capture of the neutral vessel, because em. ployed in carrying the rebel emissaries, inasmuch as these emissaries were not apparently in the military or naval service of the enemy, the senator shows that, upon British authority, such a doctrine could not be maintained. “But," he adds,“ 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, the American government, at an early day, deliberately adopted a contrary policy, to which, for half a century, it has steadily adhered. 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."
To this effect is cited the language of Mr. Madi. son, in his dispatch to Mr. Monroe, at London, on the 5th of January, 1804. “The article renounces the claim to take from the vessel 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."
To this effect was the language of the stipulation, the adoption of which Mr. Monroe was instructed to propose, as portion of the convention between the United States and Great Britain.
“No person whatever shall, upon the high seas, and without the jurisdiction of either party, be de
manded or taken out of any ship or vessel belong. ing 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.”
This proposed stipulation was vainly urged by · the united earnestness of Mr. Monroe and Mr. Pinckney, who were joined in the mission to London..
On the 9th of April, 1805, Mr. Madison, in a communication to Mr. Merry, the then British Min. ister at Washington, declares that,
“The United States cannot accede to the claim of any nation, to take from their vessels on the high seas, any description of persons, cxcept soldiers in the actual service of the enemy.” And on the 12th of the same month, the antagonism of Great Britain to the United States upon this principle was unequivocally asserted, in the reply of the British Minister, in which, on behalf of his government, he positively repudiated the doctrine.
Further, to show the uniform adherence of the United States to this liberal principle, and her earnest advocacy of its adoption by other nations, the learned senator invokes the treaty history of his country, and points out its harmonious accordance.
The treaty between the United States and France, negotiated by Benjamin Franklin, contains the following stipulation :
“And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt, which shall he found on board the ships belonging to the subjects of either of the confederates, although the