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To the treaty between Great Britain, Austria, France, Prussia, and Russia, for the suppression of the African slave-trade, signed at London the 20th December, 1841.

Form 1. Warrants in virtue of which a cruiser of one of the high contracting parties to this treaty may visit and detain a merchant vessel belonging to, or bearing the flag of, another of the high contracting parties, and suspected of being engaged in the slave-trade, or of being fitted out for that traffic:

Whereas, by a treaty concluded between Great Britain, Austria, France, Prussia, and Russia, signed at London on the 20th of December, 1841, for the total suppression of the African slave-trade, it was stipulated that certain cruisers belonging to the said countries, respectively, should be instructed to visit and detain, within particular limits, merchant vessels of the other contracting parties engaged in the traffic in slaves, or suspected of being fitted out for that traffic; and whereas the Government ofhas thought fit that the vessel you command shall be one of the cruisers furnished with said special instructions, you will accordingly receive instructions from the said Government for your guidance on the said service: you are, therefore, authorized, by virtue of these instructions, and of the present warrant, to visit merchant vessels under the

flag, suspected

of being engaged in the traffic in slaves, within the limits set forth in the second article of the said treaty, and to deal with such vessels as shall have engaged in the slave-trade, or shall be suspected of being fitted out for that traffic, as pointed out in the said treaty, and in the instructions thereunto annexed.

Given under our hands and the seal of the office of , the —of

To the commander of the

Form 2. Orders for the guidance of the commander of the cruiser of one of the high contracting parties in visiting and detaining a merchant vessel belonging to, or bearing the flag of, another of the high contracting parties:

Whereas, by a treaty concluded between Great Britain, Austria, France, Prussia, and Russia, signed at London on the twentieth of December, 1841, for the total suppression of the African slavetrade, it was stipulated that certain cruisers belonging to the said countries, respectively, shall be authorized, under special instructions therein mentioned, to visit and detain, within particular limits, merchant vessels of the other contracting parties engaged in the slave-trade, or suspected of being fitted out for that traffic: and whereas we think fit that the vessel you command shall be one of the

cruisers furnished with the said special instructions, we herewith transmit to you a copy of the said treaty of the 20th of December, and of the instructions thereunto annexed, herein before men. tioned; and you are accordingly authorized, by virtue of this present order, and of the accompanying warrant from the Government of, to visit, within the limits set forth in the second article of the said treaty, merchant vessels under the

flag suspected of being engaged in the slave-trade, and to deal with such vessels as shall have been engaged in that traffic in the manner pointed out in said treaty, warrant, and instructions; and we charge and require you to conform most strictly to all the provisions and stipulations contained therein, taking care to exercise the authority so conferred upon you in the mildest manner, and with every attention which is due between allied and friendly nations, and to co-operate cordially with the commanders of any -vessels of war employed in the same service.

Given under our hands and the seal of the office of, the — day of

To the commander of the

These forms of warrants and orders shall be annexed to the treaty signed this day between Great Britain, Austria, France, Prussia, and Russia, for the suppression of the African slave-trade, and shall be considered as an integral part of that treaty.

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To the treaty between Great Britain, Austria, France, Prussia, and Russia, for the suppression of the African slave-trade, signed at London, the 20th December, 1841.

INSTRUCTIONS TO CRUISERS.

First. Whenever a merchant vessel belonging to, or bearing the flag of, any one of the high contracting parties, shall be visited by a cruiser of any one of the other high contracting parties, the officer commanding the cruiser shall, before he proceeds to the visit, exhibit to the master of such vessel the special orders which confer upon him by exception the right to visit her; and he shall deliver to such master a certificate, signed by himself, specifying his rank in the navy of his country, and the name of the ship which he commands, and declaring that the only object of his visit is to ascertain whether the vessel is engaged in the slave-trade, or is fitted out for the purpose of such traffic, or has been engaged in that traffic during the voyage in which she has been met with by the said cruiser. When the visit is made by an officer of the cruiser other than the commander, such officer shall not be under the rank of lieutenant in the navy-unless he be the officer who, at the time, is second in command of the ship by which the visit is made; and in this case such officer shall exhibit to the master of the merchant vessel a copy of the special orders above mentioned, signed by the commander of the cruiser; and shall likewise deliver to such master a certificate, signed by himself, specifying the rank which he holds in the navy of his country, the name of the commander under whose orders he is acting, the name of the cruiser to which he belongs, and the object of his visit, as herein before recited.

If it shall be ascertained by the visit that the ship's papers are regular, and her proceedings lawful, the officer shall certify upon the log-book of the vessel that the visit took place in virtue of the special orders above mentioned; and when these formalities shall have been completed, the vessel shall be permitted to continue her course.

Secondly. If, in consequence of the visit, the officer commanding the cruiser shall be of opinion that there are sufficient grounds for believing that the vessel is engaged in the slave-trade, or has been fitted out for that traffic, or has been engaged in that traffic during the voyage in which she is met by the cruiser; and if he shall, in consequence, determine to detain her, and to have her delivered up to the jurisdiction of the competent authorities, he shall forthwith cause a list to be made out, in duplicate, of all the papers found on board; and he shall sign this list and the duplicate, adding, after his own name, his rank in the navy, and the name of the vessel under his command.

He shall in like manner make out and sign, in duplicate, a declaration stating the place and time of the detention, the name of the vessel, and that of her master, the names of the persons composing her crew, and the number and condition of the slaves found on board.

This declaration shall further contain an exact description of the state of the vessel and her cargo.

Thirdly. The commander of the cruiser shall, without delay, carry or send the detained vessel, with her master, crew, passengers, cargo, and the slaves found on board, to one of the ports hereinafter specified, in order that proceedings may be instituted in regard to them, conformably to the laws of the country under whose flag the vessel is sailing; and he shall deliver the same to the competent authorities, or to the persons who shall have been specifically appointed for that purpose by the Government to whom such port shall belong.

Fourthly. No person whatever shall be taken out of the detained vessel; nor shall any part of her cargo, nor any of the slaves found on board be removed from her, until after such vessel shall have been delivered over to the authorities of her own

H. of Reps.

nation; unless the removal of the whole or part of the crew, or of the slaves found on board, shall be deemed necessary, either for the preservation of their lives, or from any other consideration of humanity, or for the safety of the persons who shall be charged with the navigation of the vessel, after her detention. In any such case, the commander of the cruiser, or the officer appointed to bring in the detained vessel, shall make a declaration of such removal, in which he shall specify the reasons for the same; and the masters, sailors, passengers, or slaves, so removed, shall be carried to the same port as the vessel and her cargo, and they shall be received in the same manner as the vessel, agreeably to the regulations hereinafter set forth.

Provided, always, that nothing in this paragraph shall be understood as applying to slaves found on board of Austrian, Prussian, or Russian vessels; but such slaves shall be disposed of as is specified in the following paragraphs:

Fifthly. All Austrian vessels which shall be detained on the stations of America or Africa by the cruisers of the other contracting parties, shall be carried and delivered up to the Austrian jurisdiction at Trieste.

But, if slaves shall be found on board any such Austrian vessel at the time of the detention, the vessel shall, in the first instance, be sent to deposite the slaves at that port to which she would have been taken for adjudication, if she had been sailing under the English or French flag. The vessel shall afterwards be sent, and shall be delivered up to the Austrian jurisdiction at Trieste, as above stipulated.

All French vessels which shall be detained on the eastern coast of Africa by the cruisers of the other contracting parties shall be carried and delivered up to the French jurisdiction at Goree.

All French vessels which shall be detained on the coast of America to the southward of the 10th degree of north latitude by the cruisers of the other contracting parties shall be carried and delivered up to the French jurisdiction at Cayenne.

All French vessels which shall be detained in the West Indies, or on the coast of America to the northward of the 10th degree of north latitude, by the cruisers of the other contracting parties, shall be carried and delivered up to the French jurisdiction at Martinique.

All British vessels which shall be detained on the western coast of Africa by the cruisers of the other contracting parties, shall be carried and delivered up to the British jurisdiction at Bathurst, on the river Gambia.

All British vessels which shall be detained on the eastern coast of Africa by the cruisers of the other contracting parties, shall be carried and delivered up to the British jurisdiction at the Cape of Good Hope.

All British vessels which shall be detained on the coast of America by the cruisers of the other contracting parties, shall be carried and delivered up to the British jurisdiction at the colony of Demarara, or at Port Royal, in Jamaica, according as the commander of the cruiser may think most convenient.

All British vessels which shall be detained in the West Indies by the cruisers of the other contracting parties, shall be carried and delivered up to the British jurisdiction at Port Royal, in Jamaica.

All Prussian vessels which shall be detained on the stations of America or Africa by the cruisers of the other contracting parties, shall be carried and delivered up to the Prussian jurisdiction at Stettin.

But if slaves shall be found on board any such Prussian vessel at the time of her detention, the vessel shall, in the first instance, be sent to deposite the slaves at that port to which she would have been taken for adjudication if she had been sailing under the English or French flåg. The vessel shall afterwards be sent on, and shall be delivered up to the Prussian jurisdiction at Stettin, as above stipulated.

All Russian vessels which shall be detained on the stations of Africa or America by the cruisers of the other contracting parties, shall be carried and delivered up to the Russian jurisdiction at Cronstadt, or at Reval, according as the season of the year may allow the one or the other of those ports to be reached.

But if slaves shall be found on board any such Russian vessel at the time of her detention, the vessel shall, in the first instance, be sent to deposite the slaves at that port to which she would have

27TH CONG.......3D SESS.

been taken for adjudication if she had been sailing under the English or French flag. The vessel shall afterwards be sent on, and shall be delivered up to the Russian jurisdiction at Cronstadt, or at Reval, as above stipulated.

Sixthly. As soon as a merchant vessel which shall have been detained as aforesaid, shall arrive at one of the ports or places above mentioned, the commander of the cruiser, or the officer appointed to bring on such detained vessel, shall forthwith deliver to the authorities duly appointed for that purpose by the Government within whose territory such port or such place shall be, the vessel and her cargo, together with the master, crew, passengers, and slaves found on board, and also the papers which shall have been seized on board the vessel, and one of the duplicate lists of the said papers, retaining the other in his own possession. Such officer shall, at the same time, deliver to the said authorities one of the original declarations, as hereinbefore specified, adding thereto a statement of any changes which may have taken place from the time of the detention of the vessel to that of the delivery, as well as a copy of the statement of any removals which may have taken place as above provided for.

In delivering over these several documents, the officer shall make, in writing and on oath, an attestation of their truth.

Seventhly. If the commander of a cruiser of one of the high contracting parties, who shall be duly furnished with the afsaid special instructions, shall have reason to suspect that a merchant vessel, sailing under convoy of, or in company with, a ship of war of any one of the other contracting parties, is engaged in the slave-trade, or has been fitted out for the purpose of that traffic, or has been engaged in the traffic in slaves during the voyage in which she is met with by the said cruiser, he shall confine himself to communicating his suspicions to the commander of the ship of war; and he shall leave it to the latter to proceed alone to visit the suspected vessel, and to deliver her up to the jurisdiction of her own country, if there should be cause for doing so.

Eighthly. By article fourth of the treaty, it is stipulated that, in no case, shall the mutual right of visit be exercised upon ships of war by the high contracting parties.

It is agreed that this exemption shall apply equally to vessels of the Russian-American Company; which, being commanded by officers of the imperial navy, are authorized by the Imperial Government to carry a flag which distinguishes them from the merchant navy, and are armed and equipped similarly to transports of war.

It is further understood that the said vessels shall be furnished with a Russian patent, which shall prove their origin and destination. The form of this patent shall be drawn up by common consent. It is agreed that this patent, when issued by competent authority in Russia, shall be countersigned at St. Petersburgh by the consulates of Great Britain and France.

Ninthly. In the third clause of article nine of the treaty, it is stipulated that, failing proof to the contrary, a vessel shall be presumed to be engaged in the slave-trade if there be found on board spare plank fitted for being laid down as a second or slave deck.

In order to prevent any abuse which might arise from an arbitrary interpretation of this clause, it is especially recommended to the cruisers not to apply it to Austrian, Prussian, or Russian vessels employed in the timber trade, whose manifest shall prove that the planks and joists which they have, or have had, on board, are, or were, a part of their cargo for trade.

Therefore, in order not to harass lawful commerce, cruisers are especially enjoined only to act upon the stipulations contained in the third clause of article nine, when there shall be on board the vessel visited spare plank evidently destined to form a slave deck.

The undersigned plenipotentiaries have agreed, in conformity with the eighteenth article of the treaty signed by them this day, that these instructions shall be annexed to the treaty signed this day between Great Britain, Austria, France, Prussia, and Russia, for the suppression of African slavetrade, and shall be considered as an integral part of that treaty.

In witness whereof, the plenipotentiaries of the high contracting parties have signed this an

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Having cherished the idea, Mr. President, that the nationality of this subject would hush all party feelings, and soften the asperity of partisans, I have hitherto abstained from taking any part in the discussions, supposing all would be united in restoring the fine imposed upon General Jackson at New Orleans. I am, however, constrained to believe that I am to be disappointed in the conclusion had arrived at, and that a different result is now to be apprehended. I shall therefore take such a party view of it only as its present aspect demands, without relinquishing the idea that it has not, and will not, wholly assume that character. The subject is one deeply involving the interests and character of the nation. The pride and national feelings of every American should elevate him far above sectional and party prejudices, and induce him to investigate the subject with no other partiality upon his mind than that which every patriotic American is proud to acknowledge-that America is his country.

Though all agree that General Jackson achieved a victory at New Orleans over our common enemy, of no ordinary character; and that he won unfading laurels for himself, and gave to America among the nations of the earth a proud eminence; yet there seems to be a disposition in some to withhold from him the meed that is to be found only in the public approbation of the measures which were adopted by the General to save the people of New Orleans from a calamity and dishonor from which they had no hope of escape, except it was by means of the resources of that superior general and extraordinary man, General Jackson; and to save the nation from a disgrace which none would be willing to witness, except the external and internal enemies of republican America. He alone, in this perilous moment, was looked to as a commander of our forces, for the salvation of New Orleans and of our country; and he, and the few patriots constituting the little American army under his command, are entitled to the whole credit of accomplishing these two great and important objects. The facts in relation to this fine are to be found in the history of our country. It is unnecessary to be particular in adverting to them here.

I shall have occasion hereafter to present them to the Senate, in connexion with other facts, for the purpose of showing the necessity and propriety of the measures and means taken to defend our territory against invasion by a public enemy. It is claimed that, in defending New Orleans, General Jackson came in contact with, and trampled down and disregarded, the civil institutions and functionaries of our Government, by declaring and enforcing martial law in aid of his military movements and plans; and, therefore, the fine ought not to be unconditionally remitted. Many of those who believe that General Jackson did no more than was required of him by the American people as their general, seem to be disposed to admit that he violated the laws of his country, but ought to be excused on the ground of necessity. I admit no such thing, Mr. President. I do not hesitate to say, and I feel able to show it, that General Jackson violated no law; nor did he, in making his defence, transcend his powers, or abuse those of the civil department of our Government. If I am correct in this, the fine was wrongly and unjustly imposed, and ought to be remitted without any qualification whatever, and with interest

Did not the almost irrepressible indignity of the people of New Orleans at the assumed power of Judge Hall to sit and act as judge in his own behalf, and impose the fine on General Jackson, for what Hall was pleased to call a contempt of his

Senate.

court, show that no indifferent court or jury could have been found in any part of the Union to inflict a fine upon the General for his noble and patriotic defence of New Orleans? My defence of General Jackson is, that he did no more than any other citizen, or every other one of the United States, might have done, to prevent a violation of our territory by a public enemy;-nay, no more than was required of every patriot in the Union. I address myself to the reason, and not to the passion. If I can have the exercise of reason in deciding this question, I do not fear the result. What is martial law, as enforced at New Orleans by General Jackson, but physical power which our common Creator has given us for self-preservation; and which every man, and all men, have always exerted; and which no society or Government has ever dared to impair, and much less to take away? Will any one contradict me, when I say that any citizen may defend himself and property against the unwarrantable or illegal attack of another, though he be a citizen-even unto death of the assailant, if necessary? I presume not. Will any one deny the principle, that what one may do to defend himself and property, another, or ever so many, may do to defend him? I presume not.

If these principles are admitted, or established, I am sure I shall have no difficulty in defending General Jackson, unless he wantonly abused the power he exercised. And let me here observe, Mr. President, that General Jackson was no more liable for an error of judgment, if such should be found to be the fact, (which no one claims, that I have heard,) than a judge upon the bench would be for an error of judgment. That we may not confound the terms military and physical, when I speak of them, I use them as synonymous in relation to this subject. They are one and the same thing, as opposed to civil power. When both the civil and military powers are in healthy action, I readily agree to the principle, that the military is subordinate to the civil power. But I know of no instance where physical power may not be exerted to prevent the commission, or for the suppression of crime, or to protect an individual from an assault. Any individual may arrest and secure a criminal, at all times. And can he be made liable for it in a civil action? No one, I think, will claim he can be. And what law justifies the citizen clothed with no civil power to make the arrest, but the paramount law of our nature-the physical power which every man may exercise, and which is paramount to all other laws? If any individual is attempting to commit the crime of arson or burg. lary, theft, or any other crime, may not any individual, or all who may feel disposed to prevent the act, arrest the criminal? No one will deny this. Suppose civil officers sufficient to prevent the crime were present, and refused to do so: would that prevent individuals who were not officers, and who had no civil power to exercise, from interfering and arresting the individual? No one will pretend that it would, I presume. Suppose the civil officers present, and whose duty it was to take care of the public interest, and prevent the commission of crime, and arrest and secure criminals, should endeavor to prevent the individual and unofficial citizen from performing the act; but he should persist in it, and should prevent the crime, or arrest the criminal: would this make him liable, either to the public or the criminal? No one will pretend it would. If a judge is holding a court, and any one is committing a crime in his presence, may not any individual arrest the criminal? No one, I think, will deny this.

If the court were to send its officers to prevent the arrest, would the unauthorized individual making the arrest then be liable to any one? I think no one will claim this, for the supremacy of the laws, and for the honor of the officials. Will any one claim that such arrest would have been a contempt of court, and the officious individual liable to be fined by the dignified court for it? If he would, I would like to hear him. I will now suppose a case, which will approach nearer the case of Gen. Jackson. If a public enemy had entered the courthouse where the judge was sitting, or had surrounded it: would not every citizen be justified in beat ing off the enemy, and killing them, without of fending the official dignitary in such manner as to be liable for a contempt? If they were liable to the court for contempt, I suppose they would also be liable for false imprisonment if they captured any of the enemy; or, if they killed any, I suppose they would be liable for murder. But, if the court

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should unite his strength with the enemy, and op. pose the citizens, is any one bold enough to claim that the citizens would be liable to any one for an exercise of their patriotism?

Now, I would ask whether these cases differ in principle from that of Judge Hall with Gen. Jackson? If they do, I am not able to perceive the difference, The great crime in his defence of New Orleans, with which you charge him, is, that he trampled upon our sacred Constitution. But, I would ask, what is our Constitution worth, when our country is gone? And what was the defence at New Orleans, but a struggle for our country? When our country was secure from the enemy, was the patriot Jackson the man to trample down and disregard that instrument which every patriot regards as holy and sacred? But, while our country was in danger, and nothing but pure and unalloyed patriotism, with the bravery of a Jackson, could save it, Judge Hall, a foreigner by birth and in sentiment, was ready and willing to sacrifice his country to save the Constitution. What astonishing patriotism he exhibited! The nation duly appreciated it. But, Mr. President, if I may be permitted to address myself to a party, I will ask our political opponents whether they have, on other occasions, dreaded as much an infraction of that sacred instrument, the Constitution? Let me call their attention to the alien and sedition laws. All are ready to admit, now, that those laws were unconstitutional; and no candid man will deny that they were used for the basest purposes while in the hands of the Federalists. The free and unoffending citizens were seized and forced into loathsome prisons, and there incarcerated (many of them) until an indignant people hurled them from power, and unlocked the prison doors, and set at liberty the victims of an austere and revengeful party. For other violations of that sacred instrument, more fresh in our minds, let me refer you to the late apportionment law, and the remedial justice bill: both of which are too clearly unconstitutional for any sane man to doubt. Several others of the same character I might refer you to; but I trust I have not been unsuccessful in presenting cases enough to satisfy the mind of any man that your holy re gard for the Constitution is seldom awakened when patriotic exertions are most needed. I should not omit to notice a bank of the United States, which you have chased under that vagrant power, so happily described by your leader in his more palmy days, until you have literally worn yourselves out.

But to return, Mr. President, to the law paramount to all others, either political, civil, or international— the law of self-preservation I refer to. Let me remark here, that it is not alone applicable to individuals, and to private property; but it is applicable to bodies of men, and to nations and national property. We ourselves, as an independent and sovreign nation, have enforced it upon other nations with which we were at peace. I allude to our descent upon the Spanish territory, and dislodging some marauders and outcasts who had taken up their abode there, and made sallies upon our inhab itants, and robbed and murdered them, and then retreated back into the Spanish territory for safety. The Spanish Government was too feeble to restrain these outlaws; and, to preserve ourselves from their depredations, we took the law of self-preservation-that which General Jackson exercised at New Orleans--into our own hands; and, so far as I know, the whole world acquiseced in it, and justified the

act.

The British sheltered themselves under the same principle, when they seized the ships at Copenhagen, and appropriated them to their own use. No independent nation or individual, to my knowledge, denied the correctness of the principle at that time. Whether the circumstances were such as to warrant the act, there might well be doubts. The British claimed that these ships were going into the service of another nation at war with them; and therefore, to preserve themselves from destruction, they were justified in taking the ships of a friendly nation, because it was not able to prevent their use against the British. And do we not see men hung under this same law of self-preservation, by force of physical power, without the semblance of trial, and without even a pretence that the act was authorized by any other law than that of self-preservation? But let me call the attention of the Senate to a recent act of the British, under this same law of self preservation; and the act is one which, I presume, is indelibly impressed upon

Fine on General Jackson-Mr. Smith.

the mind of every American patriot. I have reference to the brutal conduct of the British at Schlosser, near Buffalo, in the State of New York, in 1837. They claimed that we were not able, or would not, restrain our citizens from entering their provinces, and exciting their subjects to rebellion; and, consequently, they had a right to enter our territory while we were at peace with them, and exterminate our citizens by fire and sword. Every one knows that the principle of self-preservation could not be applied to that case; and that it was a flagrant violation of our territory, and an insult to our nation. But the British had the impudence to claim that it was under the law of self-preservation that they inflicted the wound upon us. And did we suffer our national escutcheon to be stained by the nefarious act? Let the facts answer. We have, to the grief and mortification of every citizen of the Union, who has an American heart, permitted them to go off under that pretence, without even a murmur on our part. The eye of the American nation is turned with scorn upon the negotiations upon this subject; they will be long remembered, and as long despised. But our disgrace does not end here, Mr. President.

We have, on the insolent demand of the British, passed a law violative of every principle known to civilized nations, and of our Constitution; in effect, authorizing them to repeat the acts with impunity. This law takes away the criminal jurisdiction of the States, whose land is crimsoned with the blood of their inoffensive citizens, by the hand of ruthless vagabonds, and leaves the people of a Sovereign State without the least remedy for murder, robbery, arson, and burglary, and other infamous crimes, if committed by a British subject in the employ of his sovereign-no matter what that employment is, whether of a civil or military character. And suppose we had the power and right to pass such a law: what have we got from the British in return for it? Nothing but national disgrace.

But, let me ask, why are you so anxious to sustain the civil power at New Orleans, even at the risk of the loss of our country; while you are so extremely anxious to destroy it at the North, as to pass a palpably unconstitutional law to further your views? Your inconsistencies are to be reconciled only by one supposition-and that is, that your strongest desire was to place yourselves by the side of the enemies of our country, and in harmony with them. I believe every true American will come to this conclusion, on comparing your conduct on both occasions.

General Jackson at New Orleans only defended his country against the public enemy Did he need a general's commission to authorize him to do this? I hardly think any one will answer this question in the affirmative. If he had, without any commis. sion, but as a private citizen, made the same defence that he did with the commission of a major general at New Orleans, I desire to know who is to call him to an account for it, or punish him for it?

No one will doubt, if a citizen has a right to defend himself, or his neighbor, against the attack of another citizen of the United States, that he would have a right to defend himself, or his neighbor, against a public enemy. There is a great distinction between the defence of one when attacked by a citizen, and by a public enemy. In regard to the latter, any citizen may attack and destroy him without being first attacked. In the former, he has only a right to repel an attack made upon him without right. What power could Judge Hall have exerted to punish a public enemy at New Orleans, other than that exercised by General Jackson-physical power? If every soldier had been captured and delivered over to Judge Hall, bound hand and foot-even if he had killed our citizens-Judge Hall could not have punished them; they would be treated as prisoners of war. Why, then, yield to him the physical power, and lay it at his feet, when the enemy were at your doors, and he refused to exercise it, and could not the civil power? If his patriotism had been as pure as General Jackson's, he would have exercised the same power that General Jackson did to expel a ferocious and vindictive enemy.

Situated as General Jackson was, with raw and undisciplined troops-not much above one-third in number as many as the enemy had of what they called invincibles-could he be justified in doing less than he did? The enemy had for their motto

Senate.

"beauty and booty." What could have been more exciting and animating to a licentious soldiery? No one claims that he did more than his duty in any particular, except it was to subject Judge Hall and his associates to his control while he was defending the place. And may we not reasonably conclude, if the Judze had not patriotism enough either to help to defend himself, or suffer the General to carry out his plans unmolested in making the defence at that critical moment, that he had none too much to give aid to the enemy-indirectly, if not directly? I think we may; and so I think a large majority of the people of this county believe.

To defend the city of New Orleans, it became necessary to establish a cordon of posts around it, and to guard effectually every passage and avenue to the city. The city must necessarily become a part of the General's camp. How easy would it have been for the enemy to communicate with disaffected citizens in the midst of his camp, if he could not have the entire control of all the ground within his posts? With all the power the General had exercised, and with all the guards he had placed round the city, it was well known that there was a constant communication between the enemy and the city. A quartermaster in the British army (Peddie) boasted that he had every day from the city, from seven or eight persons, all the information he wanted in relation to our movements. Every true American in New Orleans could be trusted; but a large portion of the people were mere adventurers from various nations, without any attachment to our country; and most of them were hostile to our Government and our institutions, and mere desperadoes ready and willing, and waiting only for an opportunity, to unite with our enemies. One whole village but a short distance on the bank of the river from New Orleans, was composed of Spanish and Portuguse, who aided and assisted the British in disembarking their troops, and acted as spies upon us, and as pilots to the British. They were known as banditti. General Jackson was informed, before he reached Louisiana, by the highest and most reliable authority, that it was filled with spies and traitors.

The Governor of the State informed him that there was a great spirit of dissatisfaction with many, and great despondency with the patriotic portion of the population.

It was well known that every desperate band of outlaws in the vicinity were leagued with the enemy, and were ready to share with them in the pillage and plunder of the city.

The subject of martial law, before it was declared, was fully discussed in the presence of Judge Hall, who apparently approved it. The Governor, and many other functionaries, and all patriots, advised its adoption.

And no reasonable man, I think, will doubt that it was absolutely necessary to save the city from the sackage of a licentious soldiery, and of their motto being fully verified. But we have only to advert to one act of Judge Hall's, to know that he acquiesced in the necessity of the measure, or that he was a traitor to his country.

In making preparation for the defence, Judge Hall assumed the power to open the prison doors, and to let out all the criminals to assist either the enemy or the friends of our country; and many pirates then in prison, among others, were discharged, and let loose, and went at large among the citizens. If this was for the purpose of aiding the defence, it is conclusive evidence that he thought all that General Jackson did was necessary: and much more, because his own act was a much greater violation of duty than any that was imputed to General Jackson-unless it was absolutely necessary for self-preservation, and then neither was a violation of duty.

Which would inflict the deepest wound upon the civil power of our country-for a general, while defending his country against invasion by a public enemy, to arrest a judge of the court, when he supposed he was (at least indirectly) co-operating with the enemy; or for a judge to open the prison doors, and let loose all the criminals, including many pirates, whose lives were forfeited to an injured country, to again commit piracy, and other crimes. little inferior in degree of enormity? I leave it to every candid mind for decision. That the civil power was adequate to the defence of New Orleans, no one will pretend. What, then, was left to defend it but the military? None. No candid man,

27TH CONG....3D SESS.

I think, believes this was exercised in an unreasonable manner; or with more severity than the occasion required.

Let us take a brief view of the facts in relation to the arrest of Judge Hall by General Jackson, and for which Hall sat in his own case, and, from the impulse of his own sense of a personal wrong, inflicted a fine of one thousand dollars upon the General.

The line of sentries stationed by General Jackson for the defence of New Orleans, and to guard it against the assault of the enemy, included the city of New Orleans; and martial law, to have any ef fect, must be maintained within these lines. All, of course, within the range of them, must be subject to its action. The business of the Legislature had been suspended; and all who wished the city saved, readily submitted to its authority. Information was received from the British fleet that peace had been concluded between the United States and Great Britain. The newspapers took up the subject, and endeavored to create uneasiness among the people, and to induce them to believe that martial law was unnecessary. The General thought, as did all other prudent men, that this was a devise of the enemy to get some advantage of our troops. A general order was announced, prohibiting any publication in the papers affecting the army.

The French consul (Toussard) granted certificates to all Frenchmen, as well to those in our service as to those out of it, that, being subjects of the French King, they uld not be held to do military duty. This caused a good deal of uneasiness. An order was then made, directing such French subjects as had the certificates of the French consul, countersigned by the Commanding General, to retire without the military lines. Soon after this, a publication appeared in the newspaper, if not designed, calculated to excite mutiny among This was an entire misrepresentaour troops. tion of the order, representing that all Frenchmen, without distinction, were ordered out of the city, and calling upon them to rally round the standard of the French consul. Some of the troops abandoned their posts, in consequence of this mutinous publication. The author of this publication was Louallier, a member of the Legislature. If this is a fair specimen of the patriotism about New Orleans during that trying time, I believe no one will blame General Jackson for distrusting them. General Jackson caused Louallier to be arrested. Judge Hall issued a writ of habeas corpus to take Louallier from the custody of the military officers. The General arrested the Judge; and finally ordered him to be removed beyond his camp. When the camp was broken up, and martial law ceased, the Judge returned, and seized the General, and brought him before himself, to answer for a contempt of his court, and imposed the fine upon him which it is the object of this bill to remove, or relinquish to the General, as a token of the approbation of the American people for his defence of New Orleans. I need not ask what the tendency of Louallier's conduct was, nor what was his design in the mutinous publication. The facts which came to light answer both questions. The consequence was an abandonment of the military posts by the soldiers, and a perfect satisfaction on the part of Louallier, and of Hall too, or Hall would not have undertaken to screen Louallier from punishment. How does the conduct of these two men stand before the world, as contrasted with General Jackson's? Comment from me is unnecessary. The grateful people of America have shown their approbation of the General's conduct, by electing him President of the United States. Let the crowning act of approbation be consummated by a remission of this unjust fine-a fine to which the United States have no more right than I have.

If you desire to see a picture designed by British artists for New Orleans, turn your eye to the Celestial Empire; and there you will behold the fairest fabric of God's workmanship, with her loving and loved offspring, rushing into the flaming fire, the yawning gulf, the deep abyss, to escape the contaminating touch of a licentious British soldiery. Such a death did these innocent people prefer, to such a brutal, licentious infliction of a British behest, and with which New Orleans was threatened; and such a calamity, nothing but unrestrained physical power, directed by the most indomitable patriotism and unconquerable bravery, could have averted. What could the civil power have done to save this valuable portion of our American population from such a disaster and dis

The Oregon Bill-Mr. Choate.

grace, if it could have acted with its most plenary power? All will answer, unhesitatingly, Nothing at all. And for what, I would ask, was this heartrending barbarity inflicted upon this unoffending people? Because they refused to eat the poisonous drugs of this bloodthirsty people, and degrade, and disgrace, and ruin themselves, to gratify British cupidity, and pay them an extravagant price for it; and to replenish an exhausted national treasury, af ter failing to supply it, by an appropriation of the blood, bones, and muscles of a great portion of their laboring people. And how came this treasury exhausted? By bestowing it upon sinecures, and pampered and bloated aristocrats, who had never rendered to the people for it a pin's value of service. And how came New Orleans in danger of such a British outrage as we see inflicted upon the Chinese? Because America dared to defend her hardy seamen from outrages more daring, and, if possible, more cruel. From six to ten thousand of American seamen had already been seized, while peaceably sailing under our flag, and were compelled to fight the battles of our public enemy, and defend a marauding and predatory commercial marine, sent forth to the remotest corner of the earth, to sack and pillage the fairest portion of the civilized world, or be tied to the masts of her floating hells, and be flayed alive. Many valuable lives of American citizens, which came to our knowledge, were taken in this cruel and barbarous manner; and probably many more, that never came to light. Many broken-hearted fathers, mothers, brothers, and sisters, mourned the loss of their friends, thus butchered and sacrificed, and on whom they relied for a daily support. What think you of the people of New Orleans? Do you think they would wait for civil etiquette, and, for fear of offending the magisterial dignity of a prostrate judge, who could neither avert the impending calamity nor punish the offenders, forbear to call on the physical power-the only one that could afford them any relief or protection?

SPEECH OF MR. CHOATE,

OF MASSACHUSETTS.

In Senate of the United States, February 3, 1843-On the bill to authorize the adoption of measures for the occupation and settlement of the Territory of Oregon, for extending certain portions of the laws of the United States over the same, and for other purposes.

The bill for the occupation and settlement of the Territory of Oregon (which had been previously discussed by Mr. CHOATE and other Senators) again coming up for consideration on this day

Mr. CHOATE spoke nearly as follows:

I wish, sir, before others resume the regular dis cussion of the measure under consideration, to say something upon two or three topics in the speeches of different Senators who have done me the honor to make reply to what I urged against the bill a few days ago. It is not my purpose to debate the subject at large, and over again, nor to attempt an answer in detail to any one of the able arguments which have been addressed to us. I objected, and now object, to that provision of the bill only which grants, or engages to grant, lands to future settlers of the Oregon Territory. The provision forms the matter of part of the first section, and is expressed in these words:

"Provision hereafter shall be made by law to secure and grant six hundred and forty acres, or one section of land, to every white male inhabitant of the Territory of Oregon, of the age of eighteen years and upward, who shall cultivate and use the same for five consecutive years, or to his heir or heirs at-law, if such there be, in case of his decease. And to every such inhabitant or cultivator, being a married man, there shall be granted, in addition, one hundred and sixty acres to the wife of said husband, and the like quantity of one hundred and sixty acres to the father for each child under the age of eighteen years he may have, or which may be born within the five years."

My objection to it was, and is, that it infringes, or subjects this Government to a specious accusation of infringing, that clause in the existing convention with Great Britain which declares that "any country that may be claimed by either party on the northwest coast of America, westward of the Stony Mountains, shall, together with the harbors, bars, and creeks, and the navigation of all rivers within the same, be free and open to the vessels, citizens,

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and subjects of the two powers." I would not infringe that convention, because it is honorable, and politic as well as honorable, to perform with punctilious exactness, and in liberal measure, all our engagements as a nation.

Well, sir, upon one great point, at least, we all concur. Everybody agrees that, if the bill infringes the convention, it ought not to pass without amendment. The Senator from Missouri, [Mr. LINN,] the framer of the bill, and now and long the zealous and able advocate of the general policy which it pursues, speaking for all its friends, agrees to this. On the other hand, if the convention were out of the way, I do not know that it might not receive a general vote. Whether it violates the convention, therefore, or exposes itself to a colorable charge of doing so, or not, is the precise and only question.

It is obvious, then, Mr. President, that a great deal of the matter which has been pressed into the debate is irrelevant, and useless to the actual inquiry: I hope that some of it may not prove to be mischievous as well as useless. Right or wrong in their advice, Senators have not been very sparing of it, nor very successful in showing us how it touches the immediate deliberation. Whether it would be wise or unwise now to give the notice prescribed by the convention for terminating it, and thus set the year running, at the end of which it must expire by its own provisions; whether it would be wise or unwise, if there were no public faith in the way, to take military occupation of the whole territory to the forty-ninth degree at once; whether it would be wise or unwise to plant "fifty thousand rifles" on the banks of the Columbia, as the Sen. ator from Ohio [Mr. TAPPAN] so coolly counselsa thing more easily said than done-and, like the meditated murder in the great tragedy, not "done when 'tis done;" whether it would be better still to send these same rifles to conquer England in Ire land, or to unfurl the standard of transatlantic liberty in the streets of London or on the coast of Kent, as other Senators have less distinctly recommended;-whether any, or all, or none of these things may be desirable and prudent, nobody pro poses that we shall begin by breaking our word. Better auspices would better commence undertakings so delicate and so magnificent. If, as Senators predict, a war with England is to come so soon; if she really is closing her vast serpent folds about us, and seeking her moment to crush us to death; if the black regiments are organized, and the armed steamers are built, by which she means to convey her fatal gift of revolutionary emancipation to the vulnerable and inflammable South and Southwest; if such a war as this is to come so soon, how much more desirable than ever that it shall find our honor without a stain! Other preparation I do not undervalue; other armor you must forge and put on; but he who has this is clad already in complete steel.”

There is one question only, then, and that the least discussed of any in this wide debate: Does the bill, in its grant, or promise of grant of land, break the convention? In other words: having agreed, as a Government, that this Territory of Oregon, and every part of it, shall remain free and open to all the subjects of England, as well as all the citizens of our own country, until the expira tion of twelve months after notice of the termina. tion of the agreement, can we now, before such notice, do an act, as a Government, intended and calculated to exclude the subjects of England from the territory, in part or whole; to parcel it out into farms; to enclose those farms with stone walls; to lay them down in grain and grass; to vest the title to them in American citizens, in absolute property, for the maintenance of which against all the world the public treasure and public faith are solemnly engaged? This is the question, and really it answers itself. You have agreed that, as a Government, you will do nothing to prevent this territory, and every part of it, from being free and open to the subjects of England, and to your own countrymen, until the convention expires. Perhaps you have agreed that you will take care that your citizens shall do nothing to prevent it from being open. But certainly you have agreed that, as a Government, you will do nothing yourselves to shut it up. And yet, by this bill, do you not do an act, as a Gov. ernment, intended and calculated to close the ter ritory, in part or in whole, against English occupation and enjoyment? Do you not invite colonists to settle on it by the promise of a perfect title? [[

27TH CONG....3D SESS.

enough of them should go—as enough may go, and are invited by the bill to go-to take up, fence in, plough and sow every acre of it on which a man can live, do you not engage to all of them such title? Do you not then take and grant the whole territory, in exclusive property and occupation, to American citizens? And is this to leave it "free and open" to the subjects of England? Why, sir, in five years, if this bill produces the entire effect for which its provisions are calculated, and of which they are capable, not an Englishman could set his foot on the territory for agriculture, trade, or hunting. His entry would be a trespass on American title, and the entry of his Government an invasion and a war on you. I do not say that this result is undesirable; but I do say you cannot achieve it till you have put an end to the convention. You cannot shut up and appropriate a territory, or an acre of it, consistently with an agreement to keep it all free and open. Common sense, common honesty, the municipal law, the judgments of the nations, concur in this. The attempt is to reconcile things irreconcilable; and the fifty thousand rifles of the Senator from Ohio are unequal to it.

But I discussed this subject so much at large the other day, that I will not pursue it further. In truth, the only plausible defence of this part of the bill which we have heard attempted, is, not that it does not disregard and infringe the convention, but that England has set the example of disregarding and infringing it, and therefore we may do so

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But, Mr. President, I am not afraid of being called the apologist of England when I declare that I see no proot at all that she violates the convention, as I construe it. He must be a very vulgar debater, and that a very vulgar assembly, by whom and in which an attempt to persuade a nation to preserve its own honor by the argument that its great foreign rival has preserved his, should be stigmatized as an unpatriotic apologist for that great rival. No Senator here will descend to such an imputation on another. I say, then, I see no evidence of any act of the English Government which justifies the act proposed to us. That the convention operates to her advantage, and against ours, is probably true; that her subjects are silently and widely occupying the territory, culling out its choicest parts, taking up its best mill-seats, reclaiming its best land, and extending the English name, national character, attachments, sympathies, and connexions, all over it, forming it slowly into another English colony, may be true.

This may

make it quite expedient to terminate the convention. It may make it quite necessary to assert the doctrine, that no possession taken by an English subject during the existence of the convention can be allowed to confer title. It does unquestionably make it necessary that a wise and a firm and a good-tempered diplomacy should, without one moment's delay, undertake the adjustment of this great question of the Oregon. But what I say is, that I see no governmental act of England which breaks the convention. Senators argue this point a great deal too much at large. The question is, not whether the English national temper is or is not respectful and friendly towards this country; it is not whether she once fired into the Chesapeake frigate in a time of peace; not whether her ulterior purposes in maintaining so many lines of steam-ships are wicked or charitable; not whether her hand is red with the blood of China and Affghanistan; not whether she meditates the gift of liberty to all the enslaved; not whether she is proud, ambitious, grasping; not whether that which is so definitely and intelligibly called her "general attitude" towards us is lionlike or lamblike, rampant or couchant. All these inquiries are important to our general duties of statesmanship. As we may answer them one way or another, we may have to negotiate, to protest, to arm, to fight. But to the deliberation of this moment, these inquiries are worse than irrelevant. The question is, Does the English Government grant land in the Oregon Territory to English subjects, to be enjoyed and owned exclusively and adversely to all the world?

The Oregon Bill-Mr. Choate.

Sir, there seems to be no proof of this at all. What the English hunters and traders may have done, I do not inquire. I look to the Government; and what the Government has said, and what it has done, I once before have brought to the notice of the Senate. In the act of 2d July, 1821, by which the privilege of hunting and trading is granted to the Hudson Bay Company, are these words:

"IV. And whereas, by a convention entered into between his Majesty and the United States of America, it was stipulated and agreed that any country on the northwest coast of America, to the westward of the Stony Mountains, should be free and open to the citizens and subjects of the two powers for the term of ten years from the date of the signature of that convention:

"Be it therefore enacted, That nothing in this act contained shall be deemed or construed to authorize any body corporate, company, or person to whom his Majesty may have, under the provisions of this act, made a grant or given a license of exclusive trade with the Indians in such parts of North America as aforesaid, to claim or exercise any such exclusive trade within the limits specified in the said article, to the prejudice or exclusion of any citizens of the said United States of America who may be engaged in the said trade: Provided always, That no British subject shall trade with the Indians within such limits, without such grant or license as is by this act required."

This, sir, is the legislation of England under the convention which we are about to break. I confess I should regret to see her legislation, and the legislation which is proposed here, presented together to the moral judgment of the world.

I have no more to say, sir, upon the expediency of passing this bill. Two better courses certainly are open to you. Put an end to the convention at once; and then, at the expiration of the year, proceed to plant a colony in the territory. This is one course. But another is better still. Leave all things as they are, and instantly enter upon a negotiation which shall close forever the last of the questions which is of magnitude enough to endanger the peace of two great nations, of one blood and one faith.

I desire now, Mr. President, to say something upon two or three topics introduced into the debate by the Senator from Missouri, [Mr. BENTON.] To much of his able address to the Senate I assent entirely. To other portions of it I cannot assent; and on these I beg to submit a few remarks, with the deference which is due to him, but with the freedom which is due to the Senate from every Senator.

I understood the honorable Senator to remind you, that some time since the Senate, upon his motion, made a call upon the President to apprize this body what were those "informal communications" which, in his message transmitting the recent treaty for our approval, during the last session, the President says had been had with the British minister upon the subject of the Territory of the Oregon; and that to this call the President replied, that the information sought for could not be given without detriment to the public interest. The honorable Senator then proceeded to declare that, in his opinion, this reply was not true, and was not sincere; and that it was designed to conceal the real reason for not answering the call; which was, that the disclosure of the "informal communications" would disgrace the American negotiator, by showing that he had offered to draw a line of boundary south of the parallel of forty

nine.

Now, sir, in so far as the honorable Senator confined himself to a denial that the public interest would suffer by a revelation of this matter, and to an argument to prove that it ought to have been given, I have little to say. I may be permitted-the youngest and least experienced of this body, replying to one of its oldest, most experienced, and most distinguished members--to suggest a doubt whether such a commentary on such a communication from the Executive Government has been usual, and even whether it was ever made before. Í had thought that a politic decorum had established the practice of receiving such communications from such a source as absolute truth. I had supposed that the indispensable intercourse of the departments of Government, their respective constitutional functions, independence, and responsibilities, all required this.

But, sir, if it may be considered and discussed as an open question, whether the President has

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told us the truth, and whether his opinion that the public interests required these communications to be withheld is a well-founded one or not, I must be permitted to say that I cannot doubt for a moment that the Executive determination was both sincere and discreet. How could we have expected beforehand any other answer? Why, sir, the business of the Oregon is at this moment the subject of actual negotiation between the Governments. It has been so for years. In his message at the commencement of the present session of Congress, the President declares his purpose to be to conclude an early settlement of it, if practicable. Such is my inference from his language. In this posture of our affairs, so important and delicate, would it be a usual and a sensible proceeding, or a strange and impolitic one, to publish to the world from day to day the informal conversations of the representatives of the two powers? Was such a thing ever heard of? The honorable Senator says that our claim to the Oregon Territory is, and always was, a uniform and decided one, never shifting, never timid; and that there is nothing at all to be concealed.' Well, sir, and what then? So was our claim in the Northeast a uniform and confident claim. So always has been our claim upon the great subjects of impressment and the right of search; but when these claims, or any claims, or any subjects, become matters of actual controversy, and are brought within the province of diplomacy, do not the law, and the usage, and the immemorial expediences of diplomatic treatment apply to them; and are they not to be discussed and put in shape for adjustment according to the customary course of diplomacy?

Let me remind you that there may be reasons for at least the usual prudence of secrecy, urgently and peculiarly applicable to this question. Remember that, according to the theory of England upon the subject, it is a question to which not she and we alone, but we and the whole world are parties. She asserts no title in herself, but alleges that it belongs to all the nations. If so, all of them-except Russia, Spain, and France, who may be thought to have quitclaimed--all the other nations are parties; and then England and this Government are in truth meditating an arrangement excluding all the rest, and appropriating the whole to themselves. Under any possible principle of adjustment, they would hardly be expected to reveal the whole course of love from day to day, running smooth or broken, in the presses of London and Washington.

But, sir, it was not this which I proposed to say. I desired chiefly to assure the Senator and the Senate that the apprehension intimated by him, that a disclosure of these informal communications would disgrace the American Secretary, by showing that he had offered a boundary line south of the parallel of forty-nine, is totally unfounded. He would be glad to hear me say that I am authorized and desired to declare, that in no communication, formal or informal, was such an offer made, and that none such was ever meditated.

The honorable Senator complains of the treaty of last summer, for not settling this question of the Oregon. It is one of its great sins of omission which he charges, as he has done more than once before.

Let me say, sir, (what I need scarcely to say,) that this forms no objection to the treaty, which does not lie against our whole past series of diplomacy. Always this question of the Oregon has borne exactly the same relation to all our questions with England that it bore last summer. Always it has been thought important enough to be discussed with other subjects, and never has it been quite matured for adjustment, and never thought quite so important as to hinder the adjustment of other questions which were matured. How many treaties have you made with England-how much diplomatic conversation have you had with her, since Captain Gray discovered and named the Columbia river? And yet, through the whole series-in 1807, 1814, 1816, 1818, and 1826-in the administrations of both the last Presidents always there has been one course and one result with this subject. It has been treated of; formal and informal communications have been held on it; it has been found to be unripe for settlement; and it has been found to be, or believed to be, not difficult enough, or not pressing enough, to delay or alter the settlement of riper and more pressing elements of contention. There are, and have always been, two reasons for this posture and this fate of the Oregon

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