The Project Gutenberg eBook, Charles Sumner; His Complete Works, Volume VIII (of 20), by Charles Sumner

JOHN A. ANDREW

A. W. Elson & Co. Boston

Charles Sumner; his complete works, volume 8 (of 20)

COPYRIGHT, 1872,
BY
CHARLES SUMNER.

COPYRIGHT, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press:
Norwood, Mass., U.S.A.

CONTENTS OF VOLUME VIII.

REVISION AND CONSOLIDATION OF THE NATIONAL STATUTES.

Resolution and Speech in the Senate, December 12, 1861.

April 8, 1852, during his first session in the Senate, Mr. Sumner brought forward a resolution for a revision and consolidation of the national statutes, which was duly referred to the Committee on the Judiciary.[1] Though the resolution attracted attention at the time, the committee did nothing.

Early in the next Congress, December 14, 1853, he presented the same resolution a second time, which was duly referred,[2] and again neglected.

In the succeeding Congress, February 11, 1856, he offered the same resolution a third time,[3] and with no better success than before.

Absence from the Senate and protracted disability prevented the renewal of this effort until the administration of President Lincoln, who was induced to make a recommendation on the subject in his annual message of December 3, 1861.[4] Mr. Sumner followed, December 12th, with his oft-repeated resolution:—

“Resolved, That the Committee on the Judiciary be directed to consider the expediency of providing by law for the appointment of commissioners to revise the public statutes of the United States, to simplify their language, to correct their incongruities, to supply their deficiencies, to arrange them in order, to reduce them to one connected text, and to report them thus improved to Congress for its final action, to the end that the public statutes, which all are presumed to know, may be in such form as to be more within the apprehension of all.”

Of this he spoke.

MR. PRESIDENT,—It is now nearly ten years, since, on first entering this Chamber, I had the honor of presenting this identical resolution. Several times afterwards, at succeeding sessions, I brought it forward; but there was no action in regard to it, either by the Committee on the Judiciary, to which it was referred, or by the Senate. At last we have a positive recommendation from the President in his Annual Message, calling attention to the necessity of a revision of our statutes, and of reducing them to a connected text. I desire to take advantage of that recommendation, and to revive the proposition which ten years ago I first introduced.

Something in earnest, Sir, must be done. The ancient Roman laws, when first codified, were so cumbersome that they made a load for several camels. If this cannot be said of our statutes, nobody will deny that they are cumbersome, swelling to at least eleven or twelve heavy volumes, besides being most expensive. They are to be found in few public libraries, and very rarely in private libraries. They ought to be in every public library, and also in the offices of lawyers throughout the country. That can be only by reducing them in size so that they will form a single volume, which is entirely practicable,—thus rendering them easy to read and cheap to buy.

I have reason to believe, Sir, that such a work would be agreeable to the people. I am not without assurance that the people value such reading. Certainly I am justified in this conclusion, when I think of my own State; for it is within my knowledge that the statutes of Massachusetts, reduced to a single volume, as they now are, have, during a very brief period, been purchased by the people at large to the extent of more than ten thousand copies.

I hope, Sir, there will be no objection founded on the condition of the country. I do not forget the old saying, that the laws are silent in the midst of arms; but I would have our Republic show by example that such is not always the case. I am sure we can do nothing better for the honor of the Administration that is ours. Indeed, should we not all look with increased pride upon our country, most cherished when most in peril, if, while dealing with a fearful Rebellion, Congress turned aside to the edification of the people in objects that are useful, among which I place that I now propose? It will be something, if, through the din of war, this work of peace proceeds, changing the national statutes into a harmonious text, and making them accessible to all.

The resolution was agreed to.

This was followed, January 28, 1862, by a bill, introduced by Mr. Sumner, for the revision and consolidation of the statutes of the United States, which was referred to the Committee on the Judiciary. May 31, the Committee, on motion of its chairman [Mr. Trumbull], was discharged from the further consideration of the resolution. At the same time the bill was postponed to the first Monday in December, and expired with the Congress.[5]

December 15, 1863, Mr. Sumner renewed his original resolution on the subject, and on the 23d introduced another bill with the same object, on which Mr. Trumbull, from the Committee, reported adversely, June 28, 1864.[6]

January 5, 1866, Mr. Sumner renewed his effort by a bill, which was also referred to the Judiciary Committee. February 7, Mr. Poland, from the Committee, reported the bill favorably. April 9, it was considered in the Senate and passed without debate, substantially as drawn and introduced by Mr. Sumner. In the original bill the salaries of the commissioners were $3,000 each. On the report of the Committee, they were changed to $5,000 each. June 22 the bill passed the House of Representatives without amendment, and was approved by the President June 27.[7]

Under this Act, President Johnson appointed as commissioners Hon. Caleb Cushing of Massachusetts, Hon. Charles P. James of Ohio, and Hon. William Johnston of Pennsylvania.

The period of three years, within which the revision and consolidation were to be completed, having expired, leaving the work undone, a supplementary Act of Congress was passed,[8] continuing the original Act, and under it President Grant appointed as commissioners Hon. Benjamin Vaughan Abbott of New York, Hon. Charles P. James of Ohio, and Hon. Victor C. Barringer of North Carolina.

DENIAL OF PATENTS TO COLORED INVENTORS.

Resolution and Remarks in the Senate, December 16, 1861.

Mr. Sumner offered the following resolution, and asked for its present consideration.

“Resolved, That the Committee on Patents and the Patent Office be directed to consider if any further legislation is necessary in order to secure to persons of African descent, in our own country, the right to take out patents for useful inventions, under the Constitution of the United States.”

MR. PRESIDENT,—If I can have the attention of the Chairman of the Committee on Patents, I will state to him why this resolution is introduced. It has come to my knowledge that an inventor of African descent, living in Boston, applied for a patent under the Constitution and laws of the land, and was refused, on the ground, that, according to the Dred Scott decision, he is not a citizen of the United States, and therefore a patent cannot issue to him. I wish the Committee to consider whether in any way that abuse cannot be removed. That is all.

The resolution was considered by unanimous consent, and agreed to.

The Committee made no report on the resolution. It was a case for interpretation rather than legislation, and the question, like that of passports, was practically settled not long afterwards by the opinion of the Attorney-General, that a free man of color, born in the United States, is a citizen.[9] Since then patents have been issued to colored inventors.

THE NATIONAL ARMIES AND FUGITIVE SLAVES.

Resolution and Remarks in the Senate, December 18, 1861.

The abuses in Missouri, to which Mr. Sumner called attention, December 4, 1861, appeared even in the neighborhood of Washington, almost under the eye of Congress, so that he felt it his duty to expose them once more.

December 18, he spoke briefly on the following resolution, introduced by himself the preceding day.

“Resolved, That the Committee on Military Affairs and the Militia be directed to consider the expediency of providing by additional legislation that our national armies shall not be employed in the surrender of fugitive slaves.”

MR. PRESIDENT,—Some days ago it was my duty to expose abuses in Missouri in regard to fugitive slaves. Since then I have received communications from that State, showing great interest in the question, some of them in the nature of protest against the system adopted there. One purports to be from a slave-master, educated in a Slave State, and he speaks with bitterness of the indignity put upon the army there, and of the injury it inflicts on the cause of the Union. Another contains a passage which I shall read.

“I wish to say in addition that I have lived twenty-four years in Missouri, that I know the people well, have served them in various offices; and let me assure you, it is nonsense to try to save Missouri to the Union, and the institution of Slavery also. We must give up one or the other. Slavery ought to fall, and Missouri be saved. Fremont’s army struck terror into the Secessionists. He made them feel it by taking their goods and chattels. Let our armies proclaim freedom to the slaves of the Secessionists and the Rebellion will soon close. We can take care of the free negroes at a future day; give General Lane ten thousand men, and he would establish peace in Missouri in thirty days.”

But, Sir, my special object now is, to exhibit wrong here at home rather than in distant Missouri. Brigadier-General Stone, the well-known commander at Ball’s Bluff, is adding to his disaster there by engaging in the surrender of fugitive slaves. He does this most successfully. If a fugitive slave is to be handed over to a Rebel, the General is easily victorious.

Sir, beside my constant interest in this question, beside my interest in the honor of the national army, I have a special interest at the present moment, because Brigadier-General Stone sees fit to impose this vile and unconstitutional duty upon Massachusetts troops. The Governor of my honored State has charged me with a communication to the Secretary of War, treating it as an indignity to the men, and an act unworthy of the flag. I agree with the Governor; and when I ask your attention to this outrage, I make myself his representative, as well as my own.

Others beside the Governor of Massachusetts complain. There are two German companies in one of the Massachusetts regiments, who entered into the public service with the positive understanding that they should not be put to any such discreditable and unconstitutional service. They complain, and with them all their own compatriot fellow-citizens, the enlightened, freedom-loving German population throughout the country.

The complaint extends to other quarters. Here is a letter from Philadelphia, interesting and to the point. I read a short extract only.

“I have but one son, and he fought on Ball’s Bluff in the California regiment, where his bravery brought him into notice. He escaped, wounded, after dark. He protests against being made to return fugitive slaves, and, if ordered to that duty, will refuse obedience and take the consequences. I ask, Sir, shall our sons, who are offering their lives for the preservation of our institutions, be degraded to slave-catchers for any persons, loyal or disloyal? If such is the policy of the Government, I shall urge my son to shed no more blood for its preservation.”

With such communications, some official and others private, I feel that I should not do my duty, if I failed to implore the attention of the Senate to this intolerable grievance. It must be arrested. I am glad to know that my friend and colleague, the Chairman of the Committee on Military Affairs [Mr. Wilson], promises us a bill to stop this outrage. It should be introduced promptly, and passed at once. Our troops must be saved from such shame.

The resolution was adopted after remarks by Mr. Cowan, of Pennsylvania, which revealed the tone still prevalent in certain quarters. He said:—

“I agree, that, if all men were Puritans, that, if all men appreciated Liberty as we do, and as our race does, then we might extend it to all men; but to extend it to men who have no appreciation of it, who would trample the boon under foot, when granted them,—to such men it is a mischief rather than a blessing.

“Still I have only to say, that I think we have nothing in the world to do with all these questions. I think their discussion here, their being mooted in these assemblies, is mischievous, and only calculated to keep up an angry irritation, which may have exceedingly bad results in the final consummation of the struggle in which we are now engaged.”

Mr. Wilson, as chairman of the Committee, reported a bill on the subject, which, after debate, gave way to another from the House of Representatives, containing a new article of war, prohibiting the employment of the national forces in the return of fugitive slaves, which became a law March 13, 1862.[10]

This movement of Mr. Sumner was followed by a personal incident. General Stone, whose conduct was exposed with severity, took exception to the speech, and addressed him a letter intended to be very insulting. Mr. Sumner made no reply, nor did he utter any complaint in any quarter. A few days later be received notice from Boston that a near relative of the General had threatened to inflict personal violence upon him. Some time afterwards General Stone was taken into custody by military order, and for a long time incarcerated. The hostile press and the General’s friends charged this upon Mr. Sumner, often in most offensive terms, and it was repeated in the face of his constant denial. April 21, 1862, the question of this arrest was considered in the Senate, on motion of Mr. McDougall, of California, when Mr. Sumner spoke briefly.

Mr. President,—I have no opinion to express on the case of General Stone, for I know nothing about it. Clearly he ought to be confronted with his accusers at an early day, unless, indeed, there be some reason of transcending military character, which, in the present condition of the country, at a moment of war, might render such a trial improper. Of this I do not pretend to judge; nor am I aware of evidence on which the Senate can now act.

…

I hope I shall be pardoned, if I allude to myself. A most persistent attempt has been made in newspapers to connect me with this arrest, to the extent of according to me and my imagined influence the credit or the discredit of it. This is a mistake. I have been from the beginning an absolute stranger to it. The arrest was made originally without suggestion or hint from me, direct or indirect, and it has been continued without any such suggestion or hint from me. I knew nothing about it at the beginning, and know nothing about it now. There is no intimate friend or family relative of the prisoner more entirely free from all connection with it than myself.

EXPULSION OF TRUSTEN POLK, OF MISSOURI.

Resolution and Remarks in the Senate, December 18, 1861.

December 18, 1861, Mr. Sumner offered the following resolution, which, on his motion, was referred to the Committee on the Judiciary.

“Resolved, That Trusten Polk, of Missouri, now a traitor to the United States, be expelled, and he hereby is expelled, from the Senate.”

Mr. Sumner produced a letter from Mr. Polk, which had found its way into the newspapers, where he says: “Dissolution is now a fact,—not only a fact accomplished, but thrice repeated. Everything here looks like inevitable and final dissolution. Will Missouri hesitate a moment to go with her Southern sisters? I hope not.”

Mr. Saulsbury, of Delaware, thought the letter was “not genuine,” and added:—

“He is a native of my own State; from early boyhood he has been an exemplary Christian, a member of a religious denomination; and when the phrase is used in that letter, professing to have been written by Trusten Polk, that he had to ‘ante up $200,’ I am satisfied the language is not the language of Trusten Polk. He is not familiar with scenes where hundreds of dollars are ‘anted up.’”

Mr. Sumner replied:—

I do not pretend to an opinion on the genuineness of the letter. Like the Senator from Delaware, I have seen it in several newspapers, and my attention has been specially called to it by correspondents in Missouri, who write that its genuineness cannot be doubted. But this is a question for the Committee.

If I understand the Senator, his argument against the genuineness of the letter is founded on a phrase which he thinks Trusten Polk could never have written: it is a phrase of doubtful style or taste, showing bad associations. I am not familiar enough with Trusten Polk to sit in judgment on his style, nor is the Senate called to any such responsibility; but we are to sit in judgment on his public conduct, and if the letter is not a forgery, there can be no question as to our duty.

Believing the inquiry important, not doubting the duty of the Senate to purge itself of traitors who have too long found sanctuary in its Chamber, and satisfied that the country justly expects this to be done, I have felt bound to introduce the resolution.

But there is more than the letter. The Senate has heard within a few days that this person has found his way to Memphis. Why is he at Memphis, when he should be at Washington?

Some time afterwards Mr. Sumner received from Missouri the very letter, in the undoubted autograph of Mr. Polk, and with the phrase which it was insisted he could not have written.

January 9, 1862, Mr. Ten Eyck, of New Jersey, reported the resolution from the Committee, with the unanimous recommendation that it pass.

January 10, the resolution was adopted without debate: Yeas, 36; Nays, 0.

EMANCIPATION AND THE PRESIDENT.

Letter to Governor Andrew, of Massachusetts, December 27, 1861.

The following extract, copied from the letter-book of Governor Andrew, is a contemporary record of Mr. Sumner’s efforts with the Governor, and also of an important remark by President Lincoln.

Washington, December 27, 1861.

…

We hope that in your Message you will keep Massachusetts ahead, where she always has been, in the ideas of our movement. Let the doctrine of Emancipation be proclaimed as an essential and happy agency in subduing a wicked rebellion. In this way you will help a majority of the Cabinet, whose opinions on this subject are fixed, and precede the President himself by a few weeks. He tells me that I am ahead of him only a month or six weeks. God bless you!…

Ever yours,

Charles Sumner.

THE TRENT CASE, AND MARITIME RIGHTS.

Speech in the Senate, on the Surrender of Mason and Slidell, Rebel Agents, taken from the British Mail Steamer Trent, January 9, 1862. With Appendix.

Hamlet. Come on, Sir.

Laertes. Come, my Lord. [They play.]

…

Osric. A hit, a very palpable hit.

Laertes. Well,—again.

[Laertes wounds Hamlet; then, in scuffling, they change rapiers, and Hamlet wounds Laertes.]

Shakespeare, Hamlet, Act V. Scene 2.

It is, perhaps, well that you settled the matter by sending away the men at once. Consistently with your own principles you could not have justified their detention.—Richard Cobden, MS. Letter to Mr. Sumner, January 23, 1862.

This announcement is not made, my Lord, to revive useless recollections of the past, nor to stir the embers from fires which have been in a great degree smothered by many years of peace. Far otherwise. Its purpose is to extinguish those fires effectually, before new incidents arise to fan them into flame. The communication is in the spirit of peace and for the sake of peace, and springs from a deep and conscientious conviction that high interests of both nations require this so long contested and controverted subject now to be finally put to rest.—Daniel Webster, Letter to Lord Ashburton, August 8, 1842: Works, Vol. VI. p. 325.

The case of the Trent was an important incident of the war,—most interesting for a time to the people of the United States, attracting the attention of foreign nations, and exciting England to hostile demonstrations, even to the verge of practical coöperation with a Rebellion for the sake of Slavery. The facts are few, and are authenticated by official documents.

At an early stage of the Rebellion, the Slave-Masters of Richmond appointed James M. Mason, of Virginia, commissioner and envoy to England, and John Slidell, of Louisiana, in the same capacity to France, each with a secretary, and also with instructions and despatches. Their duty was to help the Rebellion, especially in its financial and military exigencies, to urge its recognition, to make treaties of commerce and alliance, to obtain European intervention, and generally to oppose the diplomacy of the United States. As the Rebel ports were already under strict blockade, and there were no Rebel vessels for their conveyance, they were driven to rely upon accommodation under a neutral flag. Some time in October, 1861, they succeeded in running the blockade and reaching Havana. Here their pretensions and objects were notorious. But this was only the first stage in the voyage. The next was conveyance to Europe; and for this they relied upon the English flag, taking passage in the Trent, bound from Havana to St. Thomas, from which latter place a regular line of steamers, connecting with the Trent, ran to England. Mr. Dana, in his excellent statement of the case, says: “Their character and destination were well known to the agent and master of the Trent, as well as the great interest felt by the Rebels that they should, and by the United States officials that they should not, reach their destination in safety.”[11] The regular mails for England from South America and Cuba were aboard, to be transferred at St. Thomas, with a large number of passengers bound to England.

On the high seas, within a few hours’ sail of Nassau, the Trent was stopped and searched by the national steamer San Jacinto, commanded by Captain Wilkes, afterwards Rear-Admiral, acting on his own responsibility, and without any instructions from the National Government. The two commissioners and their secretaries were found aboard, but the despatches were secreted or confided to some of the passengers. Here Mr. Dana remarks: “There was no evidence or charge that the commander of the Trent aided in the concealment or forwarding of these despatches. He did, however, deny the right of search, refused all facilities for it, and obstructed it by everything but actual force, and made it known to Captain Wilkes that he yielded only to superior power, and that, if made a prize, he and his crew would lend no aid in carrying the Trent into port.”[12] Under these circumstances, Captain Wilkes took the two commissioners with their suite, and carried them as prisoners to the United States, while the Trent proceeded on her voyage.

As this incident became known in the United States, there was a general expression of sympathy and approbation. The press was unanimous. Persons in authority gave their adhesion by public speech or writing, among whom were Mr. Everett, Governor Andrew, Chief-Justice Bigelow of Massachusetts, Professor Parsons of the Law School at Cambridge, Mr. Caleb Cushing, and Mr. George Sumner, all of whom were to a certain extent under the influence of British precedents.

The Secretary of the Navy, under date of November 30, 1861, addressed a communication to Captain Wilkes, containing the following significant words.

“Your conduct in seizing these public enemies was marked by intelligence, ability, decision, and firmness, and has the emphatic approval of this Department. It is not necessary that I should in this communication, which is intended to be one of congratulation to yourself, officers, and crew, express an opinion on the course pursued in omitting to capture the vessel which had these public enemies on board, further than to say that the forbearance exercised in this instance must not be permitted to constitute a precedent hereafter for infractions of neutral obligations.”[13]

The House of Representatives made haste, December 2, 1861, the first day of its session, to adopt a joint resolution tendering the thanks of Congress to Captain Wilkes, “for his brave, adroit, and patriotic conduct in the arrest and detention of the traitors James M. Mason and John Slidell.” This was on the motion of Hon. Owen Lovejoy, the faithful Abolitionist. The joint resolution, on reaching the Senate, was referred to the Committee on Naval Affairs, of which Mr. Hale was chairman. Mr. Sumner suggested its reference to the Committee on Foreign Relations; but Mr. Hale insisted, by way of objection, that “the attempt now to take it out of its ordinary course and refer it to the Committee on Foreign Relations would be taken as an intimation that there is some doubt in some minds as to the propriety of the course that Captain Wilkes took.” Unwilling to raise a debate at that moment, Mr. Sumner assented to the reference proposed.

In England there was a counter sentiment, breaking out into expressions of exasperation. The press was bitter and vindictive. Public report attested a crisis, which may be read in the newspapers of Richmond, throbbing sympathetically with the London organs.

The Richmond Examiner, of December 19, broke forth in notes of triumph.

“All other topics become trifles beside the tidings of England which occupy this journal, and all commentary that diverts public attention from that single point is impertinence. The effect of the outrage of the Trent on the public sentiment of Great Britain more than fulfils the prophecy that we made when the arrest of the Confederate ministers was a fresh event. All legal quibbling and selfish calculation has been consumed like straw in the burning sense of incredible insult.”

Then, speculating upon the position of the National Government, the same journal says:—

“The Abolition element of the Northern States would go straight to revolution at the least movement toward a surrender of the captives.… Spectators of these events, who can doubt that the Almighty fiat has gone forth against the American Union, or that the Southern Confederacy is decreed by Divine Wisdom?”

The Richmond Enquirer of the same date likewise rejoiced.

“We have no need to invite attention to the extremely interesting foreign news which we publish to-day from England. The old British lion is giving an honest roar, in view of the indignity visited upon the Queen’s flag.… We will not disturb the eloquence of such facts by words of comment. We will only say, Well done, John Bull! France, too, echoes the British indignation, and will support her action. Vive Napoléon! … After the brave talk and the congratulations to Wilkes by both Cabinet and Congress, it would be to the last degree pusillanimous to retreat. We think Lincoln will be afraid to prove so great a coward.”

Swiftly came the British demand, in a letter from Earl Russell to Lord Lyons at Washington, dated at London, November 30, and read to Mr. Seward December 19. It concluded in the following terms.

“Her Majesty’s Government, therefore, trust, that, when this matter shall have been brought under the consideration of the Government of the United States, that Government will, of its own accord, offer to the British Government such redress as alone could satisfy the British nation, namely, the liberation of the four gentlemen and their delivery to your Lordship, in order that they may again be placed under British protection, and a suitable apology for the aggression which has been committed. Should these terms not be offered by Mr. Seward, you will propose them to him.”[14]

“The four gentlemen,” being the commissioners and their secretaries, all Rebels, were to be liberated forthwith, and “a suitable apology” was to be made by the National Government. Such was the mandate. But accompanying these instructions read to Mr. Seward was a private communication to Lord Lyons, directing him to break up his legation and to leave Washington, if the National Government did not submit to the terms required after “a delay not exceeding seven days.” Here are the words:—

“Should Mr. Seward ask for delay, in order that this grave and painful matter should be deliberately considered, you will consent to a delay not exceeding seven days. If at the end of that time no answer is given, or if any other answer is given except that of a compliance with the demands of Her Majesty’s Government, your Lordship is instructed to leave Washington, with all the members of your legation, bringing with you the archives of the legation, and to repair immediately to London.… You will communicate with Vice-Admiral Sir A. Milne immediately upon receiving the answer of the American Government, and you will send him a copy of that answer, together with such observations as you may think fit to make. You will also give all the information in your power to the Governors of Canada, Nova Scotia, New Brunswick, Jamaica, Bermuda, and such other of Her Majesty’s possessions as may be within your reach.”[15]

These latter instructions, contemplating war, were unknown in our country at the time of the settlement, and, when read in the calmness of a period removed from the event, seem incomprehensible in spirit. They are positive and peremptory, without recognizing any possibility of delay, even for a proposal of arbitration. Plainly they announce, as the British alternatives, instant surrender, with suitable apology, or war. This is the conclusion of Mr. Dana, in his admirable note, and nobody can doubt it.

In accord with this note was the conduct of the British Government, making preparations for war; and here is unimpeachable British testimony.

“Troops were despatched to Canada with all possible expedition; and that brave and loyal colony called out its militia and volunteers, so as to be ready to act at a moment’s notice. Our dock-yards here resounded with the din of workmen getting vessels fitted for sea; and there was but one feeling, which animated all classes and parties in the country, and that was a determination to vindicate our insulted honor and uphold the inviolability of the national flag.”[16]

At that moment the American Republic was straining every nerve to suppress a Rebellion whose single declared object was the foundation of a new government with Slavery as its corner-stone. War by England was practical recognition of the new government, with alliance and breaking of the blockade.

The difficulty in comprehending this attitude is increased, when it is known that the British Government did not regard the seizure as authorized by instructions. In his letter to Lord Lyons, Earl Russell says expressly: “Her Majesty’s Government are willing to believe that the United States naval officer who committed the aggression was not acting in compliance with any authority from his Government.”[17] Therefore the National Government had done nothing,—absolutely nothing.

On the same day that Earl Russell indited his remarkable despatch, Mr. Seward wrote from Washington to Mr. Adams, at London, on business of the legation, and in his letter mentions that Captain Wilkes “acted without any instructions from the Government.” He adds: “We have done nothing on the subject to anticipate the discussion.” The letter throughout is in the spirit of peace. After declaring his inference “that the British Government is now awake to the importance of averting possible conflict, and disposed to confer and act with earnestness to that end,” Mr. Seward says, “If so, we are disposed to meet them in the same spirit, as a nation chiefly of British lineage, sentiments, and sympathies, a civilized and humane nation, a Christian people,” and then adds, that the affair of the Trent “is to be met and disposed of by the two Governments, if possible, in the spirit to which I have adverted,”[18] that is, with a sense of “the importance of averting possible conflict,” and a disposition “to confer and act with earnestness to that end,” as a Christian people. It so happened that Mr. Adams read this letter to Earl Russell on the very day that Lord Lyons read the demand for surrender and apology to Mr. Seward; but the British Government did not allow its pacific contents to become known, and the war-fever went on. Here Mr. Dana aptly remarks: “The truth seems to be, that, so long as they were uncertain whether their menace of war might not lead to war, they could not afford to withdraw the chief motive for the war-spirit in the British people, and to admit that their warlike demonstration had been needless. Their popular support depended upon a general belief in a necessity for their having accompanied their demand with the preparations and menace of war.”[19]

The extraordinary character of this demand was recognized at the time in Europe. The Count de Gasparin, after describing it as “a question of declaring war,” and an “ultimatum,” said: “Between great nations, between sister nations, it was a strange opening. The usage is hardly to commence with an ultimatum,—that is, to commence with the end. Ordinarily, when there has been a misunderstanding or regrettable act, especially when that act comes within a portion of the Law of Nations which is yet full of obscurity, the natural opening is to ask for explanations as to the intentions, and for reparation for what has been done, without mixing therewith an immediate menace of rupture.”[20] After expressing astonishment that a demand of apology “figured in the original programme,” which he pronounced entirely out of place, the impartial Frenchman proceeds: “Seeing such haste and proclamation so lofty of an exigence above debate, seeing the idea of an impious war accepted with so much ease by some and with such joy so little dissembled by others, Europe declared, without ambiguity or reserve, that, if England were not miraculously saved from her own undertaking, that, if she went so far as to fire a cannon at the North as an ally of the South, she would tear with her own hands her principal titles to the respect of the civilized world.”[21] Rejecting the pretension that the maintenance of peace was due to the “warlike measures of England,” the eloquent moralist exclaims, “America has just rendered to England the most signal service which ever a people rendered to another people,” and this by refusing the war which was menaced,—a war, as painted by him, where, in addition to untold calamity, would be the wretchedness of striking at the liberty of the world in alliance with slave-traders. How naturally he adds: “From the moment that she is only the ally of slave-traders, she has abdicated.”[22]

The summary tone of the British Government and the contemporaneous preparations for war enhanced the difficulties peculiar to such a question; but it was easy to see, on examination, that the demand was in substantial conformity with American precedents, and accordingly the Rebels, who had been confined at Fort Warren, in Boston Harbor, were handed over to the British Government.

While the question was under consideration by the Cabinet of President Lincoln, and before any conclusion had been communicated to the British Government, an incident occurred in the Senate which showed the feeling that sought expression. December 26th, Mr. Hale, of New Hampshire, who had already avowed his sympathy with the act of Captain Wilkes, found occasion to discuss it at some length, and to denounce the idea of surrendering the Rebels. A few passages will show the tone he adopted.

“I believe that the Cabinet to-day and yesterday, and for some days past, have had under consideration a measure which involves more of good or evil to this country than anything that has ever occurred before: I mean the surrender, on the demand of Great Britain, of the persons of Messrs. Slidell and Mason. To my mind, a more fatal act could not mark the history of this country,—an act that would surrender at once to the arbitrary demand of Great Britain all that was won in the Revolution, reduce us to the position of a second-rate power, and make us the vassal of Great Britain.…

“I have seen many gentlemen, and I have seen none, not a man can be found, who is in favor of this surrender; for it would humiliate us in the eyes of the world, irritate our own people, and subject us to their indignant scorn. If we are to have war with Great Britain, it will not be because we refuse to surrender Messrs. Mason and Slidell: that is a mere pretence. If war shall come, it will be because Great Britain has determined to force war upon us. They would humiliate us first and fight us afterwards. If we are to be humiliated, I prefer to take it after a war, and not before.… I pray that this Administration will not surrender our national honor. I tell them that hundreds and thousands and hundreds of thousands will rush to the battle-field, and bare their breasts to its perils, rather than submit to degradation.”[23]

Mr. Sumner at that time had not seen the demand, and was without any precise information on the subject, but felt it his duty to say something by way of breakwater against the rising tide. He spoke briefly.

Mr. President,—The Senator has made his speech, and then withdrawn his motion; he has accomplished his object. For myself, Sir, I would rather meet this question, truly important, when presented in a practical form. The Senator treats it on an hypothesis; he assumes that Great Britain has made an arrogant demand, and then proceeds to denounce it. How does he know that any such demand has been made? Who in the Senate knows it? Who in the country knows it? I do not believe it,—will not believe it, except on evidence.

The Senator says that he is not against arbitration. How does he know that this is not the policy of the Administration? But I know nobody here who can speak for the Administration on this point.

I submit to the Senator that on both points he has spoken too swiftly. There is no evidence to justify him in belief that any arrogant demand has been made; there is no evidence that can lead him to distrust the fidelity of the Administration. Speaking for myself and nobody else, I declare my conviction that the question will be peaceably and honorably adjusted. I do not believe that it is a question for war; and I hail with gratitude the declaration of the honorable Senator in favor of arbitration. This at least is pacific in what must be called a war speech. But do not understand me as intimating that such mode is under consideration. I content myself with repeating, that the question is in safe hands, and that it will be better for us to reserve ourselves until it is presented in some practical form, or at least on evidence, and not on mere hypothesis.

Mr. Sumner had been with the President and his Cabinet the day before, to read important letters just received from Mr. Cobden and Mr. Bright; but he did not know the conclusion on the question. The few words in reply to Mr. Hale were in the spirit of peace, and as such were warmly welcomed by the public. The sympathy they awakened attests the prevailing interest. A leading citizen of Providence wrote: “Very many thanks for your mild rebuke of our friend Senator Hale, when he mounted the war-horse.” Another in Boston adopted the same vein: “For your wise words, after the war speech of Mr. Hale, you have my thanks, and the thanks of thousands who will never express to you their feelings. I know you will exert your great influence on the side of peace, and I rejoice that you have so much moral power in this matter.” Rev. George C. Beckwith, Corresponding Secretary of the American Peace Society, had promptly declared his trust: “It is a matter of special congratulation, that the helm of our Foreign Relations, so far as the Senate is concerned, is held at this juncture in hands so worthy of our confidence. We trust that you and your Committee will have all the wisdom and other qualities needed to meet the case now before us just as it ought to be.” A friend holding high office in Massachusetts augured new strength for Mr. Sumner in the battle with Slavery: “Your decisive speech,” he wrote, “will do much to raise you in the estimation of those who were alarmed by your Emancipation doctrines, and who begin to see that you are right in that, as well as other things.”

The confidence reposed had its responsibilities increased by his position as Chairman of the Committee on Foreign Relations, and, when the surrender was announced, Mr. Sumner felt it a duty to do what he could in reconciling the people to his conclusion, especially as he was satisfied that the original taking of the Rebels could not be justified without adopting most obnoxious British precedents. Besides, reform in Maritime Law seemed to be involved in the discussion, and he was not without hope of contributing to this important result. Therefore he made an early occasion to address the Senate on the subject.

In his speech Mr. Sumner brought into strong relief the early and long continued pretension of England to enter our ships and take our sailors without trial of any kind, as Captain Wilkes had entered the Trent and taken the Rebel agents. In presenting this point, he was determined not only by the London press, which adopted the original American objection to any such entry and taking, but also by the unpublished opinions of the law advisers of the Crown, which he had before him in manuscript.

The capture of the Rebels was known in London on the evening of 27th November. But some time before, on an intimation that such an attempt might be made, the British Government had asked the opinion of the law officers on the questions involved in such an act. An answer was returned, bearing date 12th November, which was signed by the Queen’s Advocate-General, the Attorney-General, and the Solicitor-General. In this opinion it was stated: “The United States ship of war may put a prize crew on board the West India steamer and carry her off to a port of the United States for adjudication by a Prize Court there; but she would have no right to remove Messrs. Mason and Slidell and carry them off as prisoners, leaving the ship to pursue her voyage.” This opinion was supposed to have greater value because it was given sixteen days before anything on the subject had appeared in the London press. Afterwards the case of the Trent was submitted to these law officers, and on the 28th of November they gave another opinion in accordance with the former, where they say: “From on board a merchant ship of a neutral power, pursuing a lawful and innocent voyage, certain individuals have been taken by force. They were not apparently officers in the military or naval service of the Confederate Government.” They conclude that Her Majesty’s Government “will be justified in requiring reparation for the international wrong which has been on this occasion committed.” In conformity with this opinion, Earl Russell, in his letter demanding the surrender, treated it simply as a forcible taking of “certain individuals” from an innocent British vessel at sea by an American ship of war, all of which had been too often done by British ships of war with innocent American vessels at sea.

It will be observed that Earl Russell uses the most general language, without specification; but the contemporaneous press dwelt on the single point taken by the law officers. One of these is quoted in Mr. Sumner’s speech.

In France, the Revue des Deux Mondes wrote, as if instructed from Downing Street:—

“England confines herself to denying that an officer can erect himself into a judge in such a cause, the decision of which should belong only to a Court of Admiralty. Captain Wilkes, substituting himself arbitrarily for the judicial authority, alone competent to give a legal character to his prize, England can see in the act which he committed on the Trent only an act of violence, an outrage perpetrated against the British flag.”[24]

This single point found sudden favor in England. Nassau W. Senior, the eminent economist, in close relations with the British Cabinet, wrote to Mr. Sumner, under date of December 10: “We think that Captain Wilkes could not make himself judge in his own cause; that the utmost he could have done legally would have been to take the Trent into an Admiralty Court.” Here the able Englishman simply echoes the early and constant doctrine of our country; but others among his countrymen did the same.

The intimate relations of Mr. Sumner with Mr. Cobden and Mr. Bright, already existing, were quickened during this anxious period, when these eminent English statesmen wrote constantly, full of friendship for our country and anxious always for peace. The perfect freedom of these communications may be judged by a passage in a letter of Mr. Cobden.

“I write to you, of course, in confidence; and I write to you what I would not write to any other American,—nay, what it would be perhaps improper for any other Englishman than myself to utter to any other American but yourself. But we are, I think, both more of Christians and cosmopolitans than British or Yankee.”

Intervening time and death have removed the seal of confidence, opening what passed between them to the observation of history.

Mr. Cobden occupied himself especially to obtain important reforms in International Law on the ocean. This was part of his scheme for disarmament; and here Mr. Sumner was a fellow-laborer. He was anxious that the attention suddenly directed to Maritime Rights should redound to the good of the Human Family. His programme was given in a letter dated December 5, and read by Mr. Sumner to President Lincoln and his Cabinet, while considering the British demand, on the forenoon of Christmas day. Mr. Cobden begins by quoting from the public letter of General Scott, then at Paris.

“I am sure that the President and people of the United States would be but too happy to let these men go free, unnatural and unpardonable as their offences have been, if by it they could emancipate the commerce of the world. Greatly as it would be to our disadvantage, at this present crisis, to surrender any of these maritime privileges of belligerents which are sanctioned by the Laws of Nations, I feel that I take no responsibility in saying that the United States will be faithful to their traditional policy upon this subject, and to the spirit of their political institutions.”

He then proceeds:—

“If I were in the position of your Government, I would act upon it, and thus, by a great strategic movement, turn the flank of the European powers, especially of the governing classes of England. I would propose to let Mason and Slidell go, and stipulate, at the same time, for a complete abandonment of the old code of Maritime Law as upheld by England and the European powers. I would propose that private property at sea should be exempt from capture by armed Government ships. On this condition I would give in my adhesion to the abolition of privateering. I would propose that neutral merchant vessels, in time of war, as in time of peace, should be exempt from search, visitation, or detention, by armed Government vessels, when on the ocean or high seas,—I mean when beyond that distance from the shore which removes them from the jurisdiction of any maritime state. I would propose to abolish blockades of purely commercial ports, excepting for articles contraband of war.”

To these just and magnificent reforms Mr. Cobden returns in other letters, dwelling on the abolition of blockades, but pressing upon our country the duty of advancing all, and, in the ardor of appeal, exclaiming, “Take high ground with Europe for a complete sweep of the old maritime code, and then take your own time to deal with the Slave States,” and concluding another letter with the words, “Recollect how immensely you would gain in moral power by leading all Europe in the path of civilization. You owe it to yourselves and us.”

This correspondence reveals the anxiety of good Englishmen, and also the various reports by which the public mind was perplexed. In one letter Mr. Cobden writes: “Everybody tells me that war is inevitable; and yet I do not believe in war.” In another he mentions “an impression in high quarters that Mr. Seward wishes to quarrel with this country,” which he characterizes as “absurd enough.” In another he alludes to the joint resolution of thanks to Captain Wilkes, adopted by the House of Representatives, as “viewed here by our alarmist journals as almost a declaration of war”; and, after mentioning that “grave men, holding the highest post in your cultivated State of Massachusetts, compliment Captain Wilkes for having given an affront to the British lion,” he says, with point, “It makes it very hard for Bright and me to contend against the British-lion party in this country.”

Even in this peculiar atmosphere his clearness of perception did not fail, and Mr. Cobden saw the mistake of principle or policy involved in the “impressment” of the Rebel agents. In the postscript of a letter dated November 27, the very day when the taking was first known in London, he wrote: “We are rather unprepared to find you exercising in a strained manner the right of search, inasmuch as you have been supposed to be always the opponents of the practice.”

In the same vein his eloquent colleague, Mr. Bright, wrote, under date of December 5: “Our law officers are agreed and strong in their opinion of the illegality of the seizure of the commissioners; but I cannot make out how or where it exceeds the course taken by English ships of war before the War of 1812. But all the people here, of course, accept their opinion as conclusive on the law of the case.”

Thus directly from the opinions of the law officers, and also from various testimony, including the press, is it apparent that the special objection of England was founded on the forcible taking of “certain individuals” from a British vessel.

Naturally, therefore, Mr. Sumner planted himself on the early American postulate, constantly maintained by us and constantly denied by England. In the able note already cited Mr. Dana sums up the result.

“This celebrated case can be considered as having settled but one principle, and that had substantially ceased to be a disputed question: viz., that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her Government on those persons.”[25]

Mr. Seward was, therefore, right, when, in his communication to Lord Lyons, he announced the settlement of the case “upon principles confessedly American.”[26] In similar spirit, Prince Gortschakoff, in behalf of the Russian Cabinet, congratulated our Republic upon “remaining faithful to the political principles which she has always maintained, even when those principles were turned against her, and abstaining from invoking in her turn the benefit of doctrines which she has always repudiated.”[27] And Baron Ricasoli, speaking for the Italian Cabinet, would not believe that the Government at Washington “desired to change its character all at once, and become the champion of theories which history has shown to be calamitous, and which public opinion has condemned forever.”[28]

The correspondence “in relation to the recent removal of certain citizens of the United States from the British mail-steamer Trent,” including the letter of Earl Russell and the reply of Mr. Seward, and also the letter of M. Thouvenel, Minister of Foreign Affairs in France, was communicated to the Senate January 6, 1862. Its reference to the Committee on Foreign Relations was, on motion of Mr. Sumner, made the special order for January 9th, at one o’clock, when he made his speech.

January 7th, two days before Mr. Sumner’s speech, the subject was discussed in the House of Representatives, and strong speeches were made against the surrender. Mr. Vallandigham, of Ohio, a leading Democrat, said:—

“I avail myself of this, the earliest opportunity yet presented, to express my utter and strong condemnation, as one of the Representatives of the people, of the act of the Administration surrendering Mr. Mason and Mr. Slidell to the British Government.… In six days after the imperious and peremptory demand of Great Britain they were abjectly surrendered, upon the mere rumor of the approach of a hostile fleet; and thus, Sir, for the first time in our national history, have we strutted insolently into a quarrel without right and then basely crept out of it without honor; and thus, too, for the first time, has the American eagle been made to cower before the British lion.”[29]

Then again the same Democratic Proslavery orator said:—

“I would prefer a war with England to the humiliation which we have tamely submitted to; and I venture the assertion that such a war would have called into the field five hundred thousand men who are not now there, and never will be without it, and have developed an energy and power in the United States which no country has exhibited in modern times, except France, in her great struggle in 1793.”[30]

In equal opposition to the British demand, Mr. B. F. Thomas, of Massachusetts, an able lawyer, said:—

“The surrender is made, the thing done. In the presence of great duties we have no time for the luxury of grief. Complaint of the Government would be useless, if not groundless. It was too much to ask of it to take another war on its hands.… But we are not called upon, Mr. Speaker, to say that the demand was manly or just. It was unmanly and unjust. It was a demand which, in view of her history, of the rights she had always claimed and used as a belligerent power, of the principles which her greatest of jurists, Lord Stowell, had imbedded in the Law of Nations, England was fairly estopped to make.… When the matter is more carefully weighed, it will be seen and felt that no wrong was done to England,—that there was no wrong in the forbearance to exercise an extreme right,—no insult, for none was intended,—that our feeling, if any, leaned to virtue’s side, was a relaxation of the iron rigor of law from motives of humanity and Christian courtesy,—that, on the other hand, England has done to us a great wrong, in availing herself of our moment of weakness to make a demand, which, accompanied as it was by the ‘pomp and circumstance of war,’ was insolent in spirit and thoroughly unjust.… But the loss will ultimately be hers. She is treasuring up to herself wrath against the day of wrath. She has excited in the hearts of this people a deep and bitter sense of wrong, of injury inflicted at a moment when we could not respond. It is night with us now; but through the watches of the night, even, we shall be girding ourselves to strike the blow of righteous retribution.”[31]

In similar spirit, Mr. Wright, of Pennsylvania, said:—

“Let England take them; if she has a mind to fête and toast them, let her do it,—it is none of our business; if England desires to make lions of Confederate Rebels, it is a mere matter of taste. If they have to be surrendered, then let them be surrendered under a protest, while we shall remember hereafter that there is a matter to be cancelled between the British Government and the United States of North America.”[32]

These utterances show elements in the atmosphere when Mr. Sumner spoke. With many there was grief mingled with indignation, while others who accepted the result felt a new burden added to the war. Something was needed as a rally.

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:—