Nor can the United States government agree that the term "right" is justly applied to such exercise of power as the British government thinks it indispensable to maintain in certain cases. The right asserted is a right to ascertain whether a merchant-vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which render her liable to the suspicion, first, that she is not entitled to the protection of the flag; and secondly, that, if not entitled to it, she is, either by the law of England, as an English vessel, or under the provisions of treaties with certain European powers, subject to the supervision and search of British cruisers. And yet Lord Aberdeen says, "that if, in the exercise of this right, either from involuntary error, or in spite of every precaution, loss or injury should be sustained, a prompt reparation would be afforded."
It is not easy to perceive how these consequences can be admitted justly to flow from the fair exercise of a clear right. If injury be produced by the exercise of a right, it would seem strange that it should be repaired, as if it had been the effect of a wrongful act. The general rule of law certainly is, that, in the proper and prudent exercise of his own right, no one is answerable for undesigned injuries. It may be said that the right is a qualified right; that it is a right to do certain acts of force at the risk of turning out to be wrong-doers, and of being made answerable for all damages. But such an argument would prove every trespass to be matter of right, subject only to just responsibility. If force were allowed to such reasoning in other cases, it would follow that an individual's right in his own property was hardly more than a well-founded claim for compensation if he should be deprived of it. But compensation is that which is rendered for injury, and is not commutation, or forced equivalent, for acknowledged rights. It implies, at least in its general interpretation the commission of some wrongful act.
But, without pressing further these inquiries into the accuracy and propriety of definitions and the use of words, I proceed to draw your attention to the thing itself, and to consider what these acts are which the British government insists its cruisers have a right to perform, and to what consequences they naturally and necessarily tend. An eminent member of the House of Commons[1] thus states the British claim, and his statement is acquiesced in and adopted by the first minister of the crown:—
"The claim of this country is for the right of our cruisers to ascertain whether a merchant-vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which rendered her liable to the suspicion, first, that she was not entitled to the protection of the flag; and, secondly, if not entitled to it, she was, either under the law of nations or the provisions of treaties, subject to the supervision and control of our cruisers."
Now the question is,By what meansis this ascertainment to be effected?
As we understand the general and settled rules of public law, in respect to ships of war sailing under the authority of their government, "to arrest pirates and other public offenders," there is no reason why they may not approach any vessels descried at sea for the purpose of ascertaining their real characters. Such a right of approach seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot he justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear that no ship is, under such circumstances, bound to lie by or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. Her right to the free use of the ocean is as perfect as that of any other ship. An entire equality is presumed to exist. She has a right to consult her own safety, but at the same time she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers, either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties simply because of conjectural dangers.
But if the vessel thus approached attempts to avoid the vessel approaching, or does not comply with her commander's order to send him her papers for his inspection, nor consent to be visited or detained, what is next to be done? Is force to be used? And if force be used, may that force be lawfully repelled? These questions lead at once to the elemental principle, the essence of the British claim. Suppose the merchant-vessel be in truth an American vessel engaged in lawful commerce, and that she does not choose to be detained. Suppose she resists the visit. What is the consequence? In all cases in which the belligerent right of visit exists, resistance to the exercise of that right is regarded as just cause of condemnation, both of vessel and cargo. Is that penalty, or what other penalty, to be incurred by resistance to visit in time of peace? Or suppose that force be met by force, gun returned for gun, and the commander of the cruiser, or some of his seamen be killed; what description of offence will have been committed? It would be said, in behalf of the commander of the cruiser, that he mistook the vessel for a vessel of England, Brazil, or Portugal; but does this mistake of his take away from the American vessel the right of self-defence? The writers of authority declare it to be a principle of natural law, that the privilege of self-defence exists against an assailant who mistakes the object of his attack for another whom he had a right to assail.
Lord Aberdeen cannot fail to see, therefore, what serious consequences might ensue, if it were to be admitted that this claim to visit, in time of peace, however limited or defined, should be permitted to exist as a strict matter of right; for if it exist as a right, it must be followed by corresponding duties and obligations, and the failure to fulfil those duties would naturally draw penal consequences after it, till erelong it would become, in truth, little less, or little other, than the belligerent right of search.
If visit or visitation be not accompanied by search, it will be in most cases merely idle. A sight of papers may be demanded, and papers may be produced. But it is known that slave-traders carry false papers, and different sets of papers. A search for other papers, then, must be made where suspicion justifies it, or else the whole proceeding would be nugatory. In suspicious cases, the language and general appearance of the crew are among the means of ascertaining the national character of the vessel. The cargo on board, also, often indicates the country from which she comes. Her log-books, showing the previous course and events of her voyage, her internal fitting up and equipment, are all evidences for her, or against her, on her allegation of character. These matters, it is obvious, can only be ascertained by rigorous search.
It may be asked, If a vessel may not be called on to show her papers, why does she carry papers? No doubt she may be called on to show her papers; but the question is, Where, when, and by whom? Not in time of peace, on the high seas, where her rights are equal to the rights of any other vessel, and where none has a right to molest her. The use of her papers is, in time of war, to prove her neutrality when visited by belligerent cruisers; and in both peace and war, to show her national character, and the lawfulness of her voyage, in those ports of other countries to which she may proceed for purposes of trade.
It appears to the government of the United States, that the view of this whole subject which is the most naturally taken is also the most legal, and most in analogy with other cases. British cruisers have a right to detain British merchantmen for certain purposes; and they have a right, acquired by treaty, to detain merchant-vessels of several other nations for the same purposes. But they have no right at all to detain an American merchant-vessel. This Lord Aberdeen admits in the fullest manner. Any detention of an American vessel by a British cruiser is therefore a wrong, a trespass; although it may be done under the belief that she was a British vessel, or that she belonged to a nation which had conceded the right of such detention to the British cruisers, and the trespass therefore an involuntary trespass. If a ship of war, in thick weather, or in the darkness of the night, fire upon and sink a neutral vessel, under the belief that she is an enemy's vessel, this is a trespass, a mere wrong; and cannot be said to be an act done under any right, accompanied by responsibility for damages. So if a civil officer on land have process against one individual, and through mistake arrest another, this arrest is wholly tortious; no one would think of saying that it was done under any lawful exercise of authority, subject only to responsibility, or that it was any thing but a mere trespass, though an unintentional trespass. The municipal law does not undertake to lay down beforehand any rule for the government of such cases; and as little, in the opinion of the government of the United States, does the public law of the world lay down beforehand any rule for the government of cases of involuntary trespasses, detentions, and injuries at sea; except that in both classes of cases law and reason make a distinction between injuries committed through mistake and injuries committed by design, the former being entitled to fair and just compensation, the latter demanding exemplary damages, and sometimes personal punishment. The government of the United States has frequently made known its opinion, which it now repeats, that the practice of detaining American vessels, though subject to just compensation if such detention afterward turn out to have been without good cause, however guarded by instructions, or however cautiously exercised, necessarily leads to serious inconvenience and injury. The amount of loss cannot be always well ascertained. Compensation, if it be adequate in the amount, may still necessarily be long delayed; and the pendency of such claims always proves troublesome to the governments of both countries. These detentions, too, frequently irritate individuals, cause warm blood, and produce nothing but ill effects on the amicable relations existing between the countries. We wish, therefore, to put an end to them, and to avoid all occasions for their recurrence.
On the whole, the government of the United States, while it has not conceded a mutual right of visit or search, as has been done by the parties to the quintuple treaty of December, 1841, does not admit that, by the law and practice of nations, there is any such thing as a right of visit, distinguished by well-known rules and definitions from the right of search.
It does not admit that visit of American merchant-vessels by British cruisers is founded on any right, notwithstanding the cruiser may suppose such vessel to be British, Brazilian, or Portuguese. We cannot but see that the detention and examination of American vessels by British cruisers has already led to consequences, and fear that, if continued, it would still lead to further consequences, highly injurious to the lawful commerce of the United States.
At the same time, the government of the United States fully admits that its flag can give no immunity to pirates, nor to any other than to regularly documented American vessels. It was upon this view of the whole case, and with a firm conviction of the truth of these sentiments, that it cheerfully assumed the duties contained in the treaty of Washington; in the hope that thereby causes of difficulty and difference might be altogether removed, and that the two powers might be enabled to act concurrently, cordially, and effectually for the suppression of a traffic which both regard as a reproach upon the civilization of the age, and at war with every principle of humanity and every Christian sentiment.
The government of the United States has no interest, nor is it under the influence of any opinions, which should lead it to desire any derogation of the just authority and rights of maritime power. But in the convictions which it entertains, and in the measures which it has adopted, it has been governed solely by a sincere desire to support those principles and those practices which it believes to be conformable to public law, and favorable to the peace and harmony of nations.
Both houses of Congress, with a remarkable degree of unanimity, have made express provisions for carrying into effect the eighth article of the treaty. An American squadron will immediately proceed to the coast of Africa. Instructions for its commander are in the course of preparation, and copies will be furnished to the British government; and the President confidently believes, that the cordial concurrence of the two governments in the mode agreed on will be more effectual than any efforts yet made for the suppression of the slave-trade.
You will read this despatch to Lord Aberdeen, and, if he desire it, give him a copy.
I am, Sir, &c., &c.
EDWARD EVERETT, ESQ., &c., &c., &c.
[Footnote 1: Mr. Wood, now Sir Charles Wood, Chancellor of theExchequer.]
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Mr. Webster to General Cass.
Department of State, Washington,August 29, 1842.
Sir,—You will see by the enclosed the result of the negotiations lately had in this city between this department and Lord Ashburton. The treaty has been ratified by the President and Senate.
In communicating to you this treaty, I am directed by the President to draw your particular attention to those articles which relate to the suppression of the African slave-trade.
After full and anxious consideration of this very delicate subject, the government of the United States has come to the conclusion which you will see expressed in the President's message to the Senate accompanying the treaty.
Without intending or desiring to influence the policy of other governments on this important subject, this government has reflected on what was due to its own character and position, as the leading maritime power on the American continent, left free to make choice of such means for the fulfilment of its duties as it should deem best suited to its dignity. The result of its reflections has been, that it does not concur in measures which, for whatever benevolent purpose they may be adopted, or with whatever care and moderation they may be exercised, have yet a tendency to place the police of the seas in the hands of a single power. It chooses rather to follow its own laws with its own sanction, and to carry them into execution by its own authority. Disposed to act in the spirit of the most cordial concurrence with other nations for the suppression of the African slave-trade, that great reproach of our times, it deems it to be right, nevertheless, that this action, though concurrent, should be independent, and it believes that from this independence it will derive a greater degree of efficiency.
You will perceive, however, that, in the opinion of this government, cruising against slave-dealers on the coast of Africa is not all which is necessary to be done in order to put an end to the traffic. There are markets for slaves, or the unhappy natives of Africa would not be seized, chained, and carried over the ocean into slavery. These markets ought to be shut. And, in the treaty now communicated to you, the high contracting parties have stipulated "that they will unite, in all becoming representations and remonstrances, with any and all powers within whose dominions such markets are allowed to exist; and that they will urge upon all such powers the propriety and duty of closing such markets effectually, at once and for ever."
You are furnished, then, with the American policy in regard to this interesting subject. First, independent but cordially concurrent efforts of maritime states to suppress, as far as possible, the trade on the coast, by means of competent and well-appointed squadrons, to watch the shores and scour the neighboring seas. Secondly, concurrent, becoming remonstrance with all governments who tolerate within their territories markets for the purchase of African negroes. There is much reason to believe that, if other states, professing equal hostility to this nefarious traffic, would give their own powerful concurrence and co-operation to these remonstrances, the general effect would be satisfactory, and that the cupidity and crimes of individuals would at length cease to find both their temptation and their reward in the bosom of Christian states, and in the permission of Christian governments.
It will still remain for each government to revise, execute, and make more effectual its own municipal laws against its subjects or citizens who shall be concerned in, or in any way give aid or countenance to others concerned in this traffic.
You are at liberty to make the contents of this despatch known to theFrench government.
I have, &c.
LEWIS CASS, ESQ., &c., &c., &c.
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Mr. F. Webster to General Cass.
Department of State, Washington,October 11, 1842.
Sir,—I have to acknowledge the receipt of your despatch of the 17th ofSeptember last, requesting permission to return home.
I have submitted the despatch to the President, and am by him directed to say, that although he much regrets that your own wishes should, at this time, terminate your mission to the court of France, where for a long period you have rendered your country distinguished service, in all instances to its honor and to the satisfaction of the government, and where you occupy so favorable a position, from the more than ordinary good intelligence which is understood to subsist between you, personally, and the members of the French government, and from the esteem entertained for you by its illustrious head; yet he cannot refuse your request to return once more to your home and your country, so that you can pay that attention to your personal and private affairs which your long absence and constant employment in the service of your government may now render most necessary.
I have, Sir, to tender you, on behalf of the President, his most cordial good wishes, and am, &c.
FLETCHER WEBSTER,Acting Secretary of State.
LEWIS CASS, ESQ., &c., &c., &c.
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Mr. Webster to General Cass.
Department of State, Washington,November 14, 1842.
Sir,—I have the honor to acknowledge the receipt of your despatch of the 3d of October, brought by the "Great Western," which arrived at New York on the 6th instant.
It is probable you will have embarked for the United States before my communication can now reach you; but as it is thought proper that your letter should be answered, and as circumstances may possibly have occurred to delay your departure, this will be transmitted to Paris in the ordinary way.
Your letter has caused the President considerable concern. Entertaining a lively sense of the respectable and useful manner in which you have discharged, for several years, the duties of an important foreign mission, it occasions him real regret and pain, that your last official communication should be of such a character as that he cannot give to it his entire and cordial approbation.
It appears to be intended as a sort of protest, a remonstrance, in the form of an official despatch, against a transaction of the government to which you were not a party, in which you had no agency whatever, and for the results of which you were no way answerable. This would seem an unusual and extraordinary proceeding. In common with every other citizen of the republic, you have an unquestionable right to form opinions upon public transactions, and the conduct of public men; but it will hardly be thought to be among either the duties or the privileges of a minister abroad to make formal remonstrances and protests against proceedings of the various branches of the government at home, upon subjects in relation to which he himself has not been charged with any duty or partaken any responsibility.
The negotiation and conclusion of the treaty of Washington were in the hands of the President and Senate. They had acted upon this important subject according to their convictions of duty and of the public interest, and had ratified the treaty. It was a thing done; and although your opinion might be at variance with that of the President and Senate, it is not perceived that you had any cause of complaint, remonstrance, or protest, more than any other citizen who might entertain the same opinion.
In your letter of the 17th of September, requesting your recall, you observe: "The mail by the steam-packet which left Boston the 1st instant has just arrived, and has brought intelligence of the ratification of the treaties recently concluded with Great Britain. All apprehensions, therefore, of any immediate difficulties with that country are at an end, and I do not see that any public interest demands my further residence in Europe. I can no longer be useful here, and the state of my private affairs requires my presence at home. Under these circumstances, I beg you to submit to the President my wish for permission to retire from this mission, and to return to the United States without delay."
As you appeared at that time not to be acquainted with the provisions of the treaty, it was inferred that your desire to return home proceeded from the convictionthat, inasmuch as all apprehensions of immediate differences with Great Britain were at an end, you would no longer be useful at Paris. Placing this interpretation on your letter, and believing, as you yourself allege, that your long absence abroad rendered it desirable for you to give some attention to your private affairs in this country, the President lost no time in yielding to your request, and, in doing so, signified to you the sentiments of approbation which he entertained for your conduct abroad. You may, then, well imagine the great astonishment which the declaration contained in your despatch of the 3d of October, that you could no longer remain in France honorably to yourself or advantageously to the country, and that the proceedings of this government had placed you in a false position, from which you could escape only by returning home, created in his mind.
The President perceives not the slightest foundation for these opinions. He cannot see how your usefulness as minister to France should be terminated by the settlement of difficulties and disputes between the United States and Great Britain. You have been charged with no duties connected with the settlement of these questions, or in any way relating to them, beyond the communication to the French government of the President's approbation of your letter of the 13th of February, written without previous instructions from this department. This government is not informed of any other act or proceeding of yours connected with any part of the subject, nor does it know that your official conduct and character have become in any other way connected with the question of the right of search; and that letter having been approved, and the French government having been so informed, the President is altogether at a loss to understand how you can regard yourself as placed in a false position. If the character or conduct of any one was to be affected, it could only be the character and conduct of the President himself. The government has done nothing, most assuredly, to place you in a false position. Representing your country at a foreign court, you saw a transaction about to take place between the government to which you were accredited and another power, which you thought might have a prejudicial effect on the interest of your own country. Thinking, as it is to be presumed, that the case was too pressing to wait for instructions, you presented a protest against that transaction, and our government approved your proceeding. This is your only official connection with the whole subject. If after this the President had sanctioned the negotiation of a treaty, and the Senate had ratified it, containing provisions in the highest degree objectionable, however the government might be discredited, your exemption from all blame and censure would have been complete. Having delivered your letter of the 13th of February to the French government, and having received the President's approbation of that proceeding, it is most manifest that you could be in no degree responsible for what should be done afterward, and done by others. The President, therefore, cannot conceive what particular or personal interest of yours was affected by the subsequent negotiation here, or how the treaty, the result of that negotiation, should put an end to your usefulness as a public minister at the court of France, or in any way affect your official character or conduct.
It is impossible not to see that such a proceeding as you have seen fit to adopt might produce much inconvenience, and even serious prejudice, to the public interests. Your opinion is against the treaty, a treaty concluded and formally ratified; and, to support that opinion, while yet in the service of the government, you put a construction on its provisions such as your own government does not put upon them, such as you must be aware the enlightened public of Europe does not put upon them, and such as England herself has not put upon them as yet, so far as we know.
It may become necessary hereafter to publish your letter, in connection with other correspondence of the mission; and although it is not to be presumed that you looked to such publication, because such a presumption would impute to you a claim to put forth your private opinions upon the conduct of the President and Senate, in a transaction finished and concluded, through the imposing form of a public despatch, yet, if published, it cannot be foreseen how far England might hereafter rely on your authority for a construction favorable to her own pretensions, and inconsistent with the interest and honor of the United States. It is certain that you would most sedulously desire to avoid any such attitude. You would be slow to express opinions, in a solemn and official form, favorable to another government, and on the authority of which opinions that other government might hereafter found new claims or set up new pretensions. It is for this reason, as well as others, that the President feels so much regret at your desire of placing your construction of the provisions of the treaty, and your objections to those provisions, according to your construction, upon the records of the government.
Before examining the several objections suggested by you, it may be proper to take notice of what you say upon the course of the negotiation. In regard to this, having observed that the national dignity of the United States had not been compromised down to the time of the President's message to the last session of Congress, you proceed to say: "But England then urged the United States to enter into a conventional arrangement, by which we might be pledged to concur with her in measures for the suppression of the slave-trade. Till then we had executed our own laws in our own way. But, yielding to this application, and departing from our former principle of avoiding European combinations upon subjects not American, we stipulated in a solemn treaty, that we would carry into effect our own laws, and fixed the minimum force we would employ for that purpose."
The President cannot conceive how you should have been led to adventure upon such a statement as this. It is but a tissue of mistakes. England did not urge the United States to enter into this conventional arrangement. The United States yielded to no application from England. The proposition for abolishing the slave-trade, as it stands in the treaty, was an American proposition; it originated with the executive government of the United States, which cheerfully assumes all its responsibility. It stands upon it as its own mode of fulfilling its duties, and accomplishing its objects. Nor have the United States departed, in this treaty, in the slightest degree, from their former principles of avoiding European combinations upon subjects not American, because the abolition of the African slave-trade is an American subject as emphatically as it is a European subject; and indeed more so, inasmuch as the government of the United States took the first great steps in declaring that trade unlawful, and in attempting its extinction. The abolition of this traffic is an object of the highest interest to the American people and the American government; and you seem strangely to have overlooked altogether the important fact, that nearly thirty years ago, by the treaty of Ghent, the United States bound themselves by solemn compact with England, to continue "their efforts to promote its entire abolition," both parties pledging themselves by that treaty to use their best endeavors to accomplish so desirable an object.
Again, you speak of an important concession made to the renewed application of England. But the treaty, let it be repeated, makes no concession to England whatever. It complies with no demand, grants no application, conforms to no request. All these statements, thus by you made, and which are so exceedingly erroneous, seem calculated to hold up the idea, that in this treaty your government has been acting a subordinate, or even a complying part.
The President is not a little startled that you should make such totally groundless assumptions of fact, and then leave a discreditable inference to be drawn from them. He directs me not only to repel this inference as it ought to be repelled, but also to bring to your serious consideration and reflection the propriety of such an assumed narration of facts as your despatch, in this respect, puts forth.
Having informed the department that a copy of the letter of the 24th of August, addressed by me to you, had been delivered to M. Guizot, you proceed to say: "In executing this duty, I felt too well what was due to my government and country to intimate my regret to a foreign power that some declaration had not preceded the treaty, or some stipulation accompanied it, by which the extraordinary pretension of Great Britain to search our ships at all times and in all places, first put forth to the world by Lord Palmerston on the 27th of August, 1841, and on the 13th of October following again peremptorily claimed as a right by Lord Aberdeen, would have been abrogated, as equally incompatible with the laws of nations and with the independence of the United States. I confined myself, therefore, to a simple communication of your letter." It may be true that the British pretension leads necessarily to consequences as broad and general as your statement. But it is no more than fair to state that pretension in the words of the British government itself, and then it becomes matter of consideration and argument how broad and extensive it really is. The last statement of this pretension, or claim, by the British government, is contained in Lord Aberdeen's note to Mr. Stevenson of the 13th of October, 1841. It is in these words:—
"The undersigned readily admits, that to visit and search American vessels in time of peace, when that right of search is not granted by treaty, would be an infraction of public law, and a violation of national dignity and independence. But no such right is asserted. We sincerely desire to respect the vessels of the United States, but we may reasonably expect to know what it really is that we respect. Doubtless the flag isprima facieevidence of the nationality of the vessel; and, if this evidence were in its nature conclusive and irrefragable, it ought to preclude all further inquiry. But it is sufficiently notorious that the flags of all nations are liable to be assumed by those who have no right or title to bear them. Mr. Stevenson himself fully admits the extent to which the American flag has been employed for the purpose of covering this infamous traffic. The undersigned joins with Mr. Stevenson in deeply lamenting the evil; and he agrees with him in thinking that the United States ought not to be considered responsible for this abuse of their flag. But if all inquiry be resisted, even when carried no further than to ascertain the nationality of the vessel, and impunity be claimed for the most lawless and desperate of mankind, in the commission of this fraud, the undersigned greatly fears that it may be regarded as something like an assumption of that responsibility which has been deprecated by Mr. Stevenson….
"The undersigned renounces all pretension on the part of the British government to visit and search American vessels in time of peace. Nor is it as American that such vessels are ever visited; but, it has been the invariable practice of the British navy, and, as the undersigned believes, of all navies in the world, to ascertain by visit the real nationality of merchant-vessels met with on the high seas, if there be good reason to apprehend their illegal character….
"The undersigned admits, that, if the British cruiser should possess a knowledge of the American character of any vessel, his visitation of such vessel would be entirely unjustifiable. He further admits, that so much respect and honor are due to the American flag, that no vessel bearing it ought to be visited by a British cruiser, except under the most grave suspicions and well-founded doubts of the genuineness of its character.
"The undersigned, although with pain, must add, that if such visit should lead to the proof of the American origin of the vessel, and that she was avowedly engaged in the slave-trade, exhibiting to view the manacles, fetters, and other usual implements of torture, or had even a number of these unfortunate beings on board, no British officer could interfere further. He might give information to the cruisers of the United States, but it could not be in his own power to arrest or impede the prosecution of the voyage and the success of the undertaking.
"It is obvious, therefore, that the utmost caution is necessary in the exercise of this right claimed by Great Britain. While we have recourse to the necessary, and, indeed, the only means for detecting imposture, the practice will be carefully guarded and limited to cases of strong suspicion. The undersigned begs to assure Mr. Stevenson that the most precise and positive instructions have been issued to her Majesty's officers on this subject."
Such are the words of the British claim or pretension; and it stood inthis form at the delivery of the President's message to Congress inDecember last; a message in which you are pleased to say that theBritish pretension was promptly met and firmly resisted.
I may now proceed to a more particular examination of the objections which you make to the treaty.
You observe that you think a just self-respect required of the government of the United States to demand of Lord Ashburton a distinct renunciation of the British claim to search our vessels previous to entering into any negotiation. The government has thought otherwise; and this appears to be your main objection to the treaty, if, indeed, it be not the only one which is clearly and distinctly stated. The government of the United States supposed that, in this respect, it stood in a position in which it had no occasion to demand any thing, or ask for any thing, of England. The British pretension, whatever it was, or however extensive, was well known to the President at the date of his message to Congress at the opening of the last session. And I must be allowed to remind you how the President treated this subject in that communication.
"However desirous the United States may be," said he, "for the suppression of the slave-trade, they cannot consent to interpolations into the maritime code at the mere will and pleasure of other governments. We deny the right of any such interpolation to any one, or all the nations of the earth, without our consent. We claim to have a voice in all amendments or alterations of that code; and when we are given to understand, as in this instance, by a foreign government, that its treaties with other nations cannot be executed without the establishment and enforcement of new principles of maritime police, to be applied without our consent, we must employ a language neither of equivocal import nor susceptible of misconstruction. American citizens prosecuting a lawful commerce in the African seas, under the flag of their country, are not responsible for the abuse or unlawful use of that flag by others; nor can they rightfully, on account of any such alleged abuses, be interrupted, molested, or detained while on the ocean; and if thus molested and detained while pursuing honest voyages in the usual way, and violating no law themselves, they are unquestionably entitled to indemnity."
This declaration of the President stands: not a syllable of it has been, or will be, retracted. The principles which it announces rest on their inherent justice and propriety, on their conformity to public law, and, so far as we are concerned, on the determination and ability of the country to maintain them. To these principles the government is pledged, and that pledge it will be at all times ready to redeem.
But what is your own language on this point? You say, "This claim (the British claim), thus asserted and supported, was promptly met and firmly repelled by the President in his message at the commencement of the last session of Congress; and in your letter to me approving the course I had adopted in relation to the question of the ratification by France of the quintuple treaty, you consider the principles of that message as the established policy of the government." And you add, "So far, our national dignity was uncompromitted." If this be so, what is there which has since occurred to compromit this dignity? You shall yourself be judge of this; because you say, in a subsequent part of your letter, that "the mutual rights of the parties are in this respect wholly untouched." If, then, the British pretension had been promptly met and firmly repelled by the President's message; if, so far, our national dignity had not been compromitted; and if, as you further say, our rights remain wholly untouched by any subsequent act or proceeding, what ground is there on which to found complaint against the treaty?
But your sentiments on this point do not concur with the opinions of your government. That government is of opinion that the sentiments of the message, which you so highly approve, are reaffirmed and corroborated by the treaty, and the correspondence accompanying it. The very object sought to be obtained, in proposing the mode adopted for abolishing the slave-trade, was to take away all pretence whatever for interrupting lawful commerce by the visitation of American vessels. Allow me to refer you, on this point, to the following passage in the message of the President to the Senate, accompanying the treaty:—
"In my message at the commencement of the present session of Congress, I endeavored to state the principles which this government supports respecting the right of search and the immunity of flags. Desirous of maintaining those principles fully, at the same time that existing obligations should be fulfilled, I have thought it most consistent with the dignity and honor of the country that it should execute its own laws and perform its own obligations by its own means and its own power. The examination or visitation of the merchant-vessels of one nation by the cruisers of another, for any purposes except those known and acknowledged by the law of nations, under whatever restraints or regulations it may take place, may lead to dangerous results. It is far better by other means to supersede any supposed necessity, or any motive, for such examination or visit. Interference with a merchant-vessel by an armed cruiser is always a delicate proceeding, apt to touch the point of national honor, as well as to affect the interests of individuals. It has been thought, therefore, expedient, not only in accordance with the stipulations of the treaty of Ghent, but at the same time as removing all pretext on the part of others for violating the immunities of the American flag upon the seas, as they exist and are defined by the law of nations, to enter into the articles now submitted to the Senate.
"The treaty which I now submit to you proposes no alteration, mitigation, or modification of the rules of the law of nations. It provides simply, that each of the two governments shall maintain on the coast of Africa a sufficient squadron to enforce, separately and respectively, the laws, rights, and obligations of the two countries for the suppression of the slave-trade."
In the actual posture of things, the President thought that the government of the United States, standing on its own rights and its own solemn declarations, would only weaken its position by making such a demand as appears to you to have been expedient. We maintain the public law of the world as we receive it and understand it to be established. We defend our own rights and our own honor, meeting all aggression at the boundary. Here we may well stop.
You are pleased to observe, that "under the circumstances of the assertion of the British claim, in the correspondence of the British secretaries, and of its denial by the President of the United States, the eyes of Europe were upon these two great naval powers; one of which had advanced a pretension, and avowed her determination to enforce it, which might at any moment bring them into collision."
It is certainly true that the attention of Europe has been very much awakened, of late years, to the general subject, and quite alive, also, to whatever might take place in regard to it between the United States and Great Britain. And it is highly satisfactory to find, that, so far as we can learn, the opinion is universal that the government of the United States has fully sustained its rights and its dignity by the treaty which has been concluded. Europe, we believe, is happy to see that a collision, which might have disturbed the peace of the whole civilized world, has been avoided in a manner which reconciles the performance of a high national duty, and the fulfilment of positive stipulations, with the perfect immunity of flags and the equality of nations upon the ocean. I must be permitted to add, that, from every agent of the government abroad who has been heard from on the subject, with the single exception of your own letter, (an exception most deeply regretted,) as well as from every part of Europe where maritime rights have advocates and defenders, we have received nothing but congratulation. And at this moment, if the general sources of information may be trusted, our example has recommended itself already to the regard of states the most jealous of British ascendency at sea; and the treaty against which you remonstrate may soon come to be esteemed by them as a fit model for imitation.
Toward the close of your despatch, you are pleased to say: "By the recent treaty we are to keep a squadron upon the coast of Africa. We have kept one there for years; during the whole term, indeed, of these efforts to put a stop to this most iniquitous commerce. The effect of the treaty is, therefore, to render it obligatory upon us by a convention, to do what we have long done voluntarily; to place our municipal laws, in some measure, beyond the reach of Congress." Should the effect of the treaty be to place our municipal laws, in some measure, beyond the reach of Congress, it is sufficient to say that all treaties containing obligations necessarily do this. All treaties of commerce do it; and, indeed, there is hardly a treaty existing, to which the United States are party, which does not, to some extent, or in some way, restrain the legislative power. Treaties could not be made without producing this effect.
But your remark would seem to imply that, in your judgment, there is something derogatory to the character and dignity of the country in thus stipulating with a foreign power for a concurrent effort to execute the laws of each. It would be a sufficient refutation of this objection to say, that, if in this arrangement there be any thing derogatory to the character and dignity of one party, it must be equally derogatory, since the stipulation is perfectly mutual, to the character and dignity of both. But it is derogatory to the character and dignity of neither. The objection seems to proceed still upon the implied ground that the abolition of the slave-trade is more a duty of Great Britain, or a more leading object with her, than it is or should be with us; as if, in this great effort of civilized nations to do away the most cruel traffic that ever scourged or disgraced the world, we had not as high and honorable, as just and merciful, a part to act, as any other nation upon the face of the earth. Let it be for ever remembered, that in this great work of humanity and justice the United States took the lead themselves. This government declared the slave-trade unlawful; and in this declaration it has been followed by the great powers of Europe. This government declared the slave-trade to be piracy; and in this, too, its example has been followed by other states. This government, this young government, springing up in this new world within half a century, founded on the broadest principles of civil liberty, and sustained by the moral sense and intelligence of the people, has gone in advance of all other nations in summoning the civilized world to a common effort to put down and destroy a nefarious traffic reproachful to human nature. It has not deemed, and it does not deem, that it suffers any derogation from its character or its dignity, if, in seeking to fulfil this sacred duty, it act, as far as necessary, on fair and equal terms of concert with other powers having in view the same praiseworthy object. Such were its sentiments when it entered into the solemn stipulations of the treaty of Ghent; such were its sentiments when it requested England to concur with us in declaring the slave-trade to be piracy; and such are the sentiments which it has manifested on all other proper occasions.
In conclusion, I have to repeat the expression of the President's deep regret at the general tone and character of your letter, and to assure you of the great happiness it would have afforded him if, concurring with the judgment of the President and Senate, concurring with what appears to be the general sense of the country, concurring in all the manifestations of enlightened public opinion in Europe, you had seen nothing in the treaty of the 9th of August to which you could not give your cordial approbation.
I have, &c.
LEWIS CASS, ESQ., &c., &c., &c.
* * * * *
Mr. Webster to General Cass.
Department of State, Washington,December 20, 1842.
Sir,—Your letter of the 11th instant has been submitted to the President. He directs me to say, in reply, that he continues to regard your correspondence, of which this letter is part, as being quite irregular from the beginning. You had asked leave to retire from your mission; the leave was granted by the President, with kind and friendly remarks upon the manner in which you had discharged its duties. Having asked for this honorable recall, which was promptly given, you afterward addressed to this department your letter of the 3d of October, which, however it may appear to you, the President cannot but consider as a remonstrance, a protest, against the treaty of the 9th of August; in other words, an attack upon his administration for the negotiation and conclusion of that treaty. He certainly was not prepared for this. It came upon him with no small surprise, and he still feels that you must have been, at the moment, under the influence of temporary impressions, which he cannot but hope have ere now worn away.
A few remarks upon some of the points of your last letter must now close the correspondence.
In the first place, you object to my having called your letter of October 3d a "protest or remonstrance" against a transaction of the government, and observe that you must have been unhappy in the mode of expressing yourself, if you were liable to this charge.
What other construction your letter will bear, I cannot perceive. The transaction wasfinished. No letter or remarks of yourself, or any one else, could undo it, if desirable. Your opinions were unsolicited. If given as a citizen, then it was altogether unusual to address them to this department in an official despatch; if as a public functionary, the whole subject-matter was quite aside from the duties of your particular station. In your letter you did not propose any thingto be done, but objected to what had been done. You did not suggest any method of remedying what you were pleased to consider a defect, but stated what you thought to be reasons for fearing its consequences. You declared that there had been, in your opinion, an omission to assert American rights; to which omission you gave the department to understand that you would never have consented.
In all this there is nothing but protest and remonstrance; and, though your letter be not formally entitled such, I cannot see that it can be construed, in effect, as any thing else; and I must continue to think, therefore, that the terms used are entirely applicable and proper.
In the next place, you say: "You give me to understand that the communications which have passed between us on this subject are to be published, and submitted to the great tribunal of public opinion."
It would have been better if you had quoted my remark with entire correctness. What I said was, not that the communications which have passed between usare to bepublished, ormustbe published, but that "it may become necessary hereafter to publish your letter, in connection with other correspondence of the mission; and, although it is not to be presumed that you looked to such publication, because such a presumption would impute to you a claim to put forth your private opinions upon the conduct of the President and Senate, in a transaction finished and concluded, through the imposing form of a public despatch, yet, if published, it cannot be foreseen how far England might hereafter rely on your authority for a construction favorable to her own pretensions, and inconsistent with the interest and honor of the United States."
In another part of your letter you observe: "The publication of my letter, which is to produce this result, is to be the act of the government, and not my act. But if the President should think that the slightest injury to the public interest would ensue from the disclosure of my views, the letter may be buried in the archives of the department, and thus forgotten and rendered harmless."
To this I have to remark, in the first place, that instances have occurred in other times, not unknown to you, in which highly important letters from ministers of the United States, in Europe, to their own government, have found their way into the newspapers of Europe, when that government itself held it to be inconsistent with the interest of the United States to make such letters public.
But it is hardly worth while to pursue a topic like this.
You are pleased to ask: "Is it the duty of a diplomatic agent to receive all the communications of his government, and to carry into effect their instructionssub silentio, whatever may be his own sentiments in relation to them; or is he not bound, as a faithful representative, to communicate freely, but respectfully, his own views, that these may be considered, and receive their due weight, in that particular case, or in other circumstances involving similar considerations? It seems to me that the bare enunciation of the principle is all that is necessary for my justification. I am speaking now of the propriety of my action, not of the manner in which it was performed. I may have executed the task well or ill. I may have introduced topics unadvisedly, and urged them indiscreetly. All this I leave without remark. I am only endeavoring here to free myself from the serious charge which you bring against me. If I have misapprehended the duties of an American diplomatic agent upon this subject, I am well satisfied to have withdrawn, by a timely resignation, from a position in which my own self-respect would not permit me to remain. And I may express the conviction, that there is no government, certainly none this side of Constantinople, which would not encourage rather than rebuke the free expression of the views of their representatives in foreign countries."
I answer, certainly not. In the letter to which you were replying it was fully stated, that, "in common with every other citizen of the republic, you have an unquestionable right to form opinions upon public transactions and the conduct of public men. But it will hardly be thought to be among either the duties or the privileges of a minister abroad to make formal remonstrances and protests against proceedings of the various branches of the government at home, upon subjects in relation to which he himself has not been charged with any duty, or partaken any responsibility."
You have not been requested to bestow your approbation upon the treaty, however gratifying it would have been to the President to see that, in that respect, you united with other distinguished public agents abroad. Like all citizens of the republic, you are quite at liberty to exercise your own judgment upon that as upon other transactions. But neither your observations nor this concession cover the case. They do not show, that, as a public minister abroad, it is a part of your official functions, in a public despatch, to remonstrate against the conduct of the government at home in relation to a transaction in which you bore no part, and for which you were in no way answerable. The President and Senate must be permitted to judge for themselves in a matter solely within their control. Nor do I know that, in complaining of your protest against their proceedings in a case of this kind, any thing has been done to warrant, on your part, an invidious and unjust reference to Constantinople. If you could show, by the general practice of diplomatic functionaries in the civilized part of the world, and more especially, if you could show by any precedent drawn from the conduct of the many distinguished men who have represented the government of the United States abroad, that your letter of the 3d of October was, in its general object, tone, and character, within the usual limits of diplomatic correspondence, you may be quite assured that the President would not have recourse to the code of Turkey in order to find precedents the other way.
You complain that, in the letter from this department of the 14th of November, a statement contained in yours of the 3d of October is called a tissue of mistakes, and you attempt to show the impropriety of this appellation. Let the point be distinctly stated, and what you say in reply be then considered.
In your letter of October 3d you remark, that "England then urged the United States to enter into a conventional arrangement, by which we might be pledged to concur with her in measures for the suppression of the slave-trade. Until then, we had executed our own laws in our own way; but, yielding to this application, and departing from our former principle of avoiding European combinations upon subjects not American, we stipulated in a solemn treaty that we would carry into effect our own laws, and fixed the minimum force we would employ for that purpose."
The letter of this department of the 14th of November, having quoted this passage, proceeds to observe, that "the President cannot conceive how you should have been led to adventure upon such a statement as this. It is but a tissue of mistakes. England did not urge the United States to enter into this conventional arrangement. The United States yielded to no application from England. The proposition for abolishing the slave-trade, as it stands in the treaty, was an American proposition; it originated with the executive government of the United States, which cheerfully assumes all its responsibility. It stands upon it as its own mode of fulfilling its duties and accomplishing its objects. Nor have the United States departed in the slightest degree from their former principles of avoiding European combinations upon subjects not American; because the abolition of the African slave-trade is an American subject as emphatically as it is a European subject, and, indeed, more so, inasmuch as the government of the United States took the first great step in declaring that trade unlawful, and in attempting its extinction. The abolition of this traffic is an object of the highest interest to the American people and the American government; and you seem strangely to have overlooked altogether the important fact, that nearly thirty years ago, by the treaty of Ghent, the United States bound themselves, by solemn compact with England, to continue their efforts to promote its entire abolition; both parties pledging themselves by that treaty to use their best endeavors to accomplish so desirable an object."
Now, in answer to this, you observe in your last letter: "That the particular mode in which the governments should act in concert, as finally arranged in the treaty, was suggested by yourself, I never doubted. And if this is the construction I am to give to your denial of my correctness, there is no difficulty upon the subject. The question between us is untouched. All I said was, that England continued to prosecute the matter; that she presented it for negotiation, and that we thereupon consented to its introduction. And if Lord Ashburton did not come out with instructions from his government to endeavor to effect some arrangement upon this subject, the world has strangely misunderstood one of the great objects of his mission, and I have misunderstood that paragraph in your first note, where you say that Lord Ashburton comes with full powers to negotiate and settle all matters in discussion between England and the United States. But the very fact of his coming here, and of his acceding to any stipulations respecting the slave-trade, is conclusive proof that his government were desirous to obtain the co-operation of the United States. I had supposed that our government would scarcely take the initiative in this matter, and urge it upon that of Great Britain, either in Washington or in London. If it did so, I can only express my regret, and confess that I have been led inadvertently into an error."
It would appear from all this, that that which, in your first letter, appeared as a direct statement of facts, of which you would naturally be presumed to have had knowledge, sinks at last into inferences and conjectures. But, in attempting to escape from some of the mistakes of this tissue, you have fallen into others. "All I said was," you observe, "that England continued to prosecute the matter; that she presented it for negotiation, and that we thereupon consented to its introduction." Now the English minister no more presented this subject for negotiation than the government of the United States presented it. Nor can it be said that the United States consented to its introduction in any other sense than it may be said that the British minister consented to it. Will you be good enough to review the series of your own assertions on this subject, and see whether they can possibly be regarded merely as a statement of your own inferences? Your only authentic fact is a general one, that the British minister came clothed with full power to negotiate and settle all matters in discussion. This, you say, is conclusive proof that his government was desirous to obtain the co-operation of the United States respecting the slave-trade; and then you infer that England continued to prosecute this matter, and presented it for negotiation, and that the United States consented to its introduction; and give to this inference the shape of a direct statement of a fact.
You might have made the same remarks, and with the same propriety, in relation to the subject of the "Creole," that of impressment, the extradition of fugitive criminals, or any thing else embraced in the treaty or in the correspondence, and then have converted these inferences of your own into so many facts. And it is upon conjectures like these, it is upon such inferences of your own, that you make the direct and formal statement in your letter of the 3d of October, that "England then urged the United States to enter into a conventional arrangement, by which we might be pledged to concur with her in measures for the suppression of the slave-trade. Until then, we had executed our own laws in our own way; but, yielding to this application, and departing from our former principle of avoiding European combinations upon subjects not American, we stipulated in a solemn treaty that we would carry into effect our own laws, and fixed the minimum force we would employ for that purpose."
The President was well warranted, therefore, in requesting your serious reconsideration and review of that statement.
Suppose your letter to go before the public unanswered and uncontradicted; suppose it to mingle itself with the general political history of the country, as an official letter among the archives of the Department of State, would not the general mass of readers understand you as reciting facts, rather than as drawing your own conclusions? as stating history, rather than as presenting an argument? It is of an incorrect narrative that the President complains. It is that, in your hotel at Paris, you should undertake to write a history of a very delicate part of a negotiation carried on at Washington, with which you had nothing to do, and of the history of which you had no authentic information; and which history, as you narrate it, reflects not a little on the independence, wisdom, and public spirit of the administration.
As of the history of this part of the negotiation you were not well informed, the President cannot but think it would have been more just in you to have refrained from any attempt to give an account of it.
You observe, further: "I never mentioned in my despatch to you, nor in any manner whatever, that our government had conceded to that of England the right to search our ships. That idea, however, pervades your letter, and is very apparent in that part of it which brings to my observation the possible effect of my views upon the English government. But in this you do me, though I am sure unintentionally, great injustice. I repeatedly state that the recent treaty leaves the rights of the parties as it found them. My difficulty is not that we have made a positive concession, but that we have acted unadvisedly in not making the abandonment of this pretension a previous condition to any conventional arrangement upon the general subject."
On this part of your letter I must be allowed to make two remarks.
The first is, inasmuch as the treaty gives no color or pretext whatever to any right of searching our ships, a declaration against such a right would have been no more suitable to this treaty than a declaration against the right of sacking our towns in time of peace, or any other outrage.
The rights of merchant-vessels of the United States on the high seas, as understood by this government, have been clearly and fully asserted. As asserted, they will be maintained; nor would a declaration such as you propose have increased either its resolution or its ability in this respect. The government of the United States relies on its own power, and on the effective support of the people, to assert successfully all the rights of all its citizens, on the sea as well as on the land; and it asks respect for these rights not as a boon or favor from any nation. The President's message, most certainly, is a clear declaration of what the country understands to be its rights, and his determination to maintain them; not a mere promise to negotiate for these rights, or to endeavor to bring other powers into an acknowledgment of them, either express or implied. Whereas, if I understand the meaning of this part of your letter, you would have advised that something should have been offered to England which she might have regarded as a benefit, but coupled with such a declaration or condition as that, if she received the boon, it would have been a recognition by her of a claim which we make as matter of right. The President's view of the proper duty of the government has certainly been quite different. Being convinced that the doctrine asserted by this government is the true doctrine of the law of nations, and feeling the competency of the government to uphold and enforce it for itself, he has not sought, but, on the contrary, has sedulously avoided, to change this ground, and to place the just rights of the country upon the assent, express or implied, of any power whatever.
The government thought no skilfully extorted promises necessary in any such cases. It asks no such pledges of any nation. If its character for ability and readiness to protect and defend its own rights and dignity is not sufficient to preserve them from violation, no interpolation of promise to respect them, ingeniously woven into treaties, would be likely to afford such protection. And as our rights and liberties depend for existence upon our power to maintain them, general and vague protests are not likely to be more effectual than the Chinese method of defending their towns, by painting grotesque and hideous figures on the walls to fright away assailing foes.
My other remark on this portion of your letter is this:—
Suppose a declaration to the effect that this treaty should not be considered as sacrificing any American rights had been appended, and the treaty, thus fortified, had been sent to Great Britain, as you propose; and suppose that that government, with equal ingenuity, had appended an equivalent written declaration that it should not be considered as sacrificing any British right, how much more defined would have been the rights of either party, or how much clearer the meaning and interpretation of the treaty, by these reservations on both sides? Or, in other words, what is the value of a protest on one side, balanced by an exactly equivalent protest on the other?
No nation is presumed to sacrifice its rights, or give up what justly belongs to it, unless it expressly stipulates that, for some good reason or adequate consideration, it does make such relinquishment; and an unnecessary asseveration that it does not intend to sacrifice just rights would seem only calculated to invite aggression. Such proclamations would seem better devised for concealing weakness and apprehension, than for manifesting conscious strength and self-reliance, or for inspiring respect in others.
Toward the end of your letter you are pleased to observe: "The rejection of a treaty, duly negotiated, is a serious question, to be avoided whenever it can be without too great a sacrifice. Though the national faith is not actually committed, still it is more or less engaged. And there were peculiar circumstances, growing out of long-standing difficulties, which rendered an amicable arrangement of the various matters in dispute with England a subject of great national interest. But the negotiation of a treaty is a far different subject. Topics are omitted or introduced at the discretion of the negotiators, and they are responsible, to use the language of an eminent and able Senator, for 'what it contains and what it omits.' This treaty, in my opinion, omits a most important and necessary stipulation; and therefore, as it seems to me, its negotiation, in this particular, was unfortunate for the country."
The President directs me to say, in reply to this, that in the treaty of Washington no topics were omitted, and no topics introduced, at the mere discretion of the negotiator; that the negotiation proceeded from step to step, and from day to day, under his own immediate supervision and direction; that he himself takes the responsibility for what the treaty contains and what it omits, and cheerfully leaves the merits of the whole to the judgment of the country.
I now conclude this letter, and close this correspondence, by repeating once more the expression of the President's regret that you should have commenced it by your letter of the 3d of October.
It is painful to him to have with you any cause of difference. He has a just appreciation of your character and your public services at home and abroad. He cannot but persuade himself that you must be aware yourself, by this time, that your letter of October was written under erroneous impressions, and that there is no foundation for the opinions respecting the treaty which it expresses; and that it would have been far better on all accounts if no such letter had been written.
I have, &c.
LEWIS CASS, ESQ.,Late Minister of the United States at Paris.