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PRINTERS. 18H-.. * t .i- * |W 9*»^^K^^ifm^Wffmmmi^mm9mmi^^ 0Xi^2'2.G7Ba COPVniSHT SECURED. IS8B. \(;-^73r 6.88 I II ■■ PREFACE. The writer has aimed in the following chapters, to give a connected and brief narrative of those po- litical questions between the United States and Great Britain, which, in former days, profoundly in- terested and agitated the American people. Many of the subjects to which those questions related, have now ceased to disturb the diplomatic relations of the two countries, but the statesmanship, the pat- riotism and the ability which they evoked, should not be permitted to fade entirely from the public mind. Of these, it is not improbable that many just entering upon the duties of American citizen- ship, have only vague and indistinct ideas. The pressin'g and exciting events of the day, naturally pre-occupy attention, greatly to the exclusion of those which have long since transpired; yet, a knowledge cf the zeal, the foresight and the ability displayed, by those occupying responsible posts of honor, in guarding and maintaining the rights and interests of our countrv, cannot fail to be in the highest degree suggestive and gratifying. While endeavoring to avoid prolixity, the writer has at- tempted to dwell sufficiently on the views of public men and the drift of public opinion in each country, to indicate the motives of action. It was foreign to his purpose to greatly enlarge upon the discus- sions and agitation which those views expressed. Had he ventured upon this, it can readily be seen what material existed for a very extended, if not a voluminous work. He has deemed it unnecessary to incumber his pages with foot notes or references. ; PR E FACE Any one who has a desire to- investigate facts, or to go more into details, can fully satisfy himself, by consulting' tlie American state papers, diplomatic correspondence, Histories, and'the biographies ofour eminent men. He concludes with the earnest wish that those upon the threshold of political life may fblly appreciate their obligations to the past, as. well as tlie present and the future, and' be ever ready to sustain the right and oppose the wrong^. CHAPTER I. COLONIAL POLICY OF GREAT BRITAIN -TREATY OK 1 783 -DISAGREEMENT -COMMERCI AI , RELATIONS NEUTRALITY JAY'S TREATY -ITJ. SCOPE AND UN- POPULARITY. On the twenty- second day of February, seven- teen hundred and sixty-six, the Parliament of Great Hritian declared that the King in Parliament had *'full power to bind the colonies and people of Amer- ica in all cases whatsoever." So universal was Bntish opinion upon that point, that one hundred and twenty-five votes were given in favor of that declaration in the House of Lords, and only five against it, and less than ten votes were against it in the House of Commons. This harmony of opinion had already been indi- cated by the passage of the Stamp Act by the House of Commons, with less resistance, says one, than to a common turnpike bill, and by the House of Lords without a dissenting vote; one of the Ministry hav- ing declared, "We have the power to tax them and we will tax them." Public opinion in America was equally united in hostility to the power claimed bj* the British Parliament, combined with a resolute l)urpose to resist its enforcement at all hazards. This hostile attitude upon a question of power and justice finally involved both parties in a war, which for many years, was carried on with mutual zeal and courage. National wealth, national pride, an obstinate King and a desire to make others tributary to her interests, prompted England to make extra- Pnl.l riCA I. « ON ri<() V K kS I cs ordinar) efforts for the subjugation of tliose who questioned her justice and strength. With the Col- onists, a contest commenced with remonntrance and entreaty, became A struggle for national existence. The vicissitudes of war finally proved disastrous to British pretentsions; the capture of Bur. oync an«l Cornwallis with their well equipped armies dispelled the idea of British invincibility and colonial weak- ness, and the British people, convinced at last thai the United States, aided by France, could not be conquered; that the "ontinuance of the war was rapidly increasing their own burdens; and that, ul- timately, the recognition of American independence was inevitable, became anxious for the restoration of peace. With this view, negotiations were opened and a provisional treaty of peace was concluded on the thirtieth day of November, 1782, to become de- finitive on the conclusion of a treaty of peace be- tween France and England. This having been ef- fected, the plenipotentiaries of the United States and Great Britain on the third day of September, [783, converted the provisional into a definitive treaty. By the terms of the treaty, the independence of the United States was acknowledged, their bounda- ries so fixed as to include the country on both sides of the Ohio river, east of the Mississippi and south of the Great Lakes, and an unlimited right of fishery upon the banks of Newfoundland was con- ceded. It was stipulated that congress should ear- nestly recommend to the legislatures of the respec- tive states to provide for the restitution of the con- fiscated estates of the loyalists; that the creditors UN IT HI) SI'ATKS <;kb:AI HKITAIN. on either side should not be lawfully impeded in the rtnai recovery of existing bona fide debts; that all prisoners should be discharged; and that the Kng- lish possessions within the prescribed limits should be evacuated, "with all convenient speed," without the destruction or deportation of negroes or cither American property. The treaty seems to have been generally satisfactory to Americans. With regard to the reception of the provisional articles by con- gress in the following March, Mr. Madison said. "The terms granted appeared to congress, on the whole, extremely liberal. It was observed by sev- eral, however, that the stipulation obliging congress to recommend to the states a restitution of confis- cated property, although it could scarcely be under- stood that the states would comply, had the appear- ance of sacrificing the dignity of congress to the pride of the British king." On the 25th day of March, 1783, the secretary of foreign affairs wrote to the American Commissioners, that "The provisional treaty had met with the warm- est approval of Congress; was generally favorably re- ceived by the people; that the stipulations with re- gard to independence, to boundaries, the fisheries and the recovery of debts, were entirely satisfactory; and that although the article with regard to the confiscat- ed estates would not probably be acceded to by the separate States, on whose free will its execution was expressly dependent, yet in agreeing to it, under the circumstances and with the declaration by which they had accompanied it. they had committed no fault, but the folly was that of the British Commissioners in asking and accepting such a stipulation." POLITICAL CONTROVERSIES The treaty met with quite a different reception in the British Parliament, and resolutions were passed by a majority of sixteen votes in the House of Com- mons, which condemned it as conceding more to the adversaries of Great Britain, than they had a right to expect. The objections were directed more par- ticularly against the provisions with regard to the boundaries, the fisheries and the inadequate relief in behalf of the loyalists. In a debate on the subject in the House of Lords on the 17th of February, 1783. Lord Shelburne, in repelling the attack made upon the treaty on account of the loyalists, disclosed the humiliating extremity to which the country was re- duced and which justified the action of the Ministry, when he said, '* If better terms could be had, think you, my Lord, that I would not have embraced them.' You all know my creed. You all know my steadiness. If it were possible to put aside the bitter cup the ad- versaries of the country presented to me, you know I would have clone it; but you called for peace. I had but the alternative, either to accept the terms (said Congress) of our recommendation to the States in favor of the loyalists or continue the war. It was in our power to do no more than recommend. Is there any man hears me who will clap his hand on his heart and step forward and say I ought to have broken off the treaty.' If there be, I am sure he neither knows the state ofthe country, nor yet has he paid any attention to the wishes of it. Without one drop of blood spilt and without one-fifth of the expense of one year's campaign, happiness and ease can be given the loy- alists in as ample a measure as these blessings were ever given in their enjoyment: therefore, let th«j outcry cease on this head." UNITED STATES -GREAT BRITAIN. The ratification of the treaty concluded military operations, but was soon followed by mutual com- plaints of its infraction. The British Cabinet placed a construction upon the article with regard to the deportation of negroes, which was generally con- demned by the Americans, and so confident were the latter of the prompt surrender of the western posts as stipulated, that application was made to the Gov- ernor of Canada for this purpose, on the third of Au- gust, 1783, and in the Spring of 1784 General Knox was directed to ascertain, from the Commander-in- chief of the British forces in Canada, the precise time when those posts could be taken possession of by the troops of the United States. Near the expiration of the yf;ar the government of the United States was apprised that they would not be abandoned. The treaty designated the river St. Croix, from its source to Passamaquaddy bay, as the north east boundary of the United States, but more than one river dis- charged into that bay, and the two governments dis- agreed as to the one intended. The British government, on its part, complained especially of those articles which related to the pay- ment of debts and to confiscated property. As to the latter, Congress had immediately, upon the rati- fication of the definiC 've treaty, passed a resolution containing a recommendation in the words of the treaty, and had transmitted it to the respective States, and it was earnestly insiste'd that there had been no infraction as to the debts. With the lapse of time, che failure to surrender the posts and to provide for the payment of the deported negroes, greatly increas- ed the irritation on the part of the Americans, who 8 POLITICAL CONTROVERSIES were met by the loud and incessant complaints of British creditors. To obtain a complete execution of the treaty, Mr. Adams was finally sent to the Court of St. James, and in December, 1785, he presented a memorial containing the American complaints and urging a full compliance with the treaty. The British Ministry admitted that the seventh article of the treaty created an obligation to withdraw the British garrisons from every post within the United States, but insisted that the fourth article created an obliga- tion equally strong to remove every lawful impedi- ment to the recovery o{ bona fide debts, that the en- i^agements of a treaty ought to be equally binding upon the contracting parties and *'that whenever America should manifest a real determination to ful- fil her part of the treaty, Great Britian would not hesitate to prove her sincerity to co-operate in what- ever points depended upon her for carrying everx article of it into real and complete effect. " When no precise term has been fixed by treatv for the execution of its several articles, upon the principles of international law, as expounded by Vat- tel, each point should be executed as soon as possi- ble, and in the absence of an express stipulation, each party should act with all practicable celerit) without demanding that the adverse party shoultl take the first step. Upon these principles, without regard to tHe express words of the treaty, the posts should have been surrendered without delay; and as to the British complaint with regard to the debts, what constituted a lawful impediment to their col- lection, was subject for judicial inquiry although at- tended with embarrassment. UNITED STATES -GREAT BRITAIN. It was insisted by the United States that under the treaty making power, the stipulations of the treaty b *came the paramount law of the land; that the court of final appeal would so decide, and that, con- sequently, adverse legislation upon the part of the States was null, and constituted no lawful impedi- ment. State legislation had, however, in some in- stances interposed obstructions in the way of the prompt and immediate collection of debts, and al- though such obstructions were in conflict with the national law, they incensed the English creditors, gave a pretext for complaint and evasions, and add- ed greatly to the annoyance of the American gov- ernment. Of all the States, the action of Virginia was the most pronounced upon this branch of the treaty. In I784,and when the attempt to obtain the surrender of the western posts had proven abortive, a committee of the Virginia House of delegates reported to the House that the seventh article of the treaty, as far as related to the detention of slaves and other prop- erty of the citizens of the Commonwealth by agents of Great Britain, had been violated, and the delegates of the State in congre s were instructed to lay the report before that body, asking it to remonstrate and demand reparation from the British Government, with the followinij additional declaration: '* And that the said delegates be instructed to inform con- gress that the general assembly has no inclination to interfere with the power of making treaties with foreign nations, which the confederation hath wisely vested in congress, but it is conceived that a just re- gard for the national honor and the interests of the ■J'P!i^ilc|>i;ii • .■^■■nvvffw^HVi^ipi^gpmpqipi m POLITICAL CONTROVERSIES citizens of this commonwealth, obliges the assembly to withhold their co-operation in the complete ful- fillment of the said treaty, until the success of the aforesaid remonstrance is known, or congress shall signify their sentiments touching the premises." This action on the part of Virginia was the founda- tion for those mutual recriminations, which, for a long time, embittered the relations of the two coun- tries, gave rise to long and serious embroilments, and were seized upon by Great Britain in the course of international contention as an excuse for not car- rying the treaty into full effect. Mr. Madison was a member of the assembly and was greatly dissatisfied with its course. In a letter, subsequently written, he said: "Being convinced myself that nothing can be now done that will not extremely dishonor us and embarass congress, my wish is that the report may not be called for at all. In the course of the de- bates, no pains were spared to disparage the treaty by insinuations against Congress, the eastern states and the negotiators of the treaty, particularly Mr. John Adams." In commenting upon the reply of the British minister to the memorial of Mr. Adams, in a com- munication to the president, Mr. Jay, the American secretary of state, gave countenance to the British view of the case, and seems to have differed widely in his conclusions from those advanced subsequently, and defended by his successor, Mr. Jefferson. " Some of the facts," said Mr. Jay, " are inaccurately and improperly colored; but it is too true that the treaty has been violated. On such occasions, I think it better fairly to confess errors, than to attempt to de- UNITED STATES — GREAT BRITAIN. ii ceive ourselves and others by fallacious though plausible palliations and excuses. To oppose popu- lar prejudices, to censure the proceedings and ex- pose the impropriety of states, is an unpleasant task, but it must be done." Congress made earnest efforts to induce the sev- eral States to repeal all laws which seemed to militate against the treaty, but these efforts did not meet with the desired success. So keenly did President Washington feel this failure, that he wrote to the secretary of state: "What a misfortune it is, that the British should have so well grounded a pretext for their palpable infractions, and what a disgraceful part, out of tho choice of difficulties before us are we to act." Again in a special message to congress on the 14th of February, 1791, he communicated por- tions of letters from British ministers, who, he says, "declare without scruple that they do not meaii to fulfill what remains of the treaty of peace to be ful- filled on their part, (by which we are to understand the delivery of the posts and the payment for prop- erty carried off) till performance on our part, and compensation where the delay has rendered the per- formance impracticable." The letters had been ad- dressed to Mr. Gouvernour Morris, who, being in Europe, at the request of the President, had ap- proached the British Cabinet in an informal way with regard to a permanent adjustment of all exist- ing difficulties. The information obtained, convinced Morris that the British government, considering the posts as es- sential to their monopoly of the fur trade, would surrender them with reluctance, and drew from him t$ rOLlTlCAl. CONTROVERSIES the opinion, that ''perhaps there never was a mo- ment in which the country felt herself greater, and consequently, it is the most unfavorable moment to obtain advantageous terms from her in any bargain." While international matters were in this unset- tled and unsatisfactory condition, Mr. Hammond arrived in the United States as minister from Great Britain, and Mr. Jefferson, the American secretary of state, delivered a paper to him in October, 1791, containing specifications of the breaches of the treaty complained of by his government. The Brit- ish minister replied on the 5th of March, 1792, spec- ifying alleged infractions upon the opposite side, among them, the non-repeal of the confiscation laws by the states, the passage in some instances, of new confiscation laws, and the prevention by the interpo- sition of state laws and courts, of the collection of debts due to British creditors. After a thorough examination of the state laws and the decisions of the courts, Jefferson gave an elaborate reply on the 29th of May, 1792. He con- tended that the United States had no control over ' the state jurisdictions with regard to confiscations, and that the treaty did not require such control — that it only required a recommendation of a certain line of action, which had been fully given — that the negotiators and the British ministry and parliament at the time of the negotiation, fully understood the purport of the recommendation — that it was "mat- ter not of obligation or coercion, but of persuasion and influence merely." Only one state, he said, had refused to comply with the congressional recom- mendation altogether, but the others had done so to UNITED STATES — GR^^AT BRITAIN. 13 a greater or less degree, according to circumstances and dispositions in which the events of the war had left them." He asserted that the British command- ers in withdrawing from America, carried away a large number of negroes in known violation of the 7th article of the treaty on the fulfillment of which depended the means of paying debts to a certain extent. The non surrender of the American forts "with all convenient speed," he insisted was not only a violation of the treaty, but that the official informa- tion received toward the close of 1784, that no or- ders had been issued for their evacuation, gave rise to the inference that no such orders had ever been given or intended; that this had cut off the fur trade, which, before the war, had been an important branch of commerce and source of remittance for the pay- ment of British creditors, and from friendly inter- course with the north-western Indians, with whom, as a conseqence,the United States had been involved in bloody and expensive wars. He averred that the treaty had therefore been first violated by Great Britain in points so essential, that without them the treaty would not have been concluded, and that for these breaches the United States government had its election to declare it dis- solved in all itsarticles, to compensate itself by with- holding execution of equivalent articles, or to waive notice of its infractions altogether — that the laws impeding the collection of British debts were passed by the States in retaliation for prior and cditinuous British infractions ; and that waiving this justifica- tion, they admitted of an apology under the peculiar ■I *4 POLITICAL CONTROVERSIES and embarrassing circumstances in which the coun- try was placed. In concluding his reply, Mr. Jefferson said : " I have now, sir, gone through the several acts and proceedings enunciated in your appendix, as infrac- tions of the treaty, omitting, I believe, not a single one, as may be seen by a table hereto subjoined, wherein every one of them, as marked in your ap- pendix, is referred to the section in this letter in which it is brought into view, and the result has been as you have seen. 1. That there was no absolute stipulation to re- store antecedent confiscations, and that none subse- quently took place. 2. That the recovery of the debts was obstructed validly in none of our States, invalidly only in a few, and that, not till long after the infractions committed on the other side, and 3. That the decision of courts and juries against the claims for interest, are too probably founded to give cause of questioning their integrity. These things being evident, I cannot but flatter myself, after the assurance received from you of his majesty's desire to remove every occasion of misun- derstanding from between us, that an end will now be put to the disquieting situation of the two coun- tries, by a complete execution of the treaty as far as circumstances render practicable at this lal«r . : that it is to be done so late has been the sour ..t: i heavy losses of blood and treasure to the Uni^^d States. Still, our desire of friendly accommodation is, and has been constant. No laivful impediment has been opposed to the UNITED STATES -GREAT BRITAIN. 15 prosecution of the just rights of your citizens. And if instances of unlawful impediments have existed in any of the inferior tribunals, they would, like other unlawful proceedings, have been overruled on appeal to the higher courts. If not overruled there, a com- plaint to the government would have been regular, and its interference probably effectual." Anxious, however, for the removal of every pre- text for an evasion of the treaty by Great Britain, and assured that the latter would concur in its fulfill- ment, Congress, in 1787, had declared to the States its will that even the appearance of obstacle should no longer continue, and required the repeal of every act of this nature. This, Mr. Jefferson said, was only done to take away pretext, for that it was at all times perfectly understood that treaties con- stituted the laws of the States — the Confederation having "made them obligatory on the whole — Con- gress having so declared and demonstrated them — the legislatures and executives of most of the States having admitted it — and the judiciaries, both of the separate and of the General Government, so de- ciding." Mr. Hammond replied that he must submit Mr. Jefferson's communication to his court, and await their instructions. On the 4th of June, 1792, Mr. JeKerson wrote to Mr. Madison, that in an unofficial conversation, the British minister admitted that the case was present- ed in an entirely new aspect from that in which his country had hitherto viewed it — that the charge of first infractions on the part of Great Britain, and jus- tification of the action of the States on that ground, 1 I f6 POLITICAL controvf:ie pur- sued by the United States in regard to the Berlin decree and other invasion of neutral rights by France. On the 24th of July, i8o6.the American ministers proposed to Mr. Cannin^^ the British secretary of foreign affairs, a renewal of the negotiation, and sub- mitted to him the alterations which were desired. Their pacific advances met with an unexpected, if not rude, repuhe. The English minister justified the reservation made as to the attitude of the United States towards France; contended that the subject of impressment of British seamen from merchant vessels formed no part of the treaty; protested against a practice, which he said was "altogether unusual in the political transactions of states, by which the American government assumes to itself the privilege of altering or reversing agreements concluded and signed in its behalf by its agents duly authorized for that purpose; of retaining so much of those agree- ments as mav be favorable to its own views, and of rejecting such stipulations or parts of stipulations, as are conceived to be not sufficiently beneficial to America," and declared that, under the circumstances, the proposal to renew negotiations was wholly iit- admi««ngeance upon th'- defenceless. Dreadful to contemplate as this is, and even more dreadful the system of stimulating the Indian tribes to join us, adding scalping and murdering of women and children toother horrors, still it is the only llll UNITED STATES -GREAT BRITAIN. 57 ignorance of the existence of war or of such block- ade, although these^ropositions were rejected, the treaty was received with general favor throughout the United States. It provided for a universal peace; for the decision of title as to certain islands in Passamaquoddy bay ; for the adjustment of boun- daries, and declared the slave trade irreconcilable with the principles of humanity and justice and that both parties would continue their efforts for its abol- ition. • •: ■ ■■\' ■ ■' • .' It met with a less favorable reception in Eng- land. The London 7/V;/^.s considered the peace due, as much to European necessity as American disas- ters, and said: "Those who by British subsidies and fortitude' were upheld when quailing under Bona- parte, desert Great Britain retiring from the contest with the stripes of Plattsburg, and Baltimore bleed- ing upon our backs.^ There is scarcely one Ameri- can ship that has not to boast a victory over the British flag; not one British ship in thirty or forty that can boast such an honor. We retire from the conflict with the balance of defeat so heavily against us; that is our complaint." method to which England could resort in her own behalf. Moreover, in case of a future war, England must not allow it to be of such short duratiort a) was the last. The Americans must be made to feel it by its being protracted until their conwnerce is totally annihilated and their expenses increased in proportion with the decrease of their means. Let it not be supposed that England would harrass the coasts of America, or r.iise the Indian tribes against her from any feeling of malevolence or any pleasure in the suffer! iigs which must ensue. It would be from the knowledge of the fact that money is the sinews of wair and consequently that by obliging the ' Americans to call out so large a force as she must do to defend her coast and to re- pel i'le Indians, she would be put to such an enormous expense, as would be severe- ly felt throughout the Union, and soon incline all parties to a cessation of hostilities. It is to touch their pockets that this plan must and wt'ii be resorted to; and a war carried on upon that plan alone, would prove a salutary lesson to a young and too amhitiousapeople.*'— Vol. 3, Page 78-8U. j.''Si3 <4J -• ■\ ■ 8 58 POLITICAL CONTROVERSIES li I On the 29th of December, the Courier, in com- batting the hostility to the treaty, said: "But those who disapprove of the treaty, arpjue as if our naval reputation had been blasted by the war, as if it had received an almost mortal wound. Again, can it not be easily conceived that the continuance of the war with America might have an effect by no means favorable at Vienna? That it might prevent us from assuming an entire freedom of attitude; that many representations which we might make would have less effect from the idea that our attention and force were chiefly occupied in a war on the other side of the Atlantic. Let it be recollected that we were the only power at the congress engaged in war; that all the rest were able to direct their whole care to the business of negotiation and peace." ' Whatever motives influenced the two govern- ments, the questions held in abeyance, have not since disturbed the friendly relations of the two countries. The attempt was renewed by the United States in 1842, during the negotiation of the treaty of Wash- ington, to have the long contested question of im- pressment settled by treaty. Mr. Webster, the American negotiator, urged the subject with distin- guished ability and declared that his government was "prepared to say that the practice of impressing seamen from American vessels cannot be allowed hereafter to take place." Lord Ashburton, the Eng- lish envoy, declined entering into the subject as for- eign to the object of his mission. He referred to the opposite principles held by the two governments respecting allegiance to the sovereign, his own hav- UNITED STATES-GREAT BRITAIN. 59 ing held for all time that it was indefeasible, but while declining to negotiate, he expressed the hope of a satisfactory arrangement in the future. He frankly and clearly expressed the views entertained by his government upon this subject. These had been acted upon by Great Britain during the early days of the republic, regardless of the feelings and the remon- strances of the American people, who were earnest- ly and busily engaged in recovering from the deso- lating effects of the revolutionary war and in consol- idating the strength and advancing the prosperity of the nation. The statesmen of that period fully appreciated the feelings, the anxiety and the policy with which Washington, Hamilton and their compeers sought to avoid war. They understood the importance of peace, and were unwilling to forego its evident ad- vantages, except under extreme circumstances. The history of fruitless embassy after embassy, dis- patched to London to adjust and reconcile all differ- ences, evinces their earnestness and sincerity in the pursuit of amicable and satisfactory arrangements. The question of impressment, which at the begin- ning of the century had proved so humiliating and offensive to American pride and sense of justice, al- though the current of events had rendered it practic- ally of little moment, had not yet been placed upon a common and reciprocal basis by the joint agree- ment of the two governments. The significant and positive declaration by Mr. Webster of the position occupied by his own country, was a notice to Great Britain of the consequences, if the odious practice should be renewed. On the other hand, while de- im 6o P O M T I C A L C O N T R ( ) V E R S 1 E S dining to negotiate on the subject as not included within his powers, and advancing the English doc- trine of indefeasibe right, the British negotiator softened his declination with encouraging words ate to future action. This was long postponed,but noth- ing occurred to arouse angry feelings on the subject. Enough had transpired to make it evident that the practical assertion of the doctrine upon one side, would be followed by a declaration of war on tho other. But after a delay of nearly thirty years, ia diplomatic terniination appears to have been given to the question, by a treaty concluded at London on the 1 3th day of Maiy, 1870. ' ^ ,. .,. . . The negotiator on the part of the United States was Mr. Motley, the historian, whose profound and fascinating works had already elevated Jiim to th'e first rank among literary men, and who, by his learn- ing and world wide reputati6n,was>admirably adapt- ed to bring the negotiations to a happy close. TlTis treaty was duly ratified, and permitted the citizens <9f the one government to be naturalized and become the subjects of the other, and also provided in what man- ner a naturalized citizen by a change of residence could obtain re-^admittance to his original citizenship. : f. »., .' _ »^ . ..U'^ >;>wi , 'j: :'■■;■;• h. ' ;. '* • • \ •.\ ..• l.».. !■ ■aai ^«) 'm •<■ .it 'I ,i CHAPTER III. COMMERCIAL RELATIONS - BOUNDARIES OF THE RIVER ST. LAWRENCE. NAVIGATION The treaty of Ghent was silent with regard tb the commercial relations of the two countries, biit this j^ubject was soon taken into consideration by- commissioners representing the two government.s, who concluded a treaty at London on the 3d day of July, 1815, and which; when ratified, was to contin- ue in force for the term of four years. By this treaty, reciprocal liberty of commerce was permitted between the United States and his Britannic Majes- ty's territories in Europe, but 'was not extended to the West India islands or to English possessions in North America. Vessels of the United States were to be hospitably received at the principal British settlements in the East Indies and allowed to carry on trade with the United States in all articles of which the importation or exportation was not en- tirely prohibited. They were exdiuded from the coasting trade between the settlements; were not to pay higher duties than the vessels of the most fa- vored nations; were permitted to touch at the cape of Good Hope, and the island of St. Helena for re- freshment, not commerce, and their cargoes were to be unloaded in the Unitied States; The provisions of this treaty were continued in operation for ten years by the treaty of October 20th, 18 18. The re- strictions which were placed upon American com- merce with the British colonies, however, caused great dissatisfaction; in the United States, and early rtj I r-ii '•: i[ <• POLITICAL CONTKOVKKSIES and persistent efforts were made for their removal. Great Britain, with great tenacity adhered to the old idea, so long enforced by the colonizing nations of Europe, of retaining the monopoly of its colonial commerce for, its own exclusive benefit. Of the ef- fects of this policy, Mr. Madison, in 1816, said: "The British government, enforcing new regulations, which prohibit a trade between its colonies and the United States in American vessels, while they permit a trade in British vessels, the American navigation suffers accordingly, and the loss is augmented by the advantage which is given to the British compe- tition over the American in the navigation between our ports and British ports in Europe, by the circui- tous voyages enjoyed by one and not by the other." The application of the principle of reciprocity to the British colonial trade, meeting with no favor on the part of the British government, the United States resorted to countervailing action, and prohi- bited commence in British vessels, between the is- lands and the United States. This was soon fol- lowed by an act of Parliament, which opened certain colonial ports to the vessels of the United States coming directly from them, and to certain articles of production burdened, however, with heavy duties. This concession was met as nearly as practicable by corresponding action on the part of the Ameri( »n government and, by mutual agreement, negotic were opened with a view of effecting satisfactoi ir- rangements. In July, 1825, while this negotiation was pending, an act of Parliament was passed, open- ing the colonial ports upon new conditions, with a threat to close them against any nation that did not accept them. UNITED STATES GREAT BRITAIN. 63 The United States, not inclined to act ' under threats, and not seeking any arrangements which were not based upon mutual equivalents, concluded to await the result of negotiations. This delay was met by an order of the British council, excluding the vessels of the United States, after the first of December, 1826, from all the British colonial ports, excepting those bordering upon the territories of the United States. The newly appointed American envoy, upon his arrival in P2ngiand, found himself confronted by this unexpected order. In reply to his expostulations, he was told that the trade of col- onies is the exclusive possession of theMother country, according to the ancient doctrine of European na- tions that had colonies; that participation in it by other nations was to be regulated by the legislative acts of the owning power and not by negotiation; being granted or withheld simply on the ground of being a boon or favor, and as the United States did not promptly accept the terms offered by the act of parliament of July, 1825, Great Britain would not admit the vessels of the United States even upon an equality with the vessels of other nations. The communication of Mr. Canning, the British minister, on the 13th of November, 1826, dispelled all hope of an immediate adjustment by negotiation. After discussing at some length a previous note of the American envoy, he says: "Hence the impracti- cability (already so repeatedly proved)of any treaty upon this subject between Great Britain and the Un'^ed States. Hence the necessity for Great Bri- tain of doing whatever she means to do, in the way of relaxation of her colonial monopoly by acts of her ■ill 64 P O I- IT I C A L C O N T R O V E R S I E S owVi legislature!" He declared that the United States, having seen proper not to accept the condi- tions of the act of parliament of 1825, ought not to complain that they are excluded from a trade by Great Britain, which was offered on terms equal to all who were willing to purchase It. The American envoy subsequently replied that his government regretted the resolution of his maj- esty's goverrimen-t and availed himself of the op- portunity to make some explanatory remarks upon his former note. He conceded the undoubted right of Great Britain to allow or prohibit foreign com- merce with any part of her dominions, and within her jurisdiction to prescribe the conditions' upon Avhich it should be enjoyed, and claimed the same right for the United States. He insisted that where there was Commerce, there must be two parties; that without mutual consent it could not exist; that its existence is a fit subject for negotiation, and that' there was no feason why it should not be founded on terms of just reciprocity, though relating to colo- nies from which foreign intercourse had been and might again be excluded; that the negotiations in 1824 were avowedly founded Li a fair reciprocity; that the mutual proposals brought the parties near together, but unable to agree upon some points, the negotiation was suspended with a distinct under- standing that it should be renewed at some conve- nient day. He declared that the British minister at Washington had, in an official note, on the 26th of March, 1826, informed the American secretary of state that he had received instructions from his maj- esty's government to acquaint him that it is pre- UNITED STATES -GREAT BRITAIN. 65 paring to proceed in the important negotiations be- tween that country and the United States, then placed in the hands of the American minister; that Mr. Huskisson and Mr. Addington would conduct the negotiations on the part of Great Britain, and, in consequence of the ill health of the American minister, to suggest the propriety of joining another negotiator with him, and that no intimation what- ever was given of an intention to exclude colonial intercourse from the negotiation. As to the act of parliament,"one of its conditions," he said,"' squired that the United States should place the commerce and navigation of Great Britain and its possessions abroad, upon the footing of the most favored nation. If this meant that Great Britain should have the same privileges as any other nation upon giving the same equivalent, this was already secured to her by the navigation law of the United States, but if it was intended that she should have these privileges in consideration of being allowed to trade with her colonies and without any other equivalent, this would be an utter disregard of all fair reciprocity, and could not be assented to." In April, 1825, Mr. Gallatin, the American min- ister, was instructed to apprise the British govern- ment, that while his own government preferred an arrangement by convention, it was not so wedded to that mode as to prevent its surrender in a spirit of cofppiomise and conciliation to the preference of Great Britain for a regulation of colonial trade by reciprocal legislation, and to ascertain if the privi- leges of trade accorded by the act of 1825, would be extended to American vessels, if at the next session U 66 POLITICAL CONTROVERSIES of congress, the president should recommend, and Congress should declare by law, that alien duties on vessel and cargo should be suspended as to Great Britain; that British vessels should be permitted to enter American ports laden with the same kinds of products of the British dominions as American ves- sels could lawfully import, without being liable to pay any higher charges than the American vessels under the same circumstances, and should also abrogate the restriction of the act of Congress of the first of March, 1823, which confined trade to direct intercourse between the colonies and the United States, thus leaving Great Britain in the exclusive possession of the circuitous trade between the United Kingdom and the United States by the way of the British colonies. These propositions were submitted to the Brit- ish secretary of foreign afifairs in August, and re- ceived a decisive answer on the first of October, 1827, when he declared that his government could not prospectively commit itself to the adoption of any specific line of conduct in the event of the enactment of such a law as proposed, and that this resolution was the result of considerations general in their nature, and conclusive against a prospective pledge of any description respecting the colonial policy of Great Britain whether of relaxation or re- striction. In adverting to this position, President Adams, in his annual message in 1827, said: *'The British government have not only declined negotiation upon this subject, but by the principle they have as- sumed in reference to it have precluded even the UNITED STATES — GREAT BRITAIN. 67 mean<; of negotiation. It becomes not the self re- spect of the United States either to solicit gratu- itous favors, or to accept as the grant of a favor that for which an ample equivalent is exacted. It re- mains to be determined by the respective govern- ments, whether the trade shall be opened by acts of reciprocal legislation. It is in the meantime, satis- factory to know, that "apart from the inconveniences resulting from a disturbance of the usual channels of trade, no loss has been sustained by the commerce, the navigation or the revenue of the United States, and none of magnitude is to be apprehended from this existing state of mutual interdict." In December of the next year, he expressed the opinion that the resumption of the old system of colonial exclusion had failed to secure to the ship- ping interests of Great Britain, the relief which it was expected to afford at the expense of the distant colonies and of the United States, and that other measures had been resorted to, more pointedly bearing upon the navigation of the United States, and which,unless modified by the construction given to recent acts of parliament, would be clearly incom- patible with the positi 'e stipulations of the commer- cial convention existing between the two countries. The commercial relations of the two nations, at last began to yield to the influence of wiser disposi- tions, and President Jackson, the successor of Mr. Adams, informed congress the next year, that while neither time nor opportunity had been afforded for a full developement of the policy which the cabinet of Great Britain designed to pursue toward the United States, he indulged the hope that it would i I HI ! 68 POLITICAL CONTROVERSIES llr \l$ ■%^0 be of a just and pacific character, and if so, that a speedy and acceptable adjustment of the matters in controversy could be confidently expected. Louis McLane, of Delaware, was soon after dis- patched as minister to London, where the negotia- tions assumed such a favorable aspect that the pres- ident informed congress by a special message on the twenty-sixth day of May, 1830, that although no definite conclusion had been reached at the date of the last advices from Mr. McLane, these were of such a favorable character as to indicate a satisfac- tory result and to justify him in suggesting the pro- priety of providing for a decision during the recess of congre.ss. In accordance with the suggestions, an act was passed, authorizing the president upon certain con- ditions, to proclaim the ports of the United States open to British vessels and their cargoes, and the acts of 1 8 18, 1820 and 1823, to be suspended or re- pealed as the case might require. The president, having received satisfactory evidence that upon giv- ing effect to the act of congress. Great Britain would open the ports designated by the act, for an indefi- nite period, to the vessels of the United States and their cargoes, issued a proclamation repealing the three acts referred to. By reciprocal legislation, brought about by ne- gotiation, mutual interdicts were finally removed and American vessels were placed by Great Britian upon an equality with those of the most favored na- tions. They were permitted to clear from the Brit- ish West India and North American colonies with any articles which British vessels might export, and 1^ UNITED STATES -GREAT BRITAIN. 69 prbceed to any part of the world, except to Great Britain and her dependencies. In communicating the arrangements to Con- gress, President Jackson said: "It gives me un- feigned pleasure to assure you that this negotiation has been throughout, characterized by the most frank and friendly spirit' on the part of Great Brit- ain, and concluded in a manner strongly indicative of a sincere desire to cultivate the best relations with the United States." The question which had disturbed the commer- cial relations of the two countries from the origin of the American government, and which had been the subject of no less than six negotiations, thus, at last disappeared from the diplomatic field. The re- sult, however, in consequence of discriminating du- ties imposed by the British government, has been represented by some as having proved less valuable to American trade than was anticipated. « ♦ ♦' « 4^ « # As a final adjustment of commercial relations be- tween the two countries had been deferred for more than forty years, and had been the subject of repeat- ed aii'd fruitless negotiation, so also, did questions arise out of the treaty of <5hent, in regard to deport- ed property, and the settremerit of boundaries, which became a subject for prptracted and interesting con- troversy and of remote decisidri. ' "" To give effect to the treaty with regard to de- ported property, a treaty was made at St. Peters- burg in 1822, under the mediation of the emperor of Russia, which stipulated that two commissioners and two arbitrators should be selected; that the . . :| I' t' if ?* POLITICAL CONRTOVERSIES i fl m m commissioners should adjudicate upon the validity and the amount due upon the different claims, and in the event of disagreemeitt in any particular case under examination or upon any question which should result from the stipulations of the conven- tion, one of the arbitrators was to be chosen by lot to act with them and the decision of the majority was to govern. Mr. Jackson, as commissioner on the part of Great Britain, and Mr. Cheves on the part of the United States, met at Washington, but soon found themselves at variance on the subject of interest with regard to the deportation of slaves from Dau- phine island in Mobile bay,and in reference to the pro- duction of certain evidence. The British commis- sioner refused to invite one of the arbitrators to aid in their decision pretending that the question oi in- terest in his judgment was clearly excluded from the convention, that as to slaves, on the ground that the island, which had been fortified by the United States and captured by the British army in the time of the war, was no part of the territory of the United States, but belonged to west Florida, and that as to the evidence, because his government was not bound to produce it except upon certain conditions. The conduct of the British commissioner in de- ciding what questions were or were not within the purview of the treaty, greatly exasperated Mr. Clay, the American Secretary of state, and convinced him that no practical good could result from the action of a boai-d, in which the British commissioner mani- fested such an arbitrary and domineering spirit. He, therefore, concluded to make an attempt to super- UNITED STATES — GREAT BRITAIN. 71 sede it as soon as possible and to accomplish its ob- ject by direct negotiations with the British govern- ment Negotiations were accordingly opened through Mr. Gallatin, the American minister at the court of St. James. In the course of his correspon- dence, he reminded the British secretary of foreign affairs that after a refusal to indemnify, and after a delay of eight years and a reference to a third pow- er, whose decision was supposed to be final, new im- pediments were now wholly unexpected; and that under such circumstances, in the case of private claims, such delays, almost equivalent to a denial of justice, would naturally create a strong sensation, heightened by the recollection of a provision in the treaty of 1783, similar to that of 18 14, which had been equally disregarded and out of which had grown a cause or pretence for the non-payment of British debts, followed by ten years of mutual re- criminations, and although most of the debts had been paid, no indemnity had ever been made for slaves carried away in contravention of the treaty of 1783; and that the government of the United States could not acquiesce in the assumed interpre- tation of the convention by the British commission- er, which would make him the exclusive judge of every question. A convention was finally conclu- ded on the 13th of November, 1826, by which the British government agreed to pay the United States twelve hundred and four thousand nine hundred and sixty dollars current money of the United States, in full liquidation of claims arising under the conven- tion of 1822. The indemnity for slaves under the treaty of m i m !? I 1 :ii I- Mil 72 POLITICAL CONTROVERSIES 1783, was abandoned by the treaty of 1794, in con- sideration of certain commercial advantages, while the latter treaty provided for the payment of the British debts, which were finally liquidated by the payment to the British government of six hundred thousand pounds. Boundary. — The question of boundary between the United States and the British dominions, extend- ing from the Atlantic to the Pacific coast, tried the patience and exercised the diplomacy of the two countries for a period of nearly one hundred years. The treaty of 1783, had stipulated as a boundary, the St. Croix river, thence from its source directly north to the northwestern-most angle of Nova Sco- tia, which angle was described as "formed by a line drawn due north from the source of the St. Croix river to the highlands; along the said highlands, which divide those rivers that empty themselves in- to the river St. Lawrence, from those which fall into the Atlantic ocean, to the northwestern-most head of the Connecticut river." An early controversy arose as to which of the rivers falling into Passamaquoddy bay was the St. Croix intended by the treaty. To determine this question, the treaty of 1794. provided for a decision by commissioners, who, after making the necessary surveys, on the 25th of October, 1798, declared that a river called the Scoodiac, which falls into Passma- quoddy bay at its northwestern quarter, was the St. Croix intended by the treaty of 1783, as far as its great fork, and that thence its northern tributary is a continuation of the St. Croix to its source. ,i UNITED STATES -GREAT BRITAIN. 73 t. ts lis From the imperfect knowledge of the country in 1783, and an error as to true latitude, difficulties sprang up as to the extension of the boundary line from the source of the St. Croix north, thence to the Connecticut river and down that river to the forty- fifth degree of north latitude, thence west according to the specifications of the treaty. • ' To settle these difficulties, the treaty of Ghent in 18 14, had stipulated that commissioners should be appointed to fix the line in conformity to the treaty as far as the most northwestern point of the Lake of the Woods, and in the event of disagreement the matter was to be referred to some friendly pow- er as umpire. > • '■• The commissioners subsequently appointed, sat- isfactorily adjusted the boundary between the river Iriquois and Lake Superior, but an irreconcilable difference arose as to the portion between the St- Croix and the angle of Nova Scotia. The negotia- tors in 1783, were governed by Mitchell's map on which the angle and the highlands were distinctly represented, but the British agent offered before the commissioners a map, which the American negotia- tors refused to receive, believing that the range of highlands laid down upon it had no existence in na- ture, and the map produced upon the American side was rejected by the British commissioner as equally inaccurate. The two angles contended for were one hundred miles apart, and the British min- ister at Washington, in a communication addressed to the American secretary of state, on the 25th of March, 1828, indicated the extent of the territorial disagreement of the two governments, by insisting 10 74 POLITICAL CONRTOVERSIKS that the boundary was clearly defined from the mouth of the St. Croix river to its source, but that the commissioners, under the 5th article of the treaty of Ghent had differed as to its continuation, this depending upon the position of the northwest angle of Nova Scotia, the British commissioners lo- cating it at Mars hill and the American commission- ers at a great distance north of this point, not far from the right bank of the river St. Lawrence. The point claimed by Great Britain, cut off a large extent of territory, perhaps one third, then claimed to be within the limits of the state of Maine. The question was subsequently referred to the king of the Netherlands, who, instead of deciding the question submitted to him, recommended a new line, which the United States declined to accept, and proposed to renew negotiations with the British government. This was declined unless certain pre- liminary conditions were accepted by the United States, which was not done. The American gov- ernment claimed that neither party was to exercise exclusive territorial jurisdiction over the disputed territory during the pendency of the controversy, but this was denied by the British authorities, and a border conflict of claims arose, which, for several years, agitated the inhabitants of the state of Maine and of the British provinceof New Brunswick. The angry feeling upon both sides, finally rose so high as to threaten an appeal to military force. To avert this, the American secretary of state and the British minister at Washington, signed a memoran- dum which stipulated that until a satisfactory ad- justment could be obtained by friendly negotiation. UNITED STATES GREAT IJ RITA IN. 75 e e h o e her majesty's officers in New Brunswick should not seek to expel by military force the armed party, which had been sent by the state of Maine into the district bordering on the Aristook river, and that the latter should voluntarily and without needless delay, withdraw beyond the bounds of the disputed territory, any armed force now within that district, and that future operations, if necessary, to expel no- torious trespassers or for the protection of public property, should be conducted in such manner as should be agreed upon by the governments of Maine and New Brunswick. Gen. Scott was dispatched to the scene of diffi- culties with a view of allaying the local excitement and paving the way to an amicable adjustment. He understood the magnituJe of his undertaking, and upon the eve of his departure, said to President VanBuren: "It you want luar, I need only look on in silence; the Maine people will make it for you fast and hot enough; I know them, but if peace be your wish, I can give no assurance of success. The difficulties in its way will be formidable." "Peace with honor," replied the President, "and such," says Scott, "being my own wish, I went forward with a hearty good will." By the skilful and judicious management of Scott, aided by his great popularity with the people of Maine, and the personal friendship which existed between him and the governor of the province of New Brunswick, Sir John Harvey of the British army, which dated back to the war of 1812, an ar- rangement was soon effected between the Governor and the legislature of the state of Maine and the ■ 11 76 rOMTICAl, CONTROVERSIES governor of New Brunswick with regard to the oc- cupancy of the disputed territory, and the expecta- tion was expressed on both sides of a renewal of negotiations upon the subject between the two gov- ernments. According to the mutual understanding, the troops of Maine were immediately recalled and orders issued for organizing the civil posse to pro- tect the timber recently cut and to prevent future depredations. The questions involved, were thus removed to the amicable province of diplomacy, and were at last happily disposed of in 1842, by the treaty of Washington, which was negotiated on the part of Great Britain by Lord Ashburton, and on that of the United States bv Daniel Webster. It was agreed that the boundary line should begin at the monument at the source of the St. Croix river as designated by commissioners under the treaty of 1794, thence north, following the line marked by the surveyors of the two governments in 1817-18, under the 5th article of the treaty of Ghent to its intersec* tion with the river St. John, to the middle of the channel thereof, the river itself to be free to naviga- tion by both parties. The treaty also disposed of the unsettled boundary from the eiitrance of Lake Superior to the most northwestern point of the Lake of the Woods. * The St. Lawrence — The treaties relative to the boundary extending from the northeastern-most angle of the state of Maine to the Rocky Mountains, were not considered by the British government as divesting it of the exclusive control of the naviga- UNITKD STATES GREAT TIRTTAIN. 77 tion of that portion of the river St. Lawrence, that had both banks within the British dominions. The treaty of 1794, had provided for commerce be- tween the United States and Canada upon certain and reciprocal terms, which were declared to be per- manent stipulations, but Great Britain subsequently assumed the ground that the whole treaty was abro- gated by the war of 1812. An act of parliament of the 5th of August, [822, however, permitted certain enumerated articles to be imported into the Canadian ports upon the pay- ment of certain duties, but imposed no duties upon the merchandise of the United States descending the St. Lawrence with a view to exportation on the ocean, but an act of the previous year, imposed du- ties upon the timber and lumber of the United States intended for such exportation. The colonial governments were also entrusted with certain dis- cretionary powers, which m'ght be used to the in- jury of American commerce. To place this beyond the reach of future annoyance or destruction, the American government became anxious to protect it by treaty stipulations. With this view, Mr. Adams, Secretary of state in 1823, directed the American minister at London, to approach the British govern- ment upon the subject. He said: *'With regard to the right of that portion of our people to navigate the river St. Lawrence to and from the ocean, it has never yet been discussed between us and the Brit- ish government," that he had little doubt that the right could be established upon the sound and gen- eral principles of the law of nature, and that the power exercised by a nation holding both banks of U:ii 78 P () L I 1' I C A L CON T K O V K R S I K S a river at its mouth, of interdicting or obstructing its navigation by people occupying its banks above, was a jurisdiction that originated in the social com- pact, and as a right of sovereignty, which, however, is subordinate to the right of navigation based upon the right of nature, which the sovereign right of one nation cannot annihilate as to another. When, in the course of negotiation, the Ameri- can minister broached these ideas, and enlarged up- on the great interests, present and prospective, which his country had in their adoption, the British plen- ipotentiaries replied that the claim of right was novel and extraordinary; that they were willing to treat of the navigation upon the basis of eqttivalents ; as a right ih^Y hoped it never would be advanced, cer- tainly not persisted in ; that they could not repress the strong feelings of surprise at its bare intimation; that Great Britain possessed absolute sovereignty over the river within her territorial limits ; that her right to exclude foreign nations from its navigation, was scarcely to be discussed, and to the contrary claim she opposed an immediate, positive and un- qualified resistance. On the other side, it was urged that the claim was neither novel or extraordinary; that it had been well considered by the American government, and was believed to be maintained by the soundest prin- ciples of public law; that it had been familiar in the past discussions of the United States, and had been successfully asserted with regard to the river Mississ- ippi, when its lower banks were in possession of a foreign power ; that the right was essential to the condition and wants of society, and as such had been UNI'iED STATES GREAT BRITAIN. 79 recognized by the Congress of Vienna, where the parties to the European alliance had declared by- treaties, that certain German rivers should not be closed by those occupying the lower banks, against those above, but should be free to all nations. The question was subsequently discussed at great length, without either party yielding its position ; and on the 2[st of September, 1827, the American minister wrote to his government, that the British plenipotentiaries would entertain no proposition founded on the right claimed by the United States, but whilst the present state of things continued, that the British government would throw no impediment in the way of intercourse with the North American British possessions, if the United States would per- mit it to continue. The American minister was directed not to relin- quish the right claimed by the United States, and the importance of the outlet to the sea was ar- gued with great force by the American Secretary, Mr. Clay. He said that the North American lakes are among the largest seas upon the globe, that they extend from about the forty-first ♦^o the forty-ninth degree of north latitude, and oi .;r sixteen degrees of longitude, having a surface of over eighty-three thousand square miles ; that the states and territory that bordered upon them had a population exceed- ing two millions, and rapidly increasing ; that the navigation of the lakes, and of the St. Lawrence, as far as it was a common boundary between the Brit- ish territory and the United States, was secured by treaty to both nations ; and that the United States claimed for its commerce the right to pass through 5 I s, Hii i 8o POLITICAL CONTROVERSIES the natural outlet from the lakes to the ocean ; the great highway of nations. The question remained unsettled for nearly half a century longer, when it was finally disposed of by the treaty of Washington, in 1 871, at which time the population of the eight states bordering upon the great lakes, exceeded seventeen millions. By the twenty-sixth article of that treaty, it was declared that " the navigation of the river St. Lawrence, as- cending and descending from the forty-fifth parallel of north latitude, where it ceases to form the bound- aries between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain or of the Dominion of Canada, not inconsist- ent with such privilege of free navigation," and "that the navigation of the rivers Yucan, Porcupine and Stikine, (in Alaska,) ascending and descending from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of both powers, subject to any laws and regulations of either country within its own territory, not incon- sistent with such privileges of free navigation." Hv the same treaty, the free navigation of Lake Michi- gan was conceded for the purposes of commerce to British subjects under such laws and regulations of the United States, or of the state.i bordering there- on, as were not inconsistent with such privilege of free navigation, which was to exist for the term of ten years with the right of subsequent termination by two years' notice to Great Britain. Provision was also made by the treaty for the use, upon terms UNITED STATES -GREAT BRITAIN. 8i of equality, by the citizens of the Dominion and of the United States, of the Welland, St. Lawrence and other canals in the Dominion, and of the St, Clair Flats and other canals in the United States. Stipulations were also made for the transit in bond and without the payment of duties, of goods which passed through the territory of the one party to reach their destination in the dominions of the other. These stipulations were to remain in force for the period prescribed in the 33d article of the treaty and as above applied to the free navigation of Lake Michigan. By the 31st article of the treaty. Great Britain engaged to urge the parliament of the Dominion of Canada and the legislature of New Brunswick to levy no export or other duty on lumber or timber of any kind cut on that portion of the American territory in the state of Maine, which is watered by the river St. John and its tributaries, and floated down that river to the sea, when the same is shipped to the United States from the province of New Brunswick; and in the event of such duties being continued after the expiration of a year from the ratification of the treatv, the United States were authorized to suspend the right of carrying, which was conceded by ihe 30th article thereof, in regard to the transit in bond when transported in part through the territory of the other party. The reciprocity treaty of 1854, which was subse- quently abrogated by the United States by giving the requisite notice, contained provisions with re- gard to the navigation of the St. Lawrence and St. John rivers and Lake Michigan, by the citizens of the respective governments, which by the treaty of 1871. II H^i'S t •;. i i: i '^ 82 V O'Ll T I C/A l: (JON R T O V^ R SI E » :. ' were placed in an enlarged and more satisfactory condition. When, in 1827, Mr. Clay vvias zealously maintain- ing the right of his country to the free navigation of the St. Lawrence, and when about the same time, De Witt Clinton, with profound sagacity was en- gaged, amid the derision and sneers of political op- ponents, in the work of connecting the waters of the Hudson river -with the Great Lakes by the Ph'ie canal, it is not probable that either of those illus- trious men anticipated the subsequent marvelous growth and development of the states which now border upon those lakes. i . ; [ t nmuaaa.. CHAPTER IV. OREGON INTER-OCEANIC COMMUNICATION -FISHER The territory which extends many degrees of latitude upon the Pacific coast and includes that which is watered by the Columbia river and its trib- utaries, became the subject of controversy within the first two decades of the present century. At the commencement, the two governments asserted and maintained adverse opinions with such fixed purpose, that it was soon apparent that there was no prospect of an immediate agreement. Neither party, however, was disposed to come to an open rupture, but while this disagreement existed, the citizens of both countries were seeking admittance into this inviting region, and it became a pressing duty to throw around them the protection of law. In the absence of this, each government was liable to be harrassed by the complaints of its subjects and involved in disputes with the other. .To make ample provisions upon these points, it was stipulated by the convention of October 20th, 1818, that the boundary between the two parties should extend from the Lake of the Wootls along the 49th parallel of north latitude to the Rocky Mountains, and that any country claimed by either party on the north- west coast west of those mountains, with its harbors, bays and rivers should be free and open for the term of ten years to the vessels, citiz :ns and subjects of the two powers, without prejudice to the claims of either party to any part of it, or of any other power H POLITICAL CON T R O V E R S 1 E S or state, and that the object of the contracting par- ties was to prevent disputes among themselves. In 1823, written negotiations were renewed for a settlement of the boundary between the two powers upon this coast. Mr. Rush, the American minis- ter at the court of .St. James, was instructed by- Mr. J. Q. Adams, the American secretary of state under President Monroe, to make advances in this direction and to suggest the parallel of the 51st de- gree of north latitude as the southern boundary of the British possessions,with permission, if insisted on by that government, to agree to an extension of the eastern boundary to the Pacific Ocean on the 49th parallel of north latitude. The British commission- ers replied by controverting the facts and principles urged by the American minister, and insisted that the unoccupied territory between the 42d and 51st degrees of north latitude were still open to British settlement as heretofore, that Great Britain would not relinquish the principle of colonization on that coast, and that she also relied upon a paramount title by discovery and occupancy. The British commissioners proposed, however, to fix upon the Columbia river as the dividing line between the two governments, which was declined by the American government. Negotiations were resumed on the i6th of November, 1826, when the American minister proposed to fix the boundary upon the forty-ninth degree of north latitude, with the condition that if it should cross the great northwest- ern-most branch of the Columbia river, or any other of its branches, which is navigable to the main river, then the navigation of such branches and of the UNITED STATES- GREAT IJKITAIN. 85 main river itself, should be perpetually free to the subjects of both governments. This proposition was rejected by the British commissioners, who modified their previous one, and considering that a safe and commodious port on the northwest coast was a matter of great importance to the United States, and as none was found between the 42d de- gree of north latitude and the mouth of Columbia river, they proposed to concede to the United States the possession of Port Discovery on the southern coast of De Fuca's inlet with certain adjacent terri- tory, and to stipulate not to erect any works at the entrance or upon the banks of the Columbia river, which should in any way be calculated to impede navigation by the vessels or boats of either party. The American minister considered this proposi- tion as wholly inadequate, and declined even to refer it to his own government for consideration. During these important negotiations the claims of the respective parties were discussed with great earnestness and abilitv. On the British side, it was said that Great Britain claimed no exclusive sovereignty over any portion of the territory, but that her present claims, not in respect to any part, but to the whole, were limited to the right of joint occupancy with other states, leaving the right of exclusive dominion in abeyance; that on the contrary, the United States claimed the exclusive sovereignty from the 42d to 49th degree of north latitude, thus tending to the exclusion of all other nations. It was contended that Great Britain had the better right of priority of discovery of the whole coast, by the early establish- $ ^ P O li I T I C A I. C: O N T R C) V E R S 1 E S \ ment of posts by the northwestern trading company on the head waters of the main branch of the Co- lumbija river and gradually extending down that branch, and by the convention of Nootka Sound, made in 1790, between Spain and Great Britain, which stipulated : "That the respective subjects of the two parties should not be disturbed or molested either in navigating or carrying on their fisheries in the Pacific Ocean or in the South seas, or in land- ing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their com- merce with the natives of the country, or of making settlements there," and also that in all places, wher- ever the subjects of either party shall have made settlements since the month of April, 1789, or shall make any, the subjects of the other shall have free access, and shall carry on their trade without any disturbance or molestation, the question of superior right being undecided. It was asserted that this treaty had not been abrogated by the subsequent war between Great Britain and Spain, that its pro- visions as to the rights of landing and occupancy were still operative, and that no argument could be sustained against the rights of Great Britain on the ground of the restitution of the captured post of Astoria, at the mouth of Columbia river, pursuant to a deiliand made by the American government in 1815, under the treaty of Ghent, because the order for that restitution, issued to the officers in possess- ion, directed the restitution to be made without ad- mitting the right of the United States to that pos- session, and because the British minister at Wash- ington was instructed in February, 18 18, to signify UNITED STATES- GREAT HRITAIN. 87 1 1 to the American secretary of state, that whilst his government fully acquiesced in the re-occupation of the limited position held by the United States at the breaking out of the war of 18 12, he would at the same time assert in suitable terms, the claim of Great Britain to that territory, and that the Ameri- can settlement must be considered as an encroach- ment. ' On the other side, the Americ^in minister claimed a natural extension of the territory of the United States to the Pacific Ocean, on the ground of contiguity and popuLition, and under the rights acquired by the acquisition of Louisiana in 1803. He insisted that the American right was established to the whole territory which was drained by the Columbia river and its tributaries, together with a certain portion of territory on the coast north and south of the mouth of that river, which had been discovered by Captain Gray, and the whole course of which river had been explored by him and by Lewis and Clark, before any of its branches were explored by Great Britain; he also contended that, by the treaty made with Spain in 18 19, the United States acquired all of the rights of that government to the territory north of the 42d degree of north lat- itude, founded either upon priority of discovery or settlement, and which extended north of the 49th degree of north latitude. He further claimed that no British settlement existed on the Columbia river, even so late as the exploration of Lewis and Clark, which was completed from the source of the river to its mouth prior to the 6th of November, 1805, and none was known to exist south of the 49th degree of 88 P () I. IT 1 C A I. C O N r K O V K U S I K S north latitude at the time the settlement of Astoria was commenced, which was captured by Great Britain, but was restored under the treaty of Ghent. The diplomatists exhausted all subsidiary argu- ments, subjected to severe scrutiny opposing posi- tions, and finding from a wide variance of views the impossibility of agreeing upon a common bound- ary, fell back upon the convention of 1818, which was indefinitely continued, with the right of abro- gating it reserved to each party upon giving twelve month's notice to the other. The United States had acquired by treaty all the rights of Spain north of the 426 degree of north latitude, and Great Britain had, by treaty with Rus- sia in 1825, fixed the southern boundary of the Rus- sian possessions at 54° 4^' ^"'-^ the intervening space thus became debatable ground for the two governments under the claim of right. The statesmen of both countries fully realized the prospective advantages and growing importance of the Pacific coast, and the attention of Congress was repeatedly directed to them. In June, 1838, senator Linn of Missouri, in behalf of a select com- mittee, submitted to the United States senate a re- port upon the American title, accompanied bv a bill authorizing the president to employ such portions of the army and navy as he deemed necessary for the protection of the persons and property of those residing in the territory. He said : " It is un- necessary to go at large into the discussion of title as that has been so ably argued by the late Gover- nor Floyd, who was the first to urge on Congress the use and occupation of the Oregon territory, by UNITED STATES GREAT BRITAIN. 89 is •r e 1- iS \y Mr. F. Baylies in two reports to the House of Rep- resentatives, and in the diplomatic correspondence and the public documents of the United States." He quoted extensively from the report of Mr. Bay- lies, as touching the interests and policy of Great Britain, which impelled her under all circumstances, to persevere in the attempt to secure commanding positions in all quarters of the globe, through which to check, to influence and to control other nations and to build up her military and commercial power, and that, as auxiliary to this, the possession of the Oregon territory by Great Britain would give her immense influence over the fierce and warlike tribes of Indians who roamed over the vast regions be- tween the western frontiers and the Pacific Ocean. The rapidly increasing current of emigration to that coast, where the people had a vital interest in having the boundary question settled with a view to safety and protection, pressed the subject with con- stantly augmenting force upon the American mind. The British government provided at an early day for the security of British subjects, and an act of parliament of July the second, 1821, extended the civil and criminal laws of Great Britain over those engaged in the fur trade, and provided for the ap- pointment of justices of the peace and other judicial ofiicers in Oregon, vesting power in them to execute all process issuing from the courts of the province of Upper Canada, to sit and hold courts of record for the trial of criminal offences not subject to capital punishment, and to have jurisdiction in civil cases where the cause of action did not exceed two hun- dred pounds. In marked contrast with this alacrity 1 :'X ■4 12 IMAGE EVALUATION TEST TARGET (MT-3) ■r %. ^' 4t^ 4^ 1.0 ii lii|21 |Z5 Ufc Fhot9graphic ^Sdfflices CarporatiQn 50^ 33 WIST MAIN STRHT WIISTIR,N.Y. 14510 (716)t72-4S03 li o *5 ^mmm |i ' 114 rOMTICAI. tONTKOVEKSI KS lar^re amount annually paid as bounties during the first seventy years of the government for the en- couragement of American fishermen. In alluding to the appointment of the third com- missioner, Mr. Fish, who was one of the American commissione s on the joint high commission, said: "I had, however, no idea that an award of more than $300,000 or $400,000 could be made against the United States. I never regarded the in-shore fisheries of great commercial value, but I thought it very desirable that this cause of irritation should be permanently removed. I believed that we had given the Canadians an equivalent; that an award of a few hundred thousand dollars would be rather for the purpose of .soothing their feelings, than as a just compensation for the difference between con- cessions given and received." = : ' ' Although the amount of the award so far exceed- ed the expectations and was so exorbitant in the opinion of the American people. President Hayes promptly communicated the result to the senate a.- companied by a communication from Mr. Evarts, secretary of state, in which the latter referred to the question of unanimity, but suggested that an appropriation should be made for the payment of the award and that, before the close of the year, the attention of the British government should be called to such view as congress should take of the award, its payment, and the measure of value which it in- volved. By this course, it was, doubtless, intended to throw the decision of the question of unanimity upon the British government, and also of the justice of the amount awarded, in a shape to prevent the UNIT K I) S T AT K S (; K E A T 11 R I lA I N. "5 award from having any weight in subsequent nego- tiations. Congress responded to the suggestions of the secretary, who communicated the views of his own government, to Great Britain. Lord Salisbury, the British minister of foreign affairs, replied that his government appeared before the tribunal of ar- bitration as litigants, had presented a claim for fif- teen millions of dollars; had supported it as far as practicable by evidence; that his government did not feel inclined to advance any opinion adverse or favorable to the decision made by a majority of the commissioners upon the affidavits and depositions which had been submitted to them; that his gov- ernment, having been litigants, cannot be judges of appeal; that the decision of the majority within the limits of the matter submitted to them, is under the treaty, without appeal, and that in maintaining their cause "their computations have been totally differ- ent in method and result from those which the American counsel sustained." As this communication closed all expectation of a modification of the award either on the ground of unanimity or exorbitance, and clearly indicated the position of the British government in reference to it, the American minister in London transmitted to the British minister the following letter: "Legation of the United States, { London, Nov. 21, 1878. ( My Lord:— I have been instructed by the president of the United States to tender to her Majesty's gov- ernment the sum of ^5,500,000 in gold coin, this be- ing the sum named by the two concurring members of the Fisheries Commission, lately sitting at Hali- Ii6 POLITICAL CONTROVERSIES ;ii i> I fax under the authority imparted thereto by the treaty of Washington, to be paid by the government of the United States to the government of her Brit- annic Majesty. I am also instructed by the presi- dent to say that such payment is made upon the ground that the government of the United States desires to place the maintenance of good faith in treaties, and the security and value of arbitration between nations, above all question in its relations with her Britannic Majesty's government, as with all other governments. Under this motive, the gov- ernment of the United States decides to separate the question of withholding payment from consid- erations touching the obligation of this payment which have been presented to her Majesty's govern- ment in the correspondence, and which it reserves and insists upon. I am, besides, instructed by the President to say that the government of the United States deems it of the greatest importance to the common and friendly interests of the two govern- ments in all future treatment of any questions relat- ing to the North American fisheries, that her Brit- annic Majesty's government should be distinctly ad- vised thnt the government of the United States can- not accept the result of the Halifax Commission as furnishing any just measure of the value of the par- ticipation by cur citizens in the in-shore fisheries of the British provinces, and protests against actual payment, now made, being considered by her Maj- esty's government as in any sense an acquiescence in such measure, or as warranting any inference to that effect. I have, etc., John Welsh." UNTIED STATES-GREAT BRITAIN. 117 to Soon after the payment of the award, it was al- leged by Professor Hind, of Nova Scotia, who had been appointed to compile an analytical index to documents of the Halifax commission, that the award was secured by false evidence and by forced documents which would dishonor the liritish gov- ernment, if such culpability was not redressed. His accusations were met by the Dominion officials by charging him with an attempt to levy blackmail. Indignant at this, in a letter addressed to Sir John A. Mac Donald, the Premier, he says: *' Allow me further to ask, does faUc cry of black- mail shelter you from the responsibility of a thor- ough and public investigation into the extent and ramifications of tl:e grossest corruption among the subordinates in the several departmental offices of the Government, to-wit: In the forgery and falsifi- cation of fishery statistics; in the presentation of these forged statistics to a judicial tribunal upon oath; in reproducing these forged statistics once again in 18S0 under your own eye and for a special purpose. These are facts which shake the honor and the credit of the country until atoned for, facts which cannot be refuted, which are vastly injurious to the maritime powers, and which, if passed over, mock at all honor in the Government and all faith in law. Will you now afford me at once a fair and open opportunity for proving my statements before a parliamentary committee, where you can dissect my character and examine my motives to any ex- tent you choose." His representations to the home government met with the following response: ;I1 ii8 POLITICAL CONTROVERSIES . "Foreign Office, Dec. 5, 1878. Sir:— I am directed by the Marquis of Salisbury to acknowledge the receipt of your further letter of the 25th ult., and I aA to state to you in reply that the United States government have paid her majesty's government the sum of $5,500,000, awarded by the Halifax Fisheries commission, and that, in conse- quence, the question cannot now be re-opened. I am to add that Lord Salisbury much regrets that his time is too fully occupied to give him any oppor- tunity of seeing you at present." In accordance with the provisions of the treaty of 1 87 1, the British government was notified by the United States in 1883, that the articles relating to the fisheries, would terminate at the expiration of two years. Before the settlement of the Halifax award, an other question sprang up between the two govern- ments out of the action of the local authorities or the fishing population of Newfoundland in interfer- ing with or driving off twenty American fishing ves- sels engaged in the prosecution of their business at Fortune Bay. An attempt was made to justify this conduct on the ground that the American fishermen were violating certain local laws of the province, but the American secretary of state repelled the idea that local laws could impair the rights conferred by the treaty between the two governments, and in- sisted that if, in the common interest of preserving the fishery and preventing conflicts between the fishermen, regulations by some competent authority were required, such authority can only be found in a joint convention on the part of the two governments. UNITED STATES -GREAT BRITAIN. 119 The British minister, in his reply, admitted that, as regards the fisheries, British sovereignty is limited in its scope by the engagements of the treaty of Washington, which cannot be modified or affected by municipal election; that if a law is inadvertently passed, which conflicts with treaty obligations, as soon as ascertained, the mistake should be correct- ed; that he was not aware that any recent colonial laws were complained of, but if there were any of that character, her majesty's government would con- sider any representations upon the subject in a friendly spirit, in the hope of coming to a satisfac- tory understanding. Subsequent negotiations resulted in the liquida- tion of the claims of the aggrieved fishermen, and in his message, in December, 1881, President Arthur stated that " earlv in the vear the Fortune Bav claims were satisfactorily settled by the British gov- ernment paying in full the sum of ;^i 5,000 ($75,000) most of which has alreadv been distributed." .; M'.M CHAPTER V. I III THE AMERICAN CIVIL WAR -JOINT HIGH COMMISSION - ITS RESULTS -BRITISH AND AMERICAN NEUTRAL ITY. Upon the election of Lincoln to the presidency of the United States in i860, ten of the southern states, one after the other, passed ordinances of se- cession, repudiated all obligations to the national government, confederated, and proceeded to claim and exercise the powers of an independent nation. They promptly seized or captured the national forts, property and troops within their limits, and the al- ternative of peaceable recognition of the confederate government or civil war for the preservation of the union, was precipitated upon the national govern- ment. Aroused at last to a consciousness of its per- ilous condition and of the magnitude and impor- tance of the interests involved, the national govern- ment, sustained by the union sentiment of the coun- try, applied itself with zeal to combat the vast in- surrectionarv movement. After an immense ex- penditure of life and treasure, the tremendous con- flict culminated in 1865, in the complete triumph of the union cause, while the seceding and revolution- ary states were left exhausted by their vast and un- successful efforts, and with the system of slavery, which they aimed to perpetuate, utterly destroyed. At the commencement of the contest, both par- ties hastened to secure strength and sympathy from abroad, and both were deeply interested in the course of Great Britain. As to the position of the latter, the American UNITED STATES- -GREAT BRITAIN. 121 minister in London, wrote on the 9th of April, 1861^ that Lord John Russell, principal secretary of for- eign affairs, had assured him with great earnestness that there was not the slightest disposition in the British government to grasp at any advantages which might be supposed to arise from the unpleas- ant domestic differences in the United States, and that they would be highly gratified if those differ- ences were adjusted and the union restored to its former unbroken position. But when pressed with the importance of both England and France abstain- ing, at least for a considerable time, from doing what, by exciting groundless hopes, might widen the breach, still thoughL capable of being closed, he seemed to think the matter was not ripe for de- cision one way or the other, and remarked that what he had said, was all that at present, it was in his power to say." On the 13th of May, and after the agents of the confederate government had been favored by Lord Ru.ssel with an unofificial interview, the queen issued a proclamation, in which the confederates were spoken of as belligerents, and the strictest neutral- ity between the contending parties was enjoined upon Briti.sh subjects. This proclamation was un- satisfactory to the American government. Mr. Charles Francis Adams was appointed min- ister to the court of St. James in the spring of 1861. and in his letter of instructions, dated the icth of April, he was informed that he would represent his country, and the whole of it at London, and that if he found the British government tolerating the ap- plication of the so-called seceding states for recog- 16 n 'iii 122 POLITICAL CONTROVERSIES 11 i nition, or even wavering about it, they were to be promptly assured that if they determine upon such recognition, they may at the same time prepare to enter into an alliance with the enemies of the repub- lic. While thus expressing himself with decision as to the course to be pursued under existing circum- stances, he explains his own views as to recognition in the following language: "We freely admit that a nation may and even ought to recognize a new state which has ab- solutely and beyond question, effected its indepen- dence, and permanently established its sovereignty, and that a recognition in such a case, affords no just cause of offence to the government of the coun- try from which the new state has so detached itself. On the other hand, we insist that a nation which recognizes a revolutionary state, with a view to aid in effecting its sovereignty and independence, com- mits a great wrong against the nation whose integ- rity is thus invaded, and makes itself responsible for a just and ample redress." The Lord Chancellor having in a speech char- acterized the rebellious portion of the United States as a belligerent state, and the war going on as jus- tuin bcllttm, and Mr. Adams having alluded to it. Lord Russell replied that he thought more stress was laid upon these events than they deserved. *^^ ' fact was, that a necessity seemed to exjst to de- nude course of the government in regard to the T>ation of the subjects of Great Britain in the r ^i- iC iiiipc.-.ing conflict. To that end. the legal ques- tions involved had been referred to those officers, UNITED STATES-GREAT BRITAIN. 123 the most conversant with them, and their advice had been taken in shaping the result. Their con- clusion had been that, as a question oi fact^ a war existed. In many preceding cases, much less for- midable demonstrations had been required. Under such circumstances it seemed scarcely possible to avoid speaking of this in a technical sense ^^justum bellnm, that is, a war of sides, without in any way implying an opinion of its justice, or to withhold an e'ndeavor, as far as possible^ to bring the manage- ment of it within the rules of modern civilized war- fare. This was all that was contemplated by the queen's proclamation. It was designed to show the purpbrt of existing laws, and to explain to British subjects their liabilities in case they should engage in the war. . • While these explanations were being made in Great Britain, Mr. Seward, the American secretary of state, in a letter, dated the 3d of June, communi- cated to Mr. Adams, the views and apprehensions of his own government. He said: "Every instruc- tion you have received from this department is full of evidence of the fact that the principal danger in the present insurrection which the president has apprehended was that of foreign interventibn^ aid or sympathy, and especially of such intervention, aid or sympathy 011 the part of Great Britain." He proceeds to enumerate the causes of this ap- prehension, alluding to the guarded reserve of the British secretary, when Mr. Dallas, the then Amer- ican minister, presented the American protest against recognition of the insurgents, which seemed to im- ply that in some unexplained condition, such a rec- 124 POLITIC A I. CON'l ROVERSIES S^l! 1 11 ii ; ilii ■ 111' ¥\ BUI III i ognition might be made; to his declaration that he was not unwilling to receive the so-called commis- sioners of the insurgents unofficially; to the engage- ment with France, binding both governments to adopt the same course of procedure in regard to the insurrection, without consulting the American gov ernment, and to the proclamation of the queen, is- sued on the very day that Mr. Adams arrived in London without affording him the interview prom- ised before any decisive action should be taken, and which, by its tenor, although perhaps vaguely, still seemed to recognize the insurgents as a belligerent national power. Unexplained and unmodified, the proclamation, said Mr. Seward, "would leave us no alternative but to regard the government of Great Britain as ques- tioning our free exercise of all the rights of self de- fence guaranteed to us by our constitution and the laws of nature and nations to suppress the insurrec- tion." He thought, however, that there were some special reasons for some little delay in communica- ting these views to the British government. One of these reasons, was an interview, which it was presumed had taken place between Mr. Adams and Lord John Russell upon the subject. While intent upon preventing foreign interven- tion, the United States were not unmindful of the great importance of excluding privateering from the ocean. On the i6th of April, 1856, the maritime powers of Europe in a Congress at Paris, came to an agreement to which other nations were to be invit- ed to accede, which declared: I. Privateering is and remains abolished. UNITED STATES — GREAT BRITAIN. 125 an it- 2. The neutral flag covers enemy's goods with the exception of contraband of war. 3. Neutral goods, with the exception of contra- band of war, are not liable to capture under enemy's flag. 4. Blockades, in order to be binding, must be effective; that is to say, maintained by forces suffi- cient really to prevent access to the coast of the enemy. The United States were duly invited in 1856, to accede to this agreement. In 1854, they had sub- mitted substantially the 2d and 3d propositions to the maritime powers of Europe with a view of being incorporated into the law of nations, but were un- willing to consent to the abolition of privateering unless coupled with a provision that the private property of individuals, though belonging to bellig- erent states, should be exempt from seizure or con- fiscation bv national vessels encfa The deliberations of the commission were pro- tracted until the 8th day of May, 1871, when a treaty was concluded, subject to ratification, con- sisting of forty-three articles, many of them being articles of detail prescribing the manner of carrying the substantial and important articles into effect. At an early day, the British commissioners stat- ed that they were authorized to express in a friend- I m rH 140 I' () M r r c A r, c: o n t u o v k u s r e s \y spirit, the reg et felt by her majesty's govern- ment for the escape, under whatever circumstances, of the Alabama and other vessels from British ports and for the depredations committed by those ves- sels." This avowal of regret was subsequently em- bodied in the first article of the treaty. The treaty provided for the settlement of the Alabama claims by arbitration and laid down the following three rules by which the arbitrators were to be governed in deciding upon the liability- of Great Britain, viz: "A neutral government is bound, ^rst, to use due diligence to prevent the fitting out, arming or equipping, within its jurisdiction, of any vessel, which it has reasonable ground to believe is intended to cruise or carry on war against any pow- er with which it is at peace, and also to use like dil- igence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike \x'$,t\ secondly y not to permit or suffer either belliger- ent to make use of its ports or waters as the base of naval operations against the other, or for the pur- pose of renewal or augmentation of military sup- plies, or arms, or the recruitment of men; thirdly to exercise due diligence in its own ports and wat- ers, and as to all persons within its 'urisdiction to prevent any violation of the foregoing obligations and duties." The British commissioners stated that their gov- ernment did not recognize the above rules as an ex- position of the principles of international law exist- ing when the Alabama claims arose, but for the pur- UNI' IK I) SPATES .GRKAT BKITAIN. 141 St- Lir- pose of evincing its desire of strengthening the friendly relations between the two countries and making satisfactory provision for the future, it was agreed that the arbitrators should assume, in decid- ing upon those claims, that their government had undertaken to act upon the principles set forth in those rules. ' ' * • It was further stipulated that the contracting parties should observe those rules between them- selves in future, and that other maritime powers should be invited to accede to them. ■■• The treaty also contained provisions for the set- tlement of other claims of the subjects or citizens of the respective parties arising from acts committed between the 13th of April, 1861, and the 9th of April, 1865, and with regard to certain other sub- jects of great importance, such as the fisheries, the free navigation of the St. Lawrence and Lake Mich- igan, the use of certain canals of the respective par- ties, of the transit of the merchandise of the citizens of the one government through the territory of the other, and the settlement of the question of bound- ary upon the northv. est coast by submitting it to the decision of the emperor of Germany. Some of the provisions were of a permanent and others of a limited character, and some of them could not take effect until laws were passed to carry them into operation by the imperial parliament of , Great Britain, by the parliament of Canada, and by the legislature of Prince Edward's Island on the one hand and by the congress of the United States on the other. It was agreed that the British" govern- ment should use its influence to procure the concur- 'M 142 POLITICAL CONTROVERSIES rence of the provincial parliaments as to those arti- cles which required their assent, which was ultimate- ly secured, and a declaration to this effect was signed on the 7th of June, 1873, by the American secretary of state and the British minister. When the treaty was first promulgated, it was received in Canada with great and almost universal disfavor. It was violently assailed as an utter aban- donment of the fisheries and a surrender of the sov- ereignty of the river St. Lawrence. The Canadian parliament seemed determined upon its instant and indignant rejection. At this critical juncture, the home government came forward with a proposition to guaranty a railway loan of ;^2, 500,000, or about twelve millions of dollars to be expended in the construction of provincial railroads as an equivalent for the ratification of the treaty. This proposition was favorbly listened to and provincial hostility to the treaty was subdued. On the 6th of May, when the work of the joint high commission drew to a conclusion and only re- quired the official signatures. Lord de Grey, in be- half of himself and his colleagues, expressed their very high appreciation of the manner in which the American commissioners had conducted the nego- tiations on their part and who had displayed equally sincere desires with themselves to bring about a set- tlement of the questions in controversy, alike honor- able and just to both countries. Mr. Fish, in behalf of the American commissioners, responded that they were gratefully sensible of the friendly words of Lord de Grey; that from the date of the first con- ference they had been impressed by the earnestness UNITED STATKS GREAT BRITAIN. 143 manifested by the British commissioners to reach a settlement worthy of the two powers, upon the com- plex and delicate questions submitted to the joint commission, and that they could never cease to ap- preciate the open and friendly manner in which the iritish commissioners had met and discussed the various questions which had led to a treaty, which, it was -hoped, would prove the foundation for a cor- dial, friendly and enduring underRtandinii; between the two nations. The treaty was promptly ratified by both gov- ernments and the tribunal of arbitration, with regard to the Alabama claims, was soon made up in the manner prescribed by the treaty and consisted of Charles Francis Adams, designated by the United States; Sir Alexander Cockburne, named by her Britannic majesty; Count Sclopis, named by the K'ing of Italy; Baron Itayambra, named by the em- peror of Brazil, and ex-president Staempfli, named by the president of the Swiss confederation. The tribunal convened at Geneva on the 15th day of December, 1871. The treaty required that each party should se- lect an agent to represent it generally in all matters connected with the commission, and John C. Ban- croft Davis was designated on the part of the United States and Lord Tenterden, on the part of Great Britain. The American agent at an early day pre- sented the case as made up in behalf of his govern- ment, and was followed by the immediate presenta- tion of the British case by Lord Tenterden. Each party had previously furnished the opposite side with copies of its case. That presented by the American m 144 POLITICAL C O N T R O V E R S I K S agent included a claim for "indirect damages," which soon became the subject of severe criticism in Great Britain, and at one time threatened to bring the labors of the tribunal to a sudden close. In a com- munication addressed to the American secretary of state on the 2ist of September, 1872, after the final award of the tribunal, Mr. Davis refers to several distinguished gentlemen, whose advice and criticism he sought in preparing the case, and after obtaining which, he adds, that the final chapter was written; that this contained a formal statement of the claims submitted to adjudication under the treaty; that among them, were those which have since become known as "the indirect claims," but that to prevent misapprehension, it should be said that this chapter was not sent out for criticism as the others had been. In Great Britain, these indirect claims were re- ceived with a general outburst of indignation, and the British press teemed with charges of "bad faith," of "sharp practice," of perversion of the national treaty and "extravagant demands." On the 3rd of February, the ministry announced officially that they had not anticipated their presen- tation, and on the 3rd of May, Mr. Gladstone de- clared in the house of commons, that the govern- ment had "arrived at the conclusion that those indi- rect claims were not within the scope of the arbitra- tion to which they had agreed, and therefore it would not be possible to be parties to their submis- sion to the arbitration at Geneva." After an adjournment, the tribunal having re- assembled in June, the British agent, while anxious UNITED STATES — GRK AT » KIT A IN, 145 to save the treaty, asked for an adjournment of sev- eral months in order to have the question of indi- rect damages settled by the negotiations then pend- ing between the two governments. The American agent, instead of assenting to this, asked for an ad- journment of two days to consider the subject. When the tribunal re-convened, the president, Count Sclopis announced that the tribunal had come to the conclusion that the claims known as the indirect claims, did not constitute, on principles of international law applicable to such cases, good and sufficient foundation for an award of compensa- tion or computation of damages between nations. This opinion was accepted by both parties, Mr. Davis stating that he was authorized to do so by the president of the United States, and all objec- tions being thus obviated, the board of arbitrators proceeded to the consideration of the questions of which they had conceded jurisdiction. After a pa- tient and thorough investigation, the tribunal an- nounced their decision on the 14th of September, 1872, and awarded to the United States, fifteen mil- lions five hundred thousand dollars in gold to be paid by Great Britain in satisfaction of all the claims referred to the consideration of the arbitrators. This decision was concurred in by four out of five arbitra- tors; but Sir Alexander Cockburn, while assenting to some of the conclusions of his colleagues, gave a long, dissenting opinion. All of the arbitrators, however, agreed that Great Britain had failed in the case of the Alabama, by omission to fulfill the duties prescribed in the first and third rules established by the sixth article of the treaty under which the tribunal acted. ig 146 POLITICAL CONTROVERSIES By a majority of four to one, they decided that with regard to the cruiser Florida, Great Britain had failed by omission, to fulfill the duties required by the first, second and third rules of the sixth article of the treaty. As to the Shenandoah, they decided by the voices of three to two, that Great Britain, by omission, had failed to fulfill the duties prescribed by the second and third rules, from and after that cruiser entered Hobson's Bay, and was responsible for all acts committed bv that vessel after her de- parture from Melbourne on the i8th day of Feb- ruary, 1865. The culpability applied to those ves- sels, was also extended to the acts of the tenders. With regard to several other vessels, the tribunal decided that Great Britain was not in fault. Great Britain acquiesed in the decision of the tribunal, and with honorable and unhesitating promptitude, paid to the United States the amount of the award which was fixed by the arbitrators in reference to the losses of individuals and without regard to indirect and incalculable national losses. The latter were, doubtless, waived, if not by the preliminary action of the American joint commis- sioners and the subsequent treaty, at least by the acceptance by the American government of the opinion of the tribunal upon this branch of the pre- sented case. Under the provisions of the treaty for settling the claims of citizens of either power against the other, arising out of acts committed against their persons or property between April 13, 1861, and April 9, 1865, a commission was duly organized at Washing- ton, and, on the 25th day of September, made its UNITED STATES-GREAT BRITAIN. H7 final decision, awarding to the British government, one million nine hundred and twenty-nine thousand eight hundred and nineteen dollars, payable within twelve months; dismissed or disallowed claims pre- sented by that government to a large amount, and allowed no claims presented by American citizens against Great Britain. •X- ■» The United States, previous to 1812, beheld their merchant marine and their commerce des- troyed, and American seamen ruthlessly impressed by British vessels, but complaints upon the subject were unheeded or brought no redress. Great Britain persisted in her course and claimed that she w.as, justified in doing so by the imperious necessity, under which she was placed by European war. During the late American civil i war, the United States again witnessed their merchant marine, which had become flourishing in a long interval of tranquillity, driven from the ocean, and their com- merce compelled to .«eek the protection of foreign flags, by cruisers fitted out in British ports, manned by British sailors, but sailing under the Confeder- ate flag a;id und.er Confederate commanders. The direct damage which these cruisers inflicted upon individuals, was liquidrited under the Geneva award, but the indirect losses which they caused, are not subject to exact computation, but they were enor- mous and are irretrievable. The culpability of Great Britain for them, under the law of nations, as well as her conduct during the early period of the republic, has, however, now passed from the discus- sions of diplomacy to the criticism and judgment of publicists and of an enlightened public opinion. I4S POLITICAL CONTROVERSIES Neither has the American government, at differ- ent periods, escaped the grave responsibility of maintaining and enforcing the duties of neutrality. In the early days of the republic, the convulsions of Europe and the wars waged so long, and at last so successfully by Great Britain against France, tried the patience and the fortitude of the American peo- ple in their strict adherence to inter-national law. Coming down to a later period, these were again subjected to a severe test. In 1837-38, the Canadian provinces were greatly excited and disturbed by an insurrection, which aimed at independence. The movement found sym- pathizers and abettors on the American side of the frontier, who secretlv combined for hostile incur- sions and to furnish material aid, in violation of the laws of the United States. A person calling himself Colonel VanRensselaer, a dismissed cadet from West Point, organized a body of Americans and .seized Navy Island, belonging to Great Britain, opposite to Schlosser, an American town, and about a mile and a quarter above Niagara Falls. The revolt in Canada was speedily sup- pressed by the Canadian militia, with the excep- tion of the force under Van Rensselaer, which, con- fined to the island, awaited events. A small steam- er, called the Caroline, was procured and made fast to the wharf at Schlosser for the night of the 29th of December, 1837, with the view of being u.sed as a ferry-boat between that place and Navy Island. Before morning, a detachment from the Canadian side, under one McLeod, seized the steamer, killed an American who was on board, and sent her adrift UNITED STATES- -ORE AT BRITAIN. 149 i 1N over the falls. This act kindled the excitement into a fiercer blaze, and there was a general cry for war along the American frontier. The American executive denounced the seizure of the steamer as an outrage, and to prevent such acts in the future and to enforce the laws, he provided for calling out a portion of the militia, to be posted on the frontier. He also strongly condemned any interference with Canadian afifi Ts,and warned those, who designed to do so, to des'st, as under no circumstances would the United States interfere in their behalf, and that they would be left to be dealt with according to the justice and policj^ of that government, whose do- minions they invaded without the shadow of justifi- cation or excuse. General Scott was immediately dispatched to the frontier for the purpose of prevent- ing all hostile incursions and to enforce the neutral duties of the United States. The judicious meas- ures taken by his government, combined with his own good judgment and energy, kept in check the angry feelings and the sympathetic impulses, which had grown out of the insurrection. ♦ > In his message in December, 1838, President Van Burcn alluded to the consequences of criminal assaults, by misguided or deluded persons, upon the peace and order of a neighboring country, to the amicable disposition of the United States towards Great Britain-, and to the duty of maintaining a strict neutrality if an insurrection existed in Canada. He referred to the high obligation, which rested upon the government, to redress all attempts on the part of its citizens to disturb the peace of a country, where order prevails or has been re-established, and ■m P ( ) L I T I C A L C O N T R O V E R S I K S to the confidence with which he relied upon the American people to put down with prumptitude and decison, all such attempts. He declared that in the. meantime, the existing laws had been and would be faithfully executed. > In a subsequent message, after adverting to the restoration of tranquillity, the president remarks: "On a review of the occurrences on both sides of the line, it is satisfactory to reflect, that in almost every complaint against our country, the offense may be traced to emigrants from the provinces who have sought refuge here. In the few instances in which they were aided by the citizens of the United States, the acts of these misguided men were not only in direct contravention of the laws and well known wishes of their own government, but met with the decided disapprobation of the people of the United States." The mutual complaints, springing out of these frontier disturbances, became the subjects of diplo- matic correspondence. McLeod, who was engaged in the seizure of the Caroline, was subsequently arrested in the state of New York on the chage of complicity in murder at the time of the seizure, was released on bail, but was afterward re-committed to prison. His release was demanded by the British government, and the American secretary of state and the governor of New York became involved in a vexatious interna tional controversy. McLeod, however, was tried and acquitted, and in the negotiations preceding the Washington treaty of 1842, an apology was received by the American government for the invasion of American soil and consequent acts at Schlosser. UNTIED STATES— GREAT BRITAIN. 151 Subsequent movements, at different times, oc- curred in the United States, which had a strong tendency to interrupt the peaceful relations of the two countries. A secret society, known as the Fe- nian, originating in Ireland, extended its operations to this country with a view, doubtless, to ulterior effects in Ireland. Military invasions of Canada were planned under its auspices in contravention of international law, the local laws of the United States and treaty stipulations. Whenever the plans of invasion rose to the surface and became exposed, they were speedily suppressed by the government. By secrecy and alacrity, they sometimes attained proportions, which, by pecuniary exactions and otherwise, proved in the end greatly disastrous to those engaged in them. As to the character of those movements, in reply to remarks of the British minister in 1867, the American secretary of state declared, "that they neither began or ended in the United States; that the movers were natives of Great Britain, although some of them had been nat- uralized as American citizens; that their quarrel with Great Britain was a British one and their aim not American, but British revolution; that in seek- ing to make the territory of the United States the basis of military and naval operations for organizing a republic in Ireland, they allege that they only fol- low the example of Bnti^ subjects in regard to the American civil war," but he asserted "that the pro- ceedings of the two governments were not anal- ogous, the United States having never acknowl- edged the Irish republic as b'illigerent and having disarmed the Fenian forces within its jurisdiction." ill mi I m iSa POLITICAL CONTROVERSIES An attempt being made in 1871, by the British commissioners to procure action on claims for in- juries caused by the Fenian raids to the people of Canada, it was resisted by the American commis- sioners on the ground that action upon such claims was not contemplated in the formation of the joint high commission, and that they were not favorably inclined to them. Under the circumstances, the British commissioners declined to further urge the settlement of the claims by the treaty, and stated that they had less difficulty in taking this course, as a portion of those claims were of a constructive and inferential character. i ?i CHAPTER VI. THE AFRICAN SLAVE TRADE. The English African slave trade, which origin- ated in the time of Queen Elizabeth, received new impulse and encouragement at the general pacifica- tion of Europe by the treaty of Utrecht in 1713. Great Britain then obtained, for a certain number of years, the contract or privilege of supplying the Spanish colonies with negroes. This privilege was soon after vested exclusively in the famous South Sea company, which derived from it and other priv- ileges, such enormous profits as stimulated the com- pany to embark in those vast and dishonest specu- lations in the public stocks, which eventually over- whelmed it with complete and disastrous ruin. As far as related to the introduction of slaves into the British colonics, the trade built up and enlarged an institution, which has been a prolific source of indi- vidual and national calamities. The slave policy of Great Britain met with strong opposition o . the part of the colonists, but their petitions and remonstrances against it, were disregarded by the British crown. At the com- mencement of their national existence, the Ameri- cans found themselves confronted by this extensive and growing evil, and, had it not been for the obsti- nacy of two states. South Carolina and Georgia, who refused to become parties to the Union, unless the trade was tolerated until 1808, its prohibition would, doubtless, have been coeval with the adop- tion of the national constitution. As it was. Con- gress, at an early date, passed severe laws against 20 m V O L IT IC A I. CONTROVERSIES Americans being engaged in the foreign slave trade, and in the administration of Jefferson, who was a slave holder, and upon his recommendation in 1806, it was prohibited from the first of January, 1808, at the expiration of the constitutional restriction. By the treaty of Ghent, in 18 14, both nations evinced their hostility to the trade, declared it irrec- oncilable with the principles of humanity and jus- tice, and promised to use their best endeavors for its suppression. In accordance with the spirit thus announced, successive acts of congress were passed, and on the 15th of May, 1820, citi2ens of the United States engaged in the African slave trade, were de- clared guilty of the crime of piracy, and subjected to the penalty of death. To enforce these laws, the policy was commenced of employing American cruisers upon the African coast. In England the lethargy, which had apparently deadened the moral sensibilities of the British peo- ple, began to yield to the awakening touch and the vigorous and unceasing blows of Clarkson, Wilber- force and their associates, and finally gave way to a resistless and universal feeling of national philan- thropy. As a consequence, after a protracted strug- gle of over twenty years, commenced in 1785, by the indefatigable Thomas Clarkson, an act of par- liament was passed in February, 1807, which pro- hibited the clearing of slave vessels from any part of the British dominions after the first of May of that year and the importation of slaves into any of the British colonies after the first of March, 1808. The slave trade was made punishable by a penalty in money; afterward, in 18 11, it was made felony, UNITKD STATES -Uk EAT BRITAIN. 155 punishable by a transportation for fourteen years, or imprisonment with hard labor; in 1824, it was made piracy, punishable by death, which was changed in 1837, to transportation for life, and on the 28th of August, 1833, a bill, which had passed parliament, received the royal assent, by which slavery was to become extinct on the ist of August, 1834, in the British colonies and ;^20,ocx5,0(X) was granted to in- demnify those who should suffer by its extinction. Lord Castlereagh, the English principal secre- tary of state for foreign affairs, at an early day, en- tered with zeal and energy into negotiations with the European powers for the total suppression of the African slave trade. They were induced to de- nounce it as repugnant to the principles of human- ity and justice, and to pass laws for its immediate or early abolition, with the exception of Portugal, which only prohibited it north of the equator. In July, 1819, both houses of Parliament presented ad- dresses to the Prince Regent expressing their grati- fication for his zealous and persevering efforts for its total annihilation, and in which they said: "The United States of America were honorably distin- guished as the first which pronounced condemnation of this guilty traffic, and that they have since suc- cessively passed various laws for carrying their pro- hibition into effect, that the consciousness that the government of this country was originally instru- mental in leading the Americans into this criminal course, must naturally prompt us to call upon them the more importunately to join us in endeavoring to put an end to the evils of which it is productive." Interviews took place early in 1818, and subse- POLITICAL CONTROVERSIES quently at London, between the ministers of the United States and Great Britain, in which both con- curred in reprobating the traffic, and treaties, made by Great Britain with Spain, Portugal and the Netherlands for its suppression, were furnished the American minister with the request that they should be submitted to the serious consideration of the president of the United States with an intimation 'of the strong wish of the British government that the exertions of the two states may be combined upon a somewhat similar principle in order to put down this great moral disobedience, wherever it may be committed, to the laws of both countries." Upon examination, the president came to the decided conclusion that the treaties contained pro- visions which were adverse to the constitutional powers of the general government of the United States and to the susceptibilities of the American people. The treaty with the Netherlands was more especially objectionable, as it conceded the right to search a vessel even if sailing under convoy of ships of war. They contained provisions for a mixed commis- sion in the colonial possessions of the contracting parties for the trial of those engaged in the trade, but the United States had no colonies within which such a commission could act. Besides, under the constitution, the criminal jurisdiction of the United States could not be exercised in fo eign territory, and every American citizen was entitled to a pre- liminary examination by a grand jury and a subse- quent trial in open court, by a jury of his peers. A certain disposition was directed of the captured UNTIED STATES- GREAT UK I TAIN. 157 slaves, which could not be carried into effect accord- ing to the nnunicipal laws of the several States. The American minister in London was instruct- ed, in communicating this conclusion of his govern- ment, to express the regrets of the president, that the stipulations of the treaties were of a character to preclude their acceptance by the United States. As to the constitutional objection, it was suggested that its force would be readily understood by the British cabinet, as in principle, it was the same as prevented Great Britain from becoming,, formally, a party to the holy alliance. In a communication to Lord Castlereagh, in December, 1818, the American minister expressed the strongest solicitude of his government for the universal extirpation of the traffic, referred to the general prohibitory law of 1807, and to that of the preceding April with its severe penalties and other precautions as evidence of the zeal and earnestness of his government, and declared that, within consti- tutional limits, it would always be ready to super- add any others, that experience should prove neces- sary for the accomplishment of the end in view. In its anxiety for effective co-operation, the British government concluded to transfer negotia- tion upon the subject to Washington, and entrusted th" matter to the honorable Stratford Canning, the newly appointed minister to the United States. In December, 1820, Mr. Canning addressed a note to Mr. J. Q. Adams, the American secretary of state, in which hi adverted to the prior negotiations; to the anxiety of Great Britain for a concert of meas- ures with the United States; and added that the I 11 «58 POLITICAL CONTROVERSIES n English government was too sincere in the pursuit of the common object to press its own proposals, however satisfactory in themselves, to the exclusion of suggestions equally conducive to success and more in harmony with the public opinion of other nations. ' Mr. Adams replied that the president, while re- gretting that the proposed measures of co-operation were such as precluded the United States from ac- cepting them, had no disposition to reject or dis- countenance the general proposition of concerted co-operation. He stated that armed cruisers had been kept by the United States on the African coast for the purpose of suppressing the odious slave trade and that it was intended to continue them there without interruption; that British cruisers were on the same coast charged with the same duty, and that the president had therefore directed him to propose that joint instructions should be concerted, with a view to mutual assistance, and given to the commanders respectively assigned to service on that coast; that they should be ordered ,/henever the occasion rendered it convenient, to cruise in com- pany; to communicate all information obtained by the one that would be useful to the execution of the duties of the other; and to render to each other every assistance compatible with the performance of their own service and adapted to the attainment of the common object. In 1 82 1 and 1822, two committees of the house of representatives in the American congress made reports favorable to a stipulated and modified right of search for the more effectual suppression of the UNITED STATES -GREAT BRITAIN. »59 slave trade and each ending with a resolution re- questing the president to enter into such arrange- ments as he thought suitable and proper with one or mor ' of the maritime powers of Europe for its ef- fectual rbolition. No decisive vote was had upon these resolutions, but near the close of the next ses- sion, in 1823, the house of representatives indicated its approval of the views of the president already expressed upon the right of search and almost unan- imously, by a vote of 131 to 9, requested him "to enter upon and prosecute from time to time such negotiations with the several maritime powers of Europe and America as he may deem expedient for the effectual abolition of the African slave trade, and its ultimate denunciation as piracy under the laws of nations, by the consent of the civilized world." - •■ ■■■■ This action of congress was largely due to the indefatigable labors and the indomitable energy of Charles Fenton Mercer of Virginia, a leader, at that time, of one of the parties in the house of represen- tatives, and who persisted, session after session, in pressing the measure, until his efforts were crowned with success. Mr. J. Q. Adams, then secretary of state, subsequently said, on the 14th of April, 1842, of the congressional decision: "It was utterly against my judgment and wishes, but I was obliged to submit, and I prepared the requisite dispatches to Mr. Rush, then our minister to the court of Lon- don. (1) The American secretary wrote to Mr. Rush, on the 24th of June, 1823, and informed him of the ac- (1) Niks' Reg., Vol. 62, Page 160. m i6o POLITICAL C O N i- R O V K U S I E S ' tion of congress and of Mr. Canning's solicitation for a renewal of negotiation upon the basis of a qualified right of search as the preferable measure for the accomplishment of the end in view, but ac- companied, however, with the declaration that his government would examine with respect and can- dor, some other scheme of concert that should be brought forward as a substitute for its own. As such substitute, Mr. Adams remitted the draft of a convention, which Mr. Rush was author- ized to propose, if the British government should agree to treat upon the basis of a legislative prohi- bition of the slave trade by both parties under the penalties of piracy. In the event of refusal, he was instructed not to communicate the project of a con- vention, the objects of which Mr. Adams declared v/ere two fold — to carry into effect the resolution of the house of representatives, and also to meet fully and explicitly the urgent invitation of the British government to offer for consideration a substitute for their rejected ^proposal — "The substitute," said Mr. Adams, "by declaring the crime piracy, carries with it the right of search for the pirates existing in the very nature of the crime; but the concession of the right of search, distinct from the denomina- tion of the crime, our objections remain in full force." The negotiation thus transferred to I^ondon, was entered upon by the British government with an evident disposition to bring it to a speedy and satis- factory conclusion. The British plenipotentiaries received the American project, giving assurances that it should receive a candid examination and UNITED STATES -GREAT BRITAIN. i6i that they should consider themselves fortunate .if they could reconcile its acceptance with the convic- tions which had hitherto governed their government in its action upon the subject. :- Mr. Rush unresevedly informed them that he could agree to no treaty except upon the basis, i. That Great Britain should, by act of parliament, de- clare the slave trade piracy. 2d. That captured vessels should be tried by tribunals of the country to which they belonged. 3d. That no individual belonging to the crew was ever to be taken out of the accused vessel. 4th. That the capturing officer should be laid under the most effective responsibil- ity. 5th. That no merchant vessel, under the pro- tection, or in the presence of a ship of war of her own nation, should ever be visited by a ship of war of the other nation. . Upon the basis thus presented, the British nego- tiators entered at once into a consideration of the American project, and such was the earnest and amicable spirit that animated both sides to effect the suppression of the traffic, that after some mutual explanations and modificatioiis in details, a conven- tion was signed at London on the 13th of March, 1824, by Mr. Rush on the part of the United States and Messrs. Huskisson and Stratford Canning on the part of Great Britain. Mr. Rush hastened to forward it to the President, accompanied by a dis- patch, dated on the 15th, giving a history of the ne- gotiation, so that if approved by the president, he should have the opportunity of submitting it to the senate before the adjournment of congress.- At the outset, the British negotiators declared ■4 ,i 21 1^ POI-ITICAL CONTROVERSIES that the home statutes and prohibitions of Great Britain were adequate for the suppression of the traffic by British subjects, but gave their unhesitat- ing assent to make it piracy by British laws, if in other respects the two nations could be brought into accord. The stipulations for this purpose being agreed upon, a bill passed both houses of Parliament, the House of Lords unanimously, declaring the African slave trade piracy, when engaged in by British subjects, and on the 31st of March, 1824, the bill received the royal assent. r. . ; A copy of the act was immediately forwarded to the president by a vessel specially employed for the purpose. Such was the promptitude and earnest- ness of the British government. On the 30th of April, 1824, President Monroe laid the treaty before the senate for ratification. The senate, upon consideration, proposed several amendments, one of which was to strike out the word America in the first article and which was also in Mr. Adams' draft, and under which the coast of the United States was exposed to surveillance, with the right of search, by British cruisers, as, by the other terms of the article, were the coasts of Africa and the West India islands. The delay of the senate in disposing of the treaty did not correspond with the impatience of President Monroe, and, on the 21st of May, he sent in a special message in which he fully explained the motives which had influenced the executive, and the strong reasons which existed for its ratification. He de- precated the rejection of the treaty as exposing the nation to a charge of insincerity in the endeavor to UNITED STATES GREAT BRITAIN. 163 suppress the trade, and that its first and indispensi- ble consequence would be to constrain the execu- tive to suspend all negotiations with every Eu- ropean and American power under the resolution of the house of representatives of February, 1823, to make the trade piracy, while denying the right of search for the pirate, without the exercise of which the declaration would be valueless. "It must be obvious," he said, "that the restriction of search for the pirates to the African coast, is incompatible with the idea of such a crime." r The senate, however, would not surrender the amendments in deference to the opinions of the president. On the question, "shall the word Amer- ica stand as part of the article.^" it was decided in the negative; yeas 23, nays 20, not two-thirds. A similar motion as to the words "and of the West Indies," was decided in the afifirmative, yeas 29, nays 14. An amendment was also made giving either party the right to abrogate the treaty upon six months notice to the other. The treaty as amended was finally ratified by the senate on the 24th of May, 1824, by a vote of 28 to 13. (') ; .. V , Mr. Adams immediately forwarded the condi- tionally ratified treaty to Mr. Rush to be communi- (1) The 13, who voted against ratification, were Bell, of New Hampshire: Chandler And Holmes of Maine, DeWolfot Rhode Island, Dickerson of New Jer. sey, Elliott ard Ware of Georgia, Oaillard of Soiilli Carolina, Macon of North Car- olina, Kuggleit of Ohio, Smith of Maryland, Thomas of Illinois, Van Buren of New York. The thirteen also voted to postpone the consideration of t\\t treaty till Decem- ber following, which was defeated by a vote of 26 to 16. Among the men distinguished in American history, who voted to ratify, were Andrew Jackson, Thomas H. Benton, Robert V. Hayne of South Carolina, and Rufus King. Hayne, Jackson and King also voted to retain the word, America. POLITICAL CONTROVERSIES cated to the English government, with the assur- ance that if the president had possessed the sole power of ratification without the concurrence of two thirds of the senate, which the British government well understood was neccssaiy to give final effect to the convention, he was fully prepared to give it. Mr. Adams considered that the exception of the coast of America from the seas, upon which the mu- tual right of capture could be exercised, had refer- ence, in the views of the senate, to the coast of the United States; that upon no part of the coast, un- less within the Gulf of Mexico, was there any prob- ability that slave vessels would ever be found, and that the necessity for the exercise of the right to capture, was therefore no greater upon the coast of the United States thian it would be on the coast of Europe. He stated that the president indulged the hope that the convention, if modified as proposed, would contribute largely to two objects of high im- portance; to the friendly relations between the two countries, and to the general interests of humanity. The British government manifested a disposition to accede to all the modifications, except that which eliminated the words "and America." Mr. George Canning, the British secretary, ex- pressed his confidence in the sincerity and desire of the president for the ratification of the convention in its original shape, but complained of the inequal- ity existing between parties, where a convention fully ratified on the one side, was open to modifica- tions on the other through the intervention of the senate as prescribed by the constitution of the United States, which, perhaps, precluded exception UNITED STATES -GREAT BRITAIN. 165 to any particular act of revision. "But," said he, "a substantial change is proposed upon a point origin- ally proposed by direction of the American govern- ment. The right of visiting vessels suspected of slave trading, when extended alike to the West In- dies and to the coast of America, implied an equal- ity of vigilance, and did not necessarily imply the existence of grounds of suspicion on either side; the removal of this right as to the coast of America and its continuance to the West Indies, cannot but ap- pear to imply the existence on one side and not on the other, of a just ground either of suspicion of mis- conduct or for apprehension of an abuse of authority. To such an equality, leading to such an inference, his majesty's government can never advise his ma- jesty to consent. It would have been rejected if pro- posed in the course of negotiation. It can still less be admitted as a new demand after the conclusion of the treaty," « ■ ' ^ . •. • '" -. • He stated that full power would, however, be given to the English cAnrg^i' d' affaires at Washing- ton to conclude a treaty with the modifications, ex- cept as to the elimination of the words "and Amer- ica, but that "his majesty will not be advised to conclude and sign the like treaty here, to be, as before, ratified by his majesty and to be again sub- jected, after ratification by his majesty, to altera- tions by the senate of the United States." The British government was evidently greatly disappointed by the action of the American treaty making power, and was, perhaps, unfortunately re- strained by a sense of honor, from excepting the American coast. Great Britain does not, indeed, i66 POLITICAL CON T U O V E R S I E S seem to have been unmindful of the advantages, in the time of Mr. Canning's predecessor in office, of a restricted right of search. In the convention be- tween Great Britain and Holland, for the suppres- sion of the slave trade, a line was drawn from the Straits of Gibraltar to a point in the United States so as to except out of its operation, what were called the European seas, and in a note to the French en- voy at the congress of Aix La Chapelle, held in 1818, and having in view to render more effectual the treaty of Vienna in 18 15 for the suppression of the trade, Lord Castlereagh said that in pursuit of so noble a purpose although Great Britain was will- ing to run some risk of inconvenience, still there was a distinction which could be reasonably taken "between giving effect to this system upon the coast of Africa, and for a certain distance, say two hun- dred leagues from that particular coast, and the ex- tending the same over the entire of the Atlantic and the West Indian seas. The latter as the most effectual measure. Great Britain has preferred, but she would not be less disposed to attach value to the more limited application of the principle." Commenting upon the British strictures, Mr. Adams wrote to Mr. Rush, that "when the treaty was under consideration, it was neither known nor believed that it had been ratified by the British gov- ernment; that in the full powers of European gov ernments to their ministers, the sovereign usually promises to ratify that which the minister shall con- clude in his name; that if the minister transcends his powers, although unknown to the adverse party, the. sovereign is not bound to ratify, and that one UNTIED STATES GREAT 11 RITA IN. 167 instance had occurred when engagfement-.3 made with the United States by a British minister had been repudiated by his own government; that treat- ies together with the constitution, are the supreme law of the land; that while the President was authorized to initiate negotiations, they could not be consum- mated without the ratification of the Senate, and that without this reserved right of scrutiny and ap- proval, a minister, entrusted with full power to ne- gotiate, \vOuld be armed with a power dangerous to the most vital inte ests of the nation." In November, 1824, Mr. Addington, the British representative in Washington, presented the ques- tion of renewal of negotiations upon the basis au- thorized by his government. In the course of his communication to the American secretary of state, he dwelt upon the condition required by the Amer- ican minister of a parliamentary denunciation of the slave trade as piracy, when exercised by British subjects, and the full compliance with this condition. He left it to his own sense of honor and equity to determine the justice of accepting the value already paid for a stipulated act and withholding perfor- mance of that act; that having unlimited confidence in the good faith of the American government and their sincerity to execute a treaty signed by their plenipotentiary in London, his majesty had, without delay, ratified the treaty in the full security of its ratification by the American government; "that no shadow of a suspicion ever entered, ever could enter his majesty's mind that that ratification could be withheld in whole or in part." Mr. Adams replied that the president regretted % n '"A '1 1 68 POLITICAL CONTROVERSIES that the British government declined to concur in the ratification of the treaty with the proposed modifications, but he thought it advisable, in view of the success of the object in which both govern- ments were warmly interested, to refer the whole subject to the deliberate advisement of congress. On the 2d of March, 1825, Mr. Addington ad- dressed the secretary of state, asking for informa- tion as to the result of this reference. In April, Mr. Clay, then secretary of state in the place of Mr. Adams, just elevated to the presidency, replied that the late president had delayed a definitive answer to his note of the previous November, from an anx- ious desire to ascertain the practicability of recon- ciling, if possible, the views of the two governments; that, with that view, the mutual correspondence had been submitted to congress, but thus far the latter had expressed no opinion upon the subject; that a convention having the suppression of the slave trade as its object, had been entered into with the Repub- lic of Columbia, on the loth of November, 1824, by the terms of which, the coasts of America were ex- cepted, but in other respects conforming to the model of that with Great Britain, and that, with this conciliating exception, the senate, after full deliber- ation and in the exercise of its constitutional pow- ers, had by a large majority refused to ratify. From this action, he thought it was clearly to be inferred that a treaty with Great Britain for the same ob- ject, and even with the word America omitted, would not receive the approbation of the senate. As to the allusion to the act of Parliament mak- • ing the offense piracy, Mr. Clay said "that the pres- UNTIED STATES -GREAT BRITAIN. 169 ident conceived that it would conduce to the suc- cess of the negotiation, if the British parliament should previously declare the trade piracy, as the United States had already done; that however much it may have been governed by an accommo- dating spirit towards the United States, the British parliament had, doubtless, acted upon its own sense of the enormity of the offense in attaching to it the penalties of piracy; that the United States had re- ceived no peculiar advantage from the passage of the act, an I, the convention having failed, its con- tinuance was at the pleasure of the British parlia- ment; that the president, without indulging in un- availing regrets, hoped that the result would not be attributed to any unfriendly feeling on the part of the United States, and that neither government would slacken their separate or united efforts to ex- tirpate by all practicable modes, a traffic condemned by reason, religion and humanity." Mr. Addington soon after replied, that however great the disappointment, the unfortunate result . would not be considered as in the least affecting the friendly relations existing between the two govern- ments. He referred to an erroneous construction that had been placed upon his note of November; that he put the case as a point of conscience, not one of right; that he urged his argument in the form of an appeal, not of a demand, and that it was an error to suppose that he contended that the pas- sage of the act of parliament, denouncing the slave trade as piracy, under the circumstances, rendered it imperative upon the American government to ac- cede to the convention, even at the expense of the 22 ■I ':.;■) 170 POLITICAL CONTROVERSIES sacrifice of their constitutional prerogatives. He said that the act itself, viewed morally, conformed to the views of parliament; without it, the laws of England were adequate to suppress the slave trade by British subjects; had it not been for the solicita- tion of the United States, it would never have been passed, but that its revocation, though within the competence of parliament, had, owing to subsequent events, become morally impracticable. In reviewing the correspondence of the two gov- ernmants and the action of their highest legislative b)lies, no doubt can exist that the great pulse of the two nations beat strongly in favor of the sup- pression of the traffic. Lord Castlereagh and sub- sequently George Canning, his successor as secre- tary of foreign affairs, conducted negotiations for this purpose with European nations and with the United States with unflagging zeal and with signal ability. On the part of the United States, Presi- dent Monroe met the advances of the British gov- ernment in a like spirit of hostility to the traffic, and was willing to concede the right of search. The president's cabinet was not harmonious upon the subject. It included J. Q. Adams of Massachusetts, recently returned from Europe, as secretary of state, William H. Crawford of Georgia, .secretary of the treasury, and John C. Calhoun of South Carolina, secretary of war. Of the division in the cabinet, Mr. Adams subsequently said: "I returned home, and held the situation of secretarv of st;ite under Mr. Monroe and was the medium through which the pro- posal of the British government was afterwards made. I resisted and opposed it in the cabinet with all my UNITED STATES G K E AT J) R IT A 1 N. 171 power, and though not a slaveholder myself, I had to resist the slaveholding members of the cabinet as well as Mr. Monroe himself, for they were all in- clined to concede the right. ^'^ By the draft of the convention proposed by Mr. Adams, the whole coast of the United States was exposed to the surveillance of authorized British cruisers, whose commanders, if ill disposed, under pretext of being in pursuit of pirates, could have subjected the American commercial vessel to vexa- tious interruption even in sight of its destined port. Any abuse in this respect would, however, have been probably held in check, if not absolutely de feated, by the proposed amendment of the treaty, in which Great Britain was willing to acquiesce, giving the right of abrogation upon six months notice. If. instead of allowing such wide range to cruisers, Mr. Adams had propo.sed to confine their operations to the well known channels of the African slave trade or to within a certain distance of the African coast as Lord Castlereagh, in 18 17, intimated to France he was willing to agree to; such a restriction, Mr. Canning informed him, would have been rejected. Public opinion in the United States finally set- tled into the conviction, that the safest course for the national t anquillity and honor was to leave each nation to combat the slave trade in such man- ner as its own conscience and judgment should dic- tate. While the United States refrained in the future from conceding any right of search, unless within certain prescribed boundaries, hostility to the slave It,.; i i [ 1; Niles' Reg., Vol. «2, Pafe 120, 172 POMTICAL CONTROVERSIES traffic remained unabated. American cruisers were alert for its suppression, and, by the treaty of Wash- ington in 1842, each government agreed to keep a naval force of not less than eighty guns upon the African coast for the suppression of the traffic; the squadrons to be independent, but each government vvias to give such instructions to its officers as should most effectually enable them to co-operate in pur- suit of the common object. Although the treaty was so clear ia its terms as seemingly to preclude misunderstanding, it soon be- came the subject of discussion. In his message sub- mitting the treaty to the senate for ratification in 1842, the president commented upon its scope and effect, and said that the interests of the United States required that each country should execute its own laws and obligations by its own means. He added: "The examination or visitation of the ves- sels 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 reg- ulations it may take place, may lead to dangerous results. It is far better by other means to super- cede any supposed necessity, or any motive for such examination or visit; that for the purpose of remov- ing 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," as well as to carry into effect the stipulations of the treaty o*" Ghent, the treaty, then submitted, had been entered into. The British government was not disposed to sanction even by silence, the idea, which it considered the message was calculated to UNITED STATES GRF: AT BRITAIN. 173 create, that it had, in any degree, modified or aban- doned by the treaty, its own views of the right of visitation and search, which it had so long and strenuously maintained. In February, 1843, Mr. Fox, the Hritish minister at Washington, called at the state department, and, in conformity with instructions from Lord Aber- deen, her majesty's principal secretary of state for foreign affairs, presented the views of his govern- ment. He stated that no concessions were made bv either party upon the right of search and visitation, and that none were required in concluding the treaty; "The British government," he said, "made no pretension to interfere, in any manner whatever, either by detention, visit or search, with the vessels of the United States known or believed to be such, but that it sL 11 maintained and would exercise, when necessary, its own right to ascertain the genuine- ness of any flag which a suspected vessel might bear; that if, in the exercise of this r^^^ht, either from involuntary error or in spite of every precaution loss or injury should be sustained, a prompt repara- tion would be afforded, but that it should entertain, for a single instant, the notion of abandoning the right itself, would be quite impossible." He was informed that the views of the American govern- ment upon the subject, would be communicated to its minister at London to be submitted to the con- sideration of her majesty's secretary of state for for- eign affairs. This was soon after done by Mr. Web- ster, the American secretary of state, who contro- verted with great ability the English distinction be- tween the right of visitation and the right of search, ^ i I r I 11 POLITICAL CONTROVERSIES and alluded to the circumstances, which, in a few instances, justified a resort to either of them in a time of peace tor the purpose of enforcing revenue laws or municipal regulations, when the right is usually exercised within a marine league of the shore, or when the vessel is jus<-ly suspected of vio- lating the law of nations by piratical aggressions. His communication was characterized by that clear- ness of statement, cogency of argument and pro- found knowledge of international law, that justly entitles him to a place in the foremost rank of di- plomatists; but subsequent treaties divested the com- munication of its importance as far as related to the slave trade. Both governments, however, applied themselves with earnestness and vigor to carrying into effect the stipulations of the treaty, and their respective squadrons were constantly employed in efforts to suppress the trade. The vast extent of coast, which required watching, gave, however, great facilities for a contraband trade, which had attained to a fear- ful magnitude. It was charged that the extensive and fraudulent use, which was made of the Ameri- can flag and of American papers, for the purpose of avoiding detention and search by British cruisers, greatly contributed to this unsatisfactory result. It is probable that the complaints in this respect would have been to a large extent, if not entire!}', obviated, and the suppression of the traffic have be- come less difficult if a modified right of search had existed upon the African and West India coasts similar to that which, at a later period, was ccmced- cd by the two governments. UNITED STATES GREAT BRITAIN. 175 of iftts In 1850, Brazil embarked in the war against the traffic, declared it piracy and combined her efforts with other nations for its suppression. The grad- ual diminution of the importation of slaves into the Brazilian empire, shows how much was accom- plished by the efforts of christian nations in con- junction with the influence of Christian settlements upon the African coast. Sixty thousand slaves were imported into Brazil in 1848, according to reports made to the Brazilian government; in 185 1, the number was reduced to 3,287 of which 1,006 were captured by a Brazilian cruiser, and in 1852, only oiu- slave vessel was known to have landed on the Brazilian coast. ^ Speaking of the condition of the slave trade on the south coast in 185 i, the British commander on that coast said, that from his own observation, and from information upon which he could rely, that trade»had "never been in a more depressed state, in a state almost amounting to suppression, and that this arises from the acti-'e exertions of her majesty's squadrons on both sides of the Atlantic, and the cordial co-operation which has been established be- tween the cruisers of Great Britain and the United States on this coast, to carry out the intention of the Washington treaty, and latterly from the new measures of the Brazilian government." In 1862, the United States having proposed to concede a qualified right of search within certain boundaries, this was acceded to bv Great Britain and a treaty was concluded, which was unanimously ratified by the American senate. It stipulated that the cruisers of the two governments, under certain ■ 'J i 176 POLITICAL CONTROVERSIES conditions, could visit, detain and send away for trial, such merchant vessels of the two nations as upon reasonable grounds should be suspected of being or having been engaged in the African slave trade. The circumstances under which the detention and search could be made, and the rules, which should govern in the trial and condemnation of the vessel, were carefully laid down. For the trial of the seized vessel, it was agreed that there should be es- tablished with as little delay as practicable, three mixed courts of justice, formed of an equal number of individuals of the two nat'ons, named for the pur- pose by their respective governments. The locali- ties, where these courts should act, were duly desig- nated, no appeal was allowed from their decisions, and the exercise of the reciprocal right of search and detention was confined within the distarce of two hundred miles from the coast of Africa, and to the southward of the thirty second parallel of, north latitude, and within thirty leagues of the island of Cuba. In 1863, it was further stipulated that the right of search and detention could also be exercised within thirty leagues of the island of Madagascar, and within like distance of the islands of Porto Rico and San Domingo. The treaties were to continue in force for ten years, and thereafter were liable to abrogation at the pleasure of either party upon twelve months no- tice to the other. The mixed courts were abolished by treaty in 1870. as no longer necessary, and the jurisdicti. .1 exercised bv them, was transferred to the courts of the one or the other of the contracting parties, according to UNITED STATES-GRPwVT BRITAIN. 177 their respe :tive modes of procedure in matters of maritime prize, with the right of appeal. The grounds of search and detention, the rules of evidence to be applied, and the proceedings con- sequent upon adjudication, were continued in force as fixed by previous treaties. While the efforts of christian nations have been so successful in suppressing the slave trade upon the west coast of Africa, they have not proved equally effective upon the east coast, where, said Livingstone, "the Manyerma cannibals, among whom I spent nearly two years, are innocents compared with nw unprotected Banian fellow subjects. By their Arab agents, they compass the destruction of more human lives in one year than the Manyerma do for their fleshpots in ten — the captives are not traded for, but murdered for, and the gangs which are dragged coastwise, are usually not slaves, but captive free people," The indignant representa- tions of Livingstone reached the British ministry in 1872, through the agency of Stanley, the explorer, and in the following August, when proroguing par- liament, the queen said: "My government has taken steps intended to prepare the way for dealing more effectually with the slave trade on the east coast of Africa." The most effective steps in the suppression of the trade, will doubtless result from those recent explorations, which have revealed the vast capabil- ities oftho.se hitherto secluded regions, — their fertil- ity of soil, facilities for water transportation and their large population, — which invite with strongest force the vivifying touch of enlightcnd and progres- *3 I I I ■r, •I f tfi P O L 1 '1' I C A L CONTROVERSIES sive intellect. Civilized nations have finally be- come aroused to the importance of these new and opening fields of commerce, and are striving by am- icable negotiations, to determine their relative rights to their use and occupancy. Their advance implies warfare upon the internal and external African slave trade. Perhaps, however, the entire suppression of the trade in the interior of Africa, the complete de- struction of the supply of slaves for exportation and the obliteration of the revolting picture drawn by Livingstone, cannot be expected until the dark and degraded sections in that quarter of tiiv. globe, shall be reached by the advancing light of Christianity and civilization, aided by the genial and invigorating influence of modern commercial enterprise. li I CHAPTER VII. EXTRADITION. By the treaty of 1794, provision was made for the extradition of any person accused of murder or forgery upon such evidence as would be required to establish criminality for the offense and authorize commitment under the laws of the country where he should be found. By the treaty of Washington, negotiated in 1842, the schedule of offenses was so enlarged as to include murder, attempts to murder, forgery, the uttering of forged paper, piracy, rob- bery and arson. Soon after the treaty of 1794 went into effect, and during the administration of John Adams, a requisition was made by the British gov- ernment, for the surrender of one Thomas Nash, claimed as a British subject and charged with the crime of murder, while attempting to escape from a British frigate. He asserted that he was an Amer- ican citizen, known as Jonathan Robbins, and that he had been impressed into the British navy. His statements were not authenticated to the satisfac- tion of the American authorities, his surrender was made, and he was tried by a court martial, found guilty and executed. It was reported that, before execution, he admitted that he was not an Ameri- can citizen, but an Irishman. The surrender was met by a strong current of opposition in the United States, and the conduct of the executive was bitter- ly denounced. Conspicuous among his assailants, were Edward Livingston, Albert Gallatin and John Randolph, all, for many years, prominently identi- fied with the political history of the United States i8o p o L rr I C A L C O N r R O V E U S I E s To give congressional expression to the popular dis- content and indignation, a resolution was finally in- troduced into the house of representatives by Liv- ingston for the purpose of condemning the action of the president. This at once encountered strong and able resistance. James A. Bayard of Delaware, John Marshall of Virginia, and other eminent men of that day, displayed signal ability in his defense. Marshall's speech on the occasion was looked upon as a masterly argument, logical and compact, and a profound exposition of the duty of the government under the treaty. Nash had alleged under oath that he was a native of Danbury in the state of Connecticut, but his statement was disproved. At that time, however, when England was exercising with high and arbitrary hand, her practice of im- pressment, his appeal for protection, at first, made a profound impression upon the American people. Mr. Marshall undoubtedly expressed their feelings, when he declared that he fully concurred with Mr. Gallatin, in the opinion, that an American seaman, who had been impressed and who committed homi- cide in attempting to escape from his involuntary service, should not be given up as a murderer. Mr. Livingston, on the other side, said that he believed that Nash was an Irishman, and was guilty of the crime with which he was charged. His resolution, however, was not framed with reference to those points, but upon the theory that he had not been allowed that judicial investigation of the facts, which he was entitled to under the treaty and the laws of the country. In combatting this view, Marshall, afterward, for a long time the illustrious UNTIKD STATES GREAT BRITAIN. i8i chief justice of the United States court, insisted that the case of Nash was .unquestionably within the purview of the 27th article of the treaty, that it was a proper question for executive and not judicial de- cision, and that the president, by his course, had not interfered with judicial decisions. The debate was a protracted one, and finally resulted in the de- feat of the resolution by a vote of 62 to 35. The discussion, while it allayed the public excitement, vindicated the good faith of the American people in fulfilling treaty obligations. Disagreements subsequently arose between the two governments as to the requirements of interna- tional law and as to the obligations and construc- tions of treaties in matters of extradition. This an- tagonism was strongly presented, when the United States demanded the surrender of persons claimed as slaves and found within the British dominions. Admitting that the treaty of 1794. was in force, the escape of a slave into British territory, was not an extradition offense, but to make it such, Mr. Clay, secretary of state under J. Q. Adams, and presuma- bly with his concurrence, instructed Mr. Gallatin, the American minister at the court of St. James, to propose a stipulation for "a mutual surrender of all persons held to service or labor, who escape into the territories of the other," and suggested the ben- efits of such a stipulation to West India planters. In 1827, Mr. Barbour, the successor of Mr. Gallatin, was directed to renew the application, but the Brit- ish minister replied that "the law of parliament gave freedom to every slave, who effected his land- ing on British grounds." |v 1 82 P()MTICAI< CONTROVKKSI KS \t Prior to 1 840, several American vessels, with slaves on board, were either wrecked upon the coast or forced into the ports of the British colonial islands through stress of weather, and the slaves were de- clared free by the English authorities. Damages were claimed of England for their liberation, and on the 25th of January, 1840, the president announced by message, that England was prepared to pay ;^23,500, that that sum was granted to cover two or three cases only, and that in the future, all such claims would be refused. The payment was allowed for those liberated before the abolition of slav- ery in the British West India islands. The position assumed by Great Britain was bitterly assailed in the United States, and the American senate unanimously declared by resolutions, that a vessel on the high seas, in time of peace, engaged in a lawful voyage, is, according to the law of nations, under the exclusive jurisdiction of the state to which her flag belongs, as much so as if constituting a part of its own domain; and if forced by stress of weather or other unavoidable cause into the port and under the jurisdiction of a friendly power, she and her cargo and persons on board, with all the rights as established by the laws of the state to which they belong, would be placed under the protection which, the law of nations ex- tends to the unfortunate under such circumstances; and that the liberation of slaves, placed by stress of weather within their jurisdiction, by the English local authorities, was an act in violation of the law of nations, and unjust to the American citizens to whom they belonged. \> UNITKD STATES-GREAT BRITAIN. 183 :x- [es; of ish aw to While regretting the introduction of the resolu- tions as tending to no benefit, Mr. Clay said that he approved of them as correct in principle; that if a negotiation were pending, they might exercise some influence, but in the present case, where the lan- guage of Lord Palmerston was so strong as to for- bid the expectation of a resumption of negotiation, he saw no utility in their adoption. While such was the position taken by Great Hritain as to cases arising prior to 1840, another case arose in 1841, which brought into question the treaty of 1794, which provided for the surrender of a certain class of crijTiinals. In October, 1841, the brig Creole, employed in transporting slaves from Richmond, Virginia, to New Orleans, was seized by the slaves, who killed one man, wounded the captain and two of the crew, and succeeded in taking the vessel into the port of Nassau, in the British island of New Providence. Upon investigation, nineteen of them were impris- oned by the local authorities, as having participated in the seizure, and the matter was referred to the British government for advice and instruction. In January,. 1842, Mr. Webster, secretary of state, instructed the American minister in London to present the case to the British government with a distinct declaration that, if the facts turn out as stated, it was a clear case for indemnification. In England, it was alleged that there were no existing treaty stipulations or international law un- der which the parties implicated in the seizure of the Creole, could be. claimed, and under this view, their surrender was refused and their release ordered. »4 '' I i ■ ^. vO^ ^^"^ V^<^ IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 1.1 11.25 25 2.2 lU ■a I u WMU US izo IJi& 6" ScMices Carporatioii \ 23 WMT iMAIN STRHT WIISTIR.N.Y. I4SM ( 71* ) •73-4503 4^ Ik. \ wm v> vV MiK ■84 POLITICAL CONTROVERSIES When negotiating the treaty of 1842, Mr. Web- ster proposed to incorporate an article providing for the restitution of vessels with slaves on board, if driven by stress of weather or taken by force to one of the British islands, while on a voyage through the channel between the Bahama islands and the coastof the United States. Such a provision would have included such a case as that of the Creole. In a communication to the British negotiator, he ar- gued the importance of such an arrangement with great earnestnt 2 and ability, contending that, even in the absence of a treaty stipulation upon the sub- ject, such restitut' .:- was required by international law, and especial';, // the laws of hospitality. Lord Ashburton replied, that such was the feeling in Eng- land upon the subject of slavery, that the question was one of extreme delicacy for the British ministry to handle, ani that he thought that the transfer of the negotiation upon it to London, would eventual- ly conduce to an arrangement that would prove- more satisfactory to both parties. While startled by some of the statements, he admitted the great force of Mr. Webster's arguments, and awaiting the decision of his government, he engaged that, in the mean time, instructions should be issued to the gov- ernors of the islands, that, in executing their own laws, they observe the laws and duties of hospitality, and that these do not justify any further inquisition into the state of persons or things on board of a ves- .sel, than may be indispensible for the enforcement of the municipal law of the colony, and for the prop- er regulation of its harbors and waters. Whatever expectations were produced by the communication UNITED STATES- GREAT BRITAIN. 185 of Lord Ashburton, they Were dispelled by the de- cision in the case of the Creole, and, however much this may have been due to the anti-slavery feeling of England, as far as it rested upon international law, it stands forth in direct antagonism, not only with the argument of Mr. Webster, but with the doctrine laid down by the unanimous vote of the United States senate. After the treaty of Washington in 1842, was con- cluded, an act was passed by the British parliament in 1843, providing for the surrender of a person claimed under the treaty, who was to be delivered to an officer to be conveyed to the United States **to be tried foe the crime of which such person should be so accused." Criminals were mutually surrendered under the treaty until a question was raised in the case of Bur- ley, who was surrendered by the Canadian authori- ties in 1865, on a charge .of robbery, as to the right of the United States to put him on trial for any other offense. To prevent this, an appeal was made to the British government, but Earl Russell, secretary of foreign affairs, replied that it would be a breach of good faith, against which her majesty's government might justly remonstrate, to obtain the extradition of Burley for one offense and put him on trial for another, but that if the United States should bona fide pu<: him on trial for the offense, on account of which he was given up, "that it would be difficult to question the right of that government to put him upon his trial for piracy, also for any other offense which he may be accused of having com- mitted within their territory, whether such qffense i86 POLITICAL CONTROVERSIES was or was not a ground of extradition, or even within the treaty." In January, 1871, a similar question was raised in the case of one Caldwell, who, in a petition to the governor-general of Canada, averred that he had been extradited on a charge of forgery, and had been indicted and was about to be tried in the cir- cuit court of the southern district of New York for an offense, which did not come within the schedule of extradition crimes. He also raised the same point before the circuit court, but Benedict, judge, decided against him, and, as a precedent, referred to the case of Heilbroun, whc ^ras surrendered to Great Britain on a charge of forgery, but who, on his arrival in Great Britain, was indicted and con- victed of embezzlement, which was not an extradi- tion offense, and upon the same facts which had been claimed before the commissioners as justifying his surrender for forgery. The question presented by Caldwell, having been referred by the Canadian department of justice to the home government, Earl Kimberly, secretary of state for the colonies, replied adversely to the grounds assumed in his petition, and that her majes- ty's government were advised "that there is nothing in the convention which would preclude the indict- ment of the petitioner in the United States for an ad- ditional ofifense which is not enumerated in the con- vention so long as such proceedings were not sub- stituted for proceedings against him on the charge by reason of which he was surrendered. Prior to this opinion of the colonial secretary, the British parliament had passed in 1870, an act UNITED STATES — GREAT BRITAIN. 187 which declared that "a fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to her majesty's dominions, be detained or tried in that foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded." After the passage of this act, Great Britain con- tinued to demand the surrender of criminals from the United States without any restrictions except such as were imposed by the treaty itself, and with- out any intimation that it modified the previous practice of the two governments up to the time of the arrest of Ezra D. Winslow in London in Febru- ary, 1876, charged v ,th extensive forgeries. Upon a demand for his surrender, Lord Der^'y, secretary of the foreign office, referring to the cL -n advanced by the United States to try Lawrei>ce, re- cently extradited, for other than the crime for which he was surrendered, declined to order the surrender of Winslow without an assurance that conformed to the parliamentary act of 1870. This the United States refused to gi' e, and after a pro- tracted correspondence, conducted with signal abil- ity by Mr. Fish, the American secretary of state on the one side, and by Lord Derby on the other, re- sulted in the discharge of Winslow on the 17th and of Brent, also accused of forgery, on the, 19th day of June. In the discussion, Lord Derby insisted that, the 188 POLITICAL CONTROVERSIES act of 1870 required nothing under the treaty of 1842, which was not required by international law; that the latter did not permit an extradited crimi- nal to be tried for any offense, other than that for which he was surrendered; that the doctrine of po- litical asylum could only be maintained by such a construction, and that, in subsequent negotiations for a new treaty, the draft, presented by his gov- ernment, included the principle of the act of 1870, which was not objected to by Mr. Fish, who amend- ed it by adding a paragraph, which declared that "no person shall be deemed to have had an oppor- tunity of returning to the country whence he was surrendered, until two months, at least, shr 1 have elapsed after he shall have been set at liberty and free to return." Mr. Fish denied that the construction of- the treaty was in any way affected by international law , and that a subsequent act of parliament, unaccepted by the other side, could either enlarge or dimmish the scope of treaty stipulations; He insisted that the uniform practice and decisions of English, American and Canadian officials and courts for nearly thirty years, had established the right that when a fugitive criminal had been demanded in good faith for a treaty offense and was surrendered and tried therefor, he could be tried for any other of- fense not enumerated in the treaty, unless of a po- litical character, against which the American mind would equally revolt with the English, and against which public opinion in both countries was so hos- tile as not to make it a supposable case. In the course of the discussion, seizing upon some un- UNTIED STATES — GREAT BRITAIN. 189 guarded suggestion of Mr. Hofifman, the United ' States c/tar^^e in London, Lord Derby proposed a new treaty, simply comprising the article in the draft proposed in the negotiation of 1873, with the amendatory paragraph proposed by Mr. Fish. In a conversation which ensued between the American secretary of state and Sir Edward Thornton, the British minister, on the 27th of May, 1876, the for- n er stated that while he might have been willing to have accepted that a tide in a treaty, which should give the United States a larger list of extradition crimes and other advantages as improvements upon the treaty of 1842, it could not be expected that the United States would now relinquish its rights under the treaty without obtaining any of the advantages which it had in view; that he thought it unwise and the time unpropitio''s to attempt to patch up the treaty of 1842, but tliat the United States would not object in any future negotiations that a treaty should provide that a surrendered criminal should not be tried for any crime that was not enumerated as an extradition crime, and should not be tried for any political offense. On the 2oth of June, President Grant transmit- ted a message to congress, calling the attention of that body to the discharge of Winslow and Brent and to the position assumed by the British govern- ment under the act of parliament of 1870. He said that this act was brought to the notice of the Amer- ican government soon after its enactment; that her majesty's government was advised that the United States understood that it made no change in the obligations under the treaty of 1842; that, without 190 POLITICAL CONTROVERSIES any dissent from this view, both governments had continued to make requisitions as formerly, until now for the first time, it is proposed in the case of Winslow, to depart from a practice that had ob- tained for more than thirty years and it is assumed thut under the act of 1870, the British government may require stipulations not embraced in the treaty as a condition for the surrender of a criminal claimed under its provisions, and that the claims now put forth by the British government, he had felt it his duty emphatically to repel. The posi- tion of the British government, he thought, if ad- hered to, could not but be regarded as the abroga- tion of the treaty article on extradition, and he de- clared that if the attitude of the British government remained unchanged, he should not, in the absence of an expression of the will of congress to the con- trary, "take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of 1842." In a communication dated the 30th of June, to the American charge, in a reply to a dispatch of Mr. Fish, received on the 6th, Lord Derby says "in the the first place, I must repeat that her majesty's gov- ernment have always maintained that it is an essen- tial principle of extradition as permitted or prac- ticed by this country, that a person surrendered on an extradition treaty, can be tried for the offense for which he is surrendered, and for no other offense previously committed. They have maintained and must continue to maintain that this is the proper construction of the treaty of 1842; that it is the meaning which at the time, was attached and which UNITED STATES- (J k EAT BRITAIN. 191 has since continued to be attached by this country to that treaty, and that it is the meaning^ which they have understood was attached to that treaty by the government of the United. States." After adverting to positions taken by Mr. Fish he said that upon learning that the proposition to add a new article was not acceptable, the British minister at Washington was authorized to propose a new treaty containing the articles agreed ppon in the draft of 1874, with the addition of a further clause intended to meet an objection formerly made by Mr. Fish on a question of procedure in reference to political offenses, and that it was with sincere re- gret that he learned that Mr. F?sh considered it im- possible to negotiate a new treaty under the pres- sure of what he looked upon as a menace of the violation of the treaty of 1842; that while conceding the rectitude of the motives which actuated the United States, he claimed that the same construc- tion should be placed upon the motives of her ma- jesty's government; that his government was per- suaded that to continue to act on the present treaty, with the conflicting constructions placed upon it, would lead to misunderstandings and reclamations of the most serious kind; that, on the other hand, they would deeply deplore that the arrangements for extradition, which had operated so long and so beneficially between the two countries, should be suspended for any length of time; and that his gov- ernment was ready at any moment to join that of the United States in considering without prejudice the terms of a new and, if necessary, an enlarged " extradition treaty, which, while protecting the right of asylum, would afford no impunity to crime. 25 192 POLITICAL C ON T UO V E R S I K S Although the extradition rights and duties of the two countries had been ably discussed in the diplo- matic correspondence, the subject was destined to undergo a thorough and exhaustive debate in the house of lords. In July, Earl Granville, having moved that an address should be presented to her majesty for fur- ther correspondence respecting extradition, subse- quently presented the questions of fact and of law, which he considered applicable to the controversy. He conceded that the negotiations had been con- ducted in a conciliatory spirit by the foreign office, and also, he thought, more consistently than by Mr. Fish, who, during the course of them, had with- drawn concessions previously made, but was, sorry to say that, as regarded the execution of the treaty, his government did not stand as well either as to their law or their policy. The views advanced by Karl Granville and by others, who were among the most eminent members of parliament, on the same side, were met on the other side by Earl Derby and Lord Cairns, then Lord Chancellor, who, with great force, sustained the action and policy of the govern- ment. At an adjourned debate, the Lord Chancel- lor quoted extensively from continental writers, to prove that there is a silent and implied condition in extradition; that the crime must be specified for which the surrender is demanded, and that for that crime alone, can the extradited person be tried. Lord Selborne, who was principal law adviser of the crown in 1865, followed and closed the debate. In the course of his remarks, he said he took excep- tions to two expressions of his learned friend. "He UNTIED STATES GREAT BRITAIN. 193 Spoke of my noble friend (Earl Granville) having adopted the argument of the United States. It may be that the view we take is the same with that which has been taken by the United States, but I protest against it being said that we adopt the ar- guments of the United States. The arguments are our own, the interpretation that of the two govern- ments to which we belonged and that for which I am responsible as the principle law adviser for the crown in 1865. It is our o\Vn view, our own inter- pretation we are justifying, and not the argument of the United States, and I venture to think it can be shown informally to have been the view of the British government, accepted by my noble friend and his colleagues in 1866, and during their present term of oflfice." He asserted that England had never recognized a priori international obligation to grant extradition at all, and that with them it depended entirely upon treaties. He reviewed the argument of the Lord Chancellor at length and as to the political aspect of the case said: "That he admitted that there is a good deal to be said in fa- vor of the argument as to policy in the case of po- litical offenders. This may or may not be a suffi- cient reason for adhering to the policy of the act of 1870. It may or may not be a sufficient reason for doing that which the legislature were not prepared to urge upon the government in 1870; namely, put an end to the American, French and Danish treat- ies, but it cannot have the effect of interpolating into those treaties, by reason of that ulterior conse- quence, conditions which are not there, nor, indeed, so far as the understanding of the two countries is 194 l» O 1. 1 r I C A I. C (> N I k O V E R S I K S concerned, was it necessary to do so, because the United States admit as fully as we do. not that there is in the words of the treaty an implitd ex- ception as regards political offenders, but that, by the understanding of most civilized nations, such offenders cannot be put upon their trial after extra- dition for another offense. I must say, however, that if ever there was a nation which was entitled to confidence in this respect, it is the United States." In support of this assertion, he referred to the treat- ment extended by the American government, after the suppression of the civil war, to those who had attempted to destory the union, and to the facts dc-^ veloped on the trial of the extradited Hurley, which, indicating a political character, the judge pointed out the political complexion of the case and summed up decidedly for an acquittal. At the conclusion of his speech on the 25th of July, Earl Derby saia, in reference to the future course of his government, that nobody was insensi^ bio to the inconvenience that would be caused by an even temporary suspension of extradition, that the two countries have absolutely the same inter- ests, that the differences are not of a kind to be dif- ficult of arrangement, that the negotiation fornierly interrupted would be at once renewed, and if likely to last some time, a provisional arrangement would be aimed at, which shall prevent rascals from bene- fiting by the falling out of honest men. On the 27th of October, the British minister at Washington. informed the secretary of state that he had been instructed by Lord Derby to state that ** her majesty's government having regard to the very I) N I r K I » s r A r k s t; r k a r n u rr a i n. 195 serious inconvenience, and yreat encouragement to crime* which would arise from the continued suspen- sion of the extrsldition of criminals," was ready as a teiDporary measure, and until a new treaty could be made, to enforce the surrender of criminals under the treaty of 1842, without asking for any engage- ment that they should not be tried for other bflfenses than those for which extradition had been demanded with the understanding that either government could terminate the operation of the tenth article of the treaty which provides for the surrender of crim- inals, upon signifying a wish to do so. On the 30th of the same month, the American secretary replied that the: president receiveti with great satisfaction the decision of the British govern- ment, fully appreciated the results referred to, hoped her majesty's government would now take into con- sideration the applications already made for the sur- render of VVinslow, Brent and Gray; and that on indication of a readiness to do so, he would appoint agents to receive them, and be glad to respond to any requisitions which should be made under the tenth article of the treaty of 1842, until such time as it should be abrogated in the manner indicated, or until a more comprehensive arrangement could be effected in regard to the extradition of criminals, with an earnest desire on his part for a mutually sat- isfactory result. The British minister informed the American sec- retary on tile 29th of November, that he had re- ceived a telegram that orders had been issued for the arrest of the three criminals, but that Lord Der- by thought that this should be kept secret as long r96 p o L rr I C A 1, C O N r R O V K I< S I E S as possible, lest they should get notice and escape. Brent was immediately arrested and under- the charge of the American agent, sailed for the United States on the 23rd of December. The other two criminals had not been found at that time, but being informed on that day by a telegram from the Amer- ican minister in London^ of the arrest and departure of Brent, Mr. Fi.sh addressed a note to Sir Edward Thornton^ informing him that he had received infor- mation of the surrender of Brent, of the inability of the British government thus far to secure the arrest of the other two criminals, who were either con- cealed in or had escaped from Great Britain, and the American representative in London having informed him of the sincere desire of her majesty's govern- ment to secure their arrest, that under these circum- stances the President would now be ready to receive and make requisitions. An almost uninterrupted experience of the facil- ity with which criminals, guilty of grave offenses, now escape from the dominions of the one govern- ment, and find refuge and security in those of the other, indicates the great necessity, which exists, for the enlargement of the schedule of crimes as referred to by the American Secretary of state. Public opin- ion in both countries is, undoubtedly, setting strong- ly in that direction, and it is probable that the time is not distant when embezzlers, thieves and swindlers will no longer be permitted to enjoy their plunder and defy justice nearly in the presence of their de- ceived and despoiled victims. THE END. K R R A T A . On page 24, read cruisers for ''enemies^ On page 120, read eleven for "/^//." r..^^!l^'^^ '"' '"'"^^" ^^ paragragh so as to read the secretary of state explains. On page 149, read repress for /-^^^-^^.v.