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 SPEECH 
 
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 HOI. CHARLES S^"M^ 
 
 OF MASSACHUSETTS, 
 
 ON 
 
 VriRITIME RIGHTS; 
 
 1M 
 
 DBLIVERED 
 
 IN THE SENATE OF THE UNITKD STATES. JANUARY 9, 1862. 
 
 S. A. 
 
 WASHINGTON: 
 
 PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
 1862. 
 
l\'' 
 
SPEECH. 
 
 The hour having arrived for the consideration of the spe- 
 cial order, tlie Senate proceeded to consider tlie moftrmof 
 Mr. Sumner, to refer to tlie Coinniittee on Foreign Rela- 
 tions tlio message of the President, received on the 6th 
 instant, relative to the recent removal of certain citizensof 
 the United States from the British mail steamer Trent, by 
 order of Captain Wilkes, in command of the United States 
 war steamer San Jacinto. 
 
 Mr. SUMNER. Mr. President, every princi-- 
 pie of irtternational law, when justly and authori- 
 tatively settled, becomes a safeguard of peace and 
 a landmark of civilization. It constitutes a part 
 of that code which is the supreme law, above all 
 mu nici pal laws, binding the whole Com mo nweallii 
 of Nations. Such a settlement maybe by a general 
 congress of nations, as at Munster, Vienna, or 
 Paris; or it may be through the general accord of 
 treaties; or it maybe by a precedent established 
 under such conspicuous circumstances, with all 
 nations as assenting witnesses, that it shall at once 
 beco me in itsel fa commanding rule of international 
 conduct. Especially is this the case, if disturb- 
 ing pretensions long maintained to the detriment 
 of civilizalion, are practically renounced by the 
 Power whicii has maintained them. Without any 
 congress or treaties, such a precedent has been 
 established. 
 
 Sucli a precedent ought to be considered and 
 understood in its true character. In undertaking 
 to explain it, I stiail speak for myself alone; but 
 I shall speak frankly, according to the wise free- 
 dom of public debate, and the plain teachings of 
 history on the question involved, trusting sin- 
 cerely that what I say may contribute something 
 to elevate the honest patriotism of the country, and 
 perhaps to secure that tranquil judgment which 
 will render this precedent the herald, if not the 
 guardian, of international harmony. 
 
 Two old men and two younger associates, re- 
 cently taken from the British mail packet Trent 
 on the higli seas by order of Captain Wilkes of 
 the United Slates Navy, and afterwards detained 
 in custody at Fort Warren, have been liberated 
 and placed at the disposition of the British Gov- 
 ernment. This has been done at the instance of 
 that Government, courteously conveyed, and 
 founded on the assumption that the original cap- 
 
 ture of the.se men was an act of violence wiiich 
 was an affront to the British flag, and a violation 
 of international law. This is a simple outline of 
 the facts. But in order to appreciate the value of 
 this precedent, there are other matters which must 
 be brought into view. 
 
 These two old men were citizens of the United 
 States, and for many years Senators. Arrogant, 
 audacious, persistent, perfidious — one was the 
 author of the fugitive slave bill, and the other 
 was the chief author of the fillibustering system 
 which has disgraced our national name and dis- 
 turbed our national peace. Occupying places of 
 trust and power in the service of their country, 
 they conspired against it, and at last the secret 
 traitors and conspirators became open rebels. The 
 present rebellion, now surpassing in proportions 
 and also in wickedness any rebellion in history, 
 was from the beginning quickened and promoted 
 by their untiring energies. That country to which 
 they owed love, honor, and obedience, they be- 
 trayed and gave over to violence and outrage. 
 Treason, conspiracy, and rebellion, each in suc- 
 cession, liave acted through them. The incalcu- 
 lable expenditures which now task our national 
 resources — the untold derangement of affairs not 
 only at home but also abroad — the levy of armies 
 almost without an example — the devastation of 
 extended spaces of territory — the plunder of peace- 
 ful ships on the ocean, and the slaughter of fellow- 
 citizens on the murderous battle-field; such are 
 some of the consequences proceeding directly from 
 them. To carry forward still further the gigantic 
 crime of which they were so large a part, these two 
 old men, with their two younger associates, stole 
 from Charleston on board a rebel steamer, and, 
 under cover of darkness and storm, running the 
 surrounding blockaae and avoiding the cruisers in 
 that neighborhood, succeeded in reaching tlie. neu- 
 tral island of Cuba, where, with open display nnd 
 the knowledge of I he British consul, they iinbtticed 
 on board the British mail packet theTi' ■ :. jound 
 for St. Thomas, whence they were to ei!:^ark for 
 England, in which kingdom one >•{ lluiii was to 
 play the part ofembassador of thi: ri 'liion, while 
 the other was to play the same part in France. 
 The original treason, conspiracy, and rebellion of 
 
which they were so heinously guilty, were all 
 continued on this voyage, which became a pro- 
 longaiion of the original crime, destined to still 
 further excess, through their embassadorial pre- 
 tensions, which, it was hoped, would array two 
 great nations against the United States, and enlist 
 tliem openly in behalf of an accursed slaveholding 
 rclii'llion. While on their way, the embassadors 
 were arrested by Captain Wilkes, of the United 
 Stales steamer San Jacinto, an accomplished offi- 
 cer, already well known by his scientific explora- 
 tions, who, on this occasion, acted without in- 
 structions from his Government. If, in this arrest, 
 lie forgot for a moment the fixed policy of the 
 Republic, which has been from the beginning like 
 a frontlet between the eyes, and transcended the 
 law of nations, as the United States have always 
 declared it, his apology must be found in the pa- 
 triotic impulse by which he was inspired, and the 
 British examples which he could not forget. They 
 were the enemies of his country, embodying in 
 themselves the triple essence of worst enmity — 
 treason, conspiracy, and rebellion; and they wore 
 a pretended embassadorial character, which, as he 
 supposed, according to high British authority, 
 rendered them liable to be stopped. If, in the 
 ardor of an honest nature. Captain Wilkes erred, 
 he might well say: 
 
 '• Who can be wise, amazed, temperate, and furious. 
 Loyal and neutral in a moment.' No man. 
 Tlie expedition of my violent love 
 Outfan the pauser reason. 
 
 " Who could refrain 
 That had a heart to love, and in that heart 
 Courage to make liis love known.'" 
 
 If this transaction be regarded exclusively in the 
 lightof British precedents; if we follow the seeming 
 authority of the British admiralty, speaking by 
 its greatest voice; and esfiecially if we accept the 
 oft-repeated example of British cruisers, upheld 
 by the British Government against the oft-repealed 
 protests of the United States, we shall not find it 
 difficult to vindicate it. The act becomes ques- 
 tiotiablc only when brought to the touchstone of 
 these liberal principles, which, from the earliest 
 times, the American Government has openly 
 avowed and sought to advance, and which other 
 European nations have accepted with regard to 
 the sea. Indeed, Great Britain cannot complain 
 e.xcent by now adopting those identical principles; 
 and should we undertake to vindicate the act, it 
 can be done only by repudiating those identical 
 principles. Our two cases will be reversed. In 
 the struggle between Laertes and Hamlet, the two 
 combatants exchanged rapiers; so that Hamlet 
 was armed with the rapier of Laertes and Laertes 
 was armed with the rapier of Hamlet. And now 
 on this sensitive question a similar exchange has 
 occurred. Great Britain is arijied with American 
 principles, while to us is left only those British 
 principles which, throughout our history, have 
 been constantly, deliberately, and solemnly re- 
 jected. 
 
 Earl Russell, in his dispatch to Lord Lyons, 
 communicated to Mr. Seward, contents himself 
 by saying that " it appears that certain individuals 
 have been forcibly taken from on board a British 
 •vessel, the ship of a neutral Power, tchile such ves- 
 
 sel was pursuing a lawful and innocent voyage — an 
 act of violence which was an affront to the British 
 flag, and a violation of international law." Here 
 is a positive assertion that the ship, notoriously 
 having on board the rebel emissaries, was pursu- 
 ing a lawful and innocent voyage; but there is no 
 specification of the precise ground on which the 
 act in question is regarded as a violation of inter- 
 national law. Of course, it is not an aflVont; for 
 an accident can never be an affront to an individ- 
 ual or to a nation. 
 
 But public report, authenticated by the concur- 
 ring testimony of various authorities, English and 
 continental, forbids us to continue ignorant of the 
 precise ground on which this act is presented as 
 a violation of international law. It was admitted 
 that a United States man-of-war, meeting a Brit- 
 ish mail steamer beyond the territorial limits of 
 Great Britain, might subject her to visitation and 
 search; also that the United States ship of war 
 might put a prize crew on board the British 
 steamer, and carry her off to a port of the United 
 Slates for adjudication by a prize court there; but 
 that she would have no right to remove the emis- 
 saries, who were not apparently officers in the 
 military or naval service, and carry them off as 
 prisoners, leaving the ship to pursue her voyage. 
 Under the circumstances, in the exercise of a 
 belligerent right, the British steamer, with all on 
 board, might have been captured and carried off; 
 but accoiding to the Britisli law officers, on whose 
 professional opinion the British cabinet has acted, 
 the whole proceeding was vitiated by the failure 
 to take the packet into port for condemnation. 
 This failure has been the occasion of much unpro- 
 fessional objurgation; and it has been emphatically 
 repeated that it was impossible to consent that the 
 custody of the individuals in question should be 
 determined by a Navy officer on his quarter-deck, 
 so as to supersede the adjudication of a prize court. 
 This has been confidently stated by an English 
 writer, assuming to put the case for his Govern- 
 ment, as follows: 
 
 " It is not to tl'.e right of search that we object, iut to the 
 following seizure wilhout process of law. What we deny is 
 the right of a natal officer to stand in place of a prize court, 
 and adjudicatr, swoid in hand, with a sic volo sic jubeo on 
 the very deck wliich is a part of our territory." 
 
 Thus it appears that the present complaint of 
 the British Government is not founded on the 
 assumption by the American war steamer of the 
 belligerent right of search; nor on the ground that 
 this right was exercised on board a neutral vessel 
 between two neutral ports; nor that it was exer- 
 cised on board a tiiail steamer, sustained by a sub- 
 vention from the Crown, and officered in i)art 
 from the royal navy; nor that it was exercised in a 
 case where the penalties of contraband could not 
 attach; but it is founded simply and precisely on 
 the idea that persons other than ajiparent officers 
 in the military or naval service, cannot be taken 
 out of a neutral ship at the mere will of the officer 
 who exercises the right of search, and without any 
 form of trial. Therefore, the law of nations has 
 been violated, and the conduct of Captain Wilkes 
 must be disavowed, while men, who are traitors, 
 conspirators, and rebels, all in one, are allowed 
 to go free. 
 
s 
 
 Surely, thnt criminals, tliongli dyed in guilt, 
 should go free, is better than thnt the law of na- 
 tions should be violated, especially in any rule by 
 which war is restricted and the mood of peace is 
 enlarged; for the law of nations cannot be violated 
 without overturning the protection of the innocent 
 as well as the guilty. On this general princijile 
 there can be no question. It is but an illustration 
 of thnt important maxim, recorded in the Latin of 
 Fortescu'^ " Better that manvguilty should escape 
 than one innocent man should suffer," with this 
 difference, that in the present case four guilty men 
 escape, while the innocent everywhere on the sea 
 obtain new security. And this security becomes 
 more valuable as a triumph of civilization, when 
 it is considered that it v/as long refused, even at 
 the cannon's mouth. 
 
 Do not forget, sir, that the question involved in 
 this controversy is stricthj a question of law — pre- 
 cisely like a question of trespass between two 
 neighbors. The British cabinet began proceed- 
 ings by taking the opinion of their law advisers, 
 precisely as an individual begins proceedings in 
 a suit at law by taking the opinion of his attor- 
 ney. To make such a question a case of %oar, or 
 to suggest that war is a proper mode of deciding 
 it, is simply to revive, in colossal proportions, the 
 exploded Ordeal by Battle, and to imitate those 
 dark ages when such proceeding was openly de- 
 clared to be the best and most honorable mode of 
 deciding even an abstract point of law. " It was 
 a matter of doubt and dispute," says a medifeval 
 historian, " whether the sons of a son ought to 
 be reckoned among the children of the family, 
 and succeed equally with their uncles, if their 
 father happened to die while their grandfather was 
 alive. An assembly was called to deliberate on 
 this point, and it was the general opinion that it 
 ought to be remitted to the examination and de- 
 cision of judges. But the emperor, following a 
 better course, and desirous of dealing honorably 
 with his people and nobles, appointed the matter 
 to be decided by battle between two champions." 
 In similar spirit has it been latterly proposed, 
 amidst the amazement of the civilized world, to 
 withdraw the point of law, now raised by Great 
 Britain, from peacefuladjudication and submitit to 
 Trial by Combat. But the irrational anachronism 
 of such a proposition becomes more flagrant from 
 the inconsistency of the party which makes it; 
 for it cannot be forgotten that, in times past, on 
 this identical point of law, Great Britain persist- 
 ently held an opjiosite ground from that which she 
 now takes. Perhaps hereafter, in a happier mo- 
 ment, this exacting Power may be disposed to 
 regret the swiftness with which she undertook to 
 gird herself for such an unnatural combat, on a 
 mere point of law, with a friendly nation already 
 struggling against domestic enemies — especially, 
 as impartial history must record that her heavy 
 sword was to be thrown into the scales of sla- 
 very. 
 
 The British complaint seems to have been nar- 
 rowed down to a single point; but it is not to be 
 disguised that there arc yet other points on which, 
 had the ship been carried into port for adjudica- 
 tion, controversy must have arisen. Not to omit 
 anything important, let me say that the four fol- 
 
 lowingpoints, among others, have been presented 
 in the case: 
 
 1. That the seizure of the rebel emissaries, 
 without taking the ship into port, was wrong, 
 inasmuch as a J^avy officer is not entitled to substi- 
 tute himself for a judicial tribunal. 
 
 2. That had the ship been carried into port, it 
 would not have been liable on account of the rebel 
 emissaries, inasmuch as neutral ships are free to 
 carry all persons not apparently in the military 
 or naval service of the enemy. 
 
 3. Arc dispatches contraband of war, so as to 
 render the ship liable to seizure? 
 
 4. Are neutral ships, carryingdispatches, liable 
 to be stopped between two neutral ports? 
 
 These matters I shall consider in their order, 
 giving special attention to the first, which is the 
 pivot of the British complaint. If in this discus- 
 sion I shall expose grievances which it were better 
 to forget, be assured it is from no willingness to 
 revive the buried animosities they once so' justly 
 aroused, but simply to exhibit the proud position 
 on this question which the United States early and 
 constantly maintained. 
 
 A question of international law should not be 
 presented on any mere ai-gumentum ad hominem. 
 It would be of little value to show that Captain 
 Wilkes was sustained by British authority and 
 practice, if he were condemned by international 
 law as interpreted by his own country. It belongs 
 to us now, nay, let it be our pride, at any cost of 
 individual prepossessionsor transitory prejudices, 
 to uphold that law in all its force, as it was often 
 declared by the best men in our history, and illus- 
 trated by national acts; and letus seize the present 
 occasion to consecrate its positive and unequivo- 
 cal recognition. In exchange for the prisoners 
 set free, we receive from Great Britain a practical 
 assent, too long deferred, to a principle early pro- 
 pounded by our country, and standing forth on 
 every page of our history. The same voice which 
 asks for their liberation, renounces in the same 
 l)reath an odious pretension, for whole genera- 
 tions the scourge of peaceful commerce. 
 
 Great Britain throughout her municipal history 
 has practically contributed to the establishment of 
 freedom beyond all other nations. There are at 
 least seven institutions or principles which she 
 has given to civilization: first, the trial by jur^ . 
 secondly, the writ of habeas corjnis; thirdly, t' <■ 
 freedom of the press; fourthly, bills of ri^ii— • 
 fifthly, the representative system; sixt'^ly, ' '' 
 rulesand orders ofdebate,constitutingpa. ' un^''^".^' 
 ary law; and seventhly, the principle t'lai f-lie air 
 is too pure for a slave to breathe — I .g- "?^ ^' 
 clarcd and first made a reality by Bri isi" '.-'W- ^^ 
 other nation can show such peac lu'' triumphs. 
 But while thus entitled to our gr.H!' ""t^ 'O'" gio>"'- 
 ous contributions to municipal i.i v'-. w*j U\vn with 
 dissent and sorrow from mi I' \\'iich she has 
 sought to fasten upon internet! ^'"'*^1 'aw. In nau- 
 nicipal questions, Gretit Pnt-^i'i arew in-spiration 
 from her own native com m"" jaw, which was 
 instinct with freedom: u.-^ especially in maritime 
 questions arising unde- <••'« '^w of nations this 
 Power seems to hav^-^ «c'ed ontlmt obnoxious 
 principle of the Ronxi"" 'aw, positively discarded 
 in municipal quest^^ons, Q,uod prtncipi plactiil kgis 
 
6 
 
 vigoremhabet, and too often, under thisinspiration, 
 to have imposed upon weaker nations her own 
 arbitrary will. The time lias been when she pre- 
 tended to sovereignty over the seas surrounding 
 the British isles, as far as Cape Finisterre to the 
 south, and Vanstaten in Norway to the north. But 
 driven from tiiis Princely pretension, other preten- 
 sions, less local but hardly less offensive, were 
 avowed. The boast of " Rule, Britannia, rule the 
 waves," was practically adopted by British courts 
 of admiralty, and universal maritime rights were 
 subjected to the special exigencies of British inter- 
 ests. In the consciousness of strength, and with a 
 navy tiiat could not be opposed, this Power has 
 put chains upon the sea. 
 
 Tlie commerce of the United States, as it began 
 to whiten the ocean, was cruelly decimated by 
 these arbitrary pretensions. American ships and 
 cargoes, while, in the language of Earl Russell, 
 " pursuing a lawful and innocent voyage," suf- 
 fi-redfrom the British admiralty courts more than 
 from rock or tempest. Shi|)wreck was less fre- 
 quent than confiscation; and when it came, it was 
 easier to bear. But the loss of property stung 
 less than the outrage of impressment, by which 
 foreigners, under the protection of the American 
 flajj;, and also American citizens, without any 
 form of trial, and at the mere mandate of a navy 
 officer, who for the moment acted as a judicial 
 tribunal, were dragged away from the deck which 
 should have been to them a sacred altar. This 
 outrage, which was feebly vindicated by the mu- 
 nicipal claim of Great Britain to the services of 
 her own subjects, was enforced arrogantly and 
 perpetually on the high seas, where municipal 
 law is silent and international law alone prevails. 
 The belligerent right of search, derived from in- 
 ternational law, was employed for this piu'pose, 
 and the cpiarter-deck of every British cruiser was 
 madeafloatingjudgment-seat. Thepractice began 
 early, and was continued constantly; nor did it 
 discriminate among its victims. It is mentioned 
 by Mr. .TeiTerson, and repeated i)y a British writer 
 on international law, that two nephews of Wash- 
 ington, on their way home from Europe, were 
 ravished from tin; protection of the American flag, 
 without any judicial ])roceedings, and placed as 
 common seamen under the ordinary discipline of 
 British ships of war. The victims were counted 
 by thousands. Lord Castlereagh himself admit- 
 ted, on the floor of the House of Commons, that 
 ^'t inquiry instituted by the British Government 
 haul iJiscQvered in the British fleet three thou- 
 sand five hundred men claiming to be impressed 
 Ameriu,.^i,g_ ^i our Department of State six 
 thousand cases were recorded, and it was es- 
 timated th.^t jjt least as many more might have 
 occurred, ot- which no information had been re- 
 ceived. Ihus, according to this official admission 
 of the British in-iinister, there was reason to be- 
 lieve that the qua i-tei-deck of a British man-of- 
 war had been made a floating judgment-seat three 
 thousand five hundre.j ti^es, while, according to 
 the records of our owii State Department, it had 
 been made a floating judi^,neiu-seat six thousand 
 times and upwards; and e«,ch time an American 
 citizen had been taken from the protection of his 
 flag without any form of trial known to the law. 
 
 If a pretension so intrinsically lawless could be 
 sanctioned by precedent. Great Britain would 
 have succeeded in interpolating it into the law of 
 nations. 
 
 Protest, argument, negotiation, correspondence, 
 and war itself — unhappily the last reason of re- 
 publics as of kings — were all employed in vain by 
 the United States to procure a renunciation of this 
 intolerable pretension. The ablest papers in our 
 diplomatic history are devoted to this ]iurpose; 
 and the only serious war in which we have been 
 engaged, until summoned to encounter this rebel- 
 lion, was to overcome by arms this very pretension 
 which would not yield to reason. Beginning in 
 the last century, the correspondence is at last 
 closed by the recent reply of IMr. Seward to Lord 
 Lyons. The long-continued occasion of conflict 
 is now happily removed, and the pretension dis- 
 appears forever — to take its place among the curi- 
 osities of the past. 
 
 But I do not content myself with asserting the 
 persistent opposition of the American Govern- 
 ment. It belongs to the argument, that I should 
 exhibit this opposition and the precise ground on 
 which it was placed — being identical with that now 
 adopted by Great Britain. And here the testimony 
 is complete. If you will kindly follow me, you 
 shall see it from the beginning in the public life 
 of our country, and in the authentic records of 
 our Government. 
 
 This British pretension aroused and startled the 
 Administration of Washington, and the pen of 
 IVIr. Jeflerson,his Secretary of State, was enlisted 
 against it. In a letter to Thomas Pinckney, our 
 minister at London, dated June 11, 1792, he said: 
 
 "The simplest rule will be that the vessel beiii!; Ameri- 
 can shall be evidence that the seamen on board her are 
 such." 
 
 In another letter to the same minister, dated 
 October 12, 1792, he calls attention to a case of 
 special outrage, as follows: 
 
 " I inclose you a copy of a letter from Messrs. Blow and 
 Melliaddo, merchants of Virfjinia, complainin« of the fnking 
 away of their sailors on the coast of Africa by the com- 
 mander of a British armed vessel. So many instances of 
 lliis kind have liappencd that it is quite necessary that their 
 Government should explain themselves on the subject, and 
 be led to disavow and punish such conduct." — State Papers, 
 vol. 3, p. .574. 
 
 The same British pretension was put forth un- 
 der the Administration of John Adams, and was 
 again encountered. Mr. Pickering, at that time 
 Secretary of State, in a letter to Rufus King, our 
 minister at London, dated June 8, 1796, after re- 
 peating the rule proposed by Mr. Jefferson, says: 
 
 " But it will l)e an important point gained, if on the high 
 seas our flag ca« protect those of whatever nation wlio shall 
 saiHindcr it. And for this hinnanity, as well as interest, 
 powerfully pleads." — State Papers, vol. 3, p. 574. 
 
 And again, at a later day, during the same Ad- 
 ministration, Mr. Marsiiall, afterwards the ven- 
 erated Chief Justice of the United States, and at 
 the time Secretary of State, in his instructions to 
 Rufus King, at London , dated September 20, 1300, 
 says: 
 
 "The impressment of our seamen is an injury of very 
 serious magnitude, which deeply atrects the feelings and 
 the honor of the nation." * * * * "Alien 
 
!<e€'imen,not British subjects, engaged in our morcliant ser- 
 vice, ought to be equally exempt with citizens. Britain has 
 no pretext of right to their persons or to tlieir service. To 
 tear tkemfrom our posscsaion is at the same time an i/isult 
 and an injury. It is an act of violence for which there exists 
 no palliative." — State Papers, vol. 2, p. 489. 
 
 The same British pretension sliowed itself con- 
 stantly under the Administration of Mr. Jefferson. 
 Throughout the eight years of his Presidency, the 
 repeated outrages of British cruisers never for a 
 moment allowed it to be forgotten. Mr. Madison 
 during this full period was Secretary of State, and 
 none of the varied productions of his pen are more 
 masterly than those in which he exposed the tyr- 
 anny of this pretension. In the course of this 
 discussion he showed the special hardship found 
 in the fact that the sailors were taken from the 
 ship at the mere will of an officer, without any 
 form of judicial proceedings, and thus early pre- 
 sented against the pretension of Great Britain the 
 precise objection which is now adopted by her. 
 Here are his emphatic words, in his celebrated 
 instructions to Mr. Monroe, at that time our min- 
 ister at London, dated January 5, 1804: 
 
 " Taking reason and justice for the tests of this practice, 
 il i^ peculiarly indefensible, because it deprives the dearest 
 riiihts of persons of aregular trial, to which the most incon- 
 siderable article of property captured on the high seas is 
 entitled, and leaves the destiny to the will of an officer, 
 sometimes cruel, often ignoraiit, and generally interested, 
 by want of mariiicrs, in his own decisions. Whenever 
 property found in a neutral vessel is supposed to be liable, 
 on any ground, to capture and condemnation, the rule in 
 all eases is, that the question shall not be decided by the 
 captor, but be carried before a legal tribunal, where a reg- 
 ular trial may be had, and where the captor himself is liable 
 to damages tor an abuse of his power. Can it be reason- 
 able, then, or just, that a belligerent commander who is 
 Uius restricted, and thus responsible in a case of mere prop- 
 erty of trivial amount, should be permitted, without recur- 
 ring to any tribunal whateocr, to examine the crew of a neu- 
 tral vessel, to decide the important question of their respective 
 allegiances, and to carry that decision into execution by 
 forcing every individual he may choose into a service ab- 
 horrent to his feelings, cutting him off from his most tender 
 connections, exposing his mind and his person to the most 
 humiliating discipline, and his life itself to the greatest 
 danger? Reason, justice, and humanity unite in protest- 
 ing against so extravagant a proceeding." — State Papers, 
 vol. 3, p. 84. 
 
 Negotiations, on this principle, thus distinctly 
 declared, were intrustedat London to James Mon- 
 roe, afterwards President of the United States, and 
 to William Pinkney, the most accomplished mas- 
 ter of prize law which our country has produced. 
 But they were unsuccessful. Great Britain per- 
 sisted. In a joint letter dated at London, Septem- 
 ber 11, 1806, the plenipotentiaries say: 
 
 "That it was impossible that we should acknowledge in 
 favor of any foreign Power the claim to such jurisdiction on 
 hoard our vessels found upon the main ocean, as this sort of 
 impressment implied—^ claim as plainly inadmissible in its 
 principle, and derogating from the unquestionable rights of 
 our sovereignty, as it was vexatious in its practical conse- 
 quences." — State Papers, vol. 3, p. 134. 
 
 In anotherjoint letter dated at London, Novem- 
 ber 11, 1806, the same plenipotentiaries say: 
 
 "The right was denied by the Britisli commissioners, 
 who asserted that of their Government to seize its subjects 
 on board neutral merchant, vessels on the high seas, and who 
 also urged that the reliiK)Uishmentof it at this time would 
 JO far to the ovirtiir<!W of their naval power, on which the 
 safety of the stfitt- e^jsentially depended."— Sfaie Papers, 
 vol. 3, p. 133. 
 
 In still another letter, dated at London, April 
 22, 1807, Messrs. Monroe and Pinkney say of the 
 British commissioners: 
 
 " They stated that the prejudice of the navy and of Uie 
 country generally was so strongin favor of their jiretension 
 that the ministry could not encounter it in a direct form ; 
 and that in truth the support of Parliament could not have 
 been relied on in such a ca.se."— State Papers, vol. 3, p. 160. 
 
 The British commissioners were two excellent 
 persons. Lord Holland and Lord Auckland; but 
 though friendly to the United States in their 
 declarations, and Liberals in politics, they were 
 powerless. 
 
 At home in the United States the question con- 
 tinued to be discussed by able writers. Among 
 those, whose opinions were of the highest author- 
 ity, was the late President, John Adams, who 
 from his retirement at duincy sent forth a pam- 
 phlet, dated January 9, 1809, in which the British 
 pretension was touched to the quick; and again 
 the precise objection was presented which is now 
 urged by Great Britain. Depicting the scene 
 when one of our ships is encountered by a British 
 cruiser, he says: 
 
 "The lieutenant is to be the judge, the midshipman is 
 to be clerk, and the boatswain sheriff or marshal." * * 
 * * " It is impossible to figure to ourselves, in imagin- 
 ation, this solemn tribunal and venerable judge without 
 smiling, till the humiliation of our country conies into our 
 thoughts and interrupts the sense of ridicule by the tears of 
 grief or vengeance." — John Jldams-s JVorks, vol. 9, p. 322. 
 
 At last all redress through negotiation was 
 found to be impossible; and this pretension, ag- 
 gravated into multitudinous tyranny, was openly 
 announced to be one of the principal reasons for 
 the declaration of war against Great Britain in 
 1812. In his message to Congress, dated June l,of 
 that year, Mr. Madison, who was now President, 
 thusexposed the offensive characterof this preten- 
 sion; and his words, directed against a per.sistent 
 practice, are now echoed by Great Britain, in the 
 single instance which has accidentally occurred: 
 
 "Could the seizure of British subjects in such cases be 
 regarded as within the exercise of a belligerent right, the 
 acknowledged laws of war, which forbid an article of cap- 
 tured property to be adjudged without a regular investiga- 
 tion before a competent tribunal, u'OuM imperiously demaud 
 the fairest trial where the sacred rights of persons were n-l 
 issue. In place of such a trial, these rights are subjected to 
 the will of every petty commander." — Statesman's Manital- 
 vol. 1, p. 294. 
 
 While the war was waging the subject %v as still 
 discussed. Mr. Grundy, of Tennr.sscc, in the 
 House of Representatives, in a report- from the 
 Committee on Foreign Affairs, said: 
 
 " A subaltern or any other officer of i-iie British navy 
 ought not to be arbiter in such a case. The luierty and lives 
 of American citizens ought not to depend on the will ol 
 such a party."— Stete Papers, vol. 3 >»• 605. 
 
 Such was the American ground. The British pre- 
 tension was unhesitatingly j^roolaimed in the dec- 
 laration of the Prince Re;;' liL, afterwards George 
 IV, given at the palace u( Westminster, January 
 9, 1813: 
 
 "The President of iti' united States has, it is true, since 
 proposed to Great T;i.'--.aan armistice; not, however, on 
 the admission that m > cause of war hitherto relied on was 
 removed; but on c ndition that Great Britain, as a prelim- 
 inarv step, sbi jl.i Jo away a cause of war now brought 
 
8 
 
 forward as suck for the first time, namt.'ly, that she should 
 abandon Ike exercise of her undoubted right of search to 
 take from ^imcrican merchant vessels British seamen, the 
 natural-horn suhjects of his Majesty. 
 
 " His Koyal Higliness can never admit that, in the exer- 
 cise of the UNDOUBTKD and hitherto undisinUed ri«ht of 
 searching neutral merchant vessels in time of war, the impress- 
 mcTit of British seamen, when found therein, ca7i be deemed 
 any violation of a neutral flas,- Neither can he admit that 
 the taking of sucli seamen from on board such vessels can 
 he considered by any neutral State as a hostile measure or a 
 justifiable cause of war." 
 
 The war was closed by the treaty at Ghent; but 
 perversely the British pretension was not re- 
 nounced. Other negrotiations in 1818, under Pres- 
 ident iMonroe; in 1823, also under iVIonroe; and 
 again in 1827, under John Q,uincy Adams, ex- 
 pressly to procure its renunciation, were all un- 
 availing. Of these various negotiations, 1 forbear 
 all details: but the language of Mr. Rush, our 
 minister at London, who pressed this question 
 assdiuousiy for several years, beginning with 1818, 
 should not be omitted. The case was never stated 
 more strongly: 
 
 "Let the steps by which the enforcement proceeds be 
 attended to. A British frigate, in time of war, meets an 
 American merchant vessel at sea, boards her, and, under 
 terror of her guns, takes out one of the crew. The board- 
 ing lieutenant asserts, and, let it be admitted, believes, tlie 
 man to be a Briton. By this proceeding the rules observed 
 in deciding upon any other fact where individual or na- 
 tional riglits are at stake, are wholly overlooked. The lieu- 
 tenant is accuser and judge. He decides uj)on his own view 
 entirely. The case ends. No appeal follows. There is no 
 trial of any kind. More in)portant still, there is no remedy 
 Bhould it appear that a wronghas been committed." — Rushes 
 Residence at the Court of London. 
 
 At last, in 1842, at the treaty of Washington, 
 Mr. Webster, calmly setting aside all idea of fur- 
 ther negotiation on this pretension, and without 
 even proposing any stipulation with regard to it, 
 deliberately announced the principle irrevocably 
 adopted by our Government. It was the princi- 
 ple early announced at the beginning of the Re- 
 public by Mr. Jefterson. This dispatch is one of 
 the most memorable in our history, and it bears 
 directly on the existing controversy when, in ex- 
 posing the British pretension, it says: 
 
 '' But the lieutenant of a man-of-war, having necessity 
 for men, is apt to he a summary judge, and his deeisioHS will 
 bt; quite as significant of his own wants and his own power 
 '■ts nf the truth and justice of the case." — JVebster's }^'orks, 
 vol. 6, p. 3-23. 
 
 At te later day still, on the very eve of recent 
 events, we find General Cass, as Secretary of 
 State, in his elaborate instructions to our minis- 
 ters in Europe, dated 27lh June, 1859, declaring 
 principles which may properly control the pres- 
 ent question. He says: 
 
 " It is obvious, from the temper of the age, that the pres- 
 ent is no safe time tc assert and enforce pretensions on the 
 part of belligerent Powers atfecting the interest of nations 
 at peace, unless such pretensions are clearly justified by the 
 law of nations." * * * * "'I'he stopping of 
 neutral vessels upon the high seas, their forcible entrance, 
 and the overhauling and examination of their cargoes, the 
 seizure of their freight, at thb will of a foreign officer, the 
 frequent interruption of their ve)yages by compelling them 
 to change their destination, in order to seek redress ; and, 
 above all, the abuses which are so pi\one to accompany the ex- 
 ercise of unlimited power, where re^jponsibility is remote; 
 tliese are, indeed, serious obstructi</ns, little likely to be 
 submitted to in the present state of tfie world without a 
 formidable effort to prevent tiiem." 
 
 Such is an authentic historyof this British pre- 
 tension, and of the manner in which it has been 
 met by our Government. And now the special 
 argument formerly directed by us against thia 
 pretension is directed by Great Britain against the 
 pretension of Captain Wilkes to take two rebel 
 emissaiies from a British packet ship. If Captain 
 Wilkesis right in this pretension, then throughout 
 all these international debates, extending over at 
 least two generations, we have been wrong. 
 
 But it has been sometimes said the steam packet 
 having on board the rebel emissaries was on this 
 account liable to capture, and therefore the error 
 of Captain Wilkes in taking the emissaries was 
 simply an error of form and not of substance. I 
 do not stop to consider whether an exercise of 
 summary power against which our Government 
 has so constantly protested can be under any cir- 
 cumstances an error merely of form, for the policy 
 of our Government, most positively declared in 
 its diplomacy, and also attested in nutnerous trea- 
 ties, leaves no room to doubt that a neutral ship 
 with belligerent passengers — not in the military or 
 naval service — is not liable to capture, and there- 
 fore the whole proceeding was wrong, not only 
 because the passengers were taken from the ship, 
 but also because the ship, howsoever guilty mor- 
 ally, was not guilty legally in receiving such pas- 
 sengers on board. If this question were argued 
 on English authorities it might be otherwise; but 
 according to American principles the ship was 
 legally innocent. Of course, I say nothing of the 
 moral guilt which an indignant patriotism will find 
 forever indelible in that ship. 
 
 In the middle of the last century, the Swiss 
 professorVattel declared that on the breaking out 
 of war we cease to be under any obligation of 
 leaving the enemy to the free enjoyment of his 
 rights; and this piinciple he applied loosely to the 
 transit of embassadors. (Vattel, book 4, cap. 7, 
 sec. 85.) Sir William Scott, afterwards known in 
 the peerage as Lord Stowell, quoting this author- 
 ity, at the beginning of the present century, let 
 fall these words: 
 
 " The belligerent may stop the embassador of the enemy 
 on his passage." — The Jilalanta, 6 Robinson R., p. 440. 
 
 And this curt proposition, though in some respects 
 indefinite, has been often repeated since by writera 
 on the law of nations. On its fact? it leaves the ques- 
 tion unsettled, whether the emissaries of an unrec- 
 ognized government can be stopped.' But there 
 is another case in which the same British judge, 
 who has done so much to illustrate international 
 law, has used language which seems to embrace 
 not only authentic embassadors but also pretend- 
 ers to this character, and all others who are public 
 agents of the enemy. Says this eminent magis- 
 trate: 
 
 " It appears to ine on principle to be but reasonable tha 
 whenever it is of sufficient importance to the enemy that 
 such persons should he sent out on the public service and at 
 the public expense, it should afford equal ground of forfeit- 
 ure against tlie vessel that may be let out for a purpose so 
 intimately connected with hostile operations." — The Oro- 
 zembo, 6 Robinson R., p. 434. 
 
 Admit that the emissaries of an unrecognized 
 government cannot be recognized :?<« e-ibassadors 
 with the liabilities as well as immunities of this 
 
9 
 
 character, yet, in the face of these words, it is dif- 
 ficult to see how a Government bowing habitually 
 to the authority of Sir William Scott, and regard- 
 ing our rebels as " belligerents, "can assert that a 
 steam packet, conveying emissaries from these 
 belligerents, "sent out on the public service and 
 at the public expense," was, according to the lan- 
 guage of Lord Russell, "pursuing a lawful and 
 innocent voyage." At least, in this assertion, 
 this Government seems to turn its back again upon 
 its own history, or it sets aside the facts so openly 
 boasted with regard to the public character of 
 these fugitives. 
 
 On this question British policy may change with 
 circumstances, and British precedents may be un- 
 certain, but the original American policy is un- 
 changeable, and the American precedents which 
 illustrate it are solemn treaties. The words of 
 Vattel, and the judgments of Sir William Scott, 
 were well known to the statesmen of the United 
 States; and yet, in the face of these authorities, 
 which have entered so largely into this debate, the 
 American Go vernment at an early day deliberately 
 adopted a contrary policy, to which, for half a 
 century, it has steadily adhered. It was plainly 
 declared that only soldiers or officers could be stopped, 
 thus positively excluding the idea of stopping em- 
 bassadors, or emissaries of any kind, not in the 
 military or naval service. Mr. Madison, who 
 more than any other person shaped our national 
 policy on maritime rights, has stated it on this 
 question. In hisremarkable dispatch toMr. Mon- 
 roe, at London, dated January 5, 1804, he says: 
 
 "The article renounces tlie claim to take fVoin the ves- 
 sels of the neutral party, on the high seas, any person what- 
 ever not in the military service of an enemy, an exception 
 which we admit to come within the law of nations, on the 
 subject of contraband of war. TFitli tliis exception, we con- 
 sider a neutral fias; on tlie hizh seas as a safcgxiard to those 
 sailing under it.-' — State Papers, vol. 3, p. 83. 
 
 Then again, in the same dispatch, Mr. Madison 
 says: 
 
 'Great Britain, then, must produce an exception in the 
 law of nations in favor of tlie right she contends for. In 
 what written and received authority will she find it.' In 
 what usage, except her own, will it be found ?" * * 
 * * " But nowhere will she find an exception to this 
 freedom of the seas and of neutral flags, which justifies the 
 taking away of any person, 7wt an enemy in military ser- 
 vice, found on board a neutral vessel." — Ibid., p. 81. 
 
 And then, again, in the same dispatch, he says: 
 
 " Whenever a belligerent claim against persons on board 
 a neutral vessel is referred to in treaties, enemies in mili- 
 tary service alone arc excepted from the general immunity 
 of persons in that situation ; and this exception confirms the 
 immunity of those who arc not iricludcd in it." — Ibid., p. 84. 
 
 It was in pursuance of this principle, thus 
 clearly announced and repeated, that Mr. Madi- 
 son instructed Mr. Monroe to propose a conven- 
 tion between the United States and Great Britain, 
 containing the following stipulation: 
 
 " No person whatever shall, upon the high seas and with- 
 out the jurisdiction of either parly, be demanded or taken 
 out of any ship or vessel belonging to cili/.ens or subjects 
 of one of the parties, by the public or private armed ships 
 belonging to or in the service of the other, ntilcss such per- 
 son he at the time in the military service of an enemy of such 
 other party. ^' — Ibid., p. 83. 
 
 Mr. Monroe pressed this stipulation most earn- 
 
 estly upon the British Government; but though 
 treated courteously, he could get no satisfaction 
 with regard to it. Lord Harrowby, the Foreign 
 Secretary, in one of his conversations, "expres.sed 
 a concern to find the United States opposed to 
 Great Britain on certain great neutral questions 
 in favor of the doctrines of the modern law, which 
 he termed noveUies." (State Papers, vol. 3, )). 
 99.J And Lord Mulgrave, who succeeded this 
 accomplished nobleman, persevered in the same 
 dissent. Mr. Monroe writes, under dale of 18th 
 October, 1805: 
 
 " On a review of the conduct of this Government towards 
 the United States, I am inclined to thhik that the delay 
 wliicli has been so studiously sought is part of a system, and 
 that it is intended, as circumstances favor, to subject our 
 commerce at present and hereafter to every restraint in 
 their power." — State Papers, vol. 3, p. 107. 
 
 Afterwards Mr. Monroe was joined, as we have 
 already seen, by Mr. Pinkney'in the mission to 
 London, and the two united in presenting this 
 same proposition again to the British Govern- 
 ment. (State Papers, vol. 3, p. 137.) It was re- 
 jected, although the ministry of Mr. Fox, who 
 was then in power, seems to have afforded at one 
 time the expectation of an agreement. 
 
 While these distinguished plenipotentiaries were 
 pressing this principle at London, Mr. Madison 
 was maintaining it at home. In an unpublished 
 communication to Mr. Merry, the British minis- 
 ter at Washington, bearing date 9th April, 1805, 
 which 1 extract from the fites of the State Depart- 
 ment, he declared: 
 
 " The United States cannot accede to the claim of any 
 nation to take from their vessels on the high seas any dc 
 scription of persons, except soldiers in the actual service of 
 the enemy." 
 
 In a reply, bearing date 12th April, 1805, this 
 principle was positively repudiated by the Brit- 
 ish minister; so that the two Governments were 
 ranged unequivocally on opposite sides. And this 
 attitude of the two Governments was continued. 
 In the subsequent negotiations at London — in- 
 trusted to Mr. Rush— in 1818, we find the two 
 Powers face to face. The foreign secretary was 
 the celebrated Lord Castlereagh, who, according 
 to Mr. Rush, did not hesitate to complain — 
 
 "That we gave to our ships a character of inviolability 
 that Great Britain did not ; that we considered them as par' 
 of the soil, clothing them with like immunities."— RitsA's 
 Residence at the Court of London. 
 
 To which Mr. Rush replied: 
 
 " That we did consider them as thus inviolable, so fara*"' 
 to afford protection to our seamen ; but that we had ne-'<" 
 sought to exempt them from search for rightful purpi'-'SC'') 
 viz: for enemy's property, articles contraband of wr^ «' 
 men in the land or naval service of the enemy. Th '<' '^'"^ 
 stitutcd the utmost limit of the belligerent claim, as <^<^ " '^^- 
 stood the law of nations." — Ibid. 
 
 Two champions were never more completely 
 opposed than. were the two Govern>eni.s on this 
 question. • 
 
 The treaties of the United Stfi^tes with foreign 
 nationsare in harmony with thi^ Priri' iplesoener- 
 geticallyproposedandupheld I ■v.'Ui Government; 
 beginning with the treaty > .--M.,ierce with France 
 in 1778, and ending only v .iK il treaty with Peru 
 in 1851. Here is the ir jvisioa in the treaty with 
 
ID 
 
 France, negotiated by Benjamin Franklin, whose 
 wise forethought is always conspicuous: 
 
 "And it is liereby stipulated that free sliips sliall also 
 give a I'leedoiii to goods, and that everythingshall be deemed 
 to he free and exempt which shall be found on board the 
 slnps belonging to the subjects of either of the confederates, 
 although tlie whole lading or any part thereof should ap- 
 pertain to the enemies of either, contraband goods being 
 always excepted. It is also agreed in like manner that the 
 same liberty he extended to persons who are on board a free 
 ship, with iliis eflect, that although they be enemies to Coth 
 or either party, they are not to he taken out of that free ship, 
 unless they arc soldiers in actual senice of the enemies."^ 
 Statutes at Large, vol. 8, p. 26. 
 
 The obvious effect of this stipulation is two-fold: 
 first, tliat enemies, unless soldiers in actual ser- 
 vice, shall not be taken out of a neutral ship; and 
 secondly, that such persons are not contraband 
 of war so as to affect the voyage of a neutral with 
 illegality. Such was the proposition of Frank- 
 lin, of whom it has been said, thathe snatched the 
 lightning from the skies, and the scepter from the 
 tyrant. That he sought to snatch the tridentalso is 
 attested by his whole diplomacy, of which this 
 proposition is a part. But the same principle will 
 bu found in succeeding treaties, sometimes with a 
 slight change of language. In the treaty with the 
 Netherlands, negotiated by John Adams in 1782, 
 the exception is confined to " niilitary men actually 
 in the service of an enemy," {Ibid., p. 38;) and 
 this same exception will also be found in the treaty 
 with Sweden, in 1782, (76«/., p.64;) with Prussia, 
 in 1785, {Ibid., p. 90;) with Spain, in 179.i, (ifiirf., 
 p. 14(j;) with France, in 1800, {Ibid., p. 184;) with 
 Columbia, in 1824, {Ibid., p. 312;) with Central 
 America, in 1825, {Ibid., p. 328;) with Brazil, in 
 1828, (/6t(Z.,p.393;) with Mexico, in 18.31, (/6i(Z., 
 p. 41G;) with Chili, in 1832, {Ibid., p. 43(J;) with 
 Venezuela, in 1836, {Ibid., p. 472;) with Peru- 
 Bolivia, in 1836, {Ibid., p. 490;) with Ecuador, in 
 1639, {Ibid., p. 540;) with New Granada, in 1846, 
 (Statutes, vol. 9, p. 888;) with Guatemala, in 
 1849, (Statutes, vol. 110, p. 880;) with San Salva- 
 dor, in 1850, (/6i(L,p.894;) and in the treaty with 
 Peru,inl851,(y6j(Z.,p.936.) Such istheunbroken 
 testimony, in the most solemn form, to the policy of 
 our Government. In some of the treaties the ex- 
 ception is simply " soldiers," in others itis "ofii- 
 cers or soldiers." Do not forget that every treaty 
 testifies to the opinions of the Administration that 
 negotiated it, andof at least two thirds of the Sen- 
 ate that ratified it — so that this large number of 
 treaties constitutes a mass ofauthority from which 
 there can be no appeal, embracing all the great 
 'tames of our history. It is true that among these 
 treaties there is none with Great Britain; but it is 
 al^o true that this is simply because this Power 
 refused its assent when this princi]ile was pre- 
 sented hy our Government as an undoubted part 
 of international law which it desired to confirm 
 by treaty. 
 
 Clearly and beyond all question, according to 
 Americ.^i principles and practice, the ship was 
 not liable to capture on account of the presence of 
 emissaries, " not .soldiers or officers;" nor could 
 such emissaries be lejjally taken from theship. But 
 thecompletenessof tf.us authorityis increased by 
 the concurring testimo.ny of the continent of Eu- 
 rope. Since the peace of Utrecht, in 1713, the pol- 
 
 icy of the continental States has generally refused 
 to sanction the removal of enemies from a neutral 
 ship, unless military men in actual service. And 
 now, since this debate has commenced, we have 
 the positive testiinony of the French Government 
 to the same principle, given with special reference 
 to the present case. M.Thouvenel, the Minister 
 of the Emperor for Foreign Affairs, in a recent 
 letter communicated to Mr. Seward, and published 
 with the papers now before the Senate, earnestly 
 insists that the rebel emissaries, not being military 
 persons actually in the service of the enemy, were 
 not subject to seizure on board a neutral ship. I 
 leave this question with the remark that it is per- 
 haps Great Britain alone whose position on it can 
 be brought into doubt. Originally a party to the 
 treaty of Utrecht, this imperial Power soon saw 
 that its provisions in favor of maritime rights inter- 
 fered plainly with thatdictatorshij) of the sea which 
 she was then grasping. Maritime rights were re- 
 pudiated, and her admiralty courts have ever since 
 enforced this early repudiation. 
 
 But still another question occurs. Beyond all 
 doubt, there were " dispatches" frotn the rebel 
 belligerentson board theship — such " dispatches" 
 as rebels can write. Public report, the statement 
 of person's on board the ship, and the boastful 
 declaration of Jefferson Davis in a public docu- 
 ment, that these emissaries were proceeding under 
 an appointment from him — which appointment 
 would be a " dispatch" of the highest character — 
 seem to place this fact beyond denial. Assuming 
 this fact, the ship was liable to capture and to 
 be carried off for adjudication, according to Brit- 
 ish authorities — unless the positive judgment of 
 Sir William Scott in the case of the Atalanta, (6 
 Robinson 11., p. 440,) and also the dueen's proc- 
 lamation at the commencement of this rebellion, 
 where " dispatches" are enumerated among con- 
 traband articles, are treated as nullities, or so far 
 modified in their application as to be words, and 
 nothing more. But however binding and peremp- 
 tory these authorities may be in Great Britain, 
 they cannot be accepted to reverse the standing 
 policy of the United States, which here again 
 leaves no room for doubt. In order to give pre- 
 cision to the rights which it claimed and at the 
 same time accorded on the ocean, our Government 
 has sought to explain in treaties what it meant by 
 contraband. As early as 1778, in the treaty with 
 France, negotiated by Benjamin Franklin, after 
 specifying contrabanJ articles, without including 
 dispatches, it is declared that 
 
 " Free goods are all other merchandise and things which 
 are not compiehended and particularly mentioned in the 
 foregoing enumeration of contraband goods.*' — Statutes at 
 Large, vol. 8, p. 26. 
 
 This was before the judgment of Sir William 
 Scott, recognizing dispatches as contraband; but 
 in other treaties subsequent to this well known 
 judgment, and therefore practically discarding it, 
 after enumerating contraband articles, without 
 specifying "dispatches," the following provision 
 is introduced: 
 
 " All other merchandises and //ij)i»s not comprehended 
 in the articles of coiiti-abaiid explicitly enumerated and 
 classified as above, shall be held and considered as free." — 
 Ibid., p. 312; Treatywilh Columbia andlatcr treaties passim. 
 
11 
 
 Thus we have not only positive words of enu- 
 TYieration, without mentioning " dispatches," but 
 also positive words of exclusion, so that dis- 
 patchescannotbeconsideredas contraband. These 
 treaties constitute the conclusive record of our 
 Government on this question. And here let me 
 remark, that, while decisions of British Admii-alty 
 courts on all these matters are freely cited, no de- 
 cisions of our Supreme Court are cited. Of course, 
 if any existed, they would be of the highest value, 
 but there are none, and the reason is obvious. 
 These matters could notarise before our Supreme 
 Court, because under our Government they are so 
 clearly settled by treaties and diplomacy as to be 
 beyond question. 
 
 Clearly, then, and beyond all question, accord- 
 ing to American principles and practice, the ship 
 was not liable to capture on account of dispatches 
 on board. And here again we have the concur- 
 ring testimony of continental Europe, if we may 
 accept the statement of Hautefeuille,and it would 
 .seem also of the French Government, in the recent 
 letter of M. Thouvenel. 
 
 But there is yet another question which remains. 
 Assuming that dispatches may be contraband, 
 would their presence on board a neutral ship, 
 sailing between two neutral ports, render the voy- 
 age illegal ? The mail steamer was sailing between 
 Havana, a port of Spain, and St. Thomas, a port 
 of Denmark. Here again, if we bow to British 
 precedent, the answer will be prom)it. The Brit- 
 ish oracle has spoken. In a well-considered judg- 
 ment. Sir William Scott declares that dispatches 
 taken on board a neutral ship, sailing from a neu- 
 tral country and bound for another neutral coun- 
 try, are contraband; but that where there was 
 reason to believe the master ignorant of their char- 
 acter, " it is not a case in which the property is 
 to be confiscated, although in this, as in every 
 other instance in which the enemij^s dispatches are 
 found on board a vessel, lie has justly subjected 
 himself to all the inconveniences of seizure and 
 detention, and to all the expenses of those judicial 
 inquiries whicli they have occasioned." (The 
 Rapid, Edwards's Rep., 221.) Such is the law of 
 nations according to Great Britain. 
 
 But even if this rule had not been positively 
 repudiated by the United States, it is so inconsist- 
 ent with reason, and, in the present condition of 
 maritime commerce, so utterly impracticable, that 
 . it can find little favor. If a neutral voyage be- 
 tween two neutral ports is rendered illegal on this 
 account, then the postal facilities of the world, and 
 the costly enterprises by which they are conducted, 
 will be exposed to interruptions under which they 
 must at times be crushed, to the infinite damage 
 of universal commerce. If the rule is applicable 
 ill one sea, it is applicable in all seas, and there 
 is HO part of the ocean which may not be vexed 
 by its enforcement. It would reach to the Med- 
 iterranean and to the distant China seas as easily 
 as to the Bahama Straits, and it would be equally 
 imperative in the chops of the British channel. 
 Not only the stately mail steamers which traverse 
 the ocean would be liable to detention and possible 
 confiscation, but the same penalties must attach 
 to the daily packets between Dover and Calais. 
 The simple statement of such a consequence, fol- 
 
 lowing directly from the British rule, throws an 
 instant doubt over it which the eloquent judg- 
 ment of Sir William Scott cannot remove. 
 
 But here, again, our way is easy. American 
 principles and practice have settled this question 
 also. Wheaton commences his statement of the 
 law of contraband by saying " the general free- 
 dom of neutral commerce with the respective 
 belligerent Powers is subject to some exception. 
 Among these is the trade ivith the enemy in certain 
 articles called contraband of war." (Wheaton's 
 Elements, part 4, cap. 3.) It will be perceived 
 that the trade must be with the enemy, not with the 
 neutral. And here the author followed at once the 
 suggestions of reason and the voice of American 
 treaties. Even in the celebrated treaty with Great 
 Britain, negotiated by John Jay in 1794, after an 
 enumeration of contraband articles, it is expressly 
 declared, "and all the above articles are hereby 
 declared to be just objects of confiscation lohen- 
 ever they arc attempted to he carried to an enemy." 
 (Statutes, vol. 8, p. 125.) Of course when on the 
 way to neutrals they are free; and the early trea- 
 ties, negotiated by Benjamin Franklin and John 
 Adams, are in similar spirit; and in precisely the 
 same sense is the treaty with Prussia, in jl828, 
 whicli, in its twelfth article, revives the tbirt^YMith 
 article of our treaty with that same Power in 1789^,"' 
 by which contraband is declared to be detainable 
 only lohen carried to an enemy. Even if this rule 
 were of doubtful authority with regard to articles 
 of acknowledged contraband, it i^ positive with 
 regard to dispatches, which, as we have already 
 seen, are among " merchandises and things" de- 
 clared to be free; with regard to which our early 
 treaties secured the greatest latitude. Nothing can 
 be broader than these words in the treaty of 1778 
 with France: 
 
 " So tliat tlioy may be transported and carried in the freest 
 manner even to places l)eloii!;iiig to an enemy, such towns 
 or places being only excepted as are at tlie time besieged, 
 blocked up, or invested." — Statutes, vol. 8, p. 26. 
 
 But the provision in the treaty with the Nether- 
 lands of 1782 is equally broad: 
 
 " So that all effects and merchandises which are not ex- 
 pressly belore uampdmay, without any exception and in per- 
 fect liberty, be transported by the subjects and inliabilants 
 of both al'lies from and to places belonging to tlie enemy, 
 excepting only the places which at the time shall be be- 
 sieged, blocked, or invested; and tliose places only shal! 
 be held for such vi'hich are surrounded nearly by some o'' 
 the belligerent Powers."— Statutes, vol. 8, p. 46. 
 
 If the immunity of neutral ships needed further 
 confirmation, it would be found again in tin- eon 
 curring testimony of the French Governivierit — 
 conveyed in the recent letter of M. TIioua'i. iil — 
 which is so remarkable for its brief inv c'vapre- 
 hensive treatment of all the questions nvvc.lved in 
 this controversy. I know nothow otl.. is may teel, 
 but I cannotdouin that this comianin :uion, when 
 rightly understood, will be grntri'ily accepted 
 as a token of friendship for us, and also as a con- 
 tribution to those maritime ri.<;liis tor which France 
 and the United States, in tinit ; past, have done so 
 much together. This eminent minister does not 
 hesitate to declare that if the flag of a neutral can- 
 not completely cover persons and merchandise 
 beneath it in a voyi'go between two neutral ports, 
 then its immunity will be but a vain word. 
 
12 
 
 And now, as I conclude what I have to say on 
 contrabiuid in its several divisions, I venture to 
 assert that there are two rules iti regard to it, 
 which tiie traditional policy of our country has 
 constantly declared, and which it has embodied in 
 treaty stipulations with every Power which could 
 be persuaded to adopt them: First, that no article 
 shall be contraband unless it beexpressly enumer- 
 ated and specified as such by name. Secondly, 
 that when such articles, so enumerated and speci- 
 fied, shall be found by the belligerent on board a 
 neutral ship, the neutral shall be permitted to de- 
 liver them to the belligerent whenever, by reason 
 of their buUc or quantity, sue !i deli very may be pos- 
 sible, and then the neutral shall, without further 
 molestation, proceed with all remaining innocent 
 cargo to his destination, being any port, neutral or 
 hostile, which atthe time is notactually blockaded. 
 
 Such was the early fixed policy of our country 
 with regard to contraband in neutral liottoms. It 
 is recorded in several of our earlier European 
 treaties. Approximation to it will be found in 
 other European treaties, showing our constant 
 effort 1^1 this direction. But this policy was not 
 supported by the British theory and practice of 
 intenjational law, which was especially active 
 duri,Mg the wars of the French Revolution; and 
 t-e-this f;\ct may, perhaps, be ascribed something 
 of the difficulty which our Government encoun- 
 tered in its efforts to secure for this liberal policy 
 the complete sanction of European States. But 
 in our negotiations with the Spanish-American 
 States the theory and practice of Great Britain 
 were less felt; and so to-day that liberal policy, em- 
 bracing the two rules already stated touching con- 
 traband, is among all American States the public 
 law of contraband, stipulated and fixed in solemn 
 treaties. I do not quote their texts, but I refer 
 to all these treaties, beginning with the convention 
 between the United States and Columbia in 1824. 
 These rules, if not directly conclusive on the ques- 
 tion of contraband in tlie present controversy, at 
 least help to exhibit that spirit of emancipation 
 with which our country has approached the great 
 subject of Maritime Rights. 
 
 Of coarse this whole discussion proceeds on the 
 assumption that the rebels are to be regarded as 
 belligerents, which is the character already ac- 
 corded to them by Great Britain. If they are not 
 regarded as belligerents, then the proceeding of 
 Captain AVilkcs is indubitably illegal and void. 
 To a political offender, however deep his guilt — 
 thou'gh burdened with the vmdying execrations 
 of all honest men, and bending beneath the con- 
 sciousness of the ruin which he has brought upon 
 his country — the asylum ofa foreign jurisdiction is 
 sacred, whether on shoreoron sea;and itisamong 
 the proudest boasts of England, at least in recent 
 days, that the exiles of defeated democracies as 
 well as of defeated dynasties have found a sure 
 protection beneath her meteor flag. And yet this 
 Powerhas not always accorded to otherflags what 
 she claimed for her own. One of the objections 
 diplomatically presented by Great Britain at the 
 beginning of the present century to any renunci- 
 ation of the pretension of impressment, was " that 
 facility would be given, particularly in the British 
 Channel, by the immunity claimed by American 
 
 vessels, to the escape of traitors," (St&ie Papers, vol. 
 3, p. 86,) thus assuming that traitors — the com- 
 panions of Robert Emniett, in Ireland, or the com- 
 panions of Home Took, in England — ought to be 
 arrested on board a neutral ship; but that the arrest 
 could be accomplished only through thepretension 
 of impressment. But this flagrant instance cannot 
 be a precedent for the United States, which has al- 
 ways maintained the right of asylum as firmly as 
 it has rejected the pretension of impressment. 
 
 If I am correct in this review then the conclu- 
 sion is inevitable. The seizure of the rebel em- 
 issaries on board a neutral ship cannot be justified 
 according to our best American precedents and 
 practice. There seems to be no single point where 
 the seizure is not questionable, unless we choose 
 to invoke British precedents and practice, which 
 beyond doubt led Captain Wilkes into the mis- 
 take which he committed. In the solitude of his 
 ship he consulted familiar authorities at hand, 
 and felt that in following Vattel and Sir William 
 Scott, as quoted and affirmed by eminent writers, 
 reinforced by the inveterate practice of the British 
 navy, he could not err. He was mistaken. There 
 was a better example; it was the constant, uni- 
 form, unhesitating practice of his own country on 
 the ocean, conceding always the greatest immu- 
 nities to neutral ships, unless sailing to blockaded 
 ports — refusing to consider dispatches as contra- 
 band of war — refusing to consider persons, other 
 than soldiers or officers, as contraband of war; and 
 protesting always against an adjudication of per- 
 sonal rights by the summary judgment of a quar- 
 ter-deck. Had these well-attested precedents been 
 in his mind, the gallant captain would not, even 
 for a moment, have been seduced from his allegi- 
 ance to those principles which constitute a part of 
 our country's glory. 
 
 Mr. President, let the rebels go. Two wicked 
 men, ungrateful to their country, are let loose with 
 the brand of Cain upon their foreheads. Prison 
 doors are opened; but principles are established 
 which will help to free other men, and to open 
 the gates of the sea. Never before in her active 
 history has Great Britain ranged herself on this 
 side. Such an event is an epoch, ^'ovns swclo- 
 rum nascitiir ordo. To the liberties of the sea 
 this Power is now committed. To a certain extent 
 this cause is now under her tutelary care. If the 
 immunities of passengers, not in the military or 
 naval service, as well asof sailors, are not directly 
 recognized, they are at least implied; if neutral 
 rights are not ostentatiously proclaimed, they are 
 at least invoked; while the whole pretension of 
 impressment, so long the pest of neutral com- 
 merce, and operating only through the lawless ad- 
 judication of a quarter-deck, is made absolutely 
 impossible. Thus is the freedom of the sea en- 
 larged, in the name of peaceful neutral rights, not 
 only by limiting the number of persons who are 
 exposed to the penalties of war, but by driving 
 from it the most offensive pretension that ever 
 stallced upon its waves. To such conclusion Great 
 Britain is irrevocably pledged. Nor treaty nor 
 bond was needed. It is sufficient that her late 
 appeal can be vindicated only by a renunciation 
 of early, long-continued tyranny. Let her bear 
 the rebels back. The consideration is ample; for 
 
13 
 
 the sea became free as this altered Power went 
 forth upon it, steering westward with the sun, on 
 an errand of liberation. 
 
 In this surrender, if such it may be called, our 
 Government does not even " stoop to conquer." 
 It simply lifts itself to the heightof its own original 
 priiici|iles. The early eff'orts of its best negotia- 
 tors — the patriot trials of its soldiers in an un- 
 equal war — have at length prevailed, and Great 
 Britain, usually so Iiauglity, invites us to prac- 
 tice upon tliose princijiles which she has so stren- 
 uously opposed. There are victories of force. 
 Here is a victory of truth. If Great Britain has 
 gained the custody of two rebels, the United 
 States havesecured the triumph of their principles. 
 
 If this result be in conformity with our cher- 
 ished principles, it will be superfluous to add other 
 considerations; and yet I venture to suggest that 
 estranged sympathies abroad may be secured 
 again by an open adhesion to those principles, 
 which already have the support of the Continental 
 Governments of Europe, smarting for years under 
 British pretensions. The powerful organs of pub- 
 lic opinion on the Continent are also with us. 
 Hautcfeuille, whose work on the Law of Nations 
 is the arsenal of neutral rights, has entered into this 
 debate with a direct proposition for the release of 
 these emissaries as a testimony to the true inter- 
 pretation of international law. Another distin- 
 guished Frenchman, Agenor de Gasparin, whose 
 impassioned love of liberty and enlightened devo- 
 tion to our country give to his voice all the per- 
 suasion of friendship, has made a similar appeal. 
 And a journal, whicliof itself is an authority, the 
 Revue dcs Deux JSIondes, hopes that the United 
 States will let tiie rebels go, simjily because "it 
 would be a triumph of the rights of neutrals to ap- 
 ply them for the advantage of a nation which has 
 ever opposed and violated them." 
 
 But this triumph is not enough. The sea-god 
 will in future use his trident less; but the same 
 principles which led to the present renunciation 
 of early pretensions, naturally conduct to yet 
 further emancipation of the sea. The work of 
 maritime civilization is not finished. And here 
 the two nations, equally endowed by commerce, 
 and matching each other, while they surpass all 
 other nations, in peaceful ships, may gloriously 
 unite in setting up new pillars, which shall mark 
 new triumphs, rendering the ocean a higliway of 
 peace, instead of a field of blood. 
 
 The congress of Paris, in 185G, where were 
 assembled the plenipotentiaries of Great Britain, 
 France, Austria, Prussia, Russia, Sardinia, and 
 Turkey, has already led the way. Adopting the 
 early policy of the United Slates, often proposed 
 to foreign nations, this congress has authenticated 
 two imjiortant changes in restraint of belligerent 
 rights; first, that the neutral flag shall protect 
 enemy's goods except contraband of war, and 
 secondly, that neutral goods, except contraband 
 of war, are not liable to capture under an enemy's 
 flag. Tliis is much. Another proposition, that 
 privateering should be abolislied, was defective 
 in two respects; first, because it left nations free 
 to employ ])rivate ships under a public commis- 
 sion as ships of the navy, and, therefore, was 
 nugatory; and, secondly, because if not nugatory, 
 it was loo obviously in the special interest of 
 Great Britain, which, through her commanding 
 
 navy, would thus be left at will to rule the sea. 
 No change can be practicable which is not equal 
 in its advantages to all nations; for the Equality of 
 Nations is not merely a dry dogma of international 
 law, but a vital national sentiment common to all 
 nations. This cannot be forgotten; and every 
 proposition must be brought sincerely to this 
 equitable test. 
 
 But there is a way in which privateering can 
 be elTectively abolished without any shock to the 
 Equality of Nations. A simple proposition, that 
 private property sludl enjoy the same immunity 
 on the ocean which it now enjoys on land, will 
 at once abolish privateering, and relieve the com- 
 merce of the ocean from its greatest perils, so 
 that, like commerce on land, it shall be undis- 
 turbed except by illegal robbery and theft. Such 
 a proposition will operate equally for the advan- 
 tage of all nations. On this account, and in the 
 policy of peace, which our Govern men I has always 
 cultivated, it has been already presented to for- 
 eign Governments by the United States. You 
 have not forgotten the important paper in which 
 Mr. Marcy did this service, or the recent efforts 
 of Mr. Seward in tiie same direction. In order 
 to complete the efficacy of this proposition, and 
 still further to banish belligerent pretensions, con- 
 traband of war should be abolished, so that all 
 ships may freely navigate the ocean without being 
 exposed to any question as to the character of 
 persons or things on board. The Right of Search, 
 which, on the occurrence of war, becomes an om- 
 nipresent tyranny, subjecting every neutral ship 
 to the arbitrary invasion of every belligerent 
 cruiser, would then disappear. It would drop, as 
 the chains drc>p from an emancipated slave; or 
 rather it would oidy exist as an occasional agent, 
 under solemn treaties, in the war waged by civil- 
 ization against the slave trade; and then it would 
 be proudly recognized as an honorable surrendr 
 to the best interests of humanity, glorifying the 
 flag which made it. 
 
 With the consummation of these reforms in 
 maritime law, not forgetting blockades under in- 
 ternational law, war would be despoiled of its most 
 vexatious prerogatives, while innocent neutrals 
 would be exempt from its torments. The statutes 
 of the sea, thus refined and elevated, will be the 
 agentsof peace instead of the agi-nts of v/ar. Ships 
 and cargoes will pass unchallenged from shore to 
 shore; and those terrible belligerent rights, under 
 which the commerce of the world has so long suf- 
 fered, will cease from troubling. In this work our 
 country began early. It had hardly proclaimed 
 its own independence before it sought to secure a 
 similar independence for the sea. It had hardly 
 made a Consiitution for its own Government be- 
 fore it sought to establish a constitution similar in 
 spirit for the government of the sea. If it did not 
 prevail at once, it was because it could not over- 
 come the unyielding opposition of Gri^it Britain. 
 And now the time is come when thi.s champion of 
 belligerent rights "has changed his tiand and 
 checked his pride." Welcome to tins new-found 
 alliance. Welcome to this peaceful transfigura- 
 tion. Meanwhile, throughout ail present excite- 
 ments, amidst all present trial.-*, beneath all threat- 
 ening clouds, it only remains for us to uphold the 
 perpetual policy of the Republic, and to sland fast 
 on tiie ancient ways. 
 
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