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the observation of your Government, to accompany them with any more detailed explanation. What I have earnestly to beg of you, is, to bring them under the serious consideration of the President; intimating to him 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. I am confident this cannot effectually be done, except by mutually conceding to each other's ships of war a qualified right of search, with a power of detaining the vessels of either State with slaves actually on board.
You will perceive in these conventions a studious, and, I trust, a successful attempt, to narrow and limit this power within due bounds, and to guard it against perversion. If the American Government is disposed to enter into a similar concert, and can suggest any further regulations, the better to obviate abuse, this Government will be most ready to listen to any suggestion of this nature—their only object being to contribute, by every effort in their power, to put an end to this disgraceful traffic.
I have the honor to be, with great truth,
Mr. Rush to Lord Castlereagh.
LONDON, June 23, 1818. My Lord: I have been honored with your Lordship's note of the twentieth of this month, enclosing copies of treaties recently concluded between this Government and the Governments of Portugal, Spain, and the Netherlands, respectively, in relation to the slave trade, and designed to draw the attention of the Government of the United States to this subject, with a view to its co-operation upon principles similar to those held out in these treaties, in measures that may tend to the more complete and universal abolition of the traffic.
The United States, from an early day of their history, have regarded with deep and uniform abhorrence the existence of a traffic attended by such complications of misery and guilt. Its transcendent evils roused throughout all ranks a corresponding zeal for their extirpation. One step followed another, until humanity triumphed; and against its continuance, under any shape, by its own citizens, the most absolute prohibitions of their code have, for a period of more than ten years, been rigorously, and, it is hoped, beneficially levelled. Your Lordship will pardon me this allusion to the earnest efforts of the United States to put down the traffic within their own limits, falling in, as it merely does, with the tribute which you have been pleased to pay to their early exertions, in helping to dry up this prolific source of human wo.
Whether any causes may throw obstacles in the way of their uniting in that concert of external measures, in which Europe generally, and this nation in particular, are now so happily engaged, the more effectually to banish from the world this great enormity, I dare not, in the total absence of all instructions, presume to intimate; much less have I any opinion of my own to offer upon a subject so full of delicacy and interest." But it is still left to me to say, that I shall perform a duty peculiarly gratifying in trang mitting, by the earliest opportunities, copies of your Lordship’s note, with the documents which accompanied it, to my Government; and I sufficiently know the permanent sensibility which pervades all its councils upon this subject to promise that the overture which the former embraces will receive from the President the full and anxious consideration due to its importance, and, abuve all, to the enlarged philanthropy on the part of this Government by which it has been dictated.
I have the honor to be,
Extract of a letter from the Secretary of State to Messrs. Gallatin and
DEPARTMENT OF STATE,
November 2, 1818. "SLAVE TRADE
“ The President desires that you would make known to the British Government his sensibility to the friendly spirit of confidence with which the treaties lately contracted by Great Britain with Spain, Portugal, and the Netherlands, and the legislative measures of parliament founded upon them, have been communicated to this Government, and the invitation to the United States to join in the same or similar arrangements, has been given. He wishes you also to give the strongest assurances that the solicitude of the United States for the accomplishment of the common object, the total and final abolition of that odious traffic, continues with all the earnestness which has so long and so steadily distinguished the course of their policy in relation to it.
As an evidence of this earnestness he requests you to communicate to them a copy of the act of Congress of the last session, in addition to the act of 1807, to prohibit the importation of slaves into the United States; (acts of the last session chap. 86, p. 81;) and to declare the readiness of this Government, within their constitutional powers, to adopt any further measures which experience may prove to be necessary for the purpose of attaining so desirable an end.
“But you will observe that, in examining the provisions of the treaties communicated by Lord Castlereagh, all their essential articles appear to be of a character not adaptable to the institutions or to the circumstances of the United States.
“ The power agreed to be reciprocally given to the officers of the ships of war of either party, to enter, search, capture, and carry into port for adjudication, the merchant vessels of the other, however qualified and restricted, is most essentially connected with the institution, by each treaty, of two mixed courts, one of which to reside in the external or colonial possessions of each of the two parties respectively. This part of the system is indispensable to give it that character of reciprocity, without which the right granted to the armed ships of one nation to search the merchant vessels of another, would be rather a mark of vassalage than of independence. But to this part of the system, the United States, having no colonies either on the coast of Africa or in the West Indies, cannot give effect.
“ You will add, that, by the Constitution of the United States, it is provided, the judicial power of the United States shall be vested in a Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. It provides that the judges of these courts shall hold their offices during good behavior; and that they shall be removable by impeachment and conviction of crimes or misdemeanors. There may be some doubt whether the power of the Government of the United States is competent to institute a court for carrying into execution their penal statutes beyond the territories of the United States—a court consisting partly of foreign judges, not amenable to impeachment for corruption, and deciding upon the statutes of the United States without appeal.
“ That the disposal of the negroes found on board the slave trading vessels which might be condemned by the sentence of these mixed courts cannot be carried into effect by the United States, for, if the slaves of a vessel condemned by the mixed court should be delivered over to the Government of the United States as freemen, they could not, but by their own consent, be employed as servants or free laborers. The condition of the blacks being in this Union regulated by the municipal laws of the separate States, the Government of the United States can neither guaranty their liberty in the States where they could only be received as slaves, nor control them in the states where they would be recognised as free.
" That the admission of a right, in the officers of foreign ships of war, to enter and search the vessels of the United States, in time of peace, under any circumstances whatever, would meet with universal repugnance in the public opinion of this country; that there would be no prospect of a ratification, by advice and consent of the Senate, to any stipulation of that nature; that ihe search, by foreign officers, even in time of war, is so obnoxious to the feelings and recollections of this country, that nothing could reconcile them to the extension of it, however qualified or restricted, to a time of peace; and that it would be viewed in a still more aggravated light, if, as in the treaty with the Netherlands, connected with a formal admission that even vessels under convoy of ships of war of their own nation, should be liable to search by the ships of war of another.
“ You will, therefore, express the regret of the President that the stipulations communicated by Lord Castlereagh are of a character to which the peculiar situation and institutions of the United States do not permit them to accede. The constitutional objection may be the more readily understood by the British cabinet, if they are reminded that it was an obstacle proceeding from the same principle which prevented Great Britain from becoming, formally, a party to the holy alliance. Neither can they be at a loss to perceive the embarrassment under which we should be placed by receiving cargoes of African negroes, and be bound at once to guaranty their liberty, and to employ them as servants. Whether they will be as ready to enter into our feelings with regard to the search, by foreign navy lieutenants, of vessels under convoy of our own navy commanders, is, perhaps, of no material importance. The other reasons are presumed to be amply sufficient to convince them that the motives for declining this overture are compatible with an earnest wish that the measures concerted by these treaties may prove successful in extirpating that root of numberless evils, the traffic in human blood, and with the determination to co-operate, to the utmost extent of our powers, in this great vindication of the sacred rights of humanity.”
Copy of a letter from Mr. Rush to Lord Castlereagh, dated
'LONDON, December 21, 1918.
The undersigned, Envoy Extraordinary and Minister Plenipotentiary from the United States, has the honor to present his compliments to Lord Castlereagh.
In the note of the twenty-third of June, which the undersigned had the honor to address to his Lordship, in answer to his Lordship's communication of the twentieth of the same month, relative to the slave trade, the undersigned had great pleasure in giving the assurance that he would transmit a. copy of that communication to his Government, together with the documents which accompanied it, being copies of treaties entered into on the part of Great Britain, with Spain, Portugal, and the Netherlands, for the more complete abolition of the odious traffic in slaves. He accordingly lost no time in fulfilling that duty, and has now the honor to inform his Lordship of the instructions with which he has been furnished by his Government in reply.
He has been distinctly commanded, in the first place, to make known the sensibility of the President to the friendly spirit of confidence in which these treaties, and the legislative measures of Parliament founded upon them, have been communicated to the United States, and to the invitation which has been given, that they would join in the same or similar arrangements, the more effectually to accomplish the beneficent object to which they look. He is further commanded to give the strongest assurances that the solicitude of the United States for the universal extirpation of this traffic continues with all the earnestness which has so long and steadily distinguished the course of their policy in relation to it. Of their general proħibitory law of 1807, it is unnecessary that the undersigned should speak, his Lordship being already apprized of its provisions; amongst which the authority to employ the national force, as auxiliary to its execution, will not have escaped attention. But he has it in charge to make known, as a new pledge of their unremitting and active desire in the cause of abolition, that, so lately as the month of April last, another act of Congress was passed, by which not only are the citizens and vessels of the United States interdicted from carrying on, or being in any way engaged in the trade, but in which also the best precautions that legislative enactments can devise, or their penalties enforce, are raised up against the introduction into their territories of slaves from abroad, under whatever pretext attempted, and especially from dominions which lie more immediately in their neighborhood. A copy of this act is herewith enclosed for the more particular information of his Lordship. That peculiarity in the eighth section, which throws upon a defendant the labor of proof, as the condition of acquittal, the undersigned persuades himself will be regarded as signally manifesting an anxiety to suppress the hatefuloffence--departing, as it does, from the analogy of criminal jurisprudence, which so generally requires the independent and positive establishment of guilt as the first step in every public prosecution. To measures of such a character, thus early adopted, and sedulously pursued, the undersigned is further commanded to say, that the Government of the United States, acting within the pale of its constitutional powers, will always be ready to superadd any others that experience may prove to be necessary for attaining the desirable end in view.
But, on examining the provisions of the treaties, which your Lordship honored the undersigned by communicating, it has appeared to the President, that their essential articles are of a character not adapted to the circumstances or to the institutions of the United States.
The powers agreed to be given to the ships of war, of either party, to search, capture, and carry into port for adjudication, the merchant vessels of the other, however qualified, is connected with the establishment, by each treaty, of two mixed courts, one of which is to have its seat in the colonial possessions of the parties, respectively. The institution of such tribunals is necessarily regarded as fundamental to the whole arrangement; whilst their peculiar structure is doubtless intended, and would seem to be indispensable, towards imparting to it a just reciprocity. But to this part of the system, the United States, having no colonies upon the coast of Africa, in the West Indies, or elsewhere, cannot give effect.
Moreover, the powers of government in the United States, whilst they can only be exercised within the grants, are also subject to the restriction of the Federal Constitution. By the latter instrument, all judicial power is to be vested in a supreme court, and in such other inferior courts as Congress may, from time to time, ordain and establish. It further provides, that the judges of these courts shall hold their offices during good behavior, and be removable on impeachment and conviction of crimes and misdemeanors. There are serious doubts whether, obeying the spirit of these injunctions, the Government of the United States would be competent to appear as party to the institution of a court for carrying into execution their penal statutes in places out of their own territory-a court consisting partly of foreign judges, not liable to impeachment under the authority of the United States, and deciding upon their statutes without appeal.
Again. Obstacles would exist towards giving validity to the disposal of the negroes found on board the slave-trading vessels condemned by the sentence of the mixed courts. If they should be delivered over to the Government of the United States as freemen, they could not, but by their own consent, be employed as servants, or free laborers. The condition of negroes, and other people of color, in the United States, being regulated by the municipal laws of the separate States, the government of the former could neither guaranty their liberty in the States where they could only be received as slaves, nor control them in the States where they would be recognised as free. The provisions of the fifth section of the act of Congress, which the undersigned has the honor to enclose, will be seen to point to this obstacle, and may be taken as still further explanatory of its nature.
These are some of the principal reasons which arrest the assent of the President to the very frank and friendly overture contained in your Lordship's communication. Having their foundation in constitutional impediments, the Government of his Britannic Majesty will know how to appreciate their force. It will be seen how compatible they are with the most earnest wishes on the part of the United States, that the measures concerted by these treaties may bring about the total downfal of the traffic in human blood; and with their determination to co-operate, to the utmost extent of their constitutional power, towards this great consummation, so imperiously due at the hands of all nations to the past wrongs and sufferings of Africa.
The undersigned prays Lord Castlereagh to accept the assurances of his distinguished consideration.