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professedly reviewing all the previous correspondence, for the removal or avoidance of our objections, and contesting the analogy between the right of search, as it had been found obnoxious to us, and as now proposed for our adoption by formal compact, I have been under the absolute necessity of pointing out the analogies really existing between them, and of showing that, as right of search, independent of the right of capture, and irresponsible or responsible only to the tribunals of the captor, it is, as proposed, essentially liable to the same objectioas as it had been, when exercised as a belligerent right. Its encroaching character, founded in its nature as an irresponsible exercise of force, and exemplified in its extension from search for contraband of war, to search for enemies' property, and thence to search for men of the searcher's own nation, was thus necessarily brought into view, and connected the exhibition of the evils inherent in the practice with that of the abuses which have been found inseparable from it.
“ We have declared the slave trade, so far as it may be pursued by citizens of the United States, piracy, and, as such, made it punishable with death. The resolution of the House of Representatives recommends negotiation, to obtain the consent of the civilized world to recognize it as piracy under the law of nations. One of the properties of that description of piracies is, that those who are guilty of it may be taken upon the high seas, and tried by the courts of every nation. But, by the prevailing customary law, they are tried only by the tribunals of the nation to which the vessel belongs, in which the piracy was committed. The crime itself has been, however, in modern times, of so rare occurrence, that there is no uniformity in the laws of the European nations with regard to this point, of which we have had remarkable and decisive proof within these five years, in the case of piracy and murder, committed on board the schooner Plattsburg, a merchant vessel of the United States. Nearly the whole of the crew were implicated in the crime, which was committed on the high seas. They carried the vessel into Chistiansand, Norway, there abandoned her, and dispersed; three of them were taken up in Denmark, one in Sweden, one at Dantzig, in Prussia, and one in France. Those taken up in Denmark and in Sweden were delivered up to officers of the United States, brought to this country, tried, convicted, and executed. The man taken at Dantzig, was, by consent of the Prussian government, sent to Elsineur, and there confronted with those taken in Denmark. The evidence against him on the examination was decisive; but, as he persisted in the refusal to confess his guilt, the Prussian Government, bound by an established maxim of their municipal law, declined either to deliver him up, or to try him themselves, but sent him back to Dantzig, there to remain imprisoned for life. The French Government, upon advisement of the highest judicial authority of the kingdom, declined, also, either to try the man taken up there, or to deliver him up, unless upon proof of his guilt being produced against him, at the place where he was confined; with which condition, it not having been in our power to comply, the man remained there, also in prison, presumably for life. From these incidents it is apparent that there is no uniformity in the modes of trial, to which piracy, by the law of nations, is subjected in different European countries; but that the trial itself is considered as the right and the duty only of the nation to which the vessel belongs, on board of which the piracy was committed. This was, however, a piracy committed on board of a vessel by its own crew. External piracies, or piracies committed by and from one vessel against another, may be tried by the courts of any country, but are
more usually tried by those of the country whose vessels have been the sufferers of the piracy, as many of the Cuba pirates have been tried in the British West India Islands, and some of them in our courts.
“ This principle we should wish to introduce into the system, by which the slave trade should be recognised as piracy under the law of nations; namely, that, although seizable by the officers and authorities of every nation, they should be triable only by the tribunals of the country of the slave trading vessel. This provision is indispensable to guard the innocent navigator against vexatious detentions, and all the evils of arbitrary search. In committing to foreign officers the power, even in a case of conventional piracy, of arresting, confining, and delivering over for trial, a citizen of the United States, we feel the necessity of guarding his rights from all abuses, and from the application of any laws of a country other than his own.
“ The draught of a Convention is herewith enclosed, which, if the British Government should agree to treat upon this subject on the basis of a legislative prohibition of the slave trade by both parties, under the penalties of piracy, you are authorized to propose and to conclude. These articles, however, are not offered, to the exclusion of others which may be proposed on the part of the British Government, nor is any one of them, excepting the first, to be insisted on as indispensable, if others equally adapted to answer their purposes should be proposed. It is only from the consideration of the crime in the character of piracy that we can admit the visitation of our merchant vessels by foreign officers for any purpose whatever, and in that case only under the most effective responsibility of the officer for the act of visitation itself, and for every thing done under it.
“ If the sentiments of the British Government should be averse to the principle of declaring the trade itself, by a legislative act, piratical, you will not propose or communicate to them the enclosed project of convention. Its objects, you will distinctly understand, are two-fold: to carry into effect the resolution of the House of Representatives, and to meet, explicitly and fully, the call so earnestly urged by the British Government, that, in declining the proposals pressed by them upon us, of conceding a mutual and qualified right of search, we should offer a substitute for their consideration. The substitute, by declaring the crime piracy, carries with it the right of search for the pirates, existing in the very nature of the crime. But, to the concession of the right of search, distinct from the denomination of the crime, our objections remain in all their original force.
" It has been intimated by Mr. S. Canning, that the suggestion itself, to the British Government, of the propriety of their passing a legislative act, might excite in them some repugnancy to it. We should regret the excitement of this feeling, which the very nature of the negotiation seems to foreclose. Besides the legislative enactments which have virtually been pressed upon us, by all the invitations to concede the right of search, and to subject our citizens to trial for violations of our own laws, by foreign tribunals, Great Britain, in almost all her slave trade treaties, has required and obtained express stipulations for the enactment of prohibitory laws by France, Spain, Portugal, and the Netherlands.
so It was not expected that she would receive with reluctance, herself, a mere invitation to that which she had freely and expressly required from others. Still, if the sentiment should exist, we would forbear pressing it to the point of irritation, by importunity. . You will, in the first instance, simply state, that, if the British Government is prepared to proclaim the slave trade piracy, by statute, you are authorized to propose, and to conclude a convention, by which the mutual co-operation of the naval force of Great Britain and of the United States may be secured, for carrying into effect the law, which, on that contingency, will be common to both. Should the obstacle to the preliminary prove insuperable, you will refer the objections, on the part of the British cabinet, to this Government, for consideration.
“By the loose information hitherto communicated in the public journals, it would seem that the proposition for recognising the slave trade as piracy, by the law of nations, was discussed at the Congress of Verona. We are expecting the communication of the papers relating to this subject, promised by Lord Liverpool to be laid before Parliament. Heretofore, although the United States have been much solicited and urged to concur in the measures of Great Britain and her allies, for the suppression of the trade, they have been always communicated to us as purposes consummated, to which the uccession of the United States was desired. From the general policy of avoiding to intermeddle in European affairs, we have acquiesced in this course of proceeding; but, to carry fully into effect the late resolution of the House of Representatives, and to pursue the discussions, hereafter, with Great Britain herself, whether upon her proposals or upon ours, it is obviously proper that communication should be made to us of the progress of European negotiation, for accomplishing the common purpose, while it is in deliberation. If we are to co-operate in the result, it is just that we should be consulted, at least, with regard to the means which we are invited to adopt.”
SUPPRESSION OF THE SLAVE TRADE.
A Convention for the suppression of Piracy, committed by the African
The two high contracting Powers, having each separately, by its own laws, subjected their subjects and citizens, who may be convicted of carrying on the illicit traffic in slaves on the coast of Africa, to the penalties of piracy, do hereby agree to use their influence, respectively, with the other maritime and civilized nations of the world, to the end that the said African slave trade may be recognised and declared to be piracy, under the law of nations.
It is agreed by the two high contracting parties, that the commanders and commissioned officers of either nation, duly authorized, under the regulations and instructions of their respective Governments, to cruise on the coasts of Africa, of America, or of the West Indies, for the suppression of the slave trade, shall be authorized, under the conditions, limitations, and restrictions, hereinafter mentioned, to capture, and deliver over to the duly authorized and commissioned officers of the other, any ship or vessel carrying on such illicit traffic in slaves, under the flag of the said other nation, or for the account of their subjects or citizens, to be sent in for trial and adjudication by the tribunals
of the country to which such slave ship or vessel shall belong. And the said commanders and commissioned officers shall be further authorized to carry, or send in, any such slave-trading ship, so by them captured, into the ports of the country to which such slave-trading ship shall belong, for trial by the tribunals, and conformably to the laws, of the said country. But the slave ship, so captured, shall not be sent into the ports, or tried by the tribunals of the captor.
ARTICLE 3. If any naval commander, or commissioned officer of the United States of America, shall, on the high seas, or any where without the territorial jurisdiction of the said States, board, or cause to be boarded, any merchant ves. sel of Great Britain, and visit the same as a slave trader, or on suspicion of her being engaged in carrying on the illicit traffic in slaves, in every case, whether the said visited vessel shall be captured and delivered over, or sent into the ports of her own country for trial and adjudication, or not, the boarding officer shall deliver to the master or commander of the visited vessel a certificate in writing, signed by the said boarding officer with his name, and the addition of his rank in the service of the United States, and the name of the public vessel of the United States, and of her commander, by whose order the said visit shall have been ordered; and the said certificate shall declare, that the only object of the said visit is to ascertain whether the said British merchant vessel is engaged in the slave trade, or not; and if found to be so engaged, to take, and deliver her over to the officers, or the tribunals of her own nation, for trial and adjudication. And the commander of the said public ressel of the United States shall, when he delivers her over to the officers or tribunals of Great Britain, deliver all the papers found on board of the captured vessel, indicating her national character, and the objects of her voyage, and with them a like certificate of visitation, in writing, signed by his name, with the addition of his rank in the Navy of the United States, and the name of the public vessel commanded by him, together with the name and rank of the boarding officer by whom the said visit was made. This certificate shall, also, specify all the papers received from the master of the vessel detained, or visited, or found on board the vessel, aná shall contain an authentic declaration, exhibiting the state in which he found the vessel detained, and the changes, if any, which have taken place in it, and the number of slaves, if any, found on board at the moment of detention. And the same duties herein described shall devolve upon every commander, or commissioned officer, of the Royal Navy of Great Britain, by whom, or by whose order, any merchant vessel of the United States, or navigating under their flag, shall be visited for the said purposes, and upon the boarding officer by whom the visit shall be effected, on the high seas, or any where without the territorial jurisdiction of Great Britain.
No merchant vessel of either of the contracting parties, under the convoy of a public.vessel of her own nation, shall, under any circumstances whaterer, be captured, or visited by, or from, any public vessel of the other nation, as being engaged, or on suspicion of being engaged, in the slave trade.
ARTICLE 5. No search shall be made by, or under the orders of, the commander or boarding officer of any public vessel of either party visiting any merchant vessel of the other, as being engaged, or under suspicion of being engaged, in the slave trade, excepting such as may be necessary to ascertain if there be slaves on board for the purposes of the said traffic, or other proof that the said vessel is so engaged. 'No person shall be taken out of the said visited or captured merchant vessel of either nation, by the commanding officer of the visiting vessel, or under his order. Nor shall any part of the cargo of the said visited vessel be removed out of her, until delivered over to the officers or tribunals of her own nation.
ARTICLE 6. When a merchant vessel of either nation shall be captured, as being engaged in the slave trade, by any commander or commissioned officer of the Navy of the other nation, it shall be the duty of the commander of any public ship of the Navy of the nation to which the captured vessel shall belong, upon the offer thereof being made to him by the commander of the capturing vessel, to receive into his custody the vessel so captured, and to carry, or send, the same into the ports of his own country, for trial and adjudication. And at the time of the delivery of the said vessel, an authentic declaration shall be drawn up, in triplicate, signed by both the commanders of the delivering and of the receiving vessels, one copy of which shall be kept by each of them, stating the circumstances of the delivery; the condition of the vessel captured, at the time of the delivery; the number of slaves, if any, on board of her; a list of all the papers received, or found on board of her at the time of capture, and delivered over with her, and the names of the mas. ter, or commander, of the captured vessel, and of every person on board of her, other than the slaves, at the said time of delivery; and the third copy of the said declaration shall be transmitted, with the said captured vessel, and the papers found on board of her, to one of the ports of the country to which the said captured vessel shall belong, to be produced before the tribunal appointed or authorized to decide upon the said capture; and the commander of the said capturing vessel shall be authorized to send the boarding officer, and one or two of his crew, with the said captured vessel, to appear as witpesses of the facts in relation to her capture and detention, before the said iribunal. The reasonable expenses of which witnesses, in proceeding to the place of trial, during their necessary detention there, and for their return to their own country, or to rejoin their station in its service, shall be allowed by the tribunal of trial; and in case of the condemnation of the captured vessel, be defrayed from the proceeds of the sale thereof, and in case of the acquittal of the said vessel, they shall be paid by the Government of the cap
The commander or commissioned officer of the Navy of either of the contracting parties, having captured a merchant vessel of the other, as being engaged in the slave trade, if there be no public vessel of the nation to which
the said captured vessel belongs, cruising upon the same station, to the comAmander of whom the said captured vessel may be delivered over as stipulated in the preceding article, shall carry or send the said captured vessel to some convenient port of her own country, there to be delivered up to the competent tribunal, for trial and adjudication. And the said captured vessel shall there be libelled, in the name and behalf of the captors; and in case of the condemnation of the said vessel, the proceeds of the sale thereof and of her cargo, if also condemned, shall be paid to the commander of the said