Thirty Years' View (Vol. II of 2)

This was the proposition of that great statesman: and how different from those which we find in this treaty! Instead of being confined to coterminous dominions, the jurisdiction of the country is taken for the theatre of the crime; and that includes, on the part of Great Britain, possessions all over the world, and every ship on every sea that sails under her flag. Instead of being confined to two offences of high degree – murder and forgery – one against life, the other against property – this article extends to seven offences; some of which may be incurred for a shilling's worth of property, and another of them without touching or injuring a human being. Instead of a special provision in favor of political offenders, the insurgent or rebel may be given up for murder, and then hanged and quartered for treason; and in the long catalogue of seven offences, a charge may be made, and an ex parte case established, against any political offender which the British government shall choose to pursue.

To palliate this article, and render it more acceptable to us, we are informed that it is copied from the 27th article of Mr. Jay's treaty. That apology for it, even if exactly true, would be but a poor recommendation of it to the people of the United States. Mr. Jay's treaty was no favorite with the American people, and especially with that part of the people which constituted the republican party. Least of all was this 27th article a favorite with them. It was under that article that the famous Jonathan Robbins, alias Thomas Nash, was surrendered – a surrender which contributed largely to the defeat of Mr. Adams, and the overthrow of the federal party, in 1800. The apology would be poor, if true: but it happens to be not exactly true. The article in the Webster treaty differs widely from the one in Jay's treaty – and all for the worse. The imitation is far worse than the original – about as much worse as modern whiggery is worse than ancient federalism. Here are the two articles; let us compare them:

Mr. Webster's Treaty

"Article 10. – It is agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: provided, that this shall only be done, upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective judges and other magistrates shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges, or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge, or magistrate, to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive."

Mr. Jay's Treaty

"Article 27. – It is further agreed that his Majesty and the United States, on mutual requisitions by them, respectively, or by their respective ministers, or officers, authorized to make the same, will deliver up to justice all persons who, being charged with murder, or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other: provided, that this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the offence had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition, and receive the fugitive."

These are the two articles, and the difference between them is great and striking. First, the number of offences for which delivery of the offender is to be made, is much greater in the present treaty. Mr. Jay's article is limited to two offences – murder and forgery: the two proposed by Mr. Jefferson; but without his qualification to exclude political offences, and to confine the deliveries to offenders from coterminous dominions. The present treaty embraces these two, and five others, making seven in the whole. The five added offences are – assault, with intent to commit murder; piracy; robbery; arson; and the utterance of forged paper. These additional five offences, though high in name, might be very small in degree. Assault, with intent to murder, might be without touching or hurting any person; for, to lift a weapon at a person within striking distance, without striking, is an assault: to level a fire-arm at a person within carrying distance, and without firing, is an assault; and the offence being in the intent, is difficult of proof. Mr. Jefferson excluded it, and so did Jay's treaty; because the offence was too small and too equivocal to be made a matter of international arrangement. Piracy was excluded, because it was absurd to speak of a pirate's country. He has no country. He is hostis humani generis – the enemy of the human race; and is hung wherever he is caught. The robbery might be of a shilling's worth of bread; the arson, of burning a straw shed; the utterance of forged paper, might be the emission or passing of a counterfeit sixpence. All these were excluded from Jay's treaty, because of their possible insignificance, and the door they opened to abuse in harassing the innocent, and in multiplying the chances for getting hold of a political offender for some other offence, and then punishing him for his politics.

Striking as these differences are between the present article and that of Mr. Jay's treaty, there is a still more essential difference in another part; and a difference which nullifies the article in its only material bearing in our favor. It is this: Mr. Jay's treaty referred the delivery of the fugitive to the executive power. This treaty intervenes the judiciary, and requires two decisions from a judge or magistrate before the governor can act. This nullifies the treaty in all that relates to fugitive slaves guilty of crimes against their masters. In the eye of the British law, they have no master, and can commit no offence against such a person in asserting their liberty against him, even unto death. A slave may kill his master, if necessary to his escape. This is legal under British law; and, in the present state of abolition feeling throughout the British dominions, such killing would not only be considered fair, but in the highest degree meritorious and laudable. What chance for the recovery of such a slave under this treaty? Read it – the concluding part – after the word "committed," and see what is the process to be gone through. Complaint is to be made to a British judge or justice. The fugitive is brought before this judge or justice, that the evidence of the criminality may be heard and considered – such evidence as would justify the apprehension, commitment, and trial of the party, if the offence had been committed there. If, upon this hearing, the evidence be deemed sufficient to sustain the charge, the judge or magistrate is to certify the fact to the executive authority; and then, and not until then, the surrender can be made. This is the process; and in all this the new treaty differs from Jay's. Under his treaty the delivery was a ministerial act, referring itself to the authority of the governor: under this treaty, it becomes a judicial act, referring itself to the discretion of the judge, who must twice decide against the slave (first, in issuing the warrant; and next, in trying it) before the governor can order the surrender. Twice judicial discretion interposes a barrier, which cannot be forced; and behind which the slave, who has robbed or killed his master, may repose in safety. What evidence of criminality will satisfy the judge, when the act itself is no crime in his eyes, or under his laws, and when all his sympathies are on the side of the slave? What chance would there be for the judicial surrender of offending slaves in the British dominions, under this treaty, when the provisions of our own constitution, within the States of our own Union, in relation to fugitive slaves, cannot be executed? We all know that a judicial trial is immunity to a slave pursued by his owner, in many of our own States. Can such trials be expected to result better for the owner in the British dominions, where the relation of master and slave is not admitted, and where abolitionism is the policy of the government, the voice of the law, and the spirit of the people? Killing his master in defence of his liberty, is no offence in the eye of British law or British people; and no slave will ever be given up for it.

(Mr. Wright here said, that counterfeiting American securities, or bank notes, was no offence in Canada; and the same question might arise there in relation to forgers.)

Mr. Benton resumed. Better far to leave things as they are. Forgers are now given up in Canada, by executive authority, when they fly to that province. This is done in the spirit of good neighborhood; and because all honest governments have an interest in suppressing crimes, and repelling criminals. The governor acts from a sense of propriety, and the dictates of decency and justice. Not so with the judge. He must go by the law; and when there is no law against the offence, he has nothing to justify him in delivering the offender.

Conventions for the mutual surrender of large offenders, where dominions are coterminous, might be proper. Limited, as proposed by Mr. Jefferson in 1793, and they might be beneficial in suppression of border crimes and the preservation of order and justice. But extended as this is to a long list of offenders – unrestricted as it is in the case of murder – applying to dominions in all parts of the world, and to ships in every sea – it can be nothing but the source of individual annoyance and national recrimination. Besides, if we surrender to Great Britain, why not to Russia, Prussia, Austria, France, and all the countries of the world? If we give up the Irishman to England, why not the Pole to Russia, the Italian to Austria, the German to his prince; and so on throughout the catalogue of nations? Sir, the article is a pestiferous one; and as it is determinable upon notice, it will become the duty of the American people to elect a President who will give the notice, and so put an end to its existence.

Addressing itself to the natural feelings of the country, against high crimes and border offenders, and in favor of political liberty, the message of the President communicating and recommending this treaty to us, carefully presents this article as conforming to our feelings in all these particulars. It is represented as applicable only to high crimes – to border offenders; and to offences not political. In all this, the message is disingenuous and deceptive, and calculated to ravish from the ignorant and the thoughtless an applause to which the treaty is not entitled. It says:

"The surrender to justice of persons who, having committed high crimes, seek an asylum in the territories of a neighboring nation, would seem to be an act due to the cause of general justice, and properly belonging to the present state of civilization and intercourse. The British provinces of North America are separated from the States of the Union by a line of several thousand miles; and, along portions of this line, the amount of population on either side is quite considerable, while the passage of the boundary is always easy.

"Offenders against the law on the one side transfer themselves to the other. Sometimes, with great difficulty they are brought to justice; but very often they wholly escape. A consciousness of immunity, from the power of avoiding justice in this way, instigates the unprincipled and reckless to the commission of offences; and the peace and good neighborhood of the border are consequently often disturbed.

"In the case of offenders fleeing from Canada into the United States, the governors of States are often applied to for their surrender; and questions of a very embarrassing nature arise from these applications. It has been thought highly important, therefore, to provide for the whole case by a proper treaty stipulation. The article on the subject, in the proposed treaty, is carefully confined to such offences as all mankind agree to regard as heinous and destructive of the security of life and of property. In this careful and specific enumeration of crimes, the object has been to exclude all political offences, or criminal charges arising from wars or intestine commotions. Treason, misprision of treason, libels, desertion from military service, and other offences of a similar character, are excluded."

In these phrases the message recommends the article to the Senate and the country; and yet nothing could be more fallacious and deceptive than such a recommendation. It confines the surrender to border offenders – Canadian fugitives: yet the treaty extends it to all persons committing offences under the "jurisdiction" of Great Britain – a term which includes all her territory throughout the world, and every ship or fort over which her flag waves. The message confines the surrender to high crimes: yet we have seen that the treaty includes crimes which may be of low degree – low indeed! A hare or a partridge from a preserve; a loaf of bread to sustain life; a sixpenny counterfeit note passed; a shed burnt; a weapon lifted, without striking! The message says all political crimes, all treasons, misprision of treason, libels, and desertions are excluded. The treaty shows that these offences are not excluded – that the limitations proposed by Mr. Jefferson are not inserted; and, consequently, under the head of murder, the insurgent, the rebel, and the traitor who has shed blood, may be given up; and so of other offences. When once surrendered, he may be tried for any thing. The fate of Jonathan Robbins, alias Nash, is a good illustration of all this. He was a British sailor – was guilty of mutiny, murder, and piracy on the frigate Hermione – deserted to the United States – was demanded by the British minister as a murderer under Jay's treaty – given up as a murderer – then tried by a court-martial on board a man-of-war for mutiny, murder, desertion, and piracy – found guilty – executed – and his body hung in chains from the yard-arm of a man-of-war. And so it would be again. The man given up for one offence, would be tried for another; and in the number and insignificance of the offences for which he might be surrendered, there would be no difficulty in reaching any victim that a foreign government chose to pursue. If this article had been in force in the time of the Irish rebellion, and Lord Edward Fitzgerald had escaped to the United States after wounding, as he did, several of the myrmidons who arrested him, he might have been demanded as a fugitive from justice, for the assault with intent to kill; and then tried for treason, and hanged and quartered; and such will be the operation of the article if it continues.

CHAPTER CVI.

BRITISH TREATY; AFRICAN SQUADRON FOR THE SUPPRESSION OF THE SLAVE TRADE; MR. BENTON'S SPEECH; EXTRACT

The suppression of the African slave-trade is the second subject included in the treaty; and here the regret renews itself at the absence of all the customary lights upon the origin and progress of treaty stipulations. No minutes of conference; no protocols; no draughts or counterdraughts; no diplomatic notes; not a word of any kind from one negotiator to the other. Nothing in relation to the subject, in the shape of negotiation, is communicated to us. Even the section of the correspondence entitled "Suppression of the slave-trade" – even this section professedly devoted to the subject, contains not a syllable upon it from the negotiators to each other, or to their Governments; but opens and closes with communications from American naval officers, evidently extracted from them by the American negotiator, to justify the forthcoming of preconceived and foregone conclusions. Never since the art of writing was invented could there have been a treaty of such magnitude negotiated with such total absence of necessary light upon the history of its formation. Lamentable as is this defect of light upon the formation of the treaty generally, it becomes particularly so at this point, where a stipulation new, delicate, and embarrassing, has been unexpectedly introduced, and falls upon us as abruptly as if it fell from the clouds. In the absence of all appropriate information from the negotiators themselves, I am driven to glean among the scanty paragraphs of the President's message, and in the answers of the naval officers to the Secretary's inquiries. Though silent as to the origin and progress of the proposition for this novel alliance, they still show the important particular of the motives which caused it.

Passing from the political consequences of this entanglement – consequences which no human foresight can reach – I come to the immediate and practical effects which lie within our view, and which display the enormous inexpediency of the measure. First: the expense in money – an item which would seem to be entitled to some regard in the present deplorable state of the treasury – in the present cry for retrenchment – and in the present heavy taxation upon the comforts and necessaries of life. This expense for 80 guns will be about $750,000 per annum, exclusive of repairs and loss of lives. I speak of the whole expense, as part of the naval establishment of the United States, and not of the mere expense of working the ships after they have gone to sea. Nine thousand dollars per gun is about the expense of the establishment; 80 guns would be $720,000 per annum, which is $3,600,000 for five years. But the squadron is not limited to a maximum of 80 guns; that is the minimum limit: it is to be 80 guns "at the least." And if the party which granted these 80 shall continue in power, Great Britain may find it as easy to double the number, as it was to obtain the first eighty. Nor is the time limited to five years; it is only determinable after that period by giving notice; a notice not to be expected from those who made the treaty. At the least, then, the moneyed expense is to be $3,600,000; if the present party continues in power, it may double or treble that amount; and this, besides the cost of the ships. Such is the moneyed expense. In ships, the wear and tear of vessels must be great. We are to prepare, equip, and maintain in service, on a coast 4,000 miles from home, the adequate number of vessels to carry these 80 guns. It is not sufficient to send the number there; they must be kept up and maintained in service there; and this will require constant expenses to repair injuries, supply losses and cover casualties. In the employment of men, and the waste of life and health, the expenditure must be large. Ten men and two officers to the gun, is the smallest estimate that can be admitted. This would require a complement of 960 men. Including all the necessary equipage of the ship, and above 1,000 persons will be constantly required. These are to be employed at a vast distance from home; on a savage coast; in a perilous service; on both sides of the equator; and in a climate which is death to the white race. This waste of men – this wear and tear of life and constitution – should stand for something in a Christian land, and in this age of roaming philanthropy; unless, indeed, in excessive love for the blacks, it is deemed meritorious to destroy the whites. The field of operations for this squadron is great; the term "coast of Africa" having an immense application in the vocabulary of the slave-trade. On the western coast of Africa, according to the replies of the naval officers Bell and Paine, the trade is carried on from Senegal to Cape Frio – a distance of 3,600 miles, following its windings as the watching squadrons would have to go. But the track of the slavers between Africa and America has to be watched, as well as the immediate coast; and this embraces a space in the ocean of 35 degrees on each side of the equator (say four thousand miles), and covering the American coast from Cuba to Rio Janeiro; so that the coast of Africa – the western coast alone – embraces a diagram of the ocean of near 4,000 miles every way, having the equator in the centre, and bounded east and west by the New and the Old World. This is for the western coast only: the eastern is nearly as large. The same naval officers say that a large trade in negroes is carried on in the Mahometan countries bordering on the Red Sea and the Persian Gulf, and in the Portuguese East India colonies; and, what is worthy to be told, it is also carried on in the British presidency of Bombay, and other British Asiatic possessions. It is true, the officers say the American slavers are not yet there; but go there they will, according to all the laws of trading and hunting, the moment they are disturbed, or the trade fails on the western coast. Wherever the trade exists, the combined powers must follow it: for good is not to be done by halves, and philanthropy is not to be circumscribed by coasts and latitudes. Among all the strange features in the comedy of errors which has ended in this treaty that of sending American ministers abroad, to close the markets of the world against the slave-trade, is the most striking. Not content with the expenses, loss of life, and political entanglement of this alliance, we must electioneer for insults, and send ministers abroad to receive, pocket, and bring them home.

In what circumstances do we undertake all this fine work? What is our condition at home, while thus going abroad in search of employment? We raise 1,000 men for foreign service, while reducing our little army at home! We send ships to the coast of Africa, while dismounting our dragoons on the frontiers of Missouri and Arkansas! We protect Africa from slave-dealers, and abandon Florida to savage butchery! We send cannon, shot, shells, powder, lead, bombs, and balls, to Africa, while denying arms and ammunition to the young men who go to Florida! We give food, clothes, pay, to the men who go to Africa, and deny rations even to those who go to Florida! We cry out for retrenchment, and scatter $3,600,000 at one broad cast of the hand! We tax tea and coffee, and send the money to Africa! We are borrowing and taxing, and striking paper money, and reducing expenses at home, when engaging in this new and vast expense for the defence of Africa! What madness and folly! Has Don Quixote come to life, and placed himself at the head of our Government, and taken the negroes of Africa, instead of the damsels of Spain, for the objects of his chivalrous protection?

The slave-trade is diabolical and infamous; but Great Britain is not the country to read us a lesson upon its atrocity, or to stimulate our exertions to suppress it. The nation which, at the peace of Utrecht, made the asiento – the slave contract – a condition of peace, fighting on till she obtained it; the nation which entailed African slavery upon us – which rejected our colonial statutes for its suppression4– which has many, many ten millions, of white subjects in Europe and in Asia in greater slavery of body and mind, in more bodily misery and mental darkness, than any black slaves in the United States; – such a nation has no right to cajole or to dragoon us into alliances and expenses for the suppression of slavery on the coast of Africa. We have done our part on that subject. Considering the example and instruction we had from Great Britain, we have done a wonderful part. The constitution of the United States, mainly made by slaveholding States, authorized Congress to put an end to the importation of slaves by a given day. Anticipating the limited day by legislative action, the Congress had the law ready to take effect on the day permitted by the constitution. On the 1st day of January, 1808, Thomas Jefferson being President of the United States, the importation of slaves became unlawful and criminal. A subsequent act of Congress following up the idea of Mr. Jefferson in his first draught of the Declaration of Independence, qualified the crime as piratical, and delivered up its pursuers to the sword of the law, and to the vengeance of the world, as the enemies of the human race. Vessels of war cruising on the coast of Africa, under our act of 1819, have been directed to search our own vessels – to arrest the violators of the law, and bring them in – the ships for confiscation, and the men for punishment. This was doing enough – enough for a young country, far remote in the New World, and whose policy is to avoid foreign connections and entangling alliances. We did this voluntarily, without instigation, and without supervision from abroad; and now there can be no necessity for Great Britain to assume a superiority over us in this particular, and bind us in treaty stipulations, which destroy all the merit of a voluntary action. We have done enough; and it is no part of our business to exalt still higher the fanatical spirit of abolition, which is now become the stalking-horse of nations and of political powers. Our country contains many slaves, derived from Africa; and, while holding these, it is neither politic nor decent to join the crusade of European powers to put down the African slave-trade. From combinations of powers against the present slave-takers, there is but a step to the combination of the same powers against the present slaveholders; and it is not for the United States to join in the first movement, which leads to the second. "No entangling alliances" should be her motto! And as for her part in preventing the foreign slave-trade, it is sufficient that she prevents her own citizens, in her own way, from engaging in it; and that she takes care to become neither the instrument, nor the victim, of European combinations for its suppression.