C R E O L E C A S E,
MR. websTER’s DESPATCH,
COMMENTS OF THE N. Y. AMERICAN.
NEW - Yo RK :
\ - Published at the Office of the “ New-York American,"
. . No. 47 William Street.
1842.


\\!,
JNTVERSITY OF MICHIUAN
GENERAL LIBRARY
ANN ARBOR, MICHIGAN
7.2-7. S-3
TO THE R. EADER.
IN the following pages will be found the letter of instruc-
tions from the Secretary of State to Mr. EveRETT, in the
case of the Creole, and the comments with which, in the ex-
ercise of his duty as conductor of an independent journal,
the writer hereof felt it proper to accompany the publication.
Believing the points involved in this controversy to be of
the deepest concern to the peace and character of the coun-
try, he has not scrupled to examine the positions and argu-
ments of the Despatch with all frankness, but with all res-
pect. He is too thoroughly a friend of free discussion to
think any apology necessary for subjecting to such discus-
sion so important a public document; and too unaffectedly
conscious of the disparity in all respects—except an honest
desire to be right—between the eminent person at the head
of the Department of State and himself, to suppose that even
the least charitably disposed will charge him with being ac-
tuated by the vamity of appearing to compete with such an
adversary. *
In republishing the instructions and these newspaper arti-
cles in a form somewhat more connected and less fugitive,
he has been influenced, he freely admits, by the desire to give
wider circulation, and the opportunity of more deliberate ex-
amination, to the whole discussion ; and by the hope of a-
rousing more general attention to the portentous issue pre-
iv.
sented by this controversy, of War for the protection and
extension of Slavery.
Some notes and references to authorities are added: in all
other respects the articles are as they were published in the
New-York American.
Office of the New-York American,
March 8th, 1842.
T H E
CRE0LE CASE & MR, WEBSTER'S DESPATCH,
In the U. S. Senate, on the 21st February, 1842, a mes-
sage was received from the President, transmitting a report
from the Secretary of State in relation to the Creole case;
which report comprised a copy of the following letter from
the Secretary of State to our Minister at London:
Mr. Webster to Mr. Everett.
DEPARTMENT of STATE,
Washington City, Jan. 29th, 1842.
EDw ARD EvKRETT, Esq. &c. &c.
Sir, I regret to be obliged to acquaint you with a very
serious occurrence, which recently took place in a port of one of
the Bahama Islands.
It appears that the brig “Creole,” of Richmond, Virginia, Insor,
master, bound to New Orleans, sailed from Hampton Roads on the
27th of October last, with a cargo of merchandize, principally to-
bacco, and slaves, (about 135 in number); that on the evening of
the 7th of November, some of the slaves rose upon the crew of the
vessel, murdered a passenger named Hewell, who owned some of
the negroes, wounded the captain dangerously, and the first mate
and two of the crew severely ; that the slaves soon obtained com-
plete possession of the brig, which under their direction was taken
into the port of Nassau, in the island of New Providence, where
she arrived on the morning of the 9th of the same month; that at
the request of the American Consul in that place, the Governor
ordered a guard on board, to prevent the escape of the mutineers,
and with a view to an investigation of the circumstances of the
case ; that such investigation was accordingly made by two Brit-
ish magistrates, and that an examination also took place by the
Consul; that on the report of the magistrates, nineteen of the
447
... J-42
6
slaves were imprisoned by the local authorities as having been con-
cerned in the mutiny and murder, and their surrender to the Con-
sul, to be sent to the United States for trial for these crimes, was
refused on the ground that the Governor wished first to communi-
cate with the Government in England on the subject; that through
the interference of the Colonial authorities, and even before the
military guard was removed, the greater number of the remaining
slaves were liberated, and encouraged to go beyond the power of
the master of the vessel, or the American Consul, by proceedings
which neither of them could control. This is the substance of the
case, as stated in two protests, one made at Nassau and one at
New Orleans, and the Consul’s letters, together with sundry depo-
sitions taken by him, copies of which papers are herewith trans-
mitted.
The British Government cannot but see that this case, as pre-
sented in these papers, is one calling loudly for redress. The
“Creole” was passing from one port of the United States to ano-
ther, in a voyage perfectly lawful, with merchandise on board, and
also with slaves, or persons bound to service, natives of America,
and belonging to American citizens, and which are recognized as
property by the Constitution of the United States in those States
in which slavery exists. In the course of the voyage some of the
slaves rose upon the master and crew, subdued them, murdered
one man, and caused the vessel to be carried into Nassau. The
vessel was thus taken to a British port, not voluntarily, by those
who had the lawful authority over her, but forcibly and violently,
against the master's will, and with the consent of nobody but the
mutineers and murderers ; for there is no evidence that these out-
rages were committed with the concurrence of any of the slaves,
except those actually engaged in them. Under these circumstan-
ces, it would seem to have been the plain and obvious duty of the
authorities at Nassau, the port of a friendly Power, to assist the
American Consul in putting an end to the captivity of the master
and crew, restoring to them the control of the vessel, and enabling
them to resume their voyage, and to take the mutineers and mur-
derers to their own country to answer for their crimes before the
proper tribunal. One cannot conceive how any other course
could justly be adopted, or how the duties imposed by that part of
the code regulating the intercourse of friendly States, which is ge-
nerally called the Comity of Nations, could otherwise be fulfilled.
Here was no violation of British law attempted or intended on the
part of the master of the “Creole,” nor any infringement of the
principles of the Law of Nations.
The vessel was lawfully engaged in passing from port to port in
the United States. By violence and crime she was carried,
against the master's will, out of her course, into the port of a friend-
ly Power. All was the result of force. Certainly, ordinary com-
ity and hospitality entitled him to such assistance from the autho-
7
rities of the place as should enable him to resume and prosecute
his voyage and bring the offenders to justice. But instead of
this, if the facts be as represented in these papers, not only did
the authorities give no aid for any such purpose, but they did act-
ually interfere to set free the slaves, and to enable them to dis-
perse themselves beyond the reach of the master of the vessel or
their owners. A proceeding like this cannot but cause deep feel-
ing in the United States. It has been my purpose to write you
at length upon this subject, in order that you might lay before the
Government of Her Majesty fully, and without reserve, the views
entertained upon it by that of the United States, and the grounds
on which those views are taken. But the early return of the
packet precludes the opportunity of going thus into the case in
this despatch; and as Lord Ashburton may shortly be expected
here, it may be better to enter fully into it with him, if his pow-
ers shall be broad enough to embrace it. Some knowledge of the
case will have reached England before his departure, and very
probably his Government may have given him instructions. But
I request, nevertheless, that you lose no time in calling Lord
Aberdeen’s attention to it in a general manner, and giving him a
narrative of the transaction, such as may be framed from the
papers now communicated, with a distinct declaration that if the
facts turn out as stated, this Government thinks it a clear case
for indemnification.
You will see that in his letter of the 7th Jan. 1837 to Mr. Ste-
venson, respecting the claim for compensation in the cases of the
“Comet,” “Encomium,” and “Enterprise,” Lord Palmerston
says that “Her Majesty’s Government is of opinion that the rule
by which these claims should be decided is, that those claimants
must be considered entitled to compensation who were lawfully in
possession of their slaves within the British territory, and who
were disturbed in their legal possession of those slaves by func-
tionaries of the British Government.” This admission is broad
enough to cover the case of the Creole, if its circumstances are
correctly stated. But it does not extend to what we consider the
true doctrine, according to the laws and usages of nations; and,
therefore, cannot be acquiesced in as the exactly correct general
rule. It appears to this Government that not only is no un-
friendly intercourse by the local authorities to be allowed, but that
aid and succour should be extended in these, as in other cases
s: may arise, affecting the interests of citizens of friendly
tates.
We know no ground on which it is just to say that these colored
people had come within, and were within, British territory, in such
sense as that the laws of England affecting and regulating the con-
dition of persons could properly act upon them. As has been al-
ready said, they were not there voluntarily ; no human being be-
longing to the vessel was within British territory of his own accord,
except the mutineers. There being no importation, nor interest of
8
importation, what right had the British authorities to inquire into
the cargo of the vessel, or the condition of persons on board 7
These persons might be slaves for life; they might be slaves for a
term of years, under a system of apprenticeship; they might be
bound to service by their own voluntary act; they might be in
confinement for crimes committed; they might be prisoners of
war; or they might be free. How could the British authorities
look into and decide any of these questions ! Or, indeed, what
duty or power, according to the principles of national intercourse,
had they to inquire at all ! If, indeed, without unfriendly inter-
ference, and notwithstanding all their duties of comity and assist-
ance, by these authorities, the master of the vessel could not re-
tain the persons, nor prevent their escape, then it would be a
different question altogether, whether resort could be had to British
tribunals, or the power of the government in any of its branches, to
compel their apprehension and restoration. No one complains that
English law shall decide the condition of all persons actually in-
corporated with British population, unless there be a treaty stipula-
tion making other provision for special cases. But in the case of
the “Creole * the colored persons were still on board an American
vessel, that vessel having been forcibly put out of the course of her
voyage by mutiny; the master still desiring to resume it, and call-
ing upon the Consul of his Government resident at the place, and
upon the local authorities, to enable him so to do, by freeing him
from the imprisonment to which mutiny and murder had subjected
him, and furnishing him with such necessary aid and assistance as
are usual in ordinary cases of disaster at sea. These persons, then,
cannot be regarded as being mixed with the British people, or as
having changed their character at all, either in regard to country
or personal condition. It was no more than just to consider the
vessel as still on her voyage, and entitled to the succour due to other
cases of distress, whether arising from accident or outrage. And
that no other view of the subject can be true, is evident from the
very awkward position in which the local authorities have placed
their Government in respect to the mutineers still held in imprison-
ment. What is to be done with them How are they to be pu-
nished 1 The English Government will probably not undertake
their trial or punishment ; and of what use would it be to send them
to the United States, separated from their ship, and at a period so
late as that, if they should be sent, before proceedings could be in-
stituted against them, the witnesses might be scattered over half
the globe? One of the highest offences known to human law is
thus likely to go unpunished.
In the note of Lord Palmerston to Mr. Stevenson, above refer-
red to, his Lordship said “that slavery being now abolished through-
out the British empire, there can be no well-founded claim for
compensation in respect of slaves who, under any circumstances,
may come into the British colonies, any more than there would be
with respect to slaves who might be brought into the kingdom.”
9
I have only to remark upon this, that the Government of the Uni-
ted States sees no ground for any distinction founded on an alter-
ation of the British law in the colonies. We do not consider that
the question depends at all on the state of British law. It is not
that in such cases the active agency of British law is invoked and
refused; it is, that unfriendly interference is deprecated, and those
good offices and friendly assistance expected which a Government
usually affords to citizens of a friendly power when instances occur
of disaster and distress. All that the United States require, in
these cases, they would expect in the ports of England, as well as
in those of her colonies. Surely the influence of local law cannot
affect the relations of nations in any such matter as this. Suppose
an American vessel, with slaves lawfully on board, were to be cap-
tured by a British cruiser, as belonging to some beligerent, while the
United States were at peace ; suppose such prize carried into En-
gland, and the neutrality of the vessel fully made out in the pro-
ceedings in Admiralty, and a restoration consequently decreed—
in such case, must not the slaves be restored exactly in the con-
dition in which they were when the capture was made 1 Would
any one contend that the fact of their having been carried into
England by force set them free ?
No alteration of her own local laws can either increase or dimi-
nish, or any way affect, the duty of the English Government and
its colonial authorities in such cases, as such duty exists according
to the law, the comity, and the usage of nations. The persons on
board the “Creole * could only have been regarded as Americans
passing from one part of the United States to the other, within
the reach of English authority only for the moment, and this only
by force and violence. To seek to give either to persons or pro-
perty thus brought within reach an English character, or to impart
to either English privileges, or to subject either to English burdens
or liabilities, cannot, in the opinion of the Government of the
United States, be justified. Suppose that by the law of England
all blacks were slaves, and incapable of any other condition ; if
persons of that color, free in the United States, should, in attempt-
ing to pass from one port to another in their own country, be
thrown by stress of weather within British jurisdiction, and there
detained for an hour or a day, would it be reasonable that British
authority should be made to act upon their condition, and to make
them slaves? Or suppose that an article of merchandise, opium
for instance, should be declared by the laws of the United States
to be a nuisance, a poison, a thing in which no property could law-
fully exist or be asserted ; and suppose that an English ship with
such a cargo on board, bound from one English port to another,
should be driven by stress of weather, or by mutiny of the crew,
into the ports of the United States, would it be held just and rea-
sonable that such cargo should receive its character from American
law, and be thrown overboard and destroyed by the American au-
thorities? It is in vain that any attempt is made to answer these
2
10
suggestions by appealing to general principles of humanity. This
is a point in regard to which the nations must be permitted to act
upon different views, if they entertain different views, under their
actually existing condition, and yet hold commercial intercourse
with one another, or not hold any such intercourse at all. It may
be added, that all attempts by the Government of one nation to
force the influence of its laws on that of another, for any object
whatever, generally defeat their own purposes, by producing dissa-
tisfaction, resentment, and exasperation. Better is it, far better in
all respects, that each nation should be left without interference or
annoyance, direct or indirect, to its undoubted right of exercising
its own judgment in regard to all things belonging to its domestic
interests and domestic duties.
There are two general considerations of the highest practical
importance, to which you will, in the proper manner, invite the at-
tention of Her Majesty’s Government.
The first is that, as civilization has made progress in the world,
the intercourse of nations has become more and more independent
of different forms of government and different systems of law and
religion. It is not now as it was in ancient times, that every foreign-
er is considered as therefore an enemy ; and that, as soon as he
comes into the country, he may be lawfully treated as a slave ; nor
is the modern intercourse of States carried on mainly, or at all, for
the purpose of imposing, by one nation on another, new forms of
civil government, new rules of property, or new modes of domestic
regulation. The great communities of the world are regarded as
wholly independent, each entitled to maintain its own system of
law and government, while all, in their mutual intercourse, are un-
derstood to submit to the established rules and principles governing
such intercourse. And the perfecting of this system of communi-
cation among nations requires the strictest application of the doc-
trine of non-intervention of any with the domestic concerns of
others.
The other is, that the United States and England, now by far
the two greatest commercial nations in the world, touch each other
both by sea and land at almost innumerable points, and with sys-
tems of general jurisprudence essentially alike, yet differing in the
forms of their Government and their laws respecting personal ser-
vitude; and that so widely does this last-mentioned difference ex-
tend its influence, that without the exercise to the fullest extent of
the doctrines of non-interference and mutual abstinence from any
thing affecting each other's domestic regulations, the peace of the
two countries, and therefore the peace of the world, always will be
in danger.
The Bahamas (British possessions) push themselves near to the
shores of the United States, and thus lie directly in the track of that
great part of their coastwise traffic, which, doubling the Cape of
Florida, connects the cities of the Atlantic with the ports and har-
bors on the Gulf of Mexico, and the great commercial emporium
11
on the Mississippi. The seas in which these British possessions
are situated, are seas of shallow water, full of reefs and bars, sub-
ject to violent action of the winds, and to the agitations caused by
the Gulf Stream. They must always, therefore, be of dangerous
navigation, and accidents must be expected frequently to occur,
such as will cause American vessels to be wrecked on British Is-
lands, or compel them to seek shelter in British ports. It is quite
essential that the manner in which such vessels, their crews and
cargoes, in whatever such cargoes consists, are to be treated, in
those cases of misfortune and distress, should be clearly and fully
known.
You are acquainted with the correspondence which took place
a few years ago, between the American and English Governments,
respecting the cases of the Enterprise, the Comet, and the Enco-
mium. I call your attention to the Journal of the Senate of the
United States, containing resolutions unanimously adopted by that
body respecting those cases. These resolutions, I believe, have
already been brought to the notice of Her Majesty's Government,
but it may be well that both the resolutions themselves and the de-
bates upon them should be again adverted to. You will find the
resolutions, of course, among the documents regularly transmitted
to the Legation, and the debates in the newspapers with which it
has been supplied from this Department.
You will avail yourself of an early opportunity of communicating
to Lord Aberdeen, in the manner which you may deem most expe-
dient, the substance of this despatch ; and you will receive farther
instructions respecting the case of the Creole, unless it shall become
the subject of discussion at Washington.
In all your communications with Her Majesty's Government,
you will seek to impress it with a full conviction of the dangerous
importance to the peace of the two countries of occurrences of this
kind, and the delicate nature of the questions to which they give
T1S62, f
*mºnº
After reading over and over again this despatch, in order
to be fully possessed of its spirit and import, we are yet
under the conviction, that a case untenable in itself, and so
known to be by Mr. Webster, is argued with a disregard
of all just distinctions as to the nature of crime, as well as
of the feelings and judgment of the men of the free States,
that we were not prepared for.
No one, we apprehend, after this despatch, will be entitled
to say, that slavery, and all that belongs to it, is a mere
12
municipal institution—a local interest, which those only have
a right to talk about, or interfere with, who live in the midst
of it.
Here we have the Federal Government, putting forth and
pledging all its powers to protect slavery—not within the
United States—not even within the marine league of our
own shores, where, by the usage of nations, the jurisdiction
of a State applies—but, on the high seas, and even in the
harbor of a nation, that does not acknowledge slavery
Under such circumstances, it is not only a right, but a
deep and present interest, for every citizen of the United
States to look well into “the peculiar institution,” and to
take care, while violating in no jot or tittle his clear obliga-
tions under the Constitution to recognize slavery as, and
where, it existed when the Constitution was formed, that he
do not step beyond the strictest requirements of that charter
and make himself a party to the extension of this blighting
curse and shame.
The question raised by this despatch, if its claims be ad-
hered to, is none other than “Peace or War for the extension
and security of the domestic slave trade.”
In the solution of this question every citizen of the United
States is interested—and has a right, if so he choose, to raise
his voice in discussing it. We protest, therefore, in limine,
against the usual appeals and menaces from the South, when
the North touches the topic of slavery. It is now brought
home to our business and bosoms, to our firesides and bed-
sides—for we express without hesitation the opinion that no
Ministry could stand a moment in England that should con-
sent to regard the self-emancipated slaves of the Creole as
murderers and mutineers—and venture to deliver up the
leaders to death, or make compensation for those who, by
the acts of those leaders, gained their freedom. If war on
our part be the settled alternative, then, in our judgment, is
war inevitable; and the united sentiment of all Christendom
13
would be with our adversary, and against us, in such an un-
hallowed contest—a contest repugnant alike to Human
Honor and Divine Justice.
We speak these things gravely and deliberately; and we
ask for them consideration alike grave and deliberate.
Mr. Webster's first ground is, that the Creole having been
carried into the British port of Nassau, against the consent
of those having lawful authority over her, and by the force
exerted by “mutineers and murderers,” the authorities of
that friendly power were bound by the “comity of nations,”
not only to “assist the American Consul in putting an end to
the captivity of the master and crew, and enable them to re-
sume their voyage”—which they did—“but,” adds Mr. Web-
ster, “to take the mutineers and murderers to their own coun-
try, to answer for their crimes before the proper tribunal.”
Can it be, indeed, true that the “comity of nations” re-
quires or justifies such an act 7 We answer the question
by an illustration. Suppose a French vessel from Martin-
ique, where slavery prevails, while in the act of conveying
slaves to some other French colony, were, like the Creole,
taken possession of by the revolted slaves—the master or
supercargo killed, and the vessel brought into this port of
New York, by, or under orders of what the despatch calls
“mutineers and murderers”—is there any power in the
State or Federal Government, by which these men become
free by their own act, could either be delivered up to
France or paid for ? Is there a “comity of nations” that,
overriding our free institutions, and contemning the security
which our laws throw around all who come within their juris-
diction, would snatch them from the power of our courts,
and the AEgis of our Nationality—and deliver them up to
torture or to death ' If the answer be, as it must, in the
negative, how can this Government appeal to a comity
which for it does not exist, and by it, within its own limits,
could not be enforced?
14
But again, what was the decision in the case of the Amis-
tad; so similiar in many respects to that of the Creole
Those revolted Spanish slaves, after “murdering” owners,
were cast upon our shores. Were they demanded by Spain
under “the comity of nations?” No, but under an express
treaty stipulation between the United States and Spain—
and it was because they could not be legally brought within
this stipulation that the claim was dismissed. Yet they too
were, in the language of the despatch, “mutineers and mur-
derers”—but the “comity of nations” reached them not.
But there is no such comity of Nations, even in cases of
clear and unquestioned crime, and where neither the color
“incompatible with freedom,” nor the anomalous institution
of slavery, interferes with a right judgment.
It was by a stipulation in Mr. Jay's treaty, and only in
virtue of that stipulation, that the United States and Great
Britain for a time did agree to a mutual surrender of mur-
derers and forgers, (except for political offences)—but the
stipulation was for a limited term of years, and was suffered
by both parties to expire without renewal.” Since that, in
many instances, demands have been made upon this Govern-
ment by the British authorities, for the surrender of felons, and
always been refused; thus showing that the treaty stipulation
* The article of Mr. JAY's treaty here referrd to is in these words:–
“Art. XXVII. 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.”
This, with some other articles of the treaty, was limited in its duration to
twelve years, at the expiration of which period it was not renewed.
15
was not, as some have contended, merely declaratory of
pre-existing National law, but the law itself, without which
no surrender could be made. We specify merely the case
of the Bambers some years ago, saved by the direct inter-
position of law officers of the General Government, after
Gov. Marcy, under an erroneous impression of duty, had
ordered them to be surrendered to the British Consul; and
the more recent cases of the fugitive murderers and house-
burners from Canada, whom all honest men would have been
too happy to send back to just punishment, but whom, even
such as they were, we could not, without law, surrender.
We have thus shown that the United States Government
does not acknowledge “the comity of nations,” to which
the despatch appeals; and have thence inferred that, as of
general obligation, no such “comity” exists; and that, at
any rate, it belongs not to us to invoke its application for
our benefit, when we refuse it to others.
We have also shown, by the example of the Martinique
slaver, that the fact of the alleged felons being revolted
slaves, would, in the port of a free State, make no differ-
ence; and having shown thus much, we might almost rest
the case here, upon the principle that we can only rightfully
ask others to do unto us as we do unto them.
But stress is laid in the despatch upon the fact as reported
in the Captain's protest, and by the Consul at Nassau, that
“the authorities of the island did actually interfere to set
“free the slaves, and to enable them to disperse themselves
“beyond the reach of the master of the vessel, or their
“owners;” and this is urged as prominent among the reasons
that, in the judgment of the American Government, constitute
this “a clear case for indemnification.”
Assuming the facts to be as set forth in this matter, we
may be quite ready to agree that such a proceeding on the
part of official persons is neither discreet nor friendly, and
should subject those concerned in it to animadversion and
I6
punishment by their own Government; but can it alter the
relation in which these revolted slaves stood to the laws of
the colony? Can it impair their rights, or in any manner
impose responsibility upon them, or take away their reme-
dies 2 That Great Britain would express regret, that any
of her magistrates had interfered officially to induce these
colored persons of the Creole to leave the vessel and seek
safety and freedom beneath the British flag, may be con-
fidently anticipated, because of the unkind feeling that such
interference could not fail to occasion in the United States;
but is it to be supposed, that without such interference, the
slaves would have remained on board the Creole, and gone
voluntarily into the hopeless bondage of Louisiana sugar
plantations 7
Is it probable that on an island where there are multitudes
of free colored persons, a vessel arriving under such circum-
stances as the Creole, would not have enlisted all their sym-
pathies and efforts for the liberation and safety of those of
their own color?—Are there no abolitionists there ready to
sue out a writ of Habeas Corpus in behalf of each one of
those colored persons, whom the captain of the vessel, re-
instated in his command, might seek to detain ' ' And this
brings us to another point made in the despatch, that the au-
thorities of Nassau ought to have aided the officers of the
Creole in reclaiming the slaves and carrying them on to
their ultimate destination.
Suppose the military guard, which, for a time, held the
vessel, had compelled the slaves to submit, and that, when
all was ready for departure, the vessel should be boarded
by an officer of a Court, with a process addressed alike to
the British military officer and the American captain, com-
manding them to produce before the said Court each and all
of these colored persons, to the end that inquiry might be
made in due course of law, whether they were acting of
their own accord, or under what circumstances they were
17
detained—must not that process have been obeyed ; and
once within the authority of the Court, every one of these
people that desired to remain in Nassau must have been de-
clared entitled to do so 7 - -
But the despatch asserts, that because of the violence by
which the vessel had been interrupted in her voyage and
carried into Nassau, she was not properly within British
jurisdiction, and should still have been considered as on her
voyage, “and not subject to any inquiries by the British au-
thorities as to what was her cargo, or what was the con-
dition of persons on board.” .
Such, however, is not, we apprehend, the usage of any
country. If a vessel of any nation should put in here to-
morrow, either from stress of weather or seized by mutin-
eers, the Custom House would send its officers on board,
and report must be made of her cargo, destination, &c.
If, too, while in our harbor, any offence or crime were
committed, such as smuggling or murder, she would be held
subject, we imagine, to inquiries by our authorities, and
the condition of persons on board would assuredly be
verified.
Once within a port, the laws of the country to which it
belongs attach, however the vessel may have reached there.
How otherwise can the mutineers of the Texas vessel o
war, who recently murdered their lieutenant in the port o
New Orleans, and some of whom have been arrested, be
punished : The murder was committed in our waters, and
will be punished by our laws. -
It seems clear, therefore, that however, on the score of
discourtesy and indiscreet officiousness, the alleged volun.
tary interference of the magistrates “to set free the slaves”
may be justly made a subject of complaint, it can in no wise
be magnified into a ground for indemnification, much less
into one for War.
3
18
No. II. ©
Before resuming the discussion we hasten to explain an ex-
pression in our former remarks, which, to our great regret,
has been taken as intended to reflect offensively on the Se-
cretary of State. It is that which characterizes the case
presented by the despatch “as untenable in itself, and so
known to be by Mr. Webster.” Our meaning would have
been more properly and courteously expressed by saying
that Mr. Webster had apparently been forced by his position
into the necessity of sustaining opinions which he could but
believe to be untenable. This unfortunately is a necessity
of no rare occurrence in diplomatic controversies: and our
reference to it was not designed, however in fact it appear,
as a personal reflection on Mr. Webster.
We resume the discussion.
The great error of the despatch, if we may be permitted
so to speak of a paper from such hands, is in not being con-
fined to the case made for it by Lord Palmerston’s admission
in the letter of 7th January, 1837, to Mr. Stevenson, “that
“those claimants must be considered entitled to compensation
“who were lawfully in possession of their slaves within the
“British territory, and who were disturbed in their legal
“possession of those slaves by functionaries of the British
“Government.” -
This covers the whole ground of the Creole, for the slaves
were at the outset of the voyage lawfully in possession of
the claimants, and although by revolt they had liberated
themselves on the passage, on arriving in Nassau, if the
alleged interference of the British officials “to free them.”
had not occurred, they might, and doubtless would, have
been reduced to subjection again by the American master
and mariners, aided by others of their countrymen then in
the same port. If, then, this “legal possession was dis-
turbed,” as is alleged in the Captain's protest and the Con-
19
sul’s report, and averred in the despatch, “by the function-
aries of the British Government,” as between the two
Governments, the case would seem at an end, and Great
Britain must make compensation. But even in this case
there could be no claim for the restoration of the slaves, or
the surrender to punishment of the so-called “mutineers and
murderers.”
In consenting, for the sake of peace and good understand-
ing with this country, to entertain and do justice to a claim
under circumstances such as are specified above, Lord
Palmerston did not overlook the rights of a third party, the
slave himself—and although, for the considerations referred
to, he agreed in behalf of his government to pay the value
of such slave as property, he too justly estimated the natural
rights of that human being, and the sentiment of universal
justice, ever to think of surrendering his person.
And from the moment he was looked upon as a person
and therefore entitled to all the immunities of a freeman—
he could not, even though charged with crime, be sur-
rendered to this government, for as was established in our
former remarks, no authority exists on either side to demand
or to surrender criminals.
We are enabled to fortify this last position by a case
directly in point. Some years ago, the British government
made a proposition for renewing the expired article of Mr.
Jay's treaty, which stipulated the mutual surrender of felons
and fugitives from justice for offences other than political.
This government entertained the proposition and consented
to agree to it, if under the term “fugitives,” the British would
include slaves that might flee into Canada. This the British
government promptly and positively declined, and the article
was not renewed.*
* Mr. Wm. JAY, in his recent publication, “War and Peace,” gives this
version—more probably the correct one—of the attempt by this Government
to obtain a stipulation from England for the surrender of fugitive slaves:
“This question (whether the Law of Nations requires the surrender of fu-
20
&
And this suggests a view of the question which we have
not seen taken elsewhere, and that appears to us decisive.
Suppose, instead of being shipped round by water, the
slaves of the Creole had been marched overland to the mar-
ket for which they were destined—that, in the course of the
journey, it became necessary to pass near the line which
separates the British from the American territory—and that
the slaves, rising upon, and overpowering, or murdering
their keepers, had fled into the dominions of England ; would
they have been even reclaimed ! It is quite certain they
would not be surrendered, or paid for ; but would they, we
repeat, have been claimed of Great Britain by this Govern-
ment : Does not the very proposition, on our part, that
Great Britain should bind herself by treaty to surrender
fugitive slaves—a proposition which that Government re-
jected—admit that, except in virtue of a treaty stipulation,
we could not ask their surrender 7
If, then, slaves freed by their own act, and escaping by
land, cannot rightfully be demanded by Great Britain, what
is there in the voyage by sea that would confer such a
right, or alter the claims of our Government, or the obliga-
tions of that of England 7
The case is stronger for Liberty on the ocean than on the
land—for the Earth may be, has been, subjugated by the
iron hand of Power; but the free, the untamed Sea, disdains
the puny grasp of the mightiest of earthly despots—laughs
x=-
gitive slaves) our Government has itself answered, and of course must be es.
topped in its claims by the answer. Some years since our Minister in England
was instructed to propose a treaty stipulation, whereby the British Government
should agree to surrender all the slaves who might take refuge in Canada, we
offering, in consideration and on condition of such agreement, to surrender
such slaves as might escape to our shores from the British West India islands.
We also endeavoured, but in vain, to induce Mexico to enter into a treaty sti.
pulation to restore our fugitive slaves.”
Is not the attempt to secure this result by treaty conclusive against the no-
tion that the surrender of fugitive slaves may be claimed under the law or co-
mity of nations 7
21
to scorn “the peculiar institutions,” dear and well-guarded
though they be at home, of people, however chivalrous.-
Thrice glorious sea!
Man's steps are not upon thy paths—thy fields
Are not a spoil for him—thou dost arise
And shake lim from thee, the vile strength he wields
For earth's destruction thou dost all despise,
Spurning h m from thy bosom to the skies,
And send'st him shivering in thy playful spray,
And howling to his gods, where haply lies
His petty hope in some near port or bay,
And dasheth him again to Earth—there let him lay.
But, as we have hinted above, there is a third party in all
this matter.
And the grand mistake of all who have written on the
subject is, that they leave entirely out of the question this
party, whose interest and right in it are of all others the
greatest, to wit: the slaves themselves. The point is argued
upon English law and American law, as if the negroes were
legitimately subject to either; that is, subject to either at all
times and in all places, without any regard to the means of
enforcing that law.
Now it is unquestionable that no man can be subject to
the law of any country except by his own consent; positive
consent, exhibited by his own direct or remote agency in
the creation of the law, or implied consent, exhibited by
coming or remaining voluntarily within the sphere of that
law's jurisdiction. But the negroes, slaves, have never
given their assent to American law in either of these forms.
They have been brought within its jurisdiction by force, and
by ſorce alone. Therefore, when they find themselves or
place themselves beyond its jurisdiction, they are no longer
subject to that law.
Again : the aid or interference of another power to enforce
the jurisdiction of American law, can only be demanded
with reference to parties who are legitimately subject to
22.
American law. For instance : suppose a citizen of New
York to send goods to England, with the intention of having
them smuggled ashore there, he remaining in New York;
the agent sent with the goods may be seized and made sub-
ject to the law of England against smuggling, but the
principal at home cannot be demanded from the American
Government, for trial and punishment by that law.
Now, then, the slaves, once out of American jurisdiction,
are not subject to American law; their surrender cannot be
demanded from any other power into whose jurisdiction
they may have come. Once out of American jurisdiction,
American law cannot be applied to them as slaves; the only
law that can be applied is the universal law of nature. Out
of American jurisdiction, they are the subjects of no Gov-
ernment. England cannot touch them : America cannot
require England to touch them : America cannot require
England to abstain from extending to them in her ports the
same protection, or rather allowing them the same liberty to
protect themselves, which she allows to Spaniards, Italians,
Germans, or any other people.
In this view the decision of our Supreme Court in the
Amistad case was wrong—not wrong in its effect, but in the
principle on which it was founded. That principle was,
that by the law of Spain the Amistad negroes were not
properly slaves. But out of the jurisdiction of Spain the
law of Spain had nothing to do with them. They were
entitled to their liberty by the law of nature, and the law of
Spain had no bearing on the matter.
Suppose Africa were a powerful nation like Fngland—
and suppose the negroes of the Amistad or the Creole, instead
of landing in America or in New Providence, had landed in
Africa. Would the Spanish Government in the one case,
or the American in the other, think of demanding them as
slaves from the Government of Africa? The question is
absurd. - .
23.
Suppose a number of Englishmen, slaves in Africa, should
find an opportunity to escape, precisely as did the negroes
of the Creole, and should reach America—what would
America say to a demand from the Government of Africa
for their surrender 7 -
The only character in which Englishmen so situated, or
the negroes of the Creole, could be demanded, would be that
of pirates; and the only question to be asked would be,
whether they were in durance—-unlawful durance to them,
whatever it might be by the laws of Africa or of America—
and whether the act they committed was necessary to effect
their liberation. If they were in durance, and the act was
necessary, they were not pirates; and cannot be demanded
or surrendered as such, or in any other character.
It is very true, indeed, that the authorities at Nassau have,
as is stated in the despatch, placed themselves “in a very
awkward position,” by imprisoning those of the slaves who
were more immediately engaged in the successful revolt;
but that surely cannot affect the rights, or ultimately en-
danger the safety, of the prisoners or their companions who
were suffered to go at large. And we confess it strikes us
as rather ungracious thus to taunt this “awkward,” and, as
we do not doubt it will be pronounced, unlawful proceeding
on the part of the local authorities, for it was entered into,
beyond all doubt, to manifest to the United States the de-
sire to do all that, under the circumstances, could be done
to satisfy our republican susceptibilities on this particular
point. --
Our marvel indeed is, that, long before, these men have
not been taken by writ of habeas corpus before the proper
tribunal, that the offence or crime, if any, for which they
are held in custody, may be duly inquired into—and we can
only account for this not having been done, by supposing
that the same desire to satisfy or even propitiate this Gov-
ernment, which led to the original imprisonment, has pre-
24
vailed over all other considerations, and silenced the voice of
Law, Justice, and Humanity. -
That they cannot be tried by British laws is certain, for
they have committed no offence known to those laws; that
they cannot be surrendered as criminals to the punishment
of American laws is equally certain, for the authority either
to ask or to make such surrender no-where exists. Why
then are they held in durance 1
No. III.
Those who shall carefully read this despatch, will, we
think, be struck with the want of that force and precision,
both of thought and expression, which so eminently charac-
terize the usual style of Mr. Webster. -
We cannot but look upon this as indicative of the want of
confidence in the grounds he felt obliged to assume, and in
his own conclusions.
The very first paragraph, describing the condition of the
Creole, illustrates this remark, and we refer to it the rather
for the sake of vindicating it from a reproach to which it
seems liable, but which, as appears from the punctuation,
and from a subsequent paragraph, is not well founded.
“The Brig Creole, of Richmond, Virginia, &c. &c, with a car.
go of merchandize, principally tobacco, and slaves, about 135 in
number.” - -
The first impression here is, that the tobacco and slaves
are included under the general term of “merchandize;” and
we have received for publication a very indignant comment
on such an abuse of ſanguage, by such a man as Mr. Web-
ster; but the meaning, though not immediately obvious,
clearly is, that the “merchandize” was “principally tobacco,”
and that over and above the merchandize there were 145
slaves: and this version is confirmed by a subsequent para-
graph, where the distinction is thus expressly taken :
25
“The Creole was passing from one port of the United States to
another, in a voyage perfectly lawful, with merchandize on
board, and also with slaves.”
Another evidence of want of care and precision, is to be
found in the assertion broadly made, that, instead of the as-
sistance which ordinary comity and hospitality required
from the authorities at Nassau “to enable the captain of the
“Creole to resume and prosecute his voyage, and bring the
“offenders to justice, not only did the authorities give no
“aid for any such purpose, but they did actually interfere to
“set the slaves free, &c.”
Now, it had been stated previously, in the opening part
of the despatch, that “at the request of the American Con-
“sul, the Governor ordered a guard on board to prevent the
“escape of the mutineers, and with a view to the investiga-
“tion of the circumstances of the case—that such investiga-
“tion was accordingly made by two British magistrates—
“that an examination also took place by the Consul—and
“that on the report of the magistrates, nineteen of the slaves
“were imprisoned by the local authorities, as having been
“concerned in the mutiny and murder.” Their surrender
to the Consul, to be sent to the United States, was to be sure
refused, until the Home Government could be consulted;
but was not enough done to show how entirely unfounded is
the declaration, that the authorities gave “no aid for any
purpose ?”
But again : It is in one place made matter of reproach that
the authorities at Nassau did not sufficiently interfere to rein-
state the captain in his command, and reduce the revolted
slaves to subjection : and in another place it is contended,
that “according to the principles of national intercourse,
“it was neither the duty nor within the power of the British
“authorities to inquire at all into the condition of the persons
“on board the Creole.” It seems to be the aim of these parts
of the despatch to prove, that although the law and comity
4
26
of nations forbade any interference in favor of Justice, Hu-
manity, and Freedom, they enjoined and required all aid and
succor in rivetting the galling chains of slavery: an ambi-
dextrous argument, of which one portion nullifies the
other.
Not less loose and inconclusive is the illustration that
follows: *
“Suppose an American vessel, with slaves lawfully on board,
were to be captured by a British cruiser, as belonging to some
belligerent, while the United States were at peace ; suppose such
prize carried into England, and the neutrality of the vessel fully
made out in the proceedings in Admiralty, and a restoration con-
sequently decreed—in such case, must not the slaves be restored
exactly in the condition in which they were when the capture
was made 7–Would any one contend that the fact of their having
been carried into England by force set them free ?”
Certainly not, if carried in by the act of England, and
that just makes the distinction between the case supposed
and the actual case of the Creole. Neither nations nor indi-
viduals can be permitted to take advantage of their own
wrong to avoid the responsibilities thereby incurred; and in
the case put by the despatch, the restoration of the vessel
and slaves, or an equivalent compensation for the latter, must
be made—not because the comity of nations or the laws of
England recognize slavery, but because both the comity and
law of nations were violated by the capture of the ship and
those on board.
Even in such a case, however, the writ of Habeas Cor-
pus, if applied for while the captured vessel was still in an
English port, would assuredly liberate every slave on board,
leaving it to the Government to pay in money the damages
occasioned by the unlawful capture. The law of England is
the law of Freedom, and it bends neither to Policy nor Power.
More unfortunate still, under the circumstances, is the
llustration we next quote :
“Suppose that by the law of England all blacks were slaves, and
incapable of any other condition; if persons of that color, free in
27
the United States, should, in 'attempting to pass from one port to
another in their own country, be thrown by stress of weather
within British jurisdiction, and there detained for an hour or a
day, would it be reasonable that British authority should be
made to act upon their condition, and to make them slaves 7”
Not to dwell upon the unfairness in argument of suppos-
ing such an extreme case—nor upon the unbecomingness
in the first Minister of a Republic of adducing, as against
Liberty, such a violent assumption,--we answer by quoting
the law of South Carolina, which does, in contravention of
the Constitution of the United States, and of the universal
law of justice, treat all colored persons arriving by sea in .
her ports, not only as slaves, but as felons, and shuts them
up in prison at the expense of while useless to, the vessels in
which they arrived
Here we have the very case. South Carolina does prac-
tically consider all colored persons as slaves, and under
that plea reduces to bondage and imprisonment—none the
less real, while they last, for being temporary, not only
persons free by the laws of other States of the Union, but
free-born Englishmen or Frenchmen. tº
With such a fact in his mind, how could Mr. Webster
venture upon such an illustration ?
We shall not, of course, be understood as contending that
an unlawful act on our side can justify unlawful acts on
the other—but simply as adducing the South Carolina case
to show how open to a retort in kind is the case supposed
by the despatch.
Most objectionable of all is the last illustration, which we
now proceed to quote :
“Or suppose that an article of merchandize, opium for instance,
should be declared by the laws of the United States, to be a nui-
sance, a poison; a thing in, which no property could lawfully exist
or be asserted; and suppose that an English ship, with such a car-
go on board, bound from one English port to another, should be
driven by stress of weather or by mutiny of the crew, into the
ports of the United States, would it be held just and reasonable that
28
such cargo should receive its character from American law, and be
thrown overboard and destroyed by the American authorities?”
The taste, not less than the policy, of selecting opium as
the article of merchandize by which the fate of that of flesh
and blood known as slaves, is to be tested, at this particular
juncture, may well be questioned.
The sneer implied—if not intended—by such an illus-
tration, should have been avoided. We well remember, and
Mr. Webster cannot be ignorant, how deep and universal
were the sense of insult and desire of revenge produced in
American hearts by Mr. Canning's sneers at the “bit of
striped bunting flying at the mast-head of a few fir frigates.”
Still less is Mr. Webster—accomplished as he is in all know-
ledge that belongs to his eminent station—unaware of the
disastrous influence upon more than one occasion during
Mr. Canning's brilliant public career, of his irrepressible
propensity to diplomatic epigrams. - ... º.
Not such are the arms that become the great powers of
Daniel Webster—not such the aid that a just and honest
cause requires | .
But what shall we say of the attempt to determine the
case of human beings, with souls immortal as our own—
with like hopes, feelings, passions, capacities and respon-
sibilities—by the law applicable to certain bales of goods 7
In the former part of this paper, we have vindicated the
language of the despatch from the appearance, and it is an
appearance only, of classing slaves as merchandize,_but
here there is no room for any such interpretation. They
are, in this supposed case, put precisely upon the footing of
merchandize, of bales of opium—and with no claim to other
consideration, other rules of law, other rights, or remedies,
than so much inert dead matter.
And this brings us naturally to an examination of the
terms “mutineer and murderer,” used so frequently in this
despatch, and without any apparent hesitation or distrust as
29
to their accuracy. We take issue upon these terms, and deny
that the revolters of the Creole were in any just sense “mu-
tineers or murderers.” By the law of that portion of the
United States from which they sailed—a law which they had
no share in framing, and to which they had never assented
—they were slaves; but they were so only by coercion.
While within the country, all the power thereof must, if
needed, have been employed to keep them in slavery or
punish them for insurrection, because that is the constitutional
charter by which we, the people of the United States, and of
all parts of the United States, have bound ourselves.
But this provision of our charter must, as against Liberty,
be construed with the utmost strictness; and no more or
greater extension be given to it, than the letter of the law
will warrant. Slavery being a local institution, though pro-
tected within its sphere by the general law, it may be
doubted whether this general law could be properly extended
to its protection, beyond the point where the local law would
cease to be operative. For instance : the Constitution of the
United States recognizes and upholds slavery in Virginia,
but if the owner of slaves in Virginia, for any purpose of his
own, hazards them beyond the jurisdiction of the State and
of the United States, to wit: on the high seas—he by his
own act seems to put them out of the protection of our laws.
It is no answer to this to say, that an American ship is for
certain purposes to be deemed and taken as an extension
only of the American territory, and with all she carries, still
even on the high seas, under American laws. This as a
general proposition is true, but, like all general propositions,
liable to exception ; and the exception here is precisely the
case of slaves. Their mixed character of property and per-
sons constitutes the ground of the exception. In fact and in
truth they are human beings, men and women—like our-
selves—and not bushels of wheat or hogsheads of tobacco.
The law which regards them as such—as chattels, property
* 1
30
—is local, not general, limited and not universal—while
the law which defines and guaranties merchandize properly
so called, is comprehensive and every where accepted and
obeyed.
Hence then, when slaves, by the act of their owners, are
taken out of the jurisdiction of the local law, and of the gen-
eral law, as in confirmation——but not in eartension——of the
local law, they must be kept in slavery, if kept at all, by
superior physical force, and resistance of that force on their
part, even unto death, cannot be called mutiny or murder—
because they are violating no law by such resistance, but on
the contrary vindicating their natural freedom—the gift of
God alike to all.
When, therefore, Mr. Webster characterizes the successful
rèvolt of the slaves of the Creole as “one of the highest
offences known to human law”—and when those slaves, who
bursting their galling fetters, and with arms conquering their
freedom, restrained themselves within the least possible de-
gree of violence, spared woman and childhood, and did
nothing in vengeance or cruelty——are by a consummatermaster
of language and of law called “mutineers and murderers,”
we confess our utter amazement, our unfeigned sorrow.”
* The following statement of the conduct of the leader of the revolt and
his associates is given by the Hon. WILLIAM JAY, in his recently published
volume on “War and Peace”:—
“When eight days out, a portion of the slaves, under the direction of one of
their number, named Madison Washington, succeeded after a, slight struggle,
in gaining command of the vessel. The sagacity, bravery, and humanity of
this man do honor to his name, and, but for his complexion, would excite uni-
versal admiration. Of the twelve white men employed on board ‘the well-
manned slaver,’ only one fell a victim to their atrocious business. This man,
after discharging his musket at the negroes, rushed forward with a handspike,
which, in the darkness of the evening, they mistook for another musket—he
was stabbed with a bowie knife wrested from the captain.
“Two of the sailors were wounded, and ‘their wounds were dressed by the
negroes.' The captain was also injured, ‘and he was put into the ſore-hold,
and his wounds dressed'; and his wife, child and niece were unmolested. It
does not appear that the blacks committed a single act of robbery, or treated
their captives with the slightest unnecessary harshness; and they declared at
the time, that “all they had done was for their freedom.’”—pp. 323–4.
31
That the son of a New-England Soldier of Freedom, a
disciple of the New-England Common Schools, a Patriot
whose heart has been warmed in contemplation of the
“rebel”-fields of Bunker-Hill and Lexington, an American
whose gushing affections for “his own, his native land,” have
lent to his eloquence a fervor and an earnestness that have
made, and while the language lasts, will make it, for every
youthful and ingenuous bosom, as the voice of the trumpet
to the war-horse, -that such a man, so endowed, so trusted,
should, by any exigencies of official station, permit himself
to be forced into the adoption of language and opinions such
as are here animadverted on, does indeed seem to us to
afford a lamentable illustration of the fallibility of human
judgment. & *
In our next we shall refer to certain decisions of British
tribunals, and to opinions expressed in our country, that have
a direct bearing on this subject.
No. IV.
The proposition that Slavery is theoretically against Law
and Right—that it constitutes an exception to the boast with
which our own Declaration of Independence commences,
“ that all men are born free and equal,” and that it exists
only by virtue of special and local legislation—is one that
will be admitted without controversy.
But the admission of this truth carries with it, as a neces-
sary corollary, the deduction that no sanction is to be found
in the Law or Comity of Nations—which must be founded
on universal Justice—for such an unnatural and forced con-
dition as that of slavery. *
Hence the error which pervades the whole despatch, in
assuming, that from the Comity of Nations support may be
claimed for this anomalous institution.
32
But the practice of England on this head is not left to
general reasonings. It is settled by solemnly adjudged cases
—and that, too, against British subjects.
Towards the close of the last war between this country
and Great Britain, 38 slaves, belonging to a Mr. Forbes, a
British subject, resident near Pensacola, in Florida, then a
Spanish colony which allowed slavery, took refuge on board
the Terror, a vessel of war forming part of Admiral Cock-
burn's Squadron, lying off the coast. The owner dis-
covered and demanded them from the Admiral. He refused
to surrender them, but permitted the owner to see the slaves,
and use all his endeavors to induce them to return to his ser-
vice, the Admiral promising that no obstacle should be in-
terposed to their doing so, if they desired. They all refused,
and were afterwards sent to Bermuda, where they were libera-
ted.
Forbes instituted an action against the Admiral, in the
Court of King's Bench in England, laying his damages at
£3800 stg., the alleged value of the slaves. There was no
dispute about the facts, and a verdict was taken for the plain-
tiff, subject to the opinion of the Court on the law. This
was unanimous against the plaintiff.”
Justice Bayley said:
“The law of slavery is a law in invitum ; and when a party gets
out of the territory where it prevails, and out of the power of his mas-
ter, and gets under the protection of another Power, without any
wrongful act done by the party giving that protection, the right of
the master, which is founded upon the municipal law of the particu-
lar place only, does not continue, and there is no right of action
against a party who merely receives the slave in that country
without doing any wrongful act. This has been decided to be the
law with respect to a person who has been a slave in any of our
West India islands, and comes to this country. The moment he
puts his foot on the shores of this country, his slavery is at an
end.”
Justice Best held this language:—
* English Common Law Reports, Vol. IX., p, 138, Phil. edit. 1837.
33
“Slavery is a local law, and therefore, if a man wishes to pre-
serve his slaves, let him attach them to him by affection, or make
fast the bars of their prison, or rivet well their chains, for the in-
stant they get beyond the limits where slavery is recognized by the lo-
cal laws, they have broken their chains, they have escaped from their
prisons and are free. Those men, when on board the English ship,
had all the rights belonging to Englishmen, and were subject to
all their liabilities. If they had committed any offence, they must
have been tried according to English laws. If any injury had been
done to them, they would have had a remedy by applying to the
laws of this country for redress. I think that Sir G. Cockburn
did all that he lawfully could do to assist the plaintiff. He permit-
ted him to endeavor to persuade the slaves to return, but he refused
to apply force. I think he might have gone further, and have said
that force should not be used by others; for if any force had been
used by the master or any person in his assistance, can it be
doubted that the slaves might have brought an action of trespass
against the persons using that force : Nay, if the slave, acting
upon his newly recovered right of freedom, had determined to win-
dicate that right, originally the gift of Nature, and had resisted the
force, and his death had ensued in the course of such resistance,
can there be any doubt that every one who had contributed to that
death would, according to our laws, be guilty of murder ? That
is substantially decided by Somersett’s case, from which it is clear
that such would have been the consequence had these slaves been
in England; and so far as this question is concerned, there is no
difference between the English ship and the soil of England; for
are not those on board an English ship as much protected and gov-
erned by the English laws as if they stood upon English land. If
there be no difference in this respect, Somersett's case has decided
the present. He was held to be entitled to his discharge, and, con-
sequently, all persons attempting to force him back into slavery
would have been trespassers, and if death had ensued in using that
force, would have been guilty of murder. It has been said that
Sir G. Cockburn might have sent them back. He certainly was
not bound to receive them into his own ship, in the first instance,
but, having done so, he could no more have forced them back into
slavery than he could have committed them to the deep.”
Such being the law of England, and enforced against her
own subjects under circumstances where, if ever, there was
a strong equity in the claim, can it be expected, or ought it
to be asked, that such law, so just in itself, so consonant with
Freedom and Humanity, should be set aside for the benefit
of foreigners? The question is answered when it is stated.
Bear in mind too that this is law, not diplomacy; the calm,
5
34
settled and irreversible voice of Justice—not the dexterous,
shifting, and oftentimes hollow and sincere sophistry of
Diplomacy. Ministerial protocols and despatches may be
made to take the hue of the hour, and with the hour re-
nounce it, but the judgments of Law STAND, and know not
change. *
It is in this feature of the case that we see the imminent
danger to the peace of the two countries, from the claim put
forth in the despatch. If the point in issue were one that
might be a subject of negotiation, that were open to doubt or
compromise, some middle ground might be agreed upon ; but
here the law on one side is settled and positive, the claim on
the other not less positive, and absolutely adverse. Who
shall foretell the issue 7
And there is nothing in the case of the Greole which—
upon general principles, or by reason of any particular facts,
beyond that already discussed of the alleged interference of
the authorities at Nassau to free the slaves—can take it out
of the category of the adjudicated case above referred to.
So in the general principles connected with the demand
and surrender of white men, charged with crime, the doc-
trines of Virginia, as set forth in legislative acts, are signally
at variance with the claim now put forth in her behoof
mainly, for the surrender of the revolters of the Creole.
We have in former remarks adverted to the article in Mr.
Jay's treaty which stipulated for the mutual surrender of
felons and murderers.
It was under this article that the controversy, famous in
its day, though now little in the public mind or memory, con-
cerning the surrender of Jonathan Robbins, arose. Robbins,
alias Nash, had committed a murder on board a British frigate
—and proof satisfactory to the President, John Adams, having
been furnished of the identity of the man, that he was a
British subject, and had probably committed the crime, he di-
rected the Marshal of South Carolina, where Robbins was
arrested, to deliver him up to the British Consul.
&
35
The country was thrown into a flame by this act—for it
was in high party times,—and Nash having taken the name
of Jonathan Robbins, and obtained an American protection,
was represented as an impressed American sailor, given up
to British vengeance, for having risen against and slain one
of those who held him in unlawful bondage.
In the vehement discussions which were had in Congress
upon this subject, Albert Gallatin on one side, and John
Marshall, then a member of the House of Representatives, on
the other, assailed and defended the surrender. But as to the
right of a man, unlawfully held in bondage, to resist even
unto death——both concurred. º
It was said by Mr. Gallatin, that an impressed American
seaman who should commit homicide for the purpose of libe-
rating himself from the vessel in which he was confined,
ought not to be given up as a murderer, and in this Mr.
Marshall expressed his entire concurrence. “The act,” he
said, “ of impressing an American is an act of lawless vio-
“lence. The confinement on board a vessel is a continua-
“tion of that violence and an additional outrage. Death
“committed within the United States in resisting such vio-
“lence would not have been murder, and the person giving
“the wound could not have been treated as a murderer.
“Thomas Nash was only to have been delivered up to justice
“on such evidence as, had the fact been committed within
“the United States, would have been sufficient to have in-
“duced his commitment and trial for murder.”
Nash was delivered up under the treaty, because the evi-
dence was conclusive that he was not an impressed American,
and was probably a murderer.
But what was the course, in this matter, of Virginia, mother
of States and of statesmen, and that now is at the head of those
free commonwealths whose foundation-stone is Slavery 2
There are yet on the statute-books of Virginia, unrepealed
to this day, laws enacting that any person who should deliver
36
up or surrender, either by his own authority or under color
of any office under the commonwealth, any free person with-
in the commonwealth, to be transported without the United
States, should be adjudged a felon and sentenced to be con-
fined in the penitentiary. And she further enacted, that in
case the person so delivered up or surrendered should be
transported to a place without the United States, and at such
place should be tried and condemned, and in consequence of
such condemnation should be executed, then every person
concerned in the delivery and surrender should suffer death.
These enactments, it will be perceived, were not limited to
the protection of citizens of the United States, but extended to
any freeman within the commonwealth ! although his hands
might yet be red with murder—although rioting in the profu-
sion fed by forgery, and notwithstanding there was the letter
of the treaty, which is the supreme law of the land.
We submit, then, that Virginia is estopped by her own un-
repealed legislation, from urging upon other nations claims
analogous to those which, under the penalty of death, she
prohibited any compliance with on the part of her citizens,
even though compliance were commanded by the paramount
and lawful authority of the United States.
We submit, moreover, that the right of resistance unto death
against unlawful oppression, admitted both by Gallatin and
Marshall, in the case of Robbins, cannot depend upon the
color of the skin, nor, beyond the sphere of its operation, be
impaired by any special local law. We therefore claim the
benefit of that right in behalf of the self-emancipated slaves
of the Creole.”
* Since this was published, a writer in the New-Haven Herald of 4th March
has furnished these conclusive precedents of the unvarying practice of the Go-
vernment of the United States, to refuse the surrender even of “ mutineers";
“The doctrine which our Government has uniformly maintained on this
subject is, that which was stated by Mr. Madison in his letter to Mr. Erskine,
cf Jan. 7th, 1807, in reply to an application for the surrender of certain Bri-
37
We have now brought to a close the remarks we felt called
upon to offer upon this momentous question ; and have
shown, unless we wholly mistake the matter,
1. That no national law or comity requires or authorizes
the surrender of the self-emancipated slaves of the Creole;
2. That in demanding the surrender of the alleged “mu-
tineers and murderers,” and indemnification for those colored
people who escaped at Nassau, we ask of Great Britain what,
the case being reversed, the United States could not concede
to her;
3. That neither the local law of Virginia, nor the United
States laws, which in this particular case can only be co-op-
erative and co-extensive with the local law, can, in such a
case, be deemed of force on the high seas;
tish seamen, who having united with American seamen, left on board a ves-
sel ordered to Halifax, forcibly took possession of her and brought her into the
United States, and were charged with mutiny, piracy, and an attempt to mur-
der their officers. Mr. Madison answered, “that not only no prerogative for
the purpose in question, is vested in the Executive of the United States, but
that neither the law nor the practice of nations impose on them an obligation
to provide for the surrender of fugitives from the jurisdiction of other powers.
The obligation can result only from special and mutual stipulations, which do
not exist between the United States and Great Britain.”
“In 1817, an atrocious piracy having been committed on board the Ameri-
can schooner Plattsburgh, and Mr. Gallatin, then the American Minister at
Paris, having expressed a desire for the surrender of Lemolgat, one of the
supposed pirates, who had taken refuge in France, he was informed by the
Duke de Richelieu, that as no conyention existed between France and the
United States for the surrender of malefactors, Lemolgat could not be placed
at his disposition, unless the American Government would engage to act with
perfect reciprocity under analogous circumstances. Mr. Gallatin replied,
‘that he was not authorized to promise that the Government of the United
States would deliver to the French tribunals a man charged with a similar of.
fence on board of a French vessel on the high seas. I think on the contrary,’
he adds, “that the existing laws would, where there is no convention to that
effect with a foreign country, forbid such a surrender.’
“In 1821, Daniel Sullivan, a British subject, master of a British schooner,
(called the Maria,) ran away with that schooner and her cargo, and carried
them into Mount Desert, in the State of Maine. The vessel and cargo were
seized by our officer at that port for having entered in violation of our
laws. The British Minister requested that the British subjects who had com_
38
4. That the settled law of England entitled every human
being on board the Creole to freedom, the instant she reached
the port of Nassau–and that diplomacy and policy cannot
override nor nullify that law;
5. That in point of fact, the revolted slaves of the Creole
cannot, without an equal abuse of language and of justice,
be considered or treated either as mutineers or murderers;
And, *
Finally. That in making this a question of indemnification
between the two governments, the decision of Peace and
War is put upon an issue where Great Britain cannot yield,
and which the sober judgment of this country cannot ratify.
We are aware that in stating these objections we lay our-
selves open to the censure of those who maintain the doc-
trine, that in all discussions with foreign nations we should
present an unbroken front. This, when the battle is engaged,
may be true, but not while the din of war is yet unheard.
We hold not to the sentiment of “Our Country, right or
wrong.” On the contrary, we can conceive of no higher
duty in a public press than that of resisting error, even
though popular ; and while there is yet time to pause or draw
back, of objecting to measures which Justice and Humanity
reprove.
mitted the offence should be delivered up to the officers of their own Govern-
ment, to be dealt with according to the laws of their nation. The requisition
was referred to Mr. Wirt, the Attorney General of the United States, for his
opinion in regard to the right and obligation to surrender. In the very ela-
borate opinion which he gave, under date of Nov. 20, 1821, Mr. Wirt conclu-
sively maintained the position, that in the absence of a treaty stipulation, neither
the obligation nor the right to surrender by the President, existed.
“On the 16th of April, 1833, Chief Justice Taney, (the Attorney General of
the United States,) after having, as he says, attentively considered the appli-
cation made ‘by the Chargé of the King of Portugal for the delivery of two
seamen confincd in Boston, whom he charges to have committed the crime of
piracy, on board the brig Triumphio, declares his opinion that the Executive
would not be justified in complying with his request. And in accordance with
these opinions has been the uniform practice of our Government, under every
administration.”
39
If the press of the country—if public opinion, be silent in
this controversy, the ground taken in the despatch will be
presevered in to the uttermost, and the national sanction will
thus be given to a claim which cannot, in our judgment, be
enforced, without war.
War in any cause we abhor and dread—for we are ready
to say with Franklin, “that there scarcely ever was a good
war, or a bad peace ;” but war undertaken in such a cause as
this—war against our own kith and kin for the protection
and security of the coasting slave trade—war by a nation of
freemen to extend and perpetuate slavery—would be a con-
test, in which, to use the language of Jefferson; “the Almighty
has no one attribute that could induce him to take sides
with us.”
Thus impressed, we have endeavored calmly, but frankly,
to controvert the positions taken in the despatch. Our part
is played—the judgment of the country must determine the
CVCnt.
J. P. WRIGHT, Book & Job Printer, 18 New Street, N. Y.
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