Volume 8 — FINAL SUPPRESSION OF THE SLAVE-TRADE.

Speech in the Senate, on the Treaty with Great Britain, April 24, 1862.

Early in the spring of 1862, Mr. Seward conferred with Mr. Sumner on a treaty with Great Britain for a mutual and restricted right of search and mixed courts, with a view to the suppression of the slave-trade. The negotiation was opened and proceeded successfully. April 7th, Mr. Sumner, being at the State Department, had the happiness of witnessing the signature of this treaty by Mr. Seward and Lord Lyons. April 11th, it was communicated to the Senate in Executive Session, and referred to the Committee on Foreign Relations. April 15th, it was reported to the Senate by Mr. Sumner, with the recommendation that the Senate advise and consent thereto. April 22d, it was brought up in the Senate, when Mr. Sumner moved the usual resolution of ratification. April 24th, on motion of Mr. Sumner, the Senate proceeded to consider the resolution of ratification. The yeas and nays were dispensed with by unanimous consent, and the resolution was agreed to without a dissenting vote.

MR. PRESIDENT,—Already a slave-trader has been executed at New York, being the first in our history to suffer for this immeasurable crime.[290] English lawyers dwell much upon treason to the king, which they denounce in a term borrowed from ancient Rome as lese-majesty; but the slave-trade is treason to man, being nothing less than lese-humanity. Much as I incline against capital punishment, little as I am disposed to continue this barbarous penalty, unworthy of a civilized age, I see so much of good in this example at the present moment, that I reconcile myself to it without a pang. Clearly it will be a warning to slave-traders, and also notice to the civilized world that at last we are in earnest, while it helps make the slave-trade detestable. Crime is seen in the punishment, and the gallows sheds upon it that infamy which nothing short of martyrdom in a good cause can overcome.

The important treaty now before the Senate is to enforce on a large scale final judgment against the slave-trade. It is to do with many what has just been done with an individual. Our flag is desecrated by this hateful commerce; ships equipped in New York are tempted by its cruel gains. To stop this has been impossible, while Slavery prevailed in the National Government. How could our courts judge the slave-trader, how could the National Government set itself against the hateful commerce, while Slavery occupied all the places of power? But this is changed. If Emancipation is yet longer delayed, Slavery is at least dislodged from its predominant influence. Therefore is the way free for action against the slave-trade.

The treaty proceeds on the idea of earnest work, and it recognizes two especial agencies, each of which has been discussed between the two Governments in former years, but has always failed of adoption. The first is a mutual and restricted right of search, and the second is the well-known system of mixed courts, for the enforcement of the treaty.

The treaty has just been read, so that I need not recite in detail the terms of these two provisions. I pass at once to the consideration of their origin and necessity.

There was a time when our country was open and earnest against the slave-trade. A well-known provision of the Constitution, classed among original compromises, restrained Congress from prohibiting it prior to the year 1808; but, just so soon as it had the power, Congress acted. Its promptitude justified the enthusiasm with which Judge Story in his Commentaries remarks: “It is to the honor of America that she should have set the first example of interdicting and abolishing the slave-trade in modern times.”[291] By Act of Congress, bearing date as early as March 2, 1807, and to take effect January 1, 1808, the importation of slaves into the United States was prohibited, under penalties of imprisonment, fine, and forfeiture. These were increased by Act of Congress of April 20, 1818. But mild and moderate enactments were not enough; and at length, by Act of May 15, 1820, Congress was constrained to declare the slave-trade piracy, and to punish it with death. Since then this offence has stood in the catalogue of capital crimes.

Already this immense subject had occupied the attention of the great European powers. In the Treaty of Paris in 1814, Great Britain and France united against what was denounced as “a species of commerce equally repugnant to the principles of natural justice and the lights of the times.”[292] This was followed by the Treaty of Ghent, at the close of the same year, in which the United States and Great Britain denounced the traffic in slaves as “irreconcilable with the principles of humanity and justice,” and promised their best endeavors for its suppression.[293] Then came the Treaty of Vienna, where the great powers joined in declaring it “repugnant to the principles of humanity and of universal morality.”[294] These were declarations only. The next attempt was to find a system of action, which should be effective against the Protean monster in the many metamorphoses it was able to assume, and here England nobly took the lead.

Lord Castlereagh instructed the Duke of Wellington, the British ambassador at Paris, to obtain from France the concession of a mutual right of search for the enforcement of the denunciation in which they were agreed; but this was found unwelcome to the French Government, and therefore not pressed at the time. Such was the beginning of the proposition, which, after various fortunes, is at last recognized in the treaty now before us.

Meanwhile negotiations were opened on our side particularly with Great Britain. These seem for a time to have had the sanction not only of the Executive, but of Congress, or at least of the House of Representatives. Messages from the President, calling attention to the slave-trade, were answered by reports from special committees of the House of Representatives. One of these, made February 9, 1821, concluded with a resolution, “That the President of the United States be requested to enter into such arrangements as he may deem suitable and proper with one or more of the maritime powers of Europe for the effectual abolition of the African slave-trade.” The report, while declaring that “to efface this reproachful stain from the character of civilized mankind would be the proudest triumph that could be achieved in the cause of humanity,” proceeds to announce, in words applicable to the present moment, that “this happy result, experience has demonstrated, cannot be realized by any system, except a concession by the maritime powers to each other’s ships of war of a qualified right of search.”[295] Another report, by a select committee of the House, April 12, 1822, adopted the resolution of the previous committee, and also the recommendation of a mutual right of search, adding, that it could not be doubted “that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession by treaty, suggested by your Committee, and which is demanded in the name of suffering humanity.”[296]

Then came the devoted efforts of Charles Fenton Mercer, an admirable representative of Virginia, who exposed this terrible traffic with a pathos not to be forgotten. On his motion, another resolution was adopted, February 28, 1823, by a vote of one hundred and thirty-one yeas to only nine nays, calling upon the President to enter into negotiations “for the effectual abolition of the African slave-trade, and its ultimate denunciation as piracy, under the Law of Nations, by the consent of the civilized world.”[297] The character of this resolution was impaired by the rejection of an amendment, “and that we agree to a qualified right of search,”[298] which was a falling off from the recommendations of the two committees.

The Executive responded to Congress, and, under instructions from John Quincy Adams, Secretary of State, a treaty was negotiated with Great Britain, bearing date March 13, 1824, in which it was stipulated that the ships of the two powers might “cruise on the coasts of Africa, of America, and of the West Indies, for the suppression of the slave-trade,” and empowering them under certain restrictions to detain and capture vessels engaged in this traffic.[299] Important in substance, this treaty became important historically. Although the clause quoted appeared in the original draught sent out from Washington, yet the treaty was ratified by the Senate only on the condition that the words “of America” were struck out, thus excluding operations of British cruisers along the whole extent of American coast.[300] This was fatal to the treaty, as the British Government would not accept the condition. The case is memorable, not only as a check to negotiations for the suppression of the slave-trade, but as a conspicuous instance, where the Senate, in dealing with a power like Great Britain, did not shrink from asserting its prerogative under the Constitution, not less decisive than the tribunitial veto.

Thus it stood. Our own Government had proposed a modified search on the coast of America, but this was point-blank refused by the Senate. It appears that the proposition was made contrary to the judgment of Mr. Adams. His sense of wrong from the long-continued search exercised by British cruisers was so keen that he would not willingly furnish any excuse for its revival; and such, it was feared, might be the concession. Afterwards, in the revelations which he sometimes made to the House of Representatives, he declared his repugnance to this negotiation, and the way it was overcome. The same repugnance, doubtless, influenced Senators in the vote on the treaty, increased by a growing sentiment for Slavery, which the debates on the Missouri Compromise had quickened.

Mr. Adams’s statement made in debate at a later day lets us behind the scenes at an important period. After describing the proposition for a mutual right of search, the veteran said:—

“It was utterly against my judgment and wishes; but I was obliged to submit, and I prepared the requisite despatches to Mr. Rush, then our minister at the court of London. When he made his proposal to Mr. Canning, Mr. Canning’s reply was, ‘Draw up your convention, and I will sign it.’ Mr. Rush did so, and Mr. Canning, without the slightest alteration whatever, without varying the dot of an i or the crossing of a t, did affix to it his signature,—thus assenting to our own terms in our own language. The convention came back here for ratification; but in the mean while another spirit came over the feelings of this House, as well as of the Senate. A party had been formed against the Administration of Mr. Monroe; the course of the Administration was no longer favored, and the House came out in opposition to a convention drawn in conformity to its own previous views.… The Senate ratified the treaty, giving the right of search in the fullest manner to Great Britain, with the exception, I think, of one article, which extended the right to the coast of the United States: that was rejected.”[301]

This statement from an eminent quarter shows how at another time the opposition to a mutual right of search became manifest. It is for the Senate to determine if the time has not come for this opposition to cease.

Not disheartened by failure with the United States, Great Britain pursued her honorable policy, enlisting Government after Government, until nearly all the maritime powers of Europe, moved by a common sentiment of humanity, had conceded a mutual and restricted right of search, with the single object of suppressing the slave-trade. The famous Quintuple Treaty of 1841 between the great powers consecrated the same principle on a wider theatre; but, owing to the extraordinary efforts of General Cass, our Minister at Paris, France was induced to withhold her assent, yielding, I fear, to an irritated Anglophobia and to the growing pretensions of Slavery. The treaty was duly ratified by Great Britain, Russia, Prussia, and Austria. As a substitute, stipulations for naval coöperation were adopted between Great Britain and France,—also between Great Britain and the United States. And still Great Britain persevered in this glorious championship, until, in 1850, it was her boast that she stood party to no less than twenty-four treaties denouncing the slave-trade, of which ten conceded a mutual right of search and mixed courts, twelve conceded search with trial only before home tribunals, and two provided for naval coöperation.[302]

This summary brings us to the present treaty, where we find a mutual and restricted right of search and mixed courts for certain purposes, but with the trial of criminals only before home tribunals.

If at an earlier day there was reason to be sensitive about any concession of the right of search, especially to Great Britain, always so exacting on the ocean, that day has happily passed. The reason ceasing, so also should the opposition cease. Even if the acknowledged power of the United States and the enlightened opinion of the civilized world did not remove the liability to abuse, making it so absolutely impossible as not to be an element in the case, we cannot forget a recent signal event, when Great Britain openly renounced that tyrannous pretension which so stirred the soul of the whole American people, never again to assert it. This was done in solemn demand for the rendition of Mason and Slidell, who had been taken by a national cruiser, acting in precise conformity with early and constant British practice. Therefore on this account there need be no solicitude. Conceding search for the suppression of the slave-trade, we furnish no excuse and open no door for that other search, always so justly offensive, which finally brought war in its train. Such a concession now is only an addition to international policy demanded by the civilization of the age.

Nor need there be any jealousy on account of Slavery; for this power is disappearing. If, unhappily, it is not yet extinct, if it still lingers in prolonged malignant existence, it has ceased to sway the National Government. Therefore I see no reason why the sensibilities of its partisans should be consulted.

Another possible objection to the treaty is more technical. This also was presented by John Quincy Adams, when he spoke of mixed courts “as inconsistent with our Constitution,”[303] because the judges are not appointed, nor do they hold office, according to its well-known requirements. But this objection, if entitled to any consideration, is mitigated in the present treaty, which hands over the slave-trader for trial in the home courts of the captor, leaving to the mixed courts only the condemnation and destruction of the slave-ship. But whatever doubts might have prevailed at an earlier period, when the question was less understood, it is plain now that this objection is wholly superficial and untenable. Besides courts known to the Constitution and subject to its requirements, there are others extra-constitutional, like courts in the Territories, where the judges hold for four years instead of during good behavior, and yet are recognized by the Supreme Court of the United States.[304] Like Territorial courts, mixed courts are plainly extra-constitutional, standing on the treaty power and the practice of nations,—as courts martial are also extra-constitutional, standing on the war power and the practice of nations.

Among frequent means for the determination of international questions are mixed courts or mixed commissions in various forms, where different nations are represented. Such tribunals are the natural incident of treaties, and were recognized as such at the beginning of our history. Nor is it easy to see how treaties can be consummated without their ancillary help. A mixed commission, where our country was represented, sat at London under Jay’s Treaty, deciding numerous cases; and similar commissions have been sitting ever since. The Jay Commission was originally criticized on the ground that judicial power cannot be vested except according to the Constitution,[305]—being the very objection to mixed courts in anti-slave-trade treaties, that occupied so much attention at a later day, and to which I am now replying. But nobody now doubts that this commission was proper. The proposed tribunal, though differing in purpose, proceeds from the same fountain of power. It is kindred in character and origin. Now, without considering if the objection to mixed courts is not equally strong against a crowned head as arbitrator, as when the French Emperor sat in judgment on the long-pending litigation between the United States and Portugal in the General Armstrong case, it is obvious that all the international tribunals constituted by treaty, whether an emperor or a commissioner, are sustained by unbroken usage as well as by reason. To insist that the restrictions of the Constitution, evidently intended for the national judicature, are applicable to these outlying tribunals, is to limit the treaty power and to curtail the means of justice beyond the national jurisdiction. Mixed courts are familiar to International Law, and our country cannot afford to reject them, least of all on a discarded technicality which would leave us isolated among nations.

It remains only that we make haste to ratify the treaty, nor miss the great opportunity. A moment lost is a concession to crime. Therefore must we be prompt.

Foreign nations will not fail to recognize this open pledge to Human Rights, and the Rebels will discern a new sign of the national purpose. Abroad and at home we shall be strengthened. The Rebellion itself will feel the blow, and ambitious Slavery foresee its doom.

As soon as the vote was announced in the Senate, Mr. Sumner hastened to Mr. Seward at the State Department. It was five o’clock in the afternoon, and the Secretary was reposing on a sofa. On hearing the words, “The treaty is ratified unanimously,” he exclaimed, “Where —— were the Democrats?” His joy was great, and Lord Lyons, on learning the result, was not less happy. It is much in a diplomatic career to sign any treaty, but it was an event to have signed a treaty promising the final extinction of an infinite scandal and curse to humanity.

Subsequent action was prompt. The treaty was ratified by the Senate April 24th; ratifications were exchanged in London May 25th; the treaty was proclaimed by the President June 7th, 1862.

June 10th, a message of the President, transmitting a copy of the treaty, with correspondence between Mr. Seward and Lord Lyons in relation to it, was laid before the Senate, and on motion of Mr. Sumner referred to the Committee on Foreign Relations, and ordered to be printed.

June 13th, Mr. Sumner reported from the Committee a bill to carry the treaty into effect, providing for the appointment, with the advice and consent of the Senate, of a judge and also an arbitrator on the part of the United States to reside at New York, a judge and also an arbitrator to reside at Sierra Leone, and a judge and also an arbitrator to reside at the Cape of Good Hope,—all the judges to be paid $2,500 annually, the arbitrator at New York $1,000, and the arbitrators at Sierra Leone and the Cape of Good Hope $2,000 respectively.

Owing to the pressure of business incident to the latter days of a very crowded session, Mr. Sumner was not able to call it up immediately. June 26th, on his motion, it was considered and passed: Yeas, 34; Nays, only 4.

Among the nays was Mr. Saulsbury, of Delaware, who remarked:—

“I do not object to the suppression of the African slave-trade, but I do not believe that this Government has the constitutional right to establish any such court. I think the treaty ought not to have been adopted.”

July 7th the bill passed the House, and July 11th was approved by the President.

The importance of this treaty had not been exaggerated. The Journal des Débats, organ of French intelligence at Paris, in its enunciation, June 15, 1862, of the objects accomplished by the National Government, says: “There is a treaty with England, which, loyally executed, must soon render the slave-trade almost impossible.”

The slave-trade became almost impossible, so that practically it ceased to exist. The terror of the law, with these provisions for its enforcement, sufficed at last to deter the perpetrators of this inhuman crime, and the ocean, so often traversed by slave-ships, became like a peaceful metropolis with a well-ordered police.

This great result was without the capture of a single vessel. It was enough that at last we were in earnest. Judges and arbitrators found themselves without employment, when, in an appropriation bill, of March 3, 1869, Congress called on the President, with the consent of Great Britain, to terminate that part of the treaty requiring mixed courts and their annual outlay.[306] This was done by treaty between the two powers, signed at Washington, June 3, 1870; so that the mutual right of search for the suppression of the slave-trade alone remained.