Daniel Webster - The Works of Daniel Webster, Volume 1

But it is time to advert to the other great and difficult questions included in this adjustment. The extradition of fugitives from justice is regarded by Grotius and other respectable authorities as the duty of states, by the law of nations. Other authorities reject this doctrine; 27 27 The authorities are given in Story’s Commentaries Vol. III. pp. 675, 676; Conflict of Laws, pp. 520, 522; and in Kent’s Commentaries, Vol. I. pp. 36, 37. and if it be the law of nations, it requires for its execution so much administrative machinery as to be of no practical value without treaty stipulations. The treaty of 1794 with Great Britain (Jay’s treaty) made provision for a mutual extradition of fugitives, in cases of murder and forgery; and the case of Jonathan Robbins, memorable for the argument of Chief Justice Marshall in defence of his surrender, gave a political notoriety to that feature of the treaty not favorable to its renewal in subsequent negotiations. This treaty stipulation expired by its own limitation in 1806.

Besides the convenience of such an understanding on the part of the two great commercial countries, from which language, personal appearance, and manners render mutual escape so easy, the condition of the frontier of the United States and cxxx Canada was such as to make this provision all but necessary for the preservation of the peace of the two countries. An extensive secret organization existed in the border States, the object of which was, under the delusive name of “sympathy,” to foment and aid rebellion in the British Provinces. Although an agreement for mutual extradition of necessity left untouched a great deal of political agitation unfriendly to border peace, murder and arson were, of course, within its provisions. It appears from the testimony of the parties best informed on the subject, that the happiest consequences flowed from this article of the treaty of Washington. No more was heard of border forays, “Hunters’ Lodges,” “Associations for the Liberty of Canada,” or violences offered or retaliated across the line. The mild, but certain influence of law imposed a restraint, which even costly and formidable military means had not been found entirely adequate to produce.

The stipulations for extradition in the treaty of Washington appear to have served as a model for those since entered into between the most considerable European powers. A convention for the same purpose was concluded between England and France on the 13th of February, 1843, and other similar compacts have still more recently been negotiated. Between the United States and Great Britain the operation of this part of the treaty has, in all ordinary cases, been entirely satisfactory. Persons charged with the crimes to which its provisions extend have been mutually surrendered; and the cause of public justice, and in many cases important private interests, have been materially served on both sides of the water.

Not inferior in importance and delicacy to the other subjects provided for by the treaty was that which concerned the measures for the suppression of “the slave-trade” on the coast of Africa. In order to understand the difficulties with which Mr. Webster had to contend on this subject, a brief history of the question must be given. The law of nations, as understood and expounded by the most respectable authorities and tribunals, European and American, recognizes the right of search of neutral vessels in time of war, by the public ships of the belligerents. It recognizes no right of search in time of peace. It makes no distinction between a right of visitation and a right of search. To compel a trading-vessel, against the will of her cxxxi commander, to come to and be boarded, for any purpose whatsoever, is an exercise of the right of search which the law of nations concedes to belligerents for certain purposes. To do this in time of peace, under whatever name it may be excused or justified, is to perform an act of mere power, for which the law of nations affords no warrant. The moral quality of the action, and the estimate formed of it, will of course depend upon circumstances, motives, and manner. If an armed ship board a vessel under reasonable suspicion that she is a pirate, and when there is no other convenient mode of ascertaining that point, there would be no cause of blame, although the suspicion turned out to be groundless.

The British government, for the praiseworthy purpose of putting a stop to the traffic in slaves, has at different times entered into conventions with several of the states of Europe authorizing a mutual right of search of the trading-vessels of each contracting party by the armed cruisers of the other party. These treaties give no right to search the vessels of nations not parties to them. But if an armed ship of either party should search a vessel of a third power under a reasonable suspicion that she belonged to the other contracting party, and was pursuing the slave-trade in contravention of the treaty, this act of power, performed by mistake, and with requisite moderation and circumspection in the manner, would not be just ground of offence. It would, however, authorize a reasonable expectation of indemnification on behalf of the private individuals who might suffer by the detention, as in other cases of injury inflicted on innocent persons by public functionaries acting with good intentions, but at their peril.

The government of the United States, both in its executive and legislative branches, has at almost all times manifested an extreme repugnance to enter into conventions for a mutual right of search. It has not yielded to any other power in its aversion to the slave-trade, which it was the first government to denounce as piracy. The reluctance in question grew principally out of the injuries inflicted upon the American commerce, and still more out of the personal outrages in the impressment of American seamen, which took place during the wars of Napoleon, and incidentally to the belligerent right of search and the enforcement of the Orders in Council and the Berlin cxxxii and Milan Decrees. Besides a wholesale confiscation of American property, hundreds of American seamen were impressed into the ships of war of Great Britain. So deeply had the public sensibility been wounded on both points, that any extension of the right of search by the consent of the United States was for a long time nearly hopeless.

But this feeling, strong and general as it was, yielded at last to the detestation of the slave-trade. Toward the close of the second administration of Mr. Monroe the executive had been induced, acting under the sanction of resolutions of the two houses of Congress, to agree to a convention with Great Britain for a mutual right of search of vessels suspected of being engaged in the traffic. This convention was negotiated in London by Mr. Rush on the part of the United States, Mr. Canning being the British Secretary of State for Foreign Affairs.

In defining the limits within which this right should be exercised, the coasts of America were included. The Senate were of opinion that such a provision might be regarded as an admission that the slave-trade was carried on between the coasts of Africa and the United States, contrary to the known fact, and to the reproach either of the will or power of the United States to enforce their laws, by which it was declared to be piracy. It also placed the whole coast of the Union under the surveillance of the cruisers of a foreign power. The Senate, accordingly, ratified the treaty, with an amendment exempting the coasts of the United States from the operation of the article. They also introduced other amendments of less importance.

On the return of the treaty to London thus amended, Mr. Canning gave way to a feeling of dissatisfaction at the course pursued by the Senate, not so much on account of any decided objection to the amendment in itself considered, as to the claim of the Senate to introduce any change into a treaty negotiated according to instructions. Under the influence of this feeling, Mr. Canning refused to ratify the treaty as amended, and no further attempt was at that time made to renew the negotiation.