Mr. Webster's vindication of the Treaty of Washington of 1842; in a speech delivered in the Senate of the United States, on the 6th and 7th of April, 1846.

Front matter

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Appendix

TO

.m. WEBSTER'S VINDICATION

OF THE

TEEATY OF WASHINGTON.

APPENDIX

Mr > Everett to Mr. Webster. — [Extracts.]

Legation of the United States,

London, December 31, 1841.

At a late hour on the evening of the 26th, I received a note from the Earl of Aberdeen, requesting an interview for the following day, when I met him at the Foreign Office, agreeably to the appointment. After one or two general remarks upon the difficulty of bringing about an adjustment of the points of controversy between the Governments, by a continuance of the discussions hitherto carried on, he said that Her Majesty's Government had determined to take a decisive step towards that end, by sending a special minister to the United States, with a full power to make a final settlement of all matters in dispute. ##»#»***

This step was determined on from a sincere and earnest desire to bring the matter so long in controversy to an amicable settlement; and if, as he did not doubt, the same disposition existed at Washington, he thought this step afforded the most favorable, and, indeed, the only means of carrying it into effect. In the choice of the individual for the mission. Lord Aberdeen added, that he had been mainly influenced by a desire to select a person who would be peculiarly acceptable in the United States, as well as eminently qualified for the trust, and that he persuaded himself he had found one who, in both respects, was all that could be wished. He then named Lord Ashburton, who had consented to undertake the mission.

Although this communication was of course wholly unexpected to me, I felt no hesitation in expressing the great satisfaction with which I received it. I assured Lord Aberdeen, that the President had nothing more at heart than an honorable adjustment of the matters in discussion between the two countries ; that 1 was persuaded a more acceptable selection of a person for the important mission proposed could not have been made; and that 1 anticipated the happiest results from this overture.

Lord Aberdeen rejoined, that it was more than an overture ; that Lord Ashburton would go with full powers to make a definitive arrangement on every point in discussion between the two countries. He was aware of the difficulty of some of them, particularly what had incorrectly been called the right of search, which he deemed the most difficult of all ; but he was willing to confide this and all other matters in controversy to Lord Ashburton's discretion. He added, that they should have been quite willing to come to a general arrangement here, but they supposed I had not full powers for such a purpose.

This measure being determined on. Lord Aberdeen said he presumed it would be hardly worth while for us to continue tlie correspondence here, on matters in dispute between the Governments. He, of course, was quite willing to consider and reply to any statemrn' 1 might think proper to make on any subject; but, pending the negotiations that might take place at Washington, he supposed no benefit could result from a simultaneoua discussion here.

II

Mr. Webster to Mr. Everett. — [Extract.]

Washington, January 29, 1842.

"The President has read Lord Aberdeen's note to you of the 20th of December, in reply to Mr. Stevenson's note to Lord Palmerston of the 21st of October, and thinks you.

were quite right in acknowledging the dispassionate tone of that paper. It is only by the exercise of calm reason tliat truth can be arriyed at, in questions of a complicated nature ^ and between States, each of which understands" and respects the intelligence and the power of the other, there ought to be no unwillingness to follow its guidance. At the present day, no State is so high as that the principles of its intercourse with other nations are above question, or its conduct above scrutiny. On the contrary, the whole civilized world, now vastly better informed on such subjects than in former ages, and alive and sensible to the principles adopted and the purposes avowed by the leading States, necessarily constitutes a tribunal, august in character and formidable in its decisions. And it is before this tribunal, and upon the rules of natural justice, moral propriety, the usages of modern times, and the prescriptions of puljlic law, that Governments which respect themselves and respect their neighbors must be prepared to discuss, with candor and with dignity, any topics which may have caused differences to spring up between them.

"Your despatch of the 31st December announces the important i"ntelligence of a special minister from England to the United States, with full powers to settle every matter in dispute between the two Governments ; and the President directs me to say, that he regards this proceeding as originating in an entirely amicable spirit, and that it will be met, on his part, with perfectly corresponding sentiments. The high character of Lord Ashburton is well known to this Government; and it is not doubted that he will enter on the dvities assigned him, not only with the advantages of much knowledge and experience in public affairs, but with a true desire to signalize his mission by assisting to place the peace of the two countries on a permanent basis. He will be received with the respect due to his own character, the character of the Government which sends him, and the higii importance, to both countries, of the subjects intrusted to his negotiation.

"The President approves your conduct, in not pursuing, in England, the discussion of' questions which are now to become the subjects of negotiation liere."

III

Mr. Wthsler to Gov. Fairfield.

Washington, 11th April, 1842.

Your excellency is aware that, previous to March, 1841, a negotiation had been going on for some time between the Secretary of State of the United States, under the direction of the President, and the British minister accredited to this Government, having for its object the creation of a joint commission for settling the controversy respecting the northeastern boundary of the United States, with a provision for an ultimate reference to arbitrators, to be appointed by some of the sovereigns of Europe, in case an arbitratioa should become necessary. On the leading features of a convention for this purpose the two Governments were agreed; but, on several matters of detail, the parties differed, and appear to have been interchanging their respective views and opinions, projects and counter-projeots, without coming to a final arrangement, down to August, 1840. Various causes, not now necessary to be explained, arrested the progress of the negotiation at that time, and no considerable advance has since been made in it.

It seems to have been understood on both sides that, one arbitration having failed, it was the duty of the two parties to proceed to institute another, according to the spirit of the treaty of Ghent and other treaties ; and the President has felt it to be his duty, unless some new course should be proposed, to cause the negotiation to be resumed, and pressed to its conclusion. But I have now to inform your excellency that Lord Ashburton, a minister plenipotentiary and special, has arrived at the seat of^ the Govermnent of the United States, charged with full powers from his sovereign to negotiate and settle the different matters in discussion between the two Governments. I have further to state to you, that he has ofHcially announced to this Department that, in regard to the boundary question, he has authority to treat for a conventioi'ial line, or line by agreement, on such terms and conditions, and with such mutual considerations and equivalents, as may be thought just and equitable, and that he is ready to enter upon a negotiaiion for such conventional line, so soon as this Government shall say it is authorized and ready, on its ]iart, to commence such negotiation.

Under these circumstances, the President has felt it to be his duty to call the serious attention of the Governments of Maine and Massachusetts to the subject, and to submit to those Governments the propriety of their co-operation, to a certain extent, and in a certain form, in an endeavor to terminate a controversy already of so long duration, and which seems very likely to be still considerably further protracted before the desired end of a final adjustment shall be attained, unless a shorter course of arriving at that end be adopted than such as has heretofore been pursued, and as the two Governments are still pursuing.

Yet, without the concurrence of the two States whose rights are more immediately -concerned, both having an interest in the soil, and one of them in the jurisdiction and government, the duty of this Government will be to adopt no new course, but, in compliance with treaty stipulations, and in furtherance of what has already been done, to iiasten the pending negotiations as fast as possible.

But. the President thinks it a highly desirable object to prevent flie delays necessarily incident to any settlement of the question by these means. Such delays are great and imavoidable. It has been found that an exploration and examination of the several lines constitute a work of three years. The existing commission for making such exploration, under the authority of the United States, has been occupied two summers, and a very considerable portion of the work remains still to be done. If a joint commission should be appointed, and should go throug^Ii the same work, and the commissioners should disagree, as is very possible, and an arbitration on that account become indispensable, the arbitrators might find it necessary to make an exploration and survey themselves, or cause the same to be done by others of their own appointment. If to these causes, operating to postpone the final decision, be added the time necessary to appoint arbitrators, and for their preparation to leave Europe for the service, and the various retarding incidents always attending such operations, seven or eight years constitute perhaps the shortest period within which we can look for a final result. In the mean time, great expenses have been incurred, and further expenses cannot be avoided. It is well known that the controversy has brought heavy charges upon Maine herself, to the remuneration or proper settlement of which she cannot be expected to be indifferent. The exploration by the Government of the United States has already cost a hundred thousand dollars, and the charge of another summer's work is in prospect. These facts may be sulficient to form a probable estimate of the whole expense likely to be incurred before the controversy can be settled by arbitration ; and our experience admonishes us that even another arbitration might possibly fail.

The opinion of this Government upon the justice and validity of the American claim has been expressed at so many times, and in so many forms, that a repetition of that opinion is not necessary. But the .subject is a subject in dispute. The Government has agreed to make it matter of reference and arbitration ; and it must fulfil that agreement unless another mode for settling the controversy should be resorted to, with the hope of producing a speedier decision. The President proposes, then, that the Governments of Maine and Massachusetts should severally appoint a commissioner or commissioners, empowered to confer witli the authorities of this Government upon a conventional line, or line by agreement, with its terms, conditions, considerations, and equivalents, with an understanding that no such hne will be agreed upon without the assent of such commissioners.

This mode of proceeding, or some other which shall express assent beforehand, seems indispensable, if any negotiation for a conventional line is to be had ; since, if happily a treaty should be the result of the negotiation, it can only be submitted to the Senate of the United States for ratification.

Itis a subject of deep and sincere regret to the President, that the British plenipotentiary did not arrive in the country and make known his powers in time to have made this communication before the annual session of the Legislatures of the two States had been brought to a close. He perceives and laments the inconvenience which may be experienced from re-assembling those Legislatures. But the British mission is a special one -,11 does not supersede the resident mission of the British Government at Washington, and its stay in the United States is not expected to be long. In addition to these considerations, it is to be suggested that more than four months of the session of Congress have already passed, and it is highly desirable, if any treaty for a conventional line should be -ajreed on, it should be concluded before the session shall terminate, not only becauao of the necessity of the ratification of the Senate, but also because it is not impossible that measures may be thought advisable, or become important, which can only be accomplished by the authority of both Houses.

These considerations, in addition to the importance of the subject, and a firm conviction in the mind of the President that the interests of both countries, as well as the interests of the two States more immediately concerned, require a prompt effort to bring this dispute to an end, constrain him to express an earnest hope that your excellency will convene the Legislature of Maine, and submit the subject to its grave and candid deliberations. I am, &c.,

DANIEL WEBSTER.

His Excellency John Fairfield,

Governor of Maine.

IV

Captain Talcott to Mr. Webster.

Washington, July 14, 1842.

Sir: The territory within the lines mentioned by you contains eight hundred and ninety-three square miles, equal to five hundred and seventy-one thousand five hundred and twenty acres. It is a long and narrow tract upon the mountains or highlands, the distance front. Lake Pohenagamook to the Metjarmette portage being one hundred and ten miles. The territory is barren, and without timber of value, and I should estimate that nineteei> parts out of twenty are unfit for cultivation. Along eighty miles of this territory the highlands throw up into irregular eminences, of different heights, and, though observing a general northeast and southwest direction, are not brought well into line. Some of the elevations are over three thousand feet above the sea.

The formation is pi-imitive siliceous rock, with slate resting upon it, around the basis. Between the eminences are morasses and swamps, throughout which beds of moss of luxuriant growth rest on and cover the rocks and earth beneath. The growth is such as is usual in mountain regions on this continent, in high latitudes. On some of the ridges and eminences birch and maple are found ; on others, spruce and fir ; and, in the swamps, spruce intermixed with cedar; but the wood everywhere is insignificant, and of stinted growth. It will readily be seen, therefore, that for cultivation, or as capable of furnishing the means of human subsistence, the lands are of no value. I am, sir, your obedient servant,

A. TALCOTT, Commissioner.

Hon. Daniel Webster, Secretary of State.

Mr. Webster to Lord ^ishburton. — [Extract.]

Washington, July . 27, 1842.

The act of which the Government of the United States complains is not to be considered as justifiable or unjustifiable, as the question of the lawfulness or unlawfulness of the employment in which the " Caroline" was engaged may be decided the one way or the other. That act is of itself a wrong, and an offence to the sovereignty and dignity of thfi-United States, being a violation of their soil and territory — a wrong for which, to this day, no atonement, or even apology, has been made by her majesty's Governjnent. Your lordship cannot but be aware that self-respect, the consciousness of independence and national equality, and a sensitiveness to whatever may touch the honor of the country — a sensitiveness which this Government will ever feel and ever cultivate — make this a matter of high importance, and I must be allowed to ask for it your lordship's grave consideration.

I have the honor to be, my lord, your lordship's most obedient servant,

DANIEL WEBSTER,

Lord AsHEURTON, (See, &c,,&,c.

Lord AMwrlon to J\ir. fFe6s<cr.— [Extract ]

Washington, My 28, 1842.

Although it is believed that a candid and impartial consideration of the whole history of this unfortunate event will lead to the conclusion, tliat there were grounds of justification as strong as were ever presented in such cases, and above all, that no sUght of the ,authority of the United States was ever intended; yet, it must be admitted, that there was in the hurried execution of this necessary service a violation of territory, and I am instructed to assure you that her Majesty's Government consider this as a most serious fact, and that fai- from thinking that an event of this kind should be lightly risked, they would unfeignedly deprecate its recurrence. Looking back to what passed at this distance of time, what is, perhaps, most to be regi-etted, is, that some explanation and apology for this occurrence was not immediately made ; this, with a frank explanation of the necessity of the case might, and probably would, have prevented much of the exasperation, and of the subsequent co»iplaints and recriminations to which it gave rise.

YI.

Instructions to Mr. Crittenden.

Washington, March 15th, 1841.

Sir: Alexander McLeod, a Canadian subject of her Britannic Majesty, is now imprisoned at Lockport, in tlie State of New York, under an indictment for murder, alleged to have been committed by him in the attack on, and destruction of, the steamboat Caro ■ line, at Schlosser, in that State, on the night of the 29th of December, 1837 ; and his trial is expected to take place at Lockport, on the 22d instant.

You are apprised of tlie correspondence which took place between Mr. Forsy the, lata Secretary of State, and Mr. Fox, her Britannic Majesty's minister here, on this subject, in December last.

In his note to Mr. Fox, of the 26th of that month, Mr. Forsylhe says: "If the destruction of the Carohne was a pubUc act, of persons in her Majesty's service, obeying the order of their superior authorities, this foct has not been before communicated to the Government of the United States, by a person authorized to make the admission ; and it will be for the court, which has taken cognizance of the offence with which Mr. McLeod is charged, to decide upon its validity when legally established before it.

The President deems this to be a proper occasion to remind the Government of her Britannic Majesty, that the case of the Caroline has been long since brought to the attention of her Majesty's ]>rincipal Secretary of State for Foreign Affairs, who, up to this day, has not communicated its decision thereupon. It is hoped that the Goverment of her Majesty will perceive the importance of no longer leaving the Government of the United States uninformed of its views and intentions, upon a subject which has naturally produced much exasperation, and which has led to such grave consequences.

I have now to inform you that Mr. Fox has addressed a note to this department, under date of the 12th instant, in which, under the immediate instruction and direction of his Government, he demands, formally and officially, Mr. McLeod's release, on the ground that this transaction, on account of which he has been arrested and is to be puupon his trial, was of a public character, planned and executed by persons duly empowj ered by her Majesty's colonial authorities, to take any steps, and to do any acts, which might be necessary for the defence of her Majesty's territories, and for the protection ot her Majesty's subjects; and that, consequently, those subjects of her Majesty who engaged in that transaction were performing an act of public duty, for whicii they cannot; be made personally and individually answerable to the laws and tribunals of any foreiga country; and that her Majesty's Government has further directed Mr. F'ox to make known to the United States, that her Majesty's Government entirely ai>proved ot the course pursued by Mr. Fox, and the language adopted by him in the correspondence above mentioned. t* • • i r<

There is, therefore, now an authentic declaration on the oEurt of the British Government, that the attack on the Caroline v/as an act of public force, done liy- military men, under the orders of their superiors, and is recognised as such by the Clueen's Government. The importance of this declaration is not to be doubted, and the President is of opinion that it calls upon him for the performance of a high duty. That an individual forming part of a public force, and acting under the authority of his Government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law, sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute. This has no connexion whatever with the question, whether, in this case, this attack on the Caroline was, as the British Government thinks it, a justifiable employment of force, for the purpose of defending the British territory from an unprovoked attack, or whether it was a most unjustifiable invasion, in time of peace, of the territory of the United States, as this Government has regarded it. The two questions are essentially different, and, while acknowledging that an individual may claim immunity from the' consequences of acts done by him, by showing that he acted under national authority, this Government is not to be understood as changing the opinions which it has heretofore expressed in regard to the i-eal nature of the transaction which resulted in the destruction of the Cai-olinS. That subject it is not necessary for any purpose connected with this communication to discuss. The views of this Government in relation to it are known to that of England ; and _we are expecting the answer of that Government to the communication which has been made to it.

All that is intended to be said at present is, that since the attack on the Caroline is avowed as a national act which may justify reprisals, or even general war, if the Government of the United States, in the judgment which it shall form of the transaction and of its own duty, should see fit so to decide, yet that it raises a question entirely public and political — a question between independent nations — and that individuals connected in it cannot be arrested and tried before the ordinary tribunals, as for the violation of municipal law. If the attack on the Caroline was unjustifiable, as this Government has asserted, the law which has been violated is the law of nations ; and the redress which ia to be sought is the redress authorized, in such cases, by the provisions of that code.

You are well aware that the President lias no power to arrest the proceeding in the civil and criminal courts of the State of New York. If this indictment were pending in one of the courts of the United States, I am directed to say that the President, upon the receipt of Mr. Fox's last communication, would have immediately directed a nolle pro~ sequi to be entered.

Whether in this case the Governor of New York have that power, or, if he have, whether he would feel it his duty to exercise it, are points upon which we are not informed.

It is understood that Mr. McLeod is holden also on civil process, sued out against him by the owner of the Caroline. We suppose it very clear that the Executive of the State cannot interfere with such process ; and, indeed, if such process were pending in the courts of the United States, the President could not arrest it. In such, and many analogous cases, the party prosecuted, or sued, must avail himself of his exemption or defence, by judicial proceedings, either into the court into which he is called, or in some other court. But whether the process be criminal or civil, the fact of having acted under public authority, and in obedience to the orders of lawful superiors, must be regarded as a vahd defence; otherwise, individuals would beholden responsible for injuries resulting from the acts of Government, and even from the operations of public war.

VII.

Mr. Wheaton to Mr. Webster. ■

Berlin, Aoremfter 15, 1842.

Sir: Your despatch No. 3G, enclosing: copy of the treaty recently concluded at Washjuigton, between the United States and Great Britain, has just reached me. I beg leave to congratulate you, sir, on the happy termination of this arduous negotiation, in which the rights, honor, and interests of our country have been so successfully maintained. The arrangement it contains on the subject of the African slave trade is particularly satisfactory, as adapted to secure the end proposed by the only means consistent with our maritime rights. This arrangement has decided the course of the French Government ' in respect to this matter. Its ambassador in London notified to the conference of the five great powers the final determination of France not to ratify the treaty of December, 1841,', ajid, at the same time, expressed her disposition to fulfil tlie stipulations of the separate treaties of 1831 and 1834, between her and Great Britain. The treaty of 1841, therefore, now subsists only between four of the great powers by whom it was originally concluded; and as three of these (Austria, Prussia, and Russia) are very little concerned in the navigation of the ocean and the trade in the African seas, and have, besides, taken precautions in the treaty itself to secure thcii' commerce from interRiption by the exercise of the right of search in other parts, this compact may now be considered as almost a dead letter.

The policy of the United States may consequently be said, on this occasion, perliapa for the first time, to have had a most decisive influence on that of Europe. This will probably more frequendy occur hereafter; and it should be an encour£igement to us to cultivate our maritime resources, and to strengthen our naval arm, by which alone we^ are known and felt among the nations of the earth.

VIII.

Washington Treaty.— [Extract.]

Article VIII. — The parties mutually stipulate that each shall prepare, equip, ani maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for tlie suppression of the slave trade; the said squadrons to be independent of each other, but the two Governments stipulating nevertheless to give such orders to the officers commanding their respective forces as shaH enable them most effectually to act in concert and co-operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article; copies of all such orders to be communicated by each Government to the other respectively.

Article IX. Whereas, notwithstanding all efforts which may be made on the coast of Africa for suppressing the slave trade, the facilities for carrying on that traffic and avoiding the vigilance of cruisers by the fraudulent use of flags, and other means, are so great, and the temptations for pursuing it, while a market can be found for slaves, so stropg, as that the desired result may be long delayed, unless all markets be shut against the nurchase of African negroes, the parties to this treaty eigreethat they will unite in all becoming representations and remonstrance^ with any and all Powers within whose dominions such markets are allowed to exist ; and that they will urge upon all such Powers the propriety and duty of closing such markets effectually, at once and forever.

Convention between Her Majesty and tlie King of the French for the suppression of the traffic in slaves. — [Extract.]

Article 1.— In order that the flags of Her Majesty the Clueen of the United Kingdom of Great Britain and Ireland, and of His Majesty the King of the French, may not, contrary to the law of nations and the laws in force in the two countries, be usurped to cover the slave trade, and in order to puovide for the more effectual suppression of that traffic. His Majesty the King of the French engages, as soon as may be practicable, to . station on the West Coast of Africa, from Cape Verd to 16° 30' south latitude, a naval force of at least twenty-six cruizers, consisting of sailing and steam-vessels; and Her Majesty the Q,ueen of the United Kingdom of Great Britain and Ireland engages, as soon as may be practicable, to station on the same part of the West Coast of Africa a naval force of not less than twenty-six cruizers, consisting of sailing vessels and steam-vessels ; and on the East Coast of Africa such number of cruizers as -Her Majesty shall judge sufficient for the prevention of the trade on that coast : which cruizers shall be employed for the purposes above mentioned, in' conformity with the following stipulations.

Article II. — The said British and French naval forces shall act in concert for the suppression of the slave trade. It will be their duty to watch strictly every part of the West Coast of Africa within the Umita described in Article I, where the slave trade i« tarried on. For thi;^ purpose they shall exercise fully and completely all the powers vesteot in the crowns of Great Britain and France for tlie suppression of the slave trade, subject only to the modifications hereinafter mentioned as to British and French ships.

Article III. — ^The officers of Her Majesty the Clueen of the United Kingdom of Great Britain and Ireland, and of His Majesty the King of the French, having respectively the command of the squadrons of Great Britain and France, to be employed in carrying out this Convention, shall concert together as to the," best means of watching strictly the parts of the African coast before described, by selecting and defining the stations, and committing the care thereof to Enghsh and French cruizers, jointly or separately, as may be deemed most expedient ; provided always, that in case of a station being specially committed to the charge of cruizers of either nation, the cruizers of the other nation may at any time enter the same for the purpose of exercising the rights respectively belonging to them for the suppression of the slave trade*