The Works of Daniel Webster, Volume 1

This step on the part of the British government was as bold as it was wise. It met the difficulty in the face. It justly assumed the existence of a corresponding spirit of conciliation on the part of the United States, and of a desire to bring matters to a practical result. It was bold, because it was the last expedient for an amicable adjustment, and because its failure must necessarily lead to very serious and immediate consequences.

In his choice of a minister, Lord Aberdeen was not less fortunate than he had been wise in proposing the measure. Lord Ashburton was above the reach of the motives which influence politicians of an ordinary stamp, and unencumbered by the habits of routine which belong to men regularly trained in a career. He possessed a weight of character at home which made him independent of the vulgar resorts of popularity. He was animated by a kindly feeling, and bound by kindly associations to this country. There was certainly no public man in England who united in an equal degree the confidence of his own government and country with those claims to the good-will of the opposite party, which were scarcely less essential to success. The relations of personal friendship contracted by Mr. Webster with Lord Ashburton in 1839 have already been alluded to, as influencing the selection. They decided Lord Ashburton in accepting the appointment. The writer was informed by Lord Ashburton himself, that he should have despaired of bringing matters to a settlement advantageous to both countries, but for his reliance on the upright and honorable character of the American Secretary.

With the appointment of Lord Ashburton, the discussion of the main questions in controversy between the two countries, as far as it had been carried on in London, was transferred to Washington. But as an earnest of the conciliatory spirit which bore sway in the British counsels, Lord Aberdeen had announced to Mr. Everett, in the interval which elapsed between Lord Ashburton’s appointment and his arrival at his place of destination, that the Queen’s government admitted the wrong done by the detention of the “Tigris” and “Seamew” in the African waters, and was prepared to indemnify their owners for the losses sustained.

Notwithstanding the favorable circumstances under which cxxv the mission of Lord Ashburton was instituted, the great difficulties to be overcome soon disclosed themselves. The points in dispute in reference to the boundary had for years been the subject of discussion, more or less, throughout the country, but especially in Massachusetts and Maine (the States having an immediate territorial interest in its decision), and, above all, in the last-named State. Parties differing on all other great questions emulated each other in the zeal with which they asserted the American side of this dispute. So strong and unanimous was the feeling, that, when the award of the King of the Netherlands arrived, the firm purpose of General Jackson to accept it was subdued. The writer of these pages was informed by the late Mr. Forsyth, while Secretary of State, that, when the award reached this country, General Jackson regarded it as definitive, and was disposed, without consulting the Senate, to issue his proclamation announcing it as such; and that he was driven from this course by the representations of his friends in Maine, that it would change the politics of the State. He was accustomed to add, in reference to the inconveniences caused by the rejection of the award, and the still more serious evils to be anticipated, that “it was somewhat singular that the only occasion of importance in his life in which he had allowed himself to be overruled by his friends, was one of all others in which he ought to have adhered to his own opinions.”

From the diplomatic papers contained in the sixth volume of the present edition of Mr. Webster’s works it appears that the first step taken by Mr. Webster, after receiving the directions of the President in reference to the negotiation, was to invite the coöperation of Massachusetts and Maine, the territory in dispute being the property of the two States, and under the jurisdiction of the latter. The extent of the treaty-making power of the United States, in a matter of such delicacy as the cession of territory claimed by a State to be within its limits, belongs to the more difficult class of constitutional doctrines. We have just seen both the theory and practice of General Jackson on this point. The administration of Mr. Tyler took for granted that the full consent of Massachusetts and Maine was necessary to any adjustment of this great dispute on the principle of mutual cession and equivalents, or any other principle than that of the ascertainment of the true, original line of boundary by cxxvi agreement, mutual commission, or arbitration. Communications were accordingly addressed to the governors of the two States. Massachusetts had anticipated the necessity of the measure, and made provision for the appointment of commissioners. The legislature of Maine was promptly convened for the same purpose by the late Governor Fairfield. Four parties were thus in presence at Washington for the management of the negotiation: the United States and Great Britain, Massachusetts and Maine. Recollecting that the question to be settled was one which had defied all the arts of diplomacy for half a century, it seemed to a distant, and especially a European observer, as if the last experiment, exceeding every former step in its necessary complication, was destined to a failure proportionably signal and ignominious. The course pursued by the American Secretary, in making the result of the negotiation relative to the boundary contingent upon the approval of the State commissioners, was regarded in Europe as decidedly ominous of its failure.

It undoubtedly required a high degree of political courage thus to put the absolute control of the subject, to a certain extent, out of the hands of the national government; but it was a courage fully warranted by the event. It is now evident that this mode of procedure was the only one which could have been adopted with any hope of success. Though complicated in appearance, it was in reality the simplest mode in which the coöperation of the States could have been secured. The commissions were, upon the whole, happily constituted; they were framed in each State without reference to party views. By their presence in Washington, it was in the power of the Secretary of State to avail himself, at every difficult conjuncture, of their counsel. Limited in number, they yet represented the public opinion of the two States, as fully as it could have been done by the entire body of their legislatures; while it is quite evident that any attempt to refer to large deliberative bodies at home the discussion of the separate points which arose in the negotiation, would have been physically impossible and politically absurd. The commissioners were, on the part of Maine, Messrs. Edward Kavanagh, Edward Kent, William P. Preble, and John Otis; and on the part of Massachusetts, Messrs. Abbott Lawrence, John Mills, and Charles Allen.

While we name with honor the gentlemen forming the commissions, a tribute of respect is also due to the patriotism of the States immediately concerned, and especially of Maine. To devolve on any individuals, however high in the public regard, a power of transferring, without ratification or appeal, a portion of the territory of the State, for such consideration as those individuals might judge to be adequate, was a measure to be expected only in a case of clear necessity and high confidence. Mr. Webster is known to have regarded this with the utmost concern and anxiety, as the turning-point of the whole attempt. His letter to Governor Fairfield states the case with equal strength and fairness, and puts the course there recommended in striking contrast with that of proceeding to agree to another arbitration, as had been offered by the preceding administration, and assented to by England. The fate of the negotiation might be considered as involved in the success of this appeal to the chief magistrate of Maine, and through him to his constituents. It is said that, when Mr. Webster heard that the legislature of Maine had adopted the resolutions for the commission, he went to President Tyler and said, with evident satisfaction and some animation, “The crisis is past!”

A considerable portion, though not the whole, of the official correspondence between the Secretary of State and the other parties to the negotiation is contained in the sixth volume of this collection. The documents published exhibit full proof of the ability with which the argument was conducted. They probably furnish but an inadequate specimen of the judgment, tact, and moral power required to conduct such a negotiation to a successful result. National, State, and individual susceptibilities were to be respected and soothed; adverse interests, real or imaginary, to be consulted; the ordeal of the Senate to be passed through, after every other difficulty had been overcome; and all this in an atmosphere as little favorable to such an operation as can well be imagined. What neither Mr. Monroe in the “era of good feelings,” nor the ability and experience of Messrs. Adams, Clay, and Gallatin, nor General Jackson’s overwhelming popularity, had been able to bring about, was effected under the administration of Mr. Tyler, though that administration seemed already crumbling for want of harmony between some of the members and the head, and between that cxxviii head and the party which had brought him into power. No higher tribute can be paid to the ability and temper which were brought to the work.

It was, however, in truth, an adjustment equally honorable and advantageous to all parties. There is not an individual of common sense or common conscience in Maine or Massachusetts, in the United States or Great Britain, who would now wish it disturbed. It took from Maine a tract of land northwest of the St. John, which the people of Maine believed to belong to them under the treaty of 1783. But it is not enough that we think ourselves right; the other party thinks the same; and when there is no common tribunal which both acknowledge, there must be compromise. The tract of land in question, for any purpose of cultivation or settlement, was without value; and had it been otherwise, it would not have been worth the cost of a naval armament or one military expedition, to say nothing of the abomination of shedding blood on such an issue. But the disputed title to the worthless tract of morass, heath, and rock, covered with snow or fog throughout a great part of the year, was not ceded gratuitously. We obtained the navigation of the St. John, the natural outlet of the whole country, without which the territory watered by it would have been of comparatively little value; we obtained a good natural boundary as far as the course of the river was followed; and we established the line which we claimed at the head of the Connecticut, on Lake Champlain, and on the upper lakes; territorial objects of considerable interest. Great Britain had equal reason to be satisfied with the result. For her the territory northwest of the St. John, worthless to us, had a geographical and political value; it gave her a convenient connection between her provinces, which was all she desired. Both sides gained the only object which really was of importance to either, a settlement by creditable means of a wearisome national controversy; an honorable escape from the scourge and curse of war.

Both governments appear to have been fortunate in the constitution of the joint commission to survey, run, and mark the long line of boundary. Mr. Albert Smith, of Maine, was appointed commissioner on the part of the United States, with Major James D. Graham, of the United States Topographical cxxix Engineers as head of a scientific corps, and Mr. Edward Webster26 as his secretary. On the part of Great Britain, Lieutenant-Colonel J. B. B. Estcourt, of her Majesty’s service, was appointed commissioner, with Captain W. H. Robinson, of the Royal Engineers, as principal astronomer, and J. Scott, Esq., as secretary. Other professional gentlemen were also employed on both sides. Great harmony characterized all the proceedings and results of the commission. The lines were accurately run, and that part of them not designated by rivers was marked all the way by substantial cast-iron monuments, with suitable inscriptions, at every mile, and at most of the principal angles; and wherever the lines extended through forests, the trees were cut down and cleared to the width of thirty feet. All the islands in the St. John were also designated with iron monuments, with inscriptions indicating the government to which they belonged; and upon that and all other streams forming portions of the boundary, monuments were erected at the junction of every branch with the main river.

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 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.

It will probably be admitted on all hands, at the present day, that Mr. Canning’s scruple was without foundation. The cxxxiii treaty had been negotiated by this accomplished statesman, under the full knowledge that the Constitution of the United States reserves this power to the Senate. That it should be exercised was, therefore, no more matter of complaint, than that the treaty should be referred at all to the ratification of the Senate. The course pursued by Mr. Canning was greatly to be regretted, as it postponed the amicable adjustment of this matter for eighteen years, not without risk of serious misunderstanding in the interval.

Attempts were made on the part of England, during the ministry of Lord Melbourne, to renew the negotiation with the United States, but without success. Conventions between France and England, for a mutual right of search within certain limits, were concluded in 1831 and 1833, under the ministry of the Duc de Broglie, without awakening the public sensibility in the former country. As these treaties multiplied, the activity of the English cruisers increased. After the treaty with Portugal, in 1838, the vessels of that country, which, with those of Spain, were most largely engaged in the traffic, began to assume the flag of the United States as a protection; and in many cases, also, although the property of vessels and cargo had, by collusive transfers on the African coast, become Spanish or Portuguese, the vessels had been built and fitted out in the United States, and too often, it may be feared, with American capital. Vessels of this description were provided with two sets of papers, to be used as occasion might require.

Had nothing further been done by British cruisers than to board and search these vessels, whether before or after a transfer of this kind, no complaint would probably have been made by the government of the United States. But, as many American vessels were engaged in lawful commerce on the coast of Africa, it frequently happened that they were boarded by British cruisers, not always under the command of discreet officers. Some voyages were broken up, officers and men occasionally ill-treated, and vessels sent to the United States or Sierra Leone for adjudication.

In 1840 an agreement was made between the officers in command of the British and American squadrons respectively, sanctioning a reciprocal right of search on the coast of Africa. It will be found among the papers pertaining to this subject, in the cxxxiv sixth volume of this collection. It was a well-meant, but unauthorized step, and was promptly disavowed by the administration of Mr. Van Buren. Its operation, while it lasted, was but to increase the existing difficulty. Reports of the interruptions experienced by our commerce in the African waters began greatly to multiply; and there was a strong interest on the part of those surreptitiously engaged in the traffic to give them currency. A deep feeling began to be manifested in the country; and the correspondence between the American Minister in London and Lord Palmerston, in the last days of the Melbourne ministry, was such as to show that the controversy had reached a critical point. Such was the state of the question when Mr. Webster entered the Department of State.

The controversy was transmitted, as we have seen, to the new administrations on both sides of the water, but soon assumed a somewhat modified character. The quintuple treaty, as it was called, was concluded at London, on the 20th of December, 1841, by England, France, Austria, Prussia, and Russia; and information of that fact, as we have seen above, was given by Lord Aberdeen to Mr. Everett the same day. A strong desire was intimated that the United States would join this association of the great powers, but no formal invitation for that purpose was addressed to them. But the recent occurrences on the coast of Africa, and the tone of the correspondence above alluded to, had increased the standing repugnance of the United States to the recognition of a right of search in time of peace.