Edward L. Pierce, Memoir and letters of Charles Sumner: volume 2

Chapter 24: Slavery and the law of nations.—1842.—Age, 31.

The right of search, unless specially conceded by treaty, is a purely belligerent right, and does not exist in time of peace. By the treaty of 1841, known as the Quintuple Treaty, between Great Britain, Austria, Prussia, and Russia, the slave-trade was declared piracy, and a mutual right of search given. France, acting under the influence of Mr. Cass and Mr. Wheaton, refused to ratify it. The slave-traders often hoisted the American flag in order to protect themselves from search and capture. Great Britain asserted the right to stop vessels flying the American colors under circumstances which justified a strong suspicion that they were engaged in the slave-trade, and that, though carrying our flag, they were in fact English or of one of the nations which had conceded the right of capture. She disclaimed the right to seize the vessel if found to be American, although engaged in the traffic, and limited the asserted right to one of mere inquiry for the purpose of verifying nationality.

This qualified right of search, or of inquiry,as he preferred to call it, Sumner maintained in two elaborate articles, both filling five and a half columns, and printed in the Boston Advertiser.¹ They reply at length to the positions taken by Mr. Stevenson, the American Minister, in his correspondence with the British Foreign [192] Secretary. The second is a rejoinder to an article of Mr. Perkins, of Salem, who, in a communication to the same newspaper, had reviewed Sumner's first article.²

Mr. Webster, in his subsequent correspondence as Secretary of State, contended strongly against the asserted right of visit and inquiry, whether as a right of search or as a more limited right of inquiry for verifying nationality;³ and publicists generally are in accord with him.⁴ The Treaty of Washington, which he negotiated, provided, however, for naval co-operation in the suppression of the slave-trade. The right of visit and inquiry claimed by Great Britain was afterwards practically waived. When, however, there came an earnest purpose on the part of our Government to suppress the slave-trade, the right to search and seize vessels suspected of being engaged in the traffic was mutually accorded by the treaty between Great Britain and the United States, April 2, 1862, negotiated by Lord Lyons and Mr. Seward.⁵

Chancellor Kent wrote, Jan. 7, 1842:—

I thank you for the Boston paper containing your view of the question of the “Right of search on the coast of Africa.” I have no hesitation in subscribing to it as entirely sound, logical, and conclusive. There is no doubt of it; and the neatness and elegance with which it is written are delightful.

Judge Story wrote, Feb. 6:—

I am glad to know that Mr. Prescott and Chancellor Kent approve of your article on the “Right of search.” It confirms my previous opinion of its intrinsic soundness. I do not exactly know whether Mr. Webster and Mr. Legare concur in its doctrines, but I shall be surprised if they do not.

He wrote as to the second article, Feb. 20—

I go along with you throughout. This last article is written with a close logic and lawyer-like precision; or rather, I should say, with the comprehensive grasp of a publicist dealing with the general law of nations, and not with the municipal doctrines of a particular country.

Letters approving his view came also from Rufus Choate and Theodore Sedgwick. [193]

The peculiar character of slave ownership as against common right, and existing only under positive municipal law, became at this time the subject of earnest discussion.

While the brig Creole, an American merchant vessel, was on her voyage, in 1841, from Hampton Roads to New Orleans, with one hundred and thirty-five slaves on board, a part of them rose in mutiny, killed a passenger who was the reputed owner of some of the slaves, wounded a number of the officers and crew, and having obtained complete possession of the vessel, carried her into the English port of Nassau. The slaves were there liberated, although some were held for a while under arrest for the assaults. There was a question as to the extent to which the colonial authorities interfered to effect their liberation, positive and officious interference being alleged on the one side and denied on the other. The affair was presented to the attention of the British Government by a formal letter addressed by Mr. Webster, then Secretary of State, to Mr. Stevenson, our Minister in London. The Secretary contended that the ‘Creole,’ being engaged in a perfectly lawful voyage, and taken by mutineers into a foreign port, her officers were entitled by the comity of nations, while at such port, to the aid of the Government in whose jurisdiction the port is situated in maintaining their authority, and should be protected from any interference with the relations and statusof persons on board existing under the laws of the United States. Mr. Webster, during the negotiations of the Treaty of Washington, again pressed this view.⁶ While confining the controversy to the case of a vessel driven by maritime disaster or carried by unlawful force into a foreign port, his argument in spirit and effect went further. He illustrated the relation of master and slave by the analogies of husband and wife and of parent and child, and carefully refrained from stating its peculiar and abnormal character as against common right, existing only by positive law, and not entitled to any recognition outside the exclusive jurisdiction of such law. This pretension, which he maintained with his accustomed power, belongs to a period when the spirit of slavery dominated in our Government. Lord Ashburton, while declining to include the question in the negotiation [194] of the Treaty of Washington, expressed his surprise at some of Mr. Webster's propositions. Dr. Channing, whose moral insight saw their direction, wrote at once his pamphlet, entitled ‘The Duty of the Free States,’ in which he complained that Mr. Webster's letter to Mr. Stevenson ‘maintained morally unsound and pernicious doctrines, and was fitted to deprave the public mind, and tended to commit the Free States to the defence and support of slavery.’ ‘The plain inference is,’ he said, ‘that the Government of the United States is bound to spread a shield over American slavery abroad as well as at home.’ He read his paper while in manuscript to Sumner, Hillard, and William F. Channing (the doctor's son), the three young men being with him in his library, and noting points for consideration as he read. Sumner made various suggestions, particularly on the legal points of the controversy. In connection with Hillard he revised the proofs, proposing several changes in letters written to the author, who, in May and June, 1842, was passing some weeks in Pennsylvania.⁷

Sumner's great interest in the ‘Creole’ question is noted by Mr. Ticknor, who names him as the only person he met, who was vehement against Mr. Webster's letter.⁸ It appears also in his vigorous letters, written at the time, to Mr. Harvey and Dr. Lieber. He replied in the ‘Advertiser’ to some legal criticisms which a correspondent of that journal had made on Dr. Channing's pamphlet.⁹ In this reply, he said:—

It would ill accord with the spirit of English law to allow the liberty of a human being to be restrained by the meshes of technicalities like those woven by the writer in the “Advertiser.” The single vigorous principle that within the British Empire no right of property can exist in a human being extends like a flaming sword around all its courts and territories, cutting asunder the bonds of every slave who approaches English earth.

Not only his participation in these legal discussions, but also his correspondence, in which he warmly commends the career of [195] John Quincy Adams in Congress, and expresses his delight in Longfellow's Anti-slavery poems, show that his convictions and sympathies on this great question were already fully developed. It will be noted with what emphasis and iteration he insisted at this period on the purely local and exceptional character of Slavery, as entitled to no quarter where it does not have the sanction of positive law,—a doctrine which, ten years later, gave the key-note to his first Anti-slavery speech in the Senate, entitled ‘Freedom National, Slavery Sectional.’ As yet, however, he dealt with public affairs as thinker and writer, rather than as organizer and agitator. Mrs. Maria Weston Chapman urged him, in the autumn of 1842, to enter on a more distinct cooperation with the Abolitionists; but his time for such public activities had not yet come. He had been for several years a subscriber for their organ,—the ‘Liberator,’—attended their annual Anti-slavery Fairs in