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UNITED STATES SENATOR FROM MASSACHUSETTS, AND CHAIRMAN OF THE SENATE
COMMITTEE ON FOREIGN RELATIONS.
NEW YORK :
N. Y. YOUNG MEN'S REPUBLICAN UNION.
NEW YORK YOUNG MEN'S REPUBLICAN UNION.
MARK HOYT, President.
BOARD OF CONTROL.
CEPHAS BRAINERD, Chairman. MARK HOYT,
BENJAMIN F. MANIERRE, FRANK W. BALLARD,
THOMAS L. THORNELL, CHARLES T. RODGERS, WILLIAM M. FRANKLIN, GEORGE H. MATHEWS,
JAMES H. WELSH,
CLAYTOX & MEDOLE, Printers, 4 Thames Street, (Trinity Building,) N. Y.
THE CASE OF THE FLORIDA,
PRECEDENTS FROM BRITISH HISTORY,
[The following article appeared originally, as a communication, in the Boston Daily Advertiser of November 29th, 1864. Its authorship having been recognized and acknowledged, the Young Men's Republican Union, with Mr. Sumner’s permission, now present “The Case of the Florida” to the public in a corrected and convenient form for future reference.]
If we may judge from recent English newspapers, there is to be another cry against us on account of the Florida, not unlike that which was excited on account of the Trent. One paper says the seizure was most flagrantly lawless.” Another says that “the precedent will establish a claim to the right to pursue and destroy every such vessel, whatever may be the port in which she may seek shelter or supplies.” Another says that “ the outrage cannot be permitted to pass unnoticed by other powers." And still another says that “events such as these will speedily force European nations to interfere in the American difficulty for their own security.” Such are specimens of British criticism, made before the facts in the case have been ascertained in any authentic form, and before our government has had any opportunity to declare itself on the matter.
The same swiftness occurred in the case of the Trent. The parallel will be complete, if Lord Russell sends us a letter of complaint.
As in the instance of the Trent, there is the same indifference to historic precedents. I do not refer to cases decided in prize courts, where the question was one of strict law, which was al
lowed to prevail—as where Sir William Scott decreed restitution of a vessel captured by a British privateer stationed among the mud islands at the mouth of the River Mississippi, and within the neutral territory of the United States. I refer to another class of authorities not to be found in judicial decisions, but in the History of Great Britain. And, as in the instance of the Trent, it appeared that this power had for several generations, under a pretended claim, entered on board foreign ships and forcibly dragged away persons from the protection of their flag—thus doing on a large scale what was done by Commodore Wilkes on a very small scale; so it will appear that this same power, which is now swift to condemn the act of Captain Collins, has for many generations been in the habit of seizing or destroying vessels in neutral waters.
Judicial decisions exhibit the strict law obligatory on courts. Historic precedents exhibit the practice of nations, where strict law is often modified by considerations of necessity or policy. The first, as a general rule, concern private rights; the second, as a general rule, concern public rights. The first are questions for the court; the second are questions for executive de liberation, and for diplomacy. It is needless to add that the case of the Florida is not a case of private rights. It is an historic incident, destined hereafter to be a precedent, which will be determined by the executive, and not by the judiciary. If the Florida was an ordinary private ship, claimed by private individuals, it would naturally fall under the cognizance of a prize court. But it is claimed as a public ship, which, as is well known, is not subject to the jurisdiction of a prize court. Or, assuming its private character by reason of its piratical origin, there are questions involved which must ultimately come under the cognizance of the Executive, and which belong to the history of the country.
Of course, the general principle of international law, applicable to such an incident, is beyond question. It may be found in the authoritative words of the Dutch publicist, Bynkershock, when he says, “ Certainly it is by no means lawful to attack or take an enemy in the port of a neutral, who is in amity with both parties." (Bynk. Questiones J. P. lib. I. cap. 8.) Chancellor Kent, a great authority, enforces the same principle when
he says: “It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it.” (Commentaries, vol. I. p. 117.) General Halleck, in his excellent work on International Law, says: “Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral State which is the common friend of both parties." (Halleck, International Law, p. 520.) And he follows this compendious statement with the remark, that "the Government of the United States has invariably claimed the absolute inviolability of neutral territory.” (Ibid., p. 522.) As early as 1793 our government gave its adhesion to this principle in a case where Great Britain and France were the hostile parties. The British merchant ship Grange was captured in Delaware Bay by a French frigate, and brought into Philadelphia, to which port she was bound. Mr. Jefferson, in a gossiping letter to Mr. Munroe, under date of May 5, 1793, says: “Upon her coming into sight thousands and thousands of the yeomanry of the city crowded and covered the wharves. Never before was such a crowd seen there, and when the British colors were seen reversed and the French flag flying above them, they burst into peals of exultation.” (Jefferson's Works, vol. 3, p. 348.) The British Minister at once addressed himself to our government, and demanded restitution of the captured vessel, then within our jurisdiction. The French Minister insisted that Delaware Bay was an open sea, so that the original capture was lawful. But the ship was restored. Washington was at the time President, and Jefferson Secretary of State. It does not appear that there was any appearance in the prize court with reference to the Grange. It was a matter of diplomacy, as will be seen by a formal letter of the Secretary of State addressed to the French Minister, in which he says that he is " charged by the President of the United States to express his expectation, and at the same time his confidence, that you will be pleased to take immediate and effectual measures for having the ship Grange and her cargo restored to the British owners, and the persons taken on board her set at liberty.” (Jefferson's Works, vol. 3, p. 561.) The general principle illustrated by this striking case has been maintained by our government ever since. If any reader is curious to see an elaborate vindication of it, I