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regard to the vessel: "The Florida was brought into American waters, and was anchored under naval surveillance and protection at Hampton Roads. While awaiting the representation of the Brazilian Government, on the 28th of November, she sunk, owing to a leak which could not be seasonably stopped. The leak was at first represented to have been caused, or at least increased, by a collision with a war transport." After stating that there were courts of inquiry on the subject, he concluded: "In the mean time it is assumed that the loss of the Florida was a consequence of some unforeseen accident, which cast no responsibility upon the United States."1 Nothing further occurred in this case.

The Advertiser, in a leader on this article, after alluding to the author as "a gentleman whose position and pursuits have led him to give great attention to questions of International Law," says:

"We ask attention to his view of the precedents, therefore, and to the connection which he establishes between them and the present case, as being both interesting and instructive, and as deserving no small weight in settling our views upon this important subject. He makes it clear, that, whatever Brazil may feel herself called upon to say in the matter, it does not lie in the mouth of England, either by her press or her ministry, to intermeddle by lecturing the United States. . . . . The most embarrassing feature in the Florida case, however, has been removed within a few hours by the fortuitous collision of an army transport with this steamer, in the crowded roadstead at Fortress Monroe."

....

Admiral Porter's despatch reports this incident.

"FORTRESS MONROE, November 28, 1864. "HON. GIDEON WELLES, Secretary of the Navy:

"I have just received a telegram from the commander of the prize steamer Florida, informing me that she had sunk in nine fathoms of water. She had been run into by an army steamer, and badly damaged. I have not heard the particulars. I will inform the Department, when I receive the written report.

IF

"DAVID D. PORTER, Rear-Admiral.”

F we may judge from recent English newspapers, there is to be another cry against us, on account of the Florida, not unlike that on account of the Trent. One paper says the seizure was "most flagrantly law

1 Appleton's Annual Cyclopædia, 1864, art., Diplomatic Correspondence, pp. 364-366.

less"; another, 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, that "the outrage cannot be permitted to pass unnoticed by other powers"; and still another, 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, before the facts in the case have been ascertained in any authentic form, and before our Government has had opportunity to declare itself on the subject.

The same swiftness occurred in the matter of the Trent. The parallel will be complete, if Earl Russell sends us a letter of complaint.

As in that remarkable instance, there is the same indifference to historic precedents. I do not refer to cases decided in prize courts, where the question is of strict law, which must 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 Mississippi, and within the neutral territory of the United States. I refer to another class of precedents, 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 appears that this same power, whose newspapers are 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 deliberation 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 were 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 is found in the authoritative words of the Dutch publicist, Bynkershoek, 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." 1 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

1 Quæstiones Juris Publici, tr. Du Ponceau, Lib. I. cap. 8.

VOL. IX.

7

J

Mr.

enemy while within it."1 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." 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." 2 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. Jefferson, in a gossiping letter to Mr. Monroe, 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 flying above them, they burst into peals of exultation."3 The British minister, addressing himself at once to our Government, 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 is not known that there was any appearance in the prize court with reference to the Grange. It was settled by diplomacy, as will be seen by a formal letter of the Secretary of State addressed to the French minister, where he says: "I am charged by

1 Commentaries on American Law, Vol. I. p. 117.

2 International Law, pp. 517, 520.

3 Writings, Vol. III. p. 548.

1

the President of the United States to express to you 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." 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 refer him to a very animated article in the "Boston Gazette " for 1814, transferred to "Niles's Register," where the inviolability of neutral territory is upheld, especially against the open pretensions of Great Britain.

This general principle may seem at first view conclusive with regard to the Florida. If this vessel, now lying within the jurisdiction of the United States, were an ordinary private ship, cognizable in a prize court, or if it were still within the jurisdiction of Brazil, it might be so. But it remains to be seen whether there are not decisive considerations, distinguishing this case from every other, which will justify our Government, while recognizing the violation of Brazilian territory, and making all proper apologies, at least in declining any restitution of the ship. On this point it is not necessary to express an opinion. I began by allusion to the reckless judgments of British journals, tending to excite a cry against our country; and my present object will be accomplished, if I exhibit those historic precedents which must close the British mouth, whenever it opens to condemn a capture like that of the Florida.

1 To M. de Ternant, May 15, 1793: Jefferson's Writings, Vol. III. p. 561. 2 Vol. VI. pp. 348, 352, July 23, 1814.

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