The Creole Affair

by Arthur T. Downey

  In the month of September, a party of armed men from Upper Canada invaded the territory of the United States, and forcibly seized upon the person of one Grogan, and, under circumstances of great harshness, hurriedly carried him beyond the limits of the United States, and delivered him up to the authorities of Upper Canada. His immediate discharge was ordered by those authorities, upon the facts of the case being brought to their knowledge—a course of procedure which was to have been expected from a nation with whom we are at peace, and which was not more due to the rights of the United States than to its own regard for justice. The correspondence which passed between the Department of State and the British Envoy, Mr. Fox, and with the Governor of Vermont, as soon as the facts had been made known to this Department, are herewith communicated.

  I regret that it is not in my power to make known to you an equally satisfactory conclusion in the case of the Caroline steamer, with the circumstances connected with the destruction of which, in December, 1837, by an armed force fitted out in the province of Upper Canada, you are already made acquainted. No such atonement as was due for the public wrong to the United States by this invasion of her territory, so wholly irreconcilable with her rights as an independent Power, has yet been made. In the view taken by this Government, the inquiry whether the vessel was in the employment of those who were prosecuting an unauthorized war against that province, or was engaged by the owner in the business of transporting passengers to and from Navy island in hopes of private gain, which was most probably the case, in no degree alters the real question at issue between the two Governments. This Government can never concede to any foreign Government the power, except in a case of the most urgent and extreme necessity, of invading its territory, either to arrest the persons or destroy the property of those who may have violated the municipal laws of such foreign Government, or have disregarded their obligation arising under the law of nations. The territory of the United States must be regarded as sacredly secure against all such invasions, until they shall voluntarily acknowledge their inability to acquit themselves of their duties to others. And, in announcing this sentiment, I do but affirm a principle which no nation on earth would be more ready to vindicate, at all hazards, than the people and Government of Great Britain.

  If, upon a full investigation of all the facts, it shall appear that the owner of the Caroline was governed by a hostile intent, or had made common cause with those who were in the occupancy of Navy island, then, so far as he is concerned, there can be no claim to indemnity for the destruction of his boat which this Government would feel itself bound to prosecute—since he would have acted not only in derogation of the rights of Great Britain, but in clear violation of the laws of the United States: but that is a question which, however settled, in no manner involves the higher consideration of the violation of territorial sovereignty and jurisdiction. To recognise it as an admissible practice, that each Government, in its turn, upon any sudden and unauthorized outbreak, which, on a frontier the extent of which renders it impossible for either to have an efficient force on every mile of it, and which outbreak, therefore, neither may be able to suppress in a day, may take vengeance into its own hands, and without even a remonstrance, and in the absence of any pressing or overruling necessity, may invade the territory of the other, would inevitably lead to results equally to be deplored by both. When border collisions come to receive the sanction or to be made on the authority of either Government, general war must be the inevitable result. While it is the ardent desire of the United States to cultivate the relations of peace with all nations, and to fulfil all the duties of good neighborhood towards those who possess territories adjoining their own, that very desire would lead them to deny the right of any foreign power to invade their boundary with an armed force. The correspondence between the two Governments on this subject, will, at a future day of your session, be submitted to your consideration; and, in the mean time, I cannot but indulge the hope that the British Government will see the propriety of renouncing, as a rule of future action, the precedent which has been set in the affair at Schlosser.

  I herewith submit the correspondence which has recently taken place between the American minister at the Court of St. James, Mr. Stevenson, and the Minister of Foreign Affairs of that Government, on the right claimed by that Government to visit and detain vessels sailing under the American flag, and engaged in prosecuting lawful commerce in the African seas. Our commercial interests in that region have experienced considerable increase, and have become an object of much importance, and it is the duty of this Government to protect them against all improper and vexatious interruption. However desirous the United States may be for the suppression of the slave trade, they cannot consent to the interpolations into the maritime code at the mere will and pleasure of other Governments. We deny the right of any such interpolation to any one, or all the nations of the earth without our consent. We claim to have a voice in all amendments or alternations of that code; and when we are given to understand, as in this instance, by a foreign Government, that its treaties with other nations cannot be executed without the establishment and enforcement of new principles of maritime police, to be applied without our consent, we must employ a language neither of equivocal import, nor susceptible of misconstruction. American citizens prosecuting a lawful commerce in the African seas, under the flag of their country, are not responsible for the abuse or unlawful use of that flag by others; nor can they rightfully, on account of any such alleged abuses, be interrupted, molested, or detained while on the ocean; and if thus molested and detained, while pursuing honest voyages in the usual way, and violating no law themselves, they are unquestionably entitled to indemnity. This Government has manifested its repugnance to the slave trade, in a manner which can not be misunderstood. By its fundamental law, it prescribed limits in point of time to its continuance; and against its own citizens, who might so far forget the rights of humanity as to engage in that wicked traffic, it has long since, by its municipal laws denounced the most condign punishment. Many of the States composing this Union had made appeals to the civilized world for its suppression, long before the moral sense of other nations had become shocked by the iniquities of the traffic. Whether this Government should now enter into treaties containing mutual stipulations upon this subject, is a question for its mature deliberation. Certain it is, that if the right to detain American ships on the high seas can be justified on the plea of a necessity for such detention, arising out of the existence of treaties between other nations, the same plea may be extended and enlarged by the new stipulations of new treaties, to which the United States may not be a party. This Government will not cease to urge upon that of Great Britain full and ample remuneration for all losses, whether arising from detention or otherwise, to which American citizens have heretofore been or may hereafter be subjected, by the exercise of rights which this Government cannot recognize as legitimate and proper. Nor will I indulge a doubt but that the sense of justice of Great Britain will constrain her to make retribution for any wrong or loss which any American citizen, engaged in the prosecution of lawful commerce, may have experienced at the hands of her cruisers or other public authorities, This Government, at the same time, will relax no effort to prevent its citizens, if there may be any so disposed, from prosecuting a traffic so revolting to the feelings of humanity. It seeks to do no more than to protect the fair and honest trader from molestation and injury; but while the enterprising mariner, engaged in the pursuit of an honorable trade, is entitled to its protection, it will visit with condign punishment others of an opposite character.

  I invite your attention to existing laws for the suppression of the African slave trade, and recommend all such alternations, as may give to them greater force and efficacy. That the American flag is grossly abused by the abandoned and profligate of other nations is but too probable. Congress has, not long since, had this subject under its consideration, and its importance well justifies renewed and anxious attention.

  [On
e sentence relating to US-UK correspondence on rice duties.]

  At the opening of the last annual session, the President informed Congress of the progress which had then been made in negotiating a convention between this Government and that of England, with a view to the final settlement of the question of the boundary between the territorial limits of the two countries. I regret to say that little further advancement of the object has been accomplished since last year; but this is owing to circumstances no way indicative of any abatement of the desire of both parties to hasten the negotiation to its conclusion, and to settle the question in dispute as early as possible. In the course of the session, it is my hope to be able to announce some further degree of progress towards the accomplishment of this highly desirable end.

  The commission appointed by this Government for the exploration and survey of the line of boundary separating the States of Maine and New Hampshire from the conterminous British provinces is, it is believed, about to close its field labors, and is expected soon to report the results of its examinations to the Department of State. The report, when received, will be laid before Congress.

  [Discussion of other relations with other nations, a report on tax, revenue and debt matters. Beginning of a report on the Navy.]

  We look to no foreign conquests, nor do we propose to enter into competition with any other nation for supremacy on the ocean; but it is due, not only to the honor, but to the security of the people of the United States, that no nation should be permitted to invade our waters at pleasure, and subject our towns and villages to conflagration or pillage. . . . [I recommend] the increase and prompt equipment of that gallant navy, which has lighted up every sea with its victories, and spread an imperishable glory over the country.

  Appendix III

  Exchange of Diplomatic Notes between Secretary Webster and Lord Ashburton, August 1842

  Department of State

  Washington, August 1, 1842

  My Lord: The President has learned with much regret that you are not empowered by your Government to enter into a formal stipulation for the better security of vessels of the United States, when meeting with disaster in passing between the United States and the Bahama [sic] islands, and driven, by such disasters into British ports. This is a subject which is deemed to be of great importance, and which can not, on the present occasion, be overlooked.

  Your Lordship is aware that several cases have occurred within the last few years which have caused much complaint. In some of these cases compensation has been made by the English Government for the interference of the local authorities with American vessels having slaves on board, by which interference these slaves were set free. In other cases, such compensation has been refused. It appears to the President to be for the interest of both countries that the recurrence of similar cases in the future should be prevented as far as possible.

  Your Lordship has been acquainted with the case of the “Creole,” a vessel carried into the port of Nassau last winter by persons who had risen upon the lawful authority of the vessel, and, in the accomplishment of their purpose, had committed murder on a person on board.

  The opinions which that occurrence gave occasion for this Government to express, in regard to the rights and duties of friendly and civilized maritime states, placed by Providence near to each other, were well considered, and are entertained with entire confidence. The facts in the particular case of the “Creole” are controverted: positive and officious interference by the colonial authorities to set the slaves free being alleged on one side and denied on the other.

  It is not my present purpose to discuss this difference of opinion as to the evidence in the case, as it at present exists, because the rights of individuals having rendered necessary a more thorough and a judicial investigation of facts and circumstance attending the transaction, such investigation is understood to be now in progress, and its result, when known, will render me more able than at the moment to present to the British Government a full and accurate view of the whole case. But it is my purpose, and my duty, to invite your Lordship’s attention to the general subject, and your serious consideration of some practical means of giving security to the coasting trade of the United States against unlawful annoyance and interruption along this part of their shore. The Bahama [sic] islands approach the coast of Florida within a few leagues, and, with the coast, form a long and narrow channel, filled with innumerable small islands and banks of sand, and the navigation difficult and dangerous, not only on these accounts, but from the violence of the winds and the variable nature of the currents. Accidents are of course frequent, and necessity often compels vessels of the United States, in attempting to double Cape Florida, to seek shelter in the ports of these islands. Among this passage the Atlantic States hold intercourse with the States on the Gulf and the Mississippi, and through it the products of the valley of that river (a region of vast extent and boundless fertility) find a main outlet to the sea, in their destination to the markets of the world.

  No particular ground of complaint exists as to the treatment of which American vessels receive in the these ports, unless they happen to have slaves on board; but, in cases of that kind, complaints have been made, as already stated, of officious interference of the colonial authorities with the vessel, for the purpose of changing the condition in which these persons are, by the laws of their own country, and of setting them free.

  In the southern States of this Union slavery exists by the laws of the States and under the guarantee of the Constitution of the United States; and it has existed in them from a period long antecedent to the time when they ceased to be British colonies. In this state of things, it will happen that slaves will be often on board coasting vessels, as hands, as servants attending the families of their owners, or for the purpose of being carried from port to port. For the security of the rights of their citizens, when vessels, having persons of this description on board, are driven by stress of weather, or carried by unlawful force, into British ports, the United States propose the introduction of no new principle into the law of nations. They require only a faithful and exact observance of the injunctions of that code, as understood and practiced in modern times.

  Your Lordship observes that I have spoken only of American vessels driven into British ports by the disasters of the seas, or carried in by unlawful force. I confine my remarks to these cases, because they are the common cases, and because they are the cases which the law of nations most emphatically exempts from interference. The maritime law is full of instances of the application of that great and practical rule, which declares that that which is the clear result of necessity ought to draw after it no penalty and no hazard. If a ship be driven, by stress of weather, into a prohibited port, or into an open port, with prohibited articles on board, in neither case is any forfeiture incurred. And what may be considered a still stronger case, it has been decided by eminent English authority, and that decision has received general approbation, that if a vessel be driven, by necessity, into a port strictly blockaded, this necessity is good defense, and exempts her from penalty.

  A vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected, exclusively, to the jurisdiction of that nation. If against the will of her master, or owner, she be driven or carried nearer to the land, or even into port, those who have, or who ought to have, control over her, struggling all the while to keep her upon the high seas, and so within the exclusive jurisdiction of her own Government, what reason or justice is there in creating a distinction between her rights and immunities, in a position, thus the result of absolute necessity, and the same rights and immunities before superior power had forced her out of her voluntary course?

  But, my Lord, the rule of law, and the comity and practice of nations, go much further than these cases of necessity, and allow even to a merchant vessel, coming into any open port of another country voluntarily, for the purpose of lawful trad
e, to bring with her, and keep over her, to a very considerable extent, the jurisdiction and authority of the laws of her own country, excluding to this extent, by consequence, the jurisdiction of the local law. A ship, say the publicists, though at anchor in a foreign harbor, preserves its jurisdiction and its laws. It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the state retains its jurisdiction over them; and, according to the commonly-received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion.