THE TREATY OF WASHINGTON. (Hansard, 3 April 1843)

§ Lord John Russell

wished to ask two questions of the right hon. Baronet with regard to the motion of the hon. Gentleman and to the treaty which had recently been entered into between this country and the United States. Before doing so, it would be necessary for him to say a few words in explanation, as the hon. Gentleman had given notice of a motion calling upon the House to express its approbation of the treaty. Now the treaty might be taken as divided into three parts—the boundary question—the mutual right of visit on the coast of Africa—and the mutual surrender of criminals. It would be desirable before the House engaged in a discussion on the subject that the construction of the treaty should be understood by the House. It appeared from the accounts recently received from America that a very different construction was put on some parts of this treaty in the United States from what was put on them in this country. The House was aware that the question of the right of mutual visit had led to much correspondence, first between his noble Friend the late Secretary for Foreign Affairs and Mr. Stevenson, and subsequently between Lord Aberdeen and Mr. Everett. This right of visit had been claimed on the part of this country by Lord Palmerston and Lord Aberdeen, and had been denied by Mr. Stevenson and 324 Mr. Everett. It had been stated that before Lord Ashburton proceeded to America that Lord Aberdeen sent for him, and told him that any further communication with the United States government on the subject of the right of search would be left to that noble Lord. After the conclusion of the treaty it appeared that the government of the United States would not concede the right of visit, and referred to the eighth article of the treaty of Washington, to which they attached another meaning than the right of visit. On the first night of the session some conversation took place on this subject between his noble Friend, Lord Palmerston, and the right hon. Gentleman, in the course of which the right hon. Gentleman declared that there was no concession on the part of the Government of this country as regarded the right of visit, and that the despatch of Lord Aberdeen to Mr. Everett was the last official paper on the subject, and that in this document the right was distinctly claimed. It appeared that the statement of the right hon. Gentleman had reached America; a discussion had been carried on in the Senate, and the President had felt himself called upon to make some communication as to the treaty, which he interpreted in a different manner from the right hon. Gentleman. It appeared that the President, in answer to the address communicating the papers, among other matters gave the substance of the despatch of Lord Aberdeen. He believed that he did not give the literal despatch, but the substance of it, but in this communication of the President of the United States there was an assumption similar to that which he had made before. He said that they could not call upon the Government of her Majesty to make any distinct explanation of their views as to the right of search, nor was the Government of the United States to be called upon for further explanation, but that the meaning of the whole article of the treaty was a tacit abandonment of the right of visit. He would, however, read the passage in the President's message, to see whether it would bear the construction put upon the article:— The principles laid down in Lord Aberdeen's despatches, and the assurances of indemnity therein held out, although the utmost reliance was placed on the good faith of the British Government, were not regarded by the executive as a sufficient security against the abuses which Lord Aberdeen admitted 325 might arise in even the most cautious and moderate exercise of their new maritime police; and therefore, in my message at the opening of the last session, I set forth the views entertained by the executive on this subject, and substantially affirmed both our inclination and ability to enforce our own laws, protest our flag from abuse, and acquit ourselves of all our duties and obligations on the high seas. In view of these assertions, the treaty of Washington was negotiated, and upon consultation with the British negotiator as to the quantum of force necessary to be employed in order to attain these objects, the result to which the mast deliberate estimate led was embodied in the eighth article of the treaty. Such were my views at the time of negotiating that treaty, and such, in ray opinion, is its plain and fair interpretation. I regarded the eighth article a; removing all possible pretext, on the ground of mere necessity, to visit and detain our ships upon the African coast because of any alleged abuse of our flag by slave traders of other nations. We had taken upon ourselves the burthen of preventing any such abuse, by stipulating to furnish an armed force regarded by both the high contracting parties as sufficient to accomplish that object. He would not read that part of the message which referred to the naval force of the United States, but would proceed to the concluding paragraph, which ran thus — The purpose of this Government is faith-fully to fulfil the treaty on its part, and it will not permit itself to doubt that Great Britain will comply with on hers. In this way, peace will best be Preserved, and the most amicable relations maintained between the two countries. It appeared, then, according to the various statements which they had hitherto had laid before them, that there was the greatest difference of interpretation between the two Governments as to the eighth article—a very essential one. What he wanted, therefore, to ask the right hon. Baronet, in the first place, was, whether he was willing to communicate to the House that despatch of Lord Aberdeen which had lately been under the consideration of the government of the United States, and also any official despatch from Mr.Fox, containing the two messages of the President to Congress, subsequently to the Treaty of Washington; and in the second place, he wished to ask the right hon. Baronet whether he had any objection to communicate to the House any instructions given to Lord Ashburton, or any correspondence which might have taken are between Lord Ashburton and Mr. Webster while the noble Lord was in 326 America, with reference to this part of the treaty? Correspondence had been laid on the Table of the House with reference, he believed, to all the other main pints of the negotiations between the two governments; but there was an entire blank with reference to this article. He could not but suppose, even though no other instructions to that effect had been given, that there was in existence some despatch in which Lord Ashburton gave the Government some information as to the conversations he must necessarily have had with the Secretary of the United States, and as to the interpretation which was put by that functionary upon the articles to which they mutually agreed. He had asked these questions that evening, without the usual notice, because he considered, that as the hon. Member for Montrose's motion on the subject stood for an early day, it was important that before that motion came under discussion, the House should know what was the construction of the article to which her Majesty's Government adhered.

§ Sir R. Peel

said, that the despatches from Mr. Fox had only reached London that morning, and he had not received them till a very advanced period of the day, having been attending her Majesty in council, and very possibly, therefore, his answer might not be so complete as it otherwise might have been had he had more time to read the despatches, but, as it was, he thought he should be able to give an answer sufficient in substance to serve the purpose for which the noble Lord had put his question. He found, in the despatches from Mr. Fox, the last message of the President of the United States, delivered at the latter end pf the month of February, 1843, to which the noble Lord had referred. There was also appended to that despatch a communication from Mr. Webster to the President of the United States, reciting, and faithfully reciting, the purport of the communication addressed by Lord Aberdeen to Mr. Fox, to be read to Mr. Webster, and which was written after the first message—the annual message—of the President of the United States. Of course he should have no difficulty whatever in laying upon the Table of the House extracts from the official despatch of Mr. Fox, containing the last message of the President, to which the noble Lord had referred, and also that communication of Mr. Webster which gave the substance 327 of the communication made by Lord Aberdeen to Mr. Fox, commenting on the annual message. He would take care that the substance of those communications should be laid on the Table of the House at the earliest possible period. The noble Lord had further inquired with respect to the instructions given by Lord Aberdeen to Lord Ashburton upon the subject of what was called the right of visit, as distinguished from the right of search, namely, the right of any maritime nation, where there is bona fide suspicion of piracy, to visit a vessel for the purpose of determining whether or not the flag she carries is the one she has a right to exhibit. He proposed to lay on the Table of the House the despatch from Lord Aberdeen to Mr. Everett, which had not been officially communicated to the House, written December 20, 1841, which contained the principles by which her Majesty's Government were guided on that subject. From those principles her Majesty's Government had never departed. They had given no instructions to Lord Ashburton sanctioning him in any departure from the principles contained in that despatch of December 20, 1841, after Mr. Stevenson had left England. No instructions at all on the subject had been given to Lord Ashburton, the Government considering that despatch to contain, in the clearest and most conclusive manner, their views on the subject, and the principles to which they meant to adhere. He had stated in the early part of the Session that that despatch bad remained without answer, and, as he was told, he had said also without an acknowledgment. If he had said that it had remained without acknowledgment, he was wrong. There had been an acknowledgment on the receipt of the despatch by Mr. Everett, and the promise of an answer at a future period. He would lay on the Table of the House the communication received from Mr. Everett, in reply to the despatch of Lord Aberdeen. He was not aware whether there were any other documents which it was desired that he should produce; if there were, and they could be produced without prejudice to the public service, he should have no objection to their production. As he had said before, Lord Ashburton had no authority whatever to treat on the subject of the right of visit, the Government considering the despatch to which he had referred as definitively settling that question. The 328 noble Lord opposite had referred to the message of the President of the United States. He thought it would have been better to have abstained altogether from any comments upon that message until the subject came regularly before the House; but, as he thought it possible that the extracts which the noble Lord had read might produce an unfavourable impression, he would beg leave to read two other passages from the same document, which he conceived might have the effect of counteracting any such unfavourable impression. In the earlier part of his message, the President said:— To seize and detain a ship upon suspicion of piracy, with probable cause and in good faith, affords no just grounds either for complaint on the part of the nation whose flag she bears, or claim of indemnity on the part of the owner. The universal law sanctions, and the common good requires, the existence of such a rule. The right, under such circumstances, not only to visit and detain, but to search a ship, is a perfect right, and involves neither responsibility nor indemnity. But, with this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, beyond the territorial jurisdiction. And such, I am happy to find, is substantially the doctrine of Great Britain herself, in her most recent official declarations, and even those now communicated to this House. These declarations may well lead us to doubt whether the apparent difficulty between the two Governments is not rather one of definition than of principle. Not only is the right of search, properly so called, disclaimed by Great Britain, but even that of a mere visit and inquiry is asserted with qualifications inconsistent with the idea of a perfect right. He would not make any comment upon this passage, further than that he thought it was calculated to allay any apprehensions which might else have arisen from the extracts which the noble Lord had read. In addition to what he had now said, he begged to state that the bill for the adjudication of the Oregon territory, which had passed the Senate, and the passing of which was alluded to as a matter of great importance in the late debate, had not passed the legislature. A motion discountenancing the passing of the bill had been introduced, and the House separated on that motion. He might also state that another bill had been passed, enabling the executive government of the United States to give full effect to the treaty of Washington. He had no objection that the 329 documents moved for should be laid on the Table of the House.