Lords Sitting of 4 May 1809

AMERICA—AFFAIR OF THE CHESAPEAKE.
The Earl of Selkirkrose to make his promised motion relative to the Affair of the Chesapeake. He had long wished to hear the question brought forward by some person of more weight in the house; that hope had been disappointed, and circumstances did not allow the subject to be longer delayed. In a former negotiation to which this affair had led, ministers had shewn a disposition to make improper concessions. A renewal of the negotiation being probable, the interposition of the house became necessary, to prevent a sacrifice of our national honour, and with it our first national interest, the maintenance of our maritime preponderance. Nothing, he trusted, was yet irrevocably concluded, and an expression of the sense of the house might prevent the evil. Under these circumstances, it was the duty of the house to offer its advice, as the hereditary council of the crown; and the house would not abandon that privilege and that duty, notwithstanding the novel doctrine lately broached, that no subject of discussion was fit to be entertained by the house, unless ministers had given their consent to the enquiry.—It was the more necessary to bring forward this discussion, on account of the misapprehensions which prevailed as to the real state of the case. It was a matter of notoriety, that admiral Berkeley having intelligence that certain British deserters were on board the American frigate, gave orders to demand their

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restoration, and in case of resistance to search for them by force. It was well known that our government had immediately disavowed this act, and offered to make reparation for it. Their conduct in this respect has met with little animadversion. The attack had been considered as an unwarrantable aggression: but it could only be considered in that light from a total inattention to the circumstances which led to it—circumstances of which the public do not seem to have been fully informed. The question has been stated as if it rested entirely upon the right of searching neutral ships, and it has been laid down as incontestible, that this right does not extend to national vessels commissioned by a neutral state. Admitting this, however, on what does the distinction rest between national and private ships? It cannot be contended that to seduce away deserters, though a violation of our national rights when done by a private individual, is no offence from persons in the immediate employment of a government. But in this case the government being answerable for the conduct of its servants, is presumed to be willing, on proper application, to redress the wrong and punish the offender. It is because there is no such means of redress in the case of private offenders, that it must be taken by summary means. But if a government refuses to redress notorious wrong committed by their servants against the rights of another country, they are guilty of an act of hostility; they have given justifiable cause of war; the grounds of the distinction in favour of the national commission are done away; and redress must be sought by the same summary means as in the case of individuals. The American government put itself decidedly into this predicament. The officers employed in fitting out the Chesapeake frigate received and protected men notoriously deserters from the British navy. Numerous applications from their officers were refused or evaded; and the American government, when applied to by our consul and envoy, would give no redress.—Lord Selkirk entered into a detail of facts in proof of these assertions. Rat-ford, one of the deserters seized on board the Chesapeake, was afterwards seized at Halifax, when it was clearly proved that he and several others had deserted, under circumstances aggravated by mutiny, and had been received the very next day at Norfolk in Virginia as recruits for the Ameri-
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can service. At the suggestion of the American officer, they entered themselves by false names; and this officer, when applied to by the captain and the British consul, pretended to know of no such men, though they had been seen parading openly under the American flag, in sight of the British officers, who offered to point them out. Every application was evaded with shameful prevarication; nor were these confined to officers of inferior rank. Two others of the deserters taken out of the Chesapeake, made voluntary confession at Halifax, in which they declared that commodore Barron had promised lo protect them, "though they were deserters from an English man of war," and yet the answer of commodore Barron to captain Humphries of the Leopard, when he demanded the deserters, was, that he knew of none such being on board. Ratford was proved and acknowledged himself to be born in London; yet the president of the United States, in the proclamation issued after the attack on the Chesapeake, asserts, that "it had been ascertained that the men demanded were native born Americans." It was repeatedly professed that orders had been given to enlist no British deserters; and yet after the trial of Ratford had clearly proved that this order had not been obeyed, no inquiry was ever instituted into the conduct of their officers. This alone was sufficient to make the American government a party to the offence. But there was further ground to believe that they had all along connived at it. The British consul in Virginia had forwarded to Mr Erskine a statement of the desertion of Ratford and his associates, with a description of their persons, by which Ratford in particular might have been identified with perfect ease and certainty. These documents must of course have been communicated to the American government by Mr. Erskine, which would appear if this correspondence were produced. Taking the whole circumstances together, nothing could be more absurd than to treat the attack on the Chesapeake as an unprovoked outrage. A palpable offence had been committed against our national rights, and all redress being refused, there was no alternative left, but to take it into our own hands. It is objected, indeed, that by the orders he gave, admiral Berkeley went beyond his power and his just province, taking upon himself to decide questions of peace or war. This, however, cannot affect the question be-

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tween the two nations. Admiral Berkeley did no more than his government had a just right to order him to do; whether he acted by previous orders or not, could only be a question between him and his own government. Nothing had been done by Britain against America, more than the conduct of America had fully justified. That was not a proper case for the offer of reparation; if any were due, it would be from that government which had encouraged its officers in a voluntary infringement of our national tights. To make an offer of reparation, in the unqualified manner in which it had been made, was equivalent, to an admission, that the Americans had been guilty of no offence; in other words, that their government might seduce away our men without question; or that, if such acts were covered with a sufficient coat of prevarication and falsehood, no other satisfaction would be required. To acquiesce in such conduct could only lead to further provocations: and if this needed any proof, it would be found in the circumstance, that at the very time when the American officers in Virginia were enticing away British deserters, the civil power in Maryland was employed to aid the officers of a French ship to recover some of theirs. Much has been said of the provocations given to America by the British government, yet what comparison can the utmost exaggeration make between those provocations which America resents so vehemently when coming from Britain, and those to which she has quietly submitted from France. The French government, however, has at least had the merit of being uniform and consistent; while the vacillating and unsteady policy of Britain, leading the Americans to expect the most extravagant concessions, is the real cause of their violence against us. The present ministers had shewn a more steady resistance to these demands, than on many former occasions; and so far at least their conduct had certainly been advantageous to the country.—Upon the facts already stated, lord Selkirk argued, that sufficient grounds had been laid for an address to the throne to state the opinion of the house, that satisfaction ought to be demanded from the American government, for the conduct of their officers, in seducing deserters from his majesty's naval service. That proposition rested on the acknowledged principles of the law of nations. But the question was closely connected with the gene-
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ral maritime rights of Great Britain; rights which were to be maintained on much broader grounds. The claim of this kingdom to the dominion of the seas has been treated by some of the highest authorities on the law of nations, as altogether untenable, and is still looked upon by many enlightened men as a fanciful creation of vulgar prejudice. But the circumstances of the world have so completely changed within the last twenty years, that the reasonings or Grotius and Puffendorf are no longer applicable to the existing state of things. On the very principles laid down by these eminent writers, there is now ground for asserting, on the part of Great Britain, a paramount right of jurisdiction over the ocean, founded on the same principles on which any other legitimate sovereignty can be claimed; on the principle that allegiance and protection are reciprocal duties. The British navy is the power which alone protects the freedom of the seas. A gigantic usurpation has overpowered the continent of Europe, and pursues its lawless course towards universal empire, setting at defiance all the restraints of justice and morality; and were it not checked by the naval power of Great Britain, would assuredly be as tyrannical at sea as at land. The former conduct of France towards America itself is a sufficient proof of this. The Americans cannot have forgot the rapine, violence, and insult of the French cruizers from the year 1797 to 1799. The French government, now the champion of the liberty of the seas, then set up against neutral commerce pretensions the most monstrous, and in a state of professed peace exercised unheard-of depredations on the American commerce. Every vessel which contained a single article of British produce or manufacture was condemned as prize, with all its cargo. On this and other such pretences, without a shadow of right, depredations were committed to the extent of 20 or 30 millions of dollars. In less than two years at least 300 American ships had in this way been condemned, for all which no reparation has to this day been made. The American government submitted, without venturing upon one act of retaliation; and at length concluded, in 1800, a treaty with France, in which the adjustment of the sums mutually due and claimed, is put off to a more convenient opportunity. These captures were accompanied by every species of cruelty and insult. American captains were confined in irons, flogged, and even

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tortured. These facts rest on no doubtful authority. Mr. King, their ambassador at London, himself attests the case of an American captain, on whose hands he saw the marks of the thumb-screws. To all this, though continued for several years, the American government was obliged to submit; and if they are not still under the necessity of submitting to such treatment, it is the British navy which protects them. All other neutrals are in the same predicament. Not one of them would be able to maintain their own rights against the power of France. While the splendid victories of our navy have invested this nation with power to dictate the laws which are to govern the ocean, nothing is wanted but a just and equitable exercise of this power to put it on the same footing with any other legitimate jurisdiction. It is no less for our interest than our honour to obviate every probability of its being exerted unjustly. The dominion of the seas, for which we ought to contend, is not the mere vague ascendancy of superior force—an ascendancy which, being exercised without rule, may occasionally be absurd, but a regular, systematic, organized sovereignty, under which we ought to give to the commerce of all maritime independent nations the same protection as to our own, but with the express condition of their concurring with us in the measures which are necessary for the maintenance of that naval power, which is the last stay of the liberties of the world. Upon these principles, the British naval power might be rendered the basis of a grand maritime confederacy, under which the commercial rights of the associated states might be clearly defined and secured against ail interruption. To such nations as are disposed to enter frankly into these views, every commercial advantage, which we can bestow, ought freely to be communicated. Those countries, on the other hand, which are under the controul of our antagonist, ought not to be allowed to navigate a ship. If it be not an idle fancy now to think of peace with France, the only condition on which it can be concluded with any appearance of safety, is that of her absolute renunciation of all rights on the sea, the surrender or destruction of her ships of war, and the assured renewal of hostilities when the first bolt is driven into a new one. On this principle, a system of foreign policy, worthy of the British nation, may yet be built; and on this system alone, can we expect to form a counterpoise to the overgrown
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power of France on the continent of Europe. Next to the establishment of an effectual system of military defence at home, this is the most important object of our policy; and one, in competition with which no commercial advantage deserves a moment's consideration. It is high time to act systematically on this view, to assert and maintain our maritime sovereignty, to lay down just and impartial laws, not to allow any nation in the world to navigate a ship except in compliance with them. With respect to America, we have no commercial interest that should be an obstacle to amicable arrangements; but if the great objects of maritime power and defence, involving the very existence of Britain, are to be sacrificed for paltry commercial advantages, disgrace will be our portion, and ultimate ruin will be the consequence. If America be inclined to enter into treaty in a spirit truly friendly, there is little to be settled; but let her embargoes and non-intercourse acts continue, till she explicitly recognizes the British sovereignty of the seas.—Lord Selkirk concluded with moving an Address:—"Humbly submitting to his majesty the opinion of the house, that in any arrangement which may be entered into, for the accommodation of the differences subsisting between his majesty and the United States of America, it is essential to the honour of the British nation, that full satisfaction should be made by the American government, for the conduct of their officers in receiving and protecting deserters from his majesty's naval service, and particularly those entered for the American frigate Chesapeake, in the year 1807."
The Earl of Liverpoolsaid, he did not rise for the purpose of going at length into all the arguments of the noble earl who brought forward the present motion. He should occupy a small portion of their lordships' time, because the same reason which he had assigned for refusing the papers moved for by the noble earl, particularly applied upon the present occasion. The fact was, certain differences did exist between his majesty's government and the United States, and a negociation had been commenced for the purpose of their adjustment, which was not yet brought to its final issue. Now, the motion of the noble earl called upon that house to interpose and give advice to his majesty, pending the negociation, and they were called upon to do this, without knowing all the circumstances, or even the state in which the

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negociation existed. This was a particular province and department of the royal prerogative, and he would submit it to the consideration of the house, how far they would act properly or judiciously, in thus interposing their advice, without any clear knowledge upon the subject. He was not a little surprised that a motion of this nature should have been brought forward by any noble lord; for if any interposition whatever ought to have been moved for, it should rather have been that his majesty would inform the house with respect to the progress and state of the negociation. Unknown to the noble, earl (Selkirk,) his majesty's ministers had acted in the very manner which he had thought proper to point out: they had made satisfaction to the Americans, by declaring the conduct of the English officer unjustifiable, but under certain conditions, that the American government should also make reparation for the conduct of their officers. It was his duty not to say how the affair exactly stood; nor was he disposed to go more at length into the merits of the question. With respect to what the noble earl had stated concerning our maritime rights, he should also decline embracing the discussion, because it was a field of considerable extent; at the same time, he could not refrain from remarking, that the doctrine laid down was new, and a great part of it very strange to his mind. He had only to observe, that the situation of the United States and this country was such as justly precluded his majesty from making any communication, in the present state of the negociation; and he was induced to believe their lordships would agree with him in opposing the motion.
Viscount Sidmouththought it his duty to trouble the house with a few observations on the question under consideration; and in doing so, he should take up a very small portion of their time. He certainly concurred with a great part of what had been stated by the noble Secretary, but he could not accord with the proposition that it was unusual or unprecedented for that house or the other house of parliament to interpose their advice to his majesty pending a negotiation. He could adduce several instances where such had been the conduct of parliament. Instances occurred in the reigns of William and Mary, queen Anne, George L, and George II. In 1707 such an interposition had been made to queen Anne, desiring her majesty not to make peace unless the Spanish
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monarchy and dominions in the Indies should be restored to the house of Austria. Therefore he was well convinced it was agreeable to the constitution, to give advice to his majesty pending a negociation, and in doing so they did not exercise the prerogative itself, but only gave their advice that it might be duly exercised. In regard to the present motion, he did not concur with the noble earl (Selkirk,) that the nature of circumstances called for or required that house to interpose its advice on the present occasion. That noble earl had spoken at considerable length upon the maritime rights of Great Britain, and the opinions which he entertained no doubt proceeded from a comprehensive and enlightened mind; but they did not warrant him in giving them his approbation. He was not disposed to raise our naval superiority into a Sovereignty of the Seas; he thought it was sufficient for us to maintain that superiority, by recognizing the maritime rights of other nations. That superiority would be best strengthened and the longest maintained, by exercising it upon principles of justice and equity; by attending strictly to which, we should be the best enabled to increase our own prosperity.
The Earl of Liverpoolwished to explain, that he had not meant to say, it was unprecedented for parliament to interpose its advice pending a negociation, but that it was unprecedented so to interpose its advice, until the house had arrived at a knowledge of the progress and state of the negociation.
Viscount Sidmouthcontinued to be of opinion, that there were instances where parliament had interposed its advice without knowing the state of the negociation.
After a few words from the earl of Selkirk in reply, the motion was put and negatived without a division.