This principle we should wish to introduce into the system
by which the slave-trade should be recognized as piracy under
the law of nations: namely, that although selzable by the
officers and authorities of every nation, they should be triable
only by the tribunals of the country of the slave-trading
vessel. This provision Is indispensable to guard the Inno-
cent navigator against vexatious detentions, and all the evils
of arbitrary search. In committing to foreign officers the
power, even in a case of conventional piracy, of arresting,
confining and delivering over for trial a citizen of the United
States, we feel the necessity of guarding his rights from all
abuses, and from the application of any laws of a country
other than his own.
The draft of a convention is herewith enclosed, which If
496 THE WRITINGS OF I1823
the British government should agree to treat upon this
subject on the basis of a legislative prohibition of the slave-
trade by both parties, under the penalties of piracy, you are
authorized to propose and to conclude. These articles are,
however, not offered to the exclusion of others, which may be
proposed on the part of the British government, nor is any
one of them, excepting the first, to be insisted on as indis-
pensable, if others equally adapted to answer their purposes
should be proposed. It is only from the consideration of the
crime in the character of piracy that we can admit the
visitation of our merchant vessels by foreign officers for any
purpose whatever, and in that case only under the most
effective responsibility of the officer for the act of visitation
itself, and for everything done under it.
If the sentiments of the British government should be
averse to the principle of declaring the trade itself by a
legislative act piratical, you will not propose or communicate
to them the enclosed project of convention. Its objects, you
will distinctly understand, are twofold: to carry into effect
the resolution of the House of Representatives, and to meet
explicitly and fully the call so earnestly urged by the British
government, that in declining the proposals pressed by them
upon us, of conceding a mutual and qualified right of search,
we should offer a substitute for their consideration. The
substitute by declaring the crime piracy, carries with it the
right of search for the pirates, existing in the very nature of
the crime. But to the concession of the right of search, dis-
tinct from the denomination of the crime, our objections
remain in all their original force.
It has been intimated by Mr. S. Canning, that the sugges-
tion itself to the British government of the propriety of
their passing a legislative act, might excite in them some
repugnancy to it. We should regret the excitement of this
1823] JOHN QUINCY ADAMS 497
feeling, which the very nature of the negotiation seems to
foreclose. Besides the legislative enactments which have
virtually been pressed upon us by all the invitations to con-
cede the right of search and to subject our citizens to trial for
violations of our own laws by foreign tribunals, Great
Britain in almost all her slave-trade treaties has required and
obtained express stipulations for the enactment of prohibi-
tory laws, by France, Spain, Portugal, and the Netherlands.
It was not expected that she would receive with reluctance
herself a mere invitation to that which she had freely and
expressly required from others. Still, if the sentiment
should exist, we would forbear pressing it to the point of
irritation by importunity. You will in the first instance
simply state that if the British government is prepared to
proclaim the slave-trade piracy by statute, you are au-
thorized to propose and to conclude a convention, by which
the mutual cooperation of the naval force of Great Britain
and of the United States may be secured for carrying into
effect the law, which on that contingency will be common to
both. Should the obstacle to the preliminary prove in-
superable, you will refer the objections on the part of the
British cabinet to this government for consideration.
By the loose information hitherto communicated in the
public journals, it would seem that the proposition for
recognizing the slave-trade as piracy by the law of nations
was discussed at the Congress of Verona. We are expecting
the communication of the papers relating to this subject,
promised by Lord Liverpool to be laid before Parliament.
Heretofore, although the United States have been much
solicited and urged to concur in the measures of Great
Britain and her allies for the suppression of the trade, they
have been always communicated to us as purposes consum-
mated, to which the accession of the United States was
498 THE WRITINGS OF [1823
desired. From the general policy of avoiding to intermeddle
in European affairs, we have acquiesced in this course of
proceeding; but to carry fully into effect the late resolution
of the House of Representatives, and to pursue the discussion
hereafter with Great Britain herself, whether upon her
proposals or upon ours, it is obviously proper that com-
munication should be made to us of the progress of European
negotiation for accomplishing the common purpose, while
it is in deliberation. If we are to cooperate in the result, it is
just that we should be consulted at least with regard to the
means which we are invited to adopt. I am, etc.^
TO STRATFORD CANNING ^
Department of State,
Washington, 24 June, 1823.
Sir,
In the letter which I had the honor of addressing you on
the 31st of March last, a proposal was made to be submitted
to the consideration of your government, that the principle
assumed in an act of Congress of the United States of
15 May, 1820, of considering and punishing the African
^ In instructing Middleton to enter into negotiation witii Russia on the suppres-
sion of the slave-trade, Adams wrote, July 28: "In the meantime you will informally
suggest to his ministry, that it will be the desire of the government of the United
States to proceed in this matter in perfect good understanding and harmony with
them. And you will farther intimate that as this has now become a general concern
of the whole civilized world; and as Great Britain is negotiating yojw^/y and severally
with each and every of her allies in Europe apart, and again with them all together,
while she is also separately treating with us, we wish it to be considered whether it
would not be expedient on all sides that communication should be made to us of all
the jointly concerted measures, while they are mere proposals; and not that the
knowledge of them should be withheld from us until they are matured into positive
treaties."
^ For the cabinet discussion of this paper see Adams, Memoirs, June 19, 1823.
1823] JOHN QUINCY ADAMS 499
slave-trade as piracy, should be adopted as the basis of a
stipulation by treaty between the United States and Great
Britain; and to be urged separately, upon the adoption of
France, and upon the other maritime nations of Europe in
the manner most conducive to its ultimate success. It was
observed that this offer was presented as a substitute for that
of conceding a mutual right of search and a trial by mixed
commissions, to which the United States could not be recon-
ciled, and which would be rendered useless by it.
Your letter of the 8th of April, to which I have now the
honor to reply, intimating that his Majesty's government
will be disposed to receive this offer only as an acknowledg-
ment that measures more efficient than any now generally
in force are indispensable for the suppression of the slave-
trade; and that although they have never opposed the con-
sideration of any other plan, brought forward as equally
eiTective, yet having from the first regarded a mutual limited
concession of the right of search as the only true and practical
cure for the evil, their prevailing sentiment will be of regret
at the unfavorable view still taken of it by the government
of the United States. Your letter therefore urges a recon-
sideration of the proposal for this mutual concession of the
right of search, and by presenting important modifications of
the proposal heretofore made, removes some of the objections
which had been taken to it as insuperable, while it offers
argumentative answers to the others which had been dis-
closed in my previous communications on this subject to you.
In the treaties of Great Britain for the suppression of the
slave-trade with Spain, Portugal, and the Netherlands,
heretofore communicated with the invitation to the United
States to enter into similar engagements, three principles
were involved, to neither of which the government of the
United States felt itself at liberty to accede. The first was
500 THE WRITINGS OF [1823
the mutual concession of the right of search and capture, in
time of peace, over merchant vessels on the coast of Africa.
The second was the exercise of that right even over vessels
under convoy of the public officers of their own nation. And
the third was the trial of the captured vessels by mixed com-
missions in colonial settlements, under no subordination to
the ordinary judicial tribunals of the country to which the
party brought before them for trial should belong. In the
course of the correspondence relating to these proposals, it
has been suggested that a substitute for the trial by a mixed
commission might be agreed to, and in your letter of the
8th of April, an expectation is authorized, that an arrange-
ment for the adjudication of the vessels detained, might leave
them to be disposed of in the ordinary way by the sentence of
a court of admiralty in the country of the captor, or place
them under the jurisdiction of a similar court in the country
to which they belonged; to the former alternative of which
you anticipate the unhesitating admission of the United
States, in consideration of the aggravated nature of the
crime as acknowledged by their laws, which would be thus
submitted to a foreign jurisdiction. But it was precisely
because the jurisdiction was foreign, that the objection was
taken to the trial by mixed commissions; and if it trans-
cended the constitutional authority of the government of the
United States to subject the persons, property, and reputa-
tion of their citizens to the decisions of a court, partly com-
posed of their own countrymen, it might seem needless to
remark that the constitutional objection could not diminish
in proportion as its cause should Increase, or that the power
incompetent to make American citizens amenable to a court
consisting one-half of foreigners, should be adequate to
place their liberty, their fortune, and their fame at the dis-
posal of tribunals entirely foreign. I would further remark
i823] JOHN QUINCY ADAMS 501
that the sentence of a court of admiralty in the country of
the captor is not the ordinary way by which the merchant
vessels of one nation taken on the high seas by the officers of
another are tried in time of peace. There is in the ordinary
way no right whatever existing to take, to search, or even
to board them; and I take this occasion to express the great
satisfaction with which we have seen this principle solemnly
recognized by the present decision of a British court of
admiralty.
Nor is the aggravation of the crime for the trial of which a
tribunal may be instituted, a cogent motive for assenting to
the principle of subjecting American citizens, their rights and
interests, to the decision of foreign courts. However ready
Great Britain may be ^ to abandon those of her subjects who
defy the laws and tarnish the character of their country by
participating in this trade, to the dispensation of justice even
by foreign hands, the United States are bound to remember
that the power which enables a court to try the guilty,
authorizes them also to pronounce upon the fate of the
innocent; and that the very question of guilt or innocence is
that which the protecting care of their constitution has re-
served for the citizens of this Union to the exclusive decision
of their own countrymen. This principle has not been de-
parted from by the statute which has branded the slave-
trader with the name and doomed him to the punishment of a
pirate. The distinction between piracy by the law of nations
and piracy by statute is well known and understood in
Great Britain, and while the former subjects the transgressor
guilty of it to the jurisdiction of any and every country into
which he may be brought, or wherein he may be taken, the
latter forms a part of the municipal criminal code of the
' These words were changed to, " For although Great Britain, as you remark, may
be willing to" etc.
502 THE WRITINGS OF [1823
country where it is enacted, and can be tried only by its own
courts.
There remains the suggestion that the slave-trader, cap-
tured under the mutual concession of the power to make the
capture, might be delivered over to the jurisdiction of his
own country. This arrangement would not be liable to the
constitutional objection which must ever apply to the juris-
diction of the mixed commission, or of the admiralty courts
of the captor. And if your note is to be understood as pre-
senting it in the character of an alternative to which your
government is disposed to accede, I am authorized to say that
the President considers it as sufficient to remove the in-
superable obstacle which had precluded the assent of the
United States to the former proposals of your government,
resulting from the character and composition of the tribunals
to whom the question of guilt or innocence was to be com-
mitted.
The objections to the right of search, as incident to the
right of detention and capture, are also in a very considerable
degree removed by the introduction of the principle that
neither of them should be exercised, but under the responsi-
bility of the captor, to the tribunals of the captured party in
damages and costs. This guard against the abuses of a
power so liable to abuse would be indispensable, but if the
provisions necessary for securing effectually its practical
operation would reduce the right itself to a power merely
nominal, the stipulation of It in a treaty would serve rather
to mark the sacrifice of a great and precious principle, than
to attain the end for which it would be given up.
In the objections heretofore disclosed to the concession
desired, of the mutual and qualified right of search, the
principal stress was laid upon the repugnance which such a
concession would meet in the public feeling of this country,
1823] JOHN QUINCY ADAMS 503
and of those to whom its interests are entrusted in the de-
partment of its government, the sanction of which is re-
quired for the ratification of treaties. The irritating tend-
ency of the practice of search, and the inequaHties of its
probable operation were slightly noticed, and have been
contested in argument, or met by propositions of possible
palliatives or remedies for anticipated abuses in your letter.
But the source and foundation of all those objections was in
our former correspondence scarcely mentioned and never
discussed. They consist in the nature of the right of search
at sea, which as recognized or tolerated by the usage of
nations is an odious right ^ — a right exclusively of zvar,
never exercised but by an outrage upon the rights of peace.
It is an act analogous to that of searching the dwelling houses
of individuals on the land. The vessel of the navigator is
his dwelling house; and like that, in the sentiment of every
people that cherishes the blessings of personal liberty and
security, ought to be a sanctuary, inviolable to the hand of
power, unless upon the most unequivocal public necessity,
and under the most rigorous personal responsibility of the
intruder. Search at sea, as recognized by all maritime na-
tions, is confined to the single object of finding and taking
contraband of war. By the law of nature, when two nations
conflict together in war, a third, remaining neutral, retains
all its rights of peace and friendly intercourse with both.
Each belligerent, indeed, acquires by war the right of pre-
venting a third party from administering to his enemy the
direct and immediate materials of war, and, as incidental to
this right, that of searching the merchant vessels of the
neutral on the high seas to find them. Even thus limited it
is an invidious and oppressive - act of power, which nothing
1 The words "an odious right" were struck out.
2 The words "invidious and oppressive" were struck out.
504 THE WRITINGS OF [1823
but necessity can justify, inasmuch as It cannot be justified
but by carrying the evils of war Into the abode of peace, and
by visiting the innocent with some of the penalties of guilt.
Among the modern maritime nations an usage has crept in,
not founded upon the law of nature, never universally ad-
mitted, often successfully resisted, and against which all
have occasionally borne testimony by renouncing it in
treaties, of extending this practice of search and seizure to
all the property of the enemy in the vessel of the friend.
This practice was in its origin evidently an abusive and
wrongful extension of the search for contraband — effected
by the belligerent, because he was armed; submitted to by
the neutral, because he was defenceless; and acquiesced In
by his sovereign, for the sake of preserving a remnant of
peace, rather than become himself a party to the war. Hav-
ing thus occasionally been practiced by all as belligerents,
and submitted to by all as neutrals, it has acquired the
force of an usage, which at the occurrence of every war, the
belligerent may enforce or relinquish, and which the neutral
may suflFer or resist at their respective options.
The search for and seizure of the property of an enemy in
the vessel of a friend Is a relict of the barbarous warfare of
barbarous ages — the cruel and for the most part now ex-
ploded system of private war. As It concerns the enemy
himself, it is Inconsistent with that mitigated usage of mod-
ern wars which respects the private property of Individuals
on the land. As relates to the neutral, It Is a gross and
flagrant ^ violation of his natural right to pursue unmolested
his peaceful commercial intercourse with his friend. In-
vidious as Is Its character In both these aspects, it has other
essential characteristics equally obnoxious. It Is an un-
controlled exercise of authority by a man In arms over a man
^The words "gross and flagrant" were struck out.
1823] JOHN QUINCY ADAMS 505
without defence; by an officer of one nation over the citizen
of another; by a man intent upon the annoyance of his
enemy [and eager for the detection of plunder]; ^ responsible
for the act of search to no tribunal, and always prompted to
balance the disappointment of a fruitless search by the
abusive exercise of his power, and to punish the neutral for
the very cleanness of his neutrality. It has in short all the
features of unbridled power stimulated by hostile, selfish ^
and unsocial passions.^
^ The words in brackets were struck out.
* The word "selfish" was struck out.
3 President Monroe wrote some paragraphs to be substituted for what followed:
"I forbear to enlarge upon the further extension of this practice, by referring to
injuries which the United States experienced when neutral, in a case of vital im-
portance, because in digesting a plan for the attainment of an object which both
nations have equally at heart, it is desirable to avoid every topic which may excite
painful sensations on either side. I have adverted to the interest in question from
necessity, it being one which could not be lost sight of in the present discussion.
"Such being the view taken of the right of search as recognized by the law of
nations, and exercised by belligerent powers, it is due to candor to state that my
government has an insuperable objection to its extension, by treaty, in any manner
whatever, lest it might lead to consequences still more injurious to the United States,
and especially in the circumstance alluded to. That the proposed extension will
operate in time of peace, and derive its sanction from compact, present no induce-
ments to its adoption. On the contrary they form strong objections to it. Every
extension of the right of search, on the principles of that right, is disapproved. If
the freedom of the sea is abridged by compact for any new purpose, the example may
lead to other changes. And if its operation is extended to a time of peace as well as
of war, a new system will be commenced for the dominion of the sea, which may
eventually, especially by the abuses into which it may lead, confound all distinction
of time and circumstances, of peace and of war, and of rights applicable to each
state.
"The United States have, on great consideration, thought it most advisable to
consider this trade as piracy, and to treat it as such; they have thought that the
trade itself might, with great propriety, be placed in that class of offences, and that
by placing it there, we should more effectually accomplish the great object of sup-
pressing the trade, than by any other measure we could adopt.
"To this measure none of the objections, which have been urged against the
extension of the right of search, appear to be applicable. Piracy, being an offence
5o6 THE WRITINGS OF I1823
I forbear to enlarge upon the further extension of this
practice, which the United States, when neutral, have
experienced at the hands of Great Britain as a belligerent;
to the search for and seizure of men, upon an arbitrary claim
against the human race, has its well known incidents of capture and punishment by
death, by the people and tribunals of every country. By making this trade piratical,
it is the nature of the crime which draws after it the necessary consequences, of
capture and punishment. The United States have done this by an act of Congress
in relation to themselves. They have also evinced their willingness and expressed
their desire, that the change should become general by the consent of every other
power, whereby it would be made the law of nations. Till then they are bound, by
the injunctions of their constitution, to execute it so far as respects the punishment
of their own citizens, by their own tribunals. They consider themselves, however,
at liberty until that consent is obtained, to cooperate to a certain extent with other
powers, to ensure a more complete effect to their respective acts, they placing them-
selves, severally, on the same ground, by legislative provisions. It is in this spirit
and for this purpose that I have made to you the proposition under consideration,
"By making the slave-trade piratical, and attaching to It the punishment as well
as the odium incident to that crime, it is believed that much has been done by the
United States to suppress it in their vessels and by their citizens. If your gov-
ernment would unite in the policy, it is not doubted that the happiest consequences
would result from it. The example of Great Britain, in a manner so decisive, could
not fail to attract the attention and command the respect of all her European
neighbors. It is the opinion of the United States that no measures, short of that
proposed, will accomplish the object so much desired, and it is the earnest wish of
my government that the government of his Britannic Majesty may cooperate in
carrying it into effect.
"I pray you," etc.
The President suggested that what was omitted from Adams' paper should be
comprised in the letter to Rush, and added: "My Idea is, after glancing at a princi-
pal ground of objection to their [the British] project, in a manner to show that it is
insuperable, to prove, in the most conciliatory manner, that our plan will be more
effectual, and is in short the only one that can succeed. By proposing to go further
than they have done, and to commence the operation immediately to the extent
that the constitution will admit, no Imputation can be raised against our sincerity,
and there Is every reason to presume that we shall obtain the approbation of the
friends of the abolition in England, and secure the support of Congress. The latter
object will be more completely secured by strengthening in the manner proposed
the letter to Mr. Rush, should the subject be brought before Congress." Monroe to
Adams, June 22, 1823. Ms. See Adams, Memoirs, June 20, 23, 1823.
1823] JOHN QUINCY ADAMS 50?
to their services as her subjects — a practice warranted by
the usage of no other nation than Great Britain, and habit-