TOPICS OF THE DAY.
THE CREOLE CASE APPLIED.
"HER Majesty's Government," Lord ABERDEEN is reported to have said on Monday evening, "had satisfied themselves, that by the laws of this country there is no machinery or authority for bringing those persons [the refugee slaves who carried off the Creole] to trial for mutiny or murder, still less for delivering them up or detaining them in custody." All the Law Lords expressed their opinion of the strictly legal propriety of the conclusion to which the Government bad come on this question: Lords BROUGHAM and DEssisis explained the law regarding it in the most luminous and convincing manner. Lord DENMAN established, by a long list of precedents—begin- ning with the book of Deuteronomy and ending with the opinions of the majority of American Judges as stated by Justice STORY in 1841—that the doctrine laid down in COILE'S Institutes correctly expressed the law of nations regarding the claim of any country to have fugitives from its laws delivered up by another. "It is holden, and so hath been resolved, that kingdoms in league with one another are sanctuaries for servants or subjects flying for safety from one kingdom to another, and upon demand made by them are not by the laws and liberties of kingdoms to be delivered." Lord BROUGHAM showed that even a treaty between this country and America for the mutual delivery of fugitives from justice, would of itself be insufficient to entitle the British Govern- ment to give up the refugees of the Creole—" That treaty would be a dead letter if the municipal law of that country did not au- thorize the carrying out of its provisions. It was necessary to say so much, because he thought those who had argued the question had not kept the two questions of national law and of municipal law sufficiently apart. It was necessary that the municipal law should exist as well as the law of nations. That municipal law did not exist in this country. There was no power by law to seize, still less to detain or render up, any person having committed an offence, however grave that offence might be, within the jurisdic- tion or limits of any other country : whether he was an alien or not, there was no power to give him up, until the Legislature of this country should arm the Government with a power to do so." Lord DENMAN strikingly illustrated this argument—" It was per- fectly clear that the law of England furnished no machinery or pro- cess by which a person flying from another country could be taken and detained, still less delivered over. And he would have been prepared to warn the Secretary of State, on the authority of the most eminent lawyers, that he could not so act without being liable to an action of damages for false imprisonment, and the still more awful danger of putting a person upon his trial in a case where the punishment was death. It was perfectly clear, that an alien seized in this country for a crime alleged to have been com- mitted in a foreign country, might resist with force the party at- tempting to make the seizure; and if the resistance ended in the loss of his life, the seizing parties might be tried for murder, and if convicted, might be executed."
These arguments seem unanswerable : and all humane men will rejoice that this is the case, inasmuch as it guarantees the safety of the Negroes who effected their escape from slavery in the Creole. But if Great Britain holds this to be good law as against American demands, the United States are likewise entitled to act upon it in regard to those of England.
This remark is made in reference to the claim advanced by the British Government to impress sailors, British subjects, serving on board foreign vessels. "That a foreign power," Mr. CANNING wrote to Mr. MONROE in 1807—and the claim has not, that we are aware of, been either modified or relinquished since—" will not knowingly retain in its national service mariners the natural-born subjects of his Majesty, who have been recalled by public procla- mations, may be regarded as a presumption arising out of the hos- tile nature of the act, and out of the probable consequences to which such an act of hostility must lead ; but with respect to mer- chant-vessels there is no such presumption. When mariners, sub- jects of his Majesty, are employed in the private service of foreign individuals under private civil contracts, the King's subjects, and the foreign individuals with whom they contract to serve, enter into engagements inconsistent with the duty of his Majesty's sub- jects towards him : but to those engagements the government of the foreign nation has not made itself a party. In such cases, the species of redress which the practice of all times has admitted and sanctioned, is that of taking these subjects at sea out of the service of such foreign individuals, and recalling them. to the discharge of that previous and paramount duty which they owe to their Sove- reign and country." The argument upon which the British Government claims a right to impress British sailors out of foreign vessels, is that, in Great Britain, impressments are preceded by a proclamation calling on seamen to come in and enter the naval service; that such sea- men as remain in foreign service after the issuing of such a procla- mation have disobeyed the laws of their country, and may be arrested by persons holding commissions to that effect from Government. In order to get hold of the sailors, they are declared criminals by a legal fiction. The reply of the Americans has been furnished by Lords DENMAN and BROUGHAM—" The Government of Great Britain has no jurisdiction on board an American vessel under the American Bag. • And eveu though the comity of nations, or still morass express treaty, should band America to deliver up British subjects, fugitives from British laws, it is necessary that the muni- cipal law should exist as well as the law of nations : that municipal law [the law authorizing the seizure of British seamen remaining in foreign service after being called in by proclamation] does not exist in this country:" And they might add Lord DENMAN'S pic- turesque account of the liabilities incurred by the master of the
vessel who should take upon him to deliver up the seamen. -A
Lord ASHBURTON has just been despatched to the United States to arrange the points of dispute existing with that country; and of all the objects to which his intention will have to be directed, that which the British Government seems to have most at heart is a convention with the American Government for conceding a mutual right of search with a view to put down the slave-trade. The right of impressing British seamen serving on board foreign vessels, asserted by the British Government, is the greatest impediment in the way of such a convention. That practice is not only dangerous to neutrals speaking the same tongue and wearing kindred linea- ments of countenance, in time of war : such proclamations have ere now been issued in time of peace, when an approaching war was apprehended. The sentiments with which the Americans re- gard this claim were well expressed by Mr. MONROE, in 1807— " Every commercial vessel of the United States that navigates the ocean is liable to be invaded by it; and not an individual on board any of them is secure while the practice is maintained. It sets up every officer of his majesty's Navy as a judge from whose decision there is no appeal. It makes him a judge, not of property, which is held more sacred—nor of the liberty of his fellow subjects only, however great the trust, and liable to abuse on the main ocean—but of that of citizens of another power, whose rights as a nation are trampled on by the decision ; a decision in rendering which every rule of evi- dence is violated, as it pats the proof of innocence on the accused; and is fur- ther highly objectionable, as there is too much reason to believe that it has been often guided more by the fitness of the party for service than any other circumstance. It is possible that this practice may, in certain cases and un- der certain circumstances, have been extended to the vessels of other powers; but with them there was an infallible criterion to prevent error. It would be easy to distinguish between an Englishman and a Spaniard, an Italian or a Swede ; and the clear and irresistible evidence of his national character, and perhaps of his desertion, would establish the British claim to the individual, and reconcile the nation into whose service he had entered to his surrender. But the very circumstances which would constitute an infallible criterion in those cases, would be sure to produce an endless error in the other. Who is so skilful in physiognomy as to distinguish between an American and an Eng- lishman, especially among those whose profession and whose sea-terms are the same?"
Mr. MONROE might have added, the danger to which American merchantmen were exposed of being left weak-banded on the high seas whenever the British Government issued warrants for a press. These dangers afford reasonable grounds for the Americans de- clining to concede a mutual right of search—or even the "right of visitation" claimed by Lords PALMERSTON and ABERDEEN—so long as this right of impressment is claimed by Great Britain. In time of war, neutrals must submit to be searched; but an impress- ment may begin in time of peace : and the only security which American merchantmen can have against its exercise then, is by refusing to allow any British officer to come near them until the claim is abandoned. If our Government really wish America to concede the right of search with a view to put an end to the slave- trade, they must first set the minds of the Americans at ease by relinquishing their claim to search and seize British seamen, "re- called by public proclamations," serving in American merchant- vessels. They may rest assured, that all talk about the "previous paramount duty which the sailors owe to their Sovereign and their country" will be answered, on the part of the Americans, in the words of Lord DENMAN—" It was desirable, as his noble and learned friend had declared, that a power should be established by which one country might be enabled to seize criminals for crimes com- mitted in others ; but such a right must be founded on the suppo- sition that the laws of all countries are reasonable and just; for no country was entitled to enforce a law which was believed to be founded in injustice. He believed the States of America had re- fused to give up a British subject who had committed forgery, be- cause they disapproved of the punishment of death then inflicted in this country for the crime. Till the laws in each country were such as a Christian country ought to adopt, they could not be enforced in another."
If Lord DENstes will dispassionately consider the law of im- pressment, and the consequences of attempting to exercise it aboard foreign vessels, he will see that it is not the slave-trade that "alone stands in the way of international jurisdiction for offences committed against the laws in either country." It is very proper that we should be urgent in attempting to pick the great, big, black, ugly beam out of the American eye; but we shall see much more clearly how to do it after extracting the splinter from our OWO.
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