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And why is this so? Simply because the carrying of such articles in peace, was injurious to nobody, but upon the breaking out of the war does injury to one of the belligerents with reference to the war. And various other instances might be given of the same class. If, indeed, that which was the previous trade of a neutral, has no relation in its substance or manner of conducting it to hostility, the war does not affect it otherwise than by producing detention for inquiry and search; but when it has that relation, as it always has, when by seeking the armed ships of a belligerent it generates collisions, the war invariably affects and reduces it.

Even if it be true, therefore, of which, however, there is no proof in the cause that British armed vessels had before been used in this trade, the moment the war broke out between the United States and England, the continuance of that practice became as completely unneutral 28 did the carrying of articles of contraband, and became liable to the same penal visitation. It would be idle to multiply words upon such a point.

It has further been suggested, that if Mr. Pinto had not used an armed ship of England, he could not have undertaken his voyage at all. Be it so. Although there is no evidence to countenance such an apology, I am willing, without reserve, to admit the fact, while I utterly deny the conclusion of law. We are fallen upon strange times, when every sort of absurdity-I beg my learned opponents to pardon the accidental freedom of this expression, and to believe that I respect them both too much to be willing to give umbrage to either. To one of them, indeed, I have heretofore given unintentional pain, by observations to which the influence of accidental excitement imparted the appearance of unkind criticism.* The manner in which he replied to those observations, reproached me by its forbearance and urbanity, and could not fail to hasten the repentance which reflection alone would have produced, and which I am glad to have so public an occasion of avowing. I offer him a gratuitous and cheerful atonement-cheerful, because it puts me to rights with myself, and because it is tendered not to ignorance and presumption, but to the highest worth in intellect and morals, enhanced by such eloquence as few may hope to equal to an interesting stranger whom adversity has tried, and affliction struck severely to the heart-to an exile whom any country might be proud to receive, and every man of a generous temper, would be ashamed to offend. I feel relieved by this atonement, and proceed with more alacrity. I say that it is passing strange, that, in the nineteenth century, we should have it insinuated that the provisions

* In the case of the Mary, argued at the same term, in which Mr. Emmett (of counsel for the captors,) spoke, as Mr. Pinkney supposed, a little too harshly of one of the claimants.

of public law, or of any law, are to bend before the private convenience of an individual trader. The law of nations did not compel Mr. Pinto to trade. It allowed him to do so, if he could with innocence. It did not convert his rights into obligations: it left them as it found them, except only that it impressed upon them, with a view to the state of war which had supervened, the conditions and qualifications annexed to his predicament as a neutral. If he could safely and advantageously trade in this new state of his rights, it was well; if not, it was either his duty to forbear to trade at all, or to make up his mind to defy the consequences. And is this such a harsh alternative? Is it not the dilemma to which God and the laws have reduced us all-and some of us more emphatically than others? Is not the vocation of every man in society more or less limited by positive institution, and does not the law of nations deal with, what I may call, a benignant profusion in such limitations? War brings to a neutral its benefits and its disadvantages. For its benefits, he is indebted to the lamentable discord and misery of his fellow-creatures, and he should, therefore, bear, not merely with a philosophic but with a Christian patience, the evils with which these benefits are alloyed. It is fortunate for the world that they are so alloyed, and heaven forbid that the time should ever arrive, when one portion of the human race should feel too deep an interest in perpetuating the destructive quarrels of their brethren.

But is there any thing new or peculiar in this alternative? What is the predicament of a neutral merchant domiciled before the war in one of the belligerent countries? Is he not called upon by the law of prize to cease to trade, or to trade upon belligerent responsibility? Does not that law tell him, "abandon your commerce, although it was begun in peace, and perhaps established by great sacrifices, prepare to find it treated as the commerce of the belligerent with whom you have identified yourself?" Does it not announce the same sentence to the dealer in articles of contraband; to the trader with ports which the belligerent chooses to blockade; to the ship-owner who has transport vessels to let to foreign governments? In those cases, it does not say, you shall not trade, or hire your ships as you were used to do; but merely, that if you do, and are captured, your property shall be forfeited, as if it were the property of enemies. I ask, if the man, who lives with innocence, in peace, upon the profits of carrying contraband articles, is less oppressed by the alternative which is presented to his choice, than Mr. Pinto by that which I hold was tendered to him, if his situation be truly stated, not exaggerated by his counsel? I ask if his situation was worse than that of any other neutral, whose ordinary peace-traffic is reduced or annihilated by the mighty instrumentality of war?

But it is said that the resistance which was made was a rightful resistance on the part of

property" (cargo as well as vessel,) "so withheld from visitation and search."

Upon what ground is the cargo forfeited in that case? Upon the ground that the master's resistance withholds the cargo from visitation and search, and that the owner of it is answerable for the master's conduct in that respect, although the master is not, strictly speaking, the agent of the cargo, and the owner of the cargo is not generally affected by his acts in the view of a court of prize. The extension of the penalty of confiscation to all the property withheld by the resistance of the neutral master from visitation and search, whether it belongs to the owner of the vessel or not, proceeds, undoubtedly, from the importance attach

the commander of the Nereide, by whom it as the neutral vessel. We have for this the was made, in fact. It was so. And can Mr. express authority of Sir William Scott in the Pinto take refuge behind the peculiar rights of celebrated case of the Swedish convoy and his associates without sharing the legal effects others.* "The penalty for the violent contraof their defeat? Nothing could be more intol-vention of this right, is the confiscation of the erable than such a doctrine. A belligerent has a right to break a blockade if he can. But can a neutral, therefore, put himself under the shade of that right, and in case the belligerent master should make the attempt and succeed, take the profit, and if he fails, claim immunity from confiscation by an ingenious reinforcement of his own rights with those of the belligerent master? Or, if the conduct of the belligerent master shall be thought to be insufficient to impute to the owner of the cargo the "mens rea" in the case of blockade, by a sweeping presumption that the vessel is going into the blockaded port in the service of the cargo only -what shall we say to the case of contraband, which must be put on board by the owner with a knowledge that it will be exposed to the periled to the right with which such resistance of capture, and if captured to the certainty of confiscation? A belligerent master has a right to carry contraband if he can; and only superior force can prevent him. But surely a neutral cannot so avail himself of that right as to ship in safety contraband articles in a belligerent vessel. If he could he would have a larger and more effectual right than that under which he takes shelter; for the belligerent's right is subject to be defeated by force, and so much of his property as is engaged in the enterprise becomes prize of war if he is conquered. Just as in this case his right of resistance is met on the other side by a right to attack and seize as prize, and every thing depends upon the issue of the combat. It is indeed self-evident that a neutral who is driven to rely upon the rights of war, vested in others, not himself, leans upon a broken reed if those rights fail of being success-plausibility can the charterer of a belligerent fully maintained against the opposite party to the war; and sure I am that no case can be imagined in which a neutral can cover himself with the right of a belligerent, whom he chooses to employ, and thus claim the combined advantages of a belligerent and a neutral character. If he can advance such a claim the cases of domicil have all been adjudged upon false principles, for they expressly affirm the contrary, and stand upon no other reason.

But the true light in which to view this point is, that the right of resistance vested in the belligerent master is precisely that which aggravates instead of taking away the guilt of the neutral charterer; or, in other words, is exactly the consideration which ought to make the resistance his own in the eye of the law, and consequently to render him and his property liable, to share the fate of the belligerent master and vessel.

It is indisputable that if Mr. Pinto, instead of chartering the Nereide, had hired a neutral ship, and the neutral master, without his concurrence, had resisted visitation and search, the goods of Pinto would have been prize as well

interferes to a right without which all the other belligerent rights with which the law of prize is concerned are mere shadows. The owner of a neutral cargo forfeited by the resistance of the master of a neutral ship would seem to have some show of reason for his complaint against the rigor of such an indiscriminate punishment of the innocent and the guilty. He might urge with great plausibility that as he had not partaken in any manner the resistance, as he not only did not command but did not wish it, as he was justified when he shipped his goods in relying upon the presumption that a neutral master would fulfil his neutral duties and would not have recourse to hostile resistance to the right of visiting and searching his vessel and those goods, he ought not to be made accountable for that resistance. But with what

vessel which has by resistance withheld his property from visitation and search, claim to be exempted from the utmost severity of the rule? When he chartered such a vessel and shipped his goods had he any ground for presuming that the belligerent master would forbear resistance to an enemy cruiser? Did he not, on the contrary, know that he would resist and that it would be out of his power to prevent him? Did he not go to sea with an absolute assurance that his goods would be withheld from the visitation and search of the opposite belligerent by all the resistance that could be made? Nay, further; is not the neutral owner of the goods interested that resistance should be made even with reference to the vessel, when it can be made effectually; since, if the vessel be seized as prize, the voyage is broken up and the hopes of profit which depended upon it utterly blasted? Such was Mr. Pinto's predicament; and it will not be

*The Maria, Rob. Adm. Rep. vol. 1, p. 287. The Elsebe, Rob. Adm. Rep. vol. 5, p. 174. The Catharina Elizabeth, ib. 232. The Despatch, Rob. Adm. Rep. 280.

believed that he would see with disapprobation | by the counsel for the claimant and by the the repulse of a cruiser of this country attempt-court, in that case, that the distinction between ing to capture the Nereide and to carry her any where but to Buenos Ayres. an enemy convoy and a neutral convoy was unfavorable to the former, inasmuch as the enemy convoy stamped a primary character of hostility on all the vessels sailing under its protection, which presumption the counsel seemed to think might be rebutted, but which Sir William Scott considered to be a conclusive presumption; and that the distinction between hostile and neutral

With regard to a neutral, therefore, who charters an armed belligerent vessel, the penalty of confiscation for resistance by that vessel is unimpeachably just. If it is established that a neutral should be responsible for the resistance of the master of a neutral vessel, which he could not foresee, had no reason to expect, and no interest to produce, can it be unfit that he should be responsible for the regular and foreseen resistance of the master of an armed bellig-convoy, favorable to the latter, was, that where erent vessel chartered by him, which resistance he could not help foreseeing, which, if he did not direct he must have confidently expected, and which his interest required should be made as often as it happened to be practicable? It would be intolerable that he who has done every thing which by all reasonable calculation would subject his property to the full exercise of the right of visitation and search, shall be punished with confiscation for the disappointment of that calculation, and that he who has done every thing which was adapted to defeat that right, and who has spontaneously given himself an interest in defeating it, should be rewarded with restitution; or, to speak more correctly, by a concession of all the benefits of successful resistance and by an exemption from all its penal consequences in case of failure.

the convoying force was neutral, the captors must show an actual resistance, which in the case of the Maria was shown, among other things, by the instructions of the Swedish government, authorizing such resistance, which were relied upon, not as constituting a part of the offence, but as rendering it probable that there was actual resistance, whilst in the case of the Nereide, the intention to resist, independent of the fact, was rendered certain by the general hostile character of the force employed.*

The case of the Catharina Elizabeth, (Rob. Adm. Rep. vol. 5, p. 232,) has also been produced against us. It would seem, indeed, that my learned friend entertains some doubts of its I stand upon all just principles of law and applicability to that of the Nereide, since he reason, therefore, when I say that the known rather invites our attention to the brief marginal right and inclination of the master of the Ne-summary of the reporter than to the case. The reide, combined with his capacity, obtained at marginal note says: "Resistance by an enemy Pinto's expense, to resist a cruiser of the United master will not affect the cargo, being the propStates, is so far from being a foundation on erty of a neutral merchant;" and my learned which to build his innocence that it is the friend taking or rather mistaking this for a uniclearest and most conclusive inducement to versal position, is so well satisfied with it that consider his property as prize. If one were he desires to look no further, and would have called upon to select a case in which the con- us trouble ourselves as little as possible with the fiscation of the cargo of a resisting vessel was reasoning of the court and the particular cirnot only lawful, but equitable, it would be a cumstances of the transaction, by which the case in which a neutral abusing the indulgence reporter, certainly a very excellent and able extended to him by the modern law of nations, man, took for granted that his note would be to employ a belligerent vehicle, employs just such a vehicle as under belligerent command and conduct will inevitably be made to withdraw his property from examination, so far as its physical force can so withdraw it. And certainly a greater anomaly can scarcely be conceived than that I shall answer for the hostile conduct of him upon whose neutral and peaceful conduct I was warranted when I employed him, to rely; and yet shall not answer for the hostile conduct of him from whom I was warranted when I employed him in anticipating nothing but hostility and violence!

Mr. Pinkney then examined the case of the Swedish convoy in 1798, and insisted that there was no difference between a ship sailing under protection of a resisting convoy and goods found in a resisting ship; that it was admitted both

* In Mr. Wheaton's report of this speech he remarks:"I regret that I have not the means of restoring this part of the argument, which I understand was of great force and beauty: but it is irrecoverably lost. In the case of the Maria, the counsel for the claimant, in contending that the presumption arising from a hostile convoy was not conclusive against the ships and cargoes sailing under its protection, cited the case of the Sampson, Barney, before the Lords of Appeal, an asserted American ship taken under French convoy, and communicating with the French ships by signal for battle, which they said the lords had sent to farther proof to

ascertain whether there had been an actual resistance. To

which intimation Sir W. Scott observed: I do not admit the authority of that case to the extent to which you push

it. That question is still reserved, although the lords might wish to know as much of the facts as possible.' And I may be excused for adding, that Mr. Justice Story, in his judgment in the case of the Nereide, states that the sentence of condemnation in the Sampson, Barney, was subsequently affirmed by the lords."

qualified. Dr. Robinson meant only to say, that the resistance of the enemy master, on that occasion, did not affect the neutral cargo; presuming that the reader of his note would read the judgment to which it belonged, and in which he could not fail to find the nature of that occasion. This is what I have done, and what I trust your honors will do. "Territus insisto prioris margine ripo,"* may come with a good grace from the learned counsel whose interest it is to take refuge there from the doctrine of the case itself; but it does not suit me. I shall, on the contrary, pass to the case from the margin.

is nothing in the case of the Catharina Elizabeth which says otherwise.

Another case in the same collection, vol. 3, p. 278. The Despatch, tells us that if a neutral master endeavors to rescue or recover by force the captured property, it shall be condemned, because the captor is not bound as against a neutral to keep military possession of the thing captured, or justified in holding the neutral master and crew as prisoners. On the contrary, he is to rely upon the duty of the neutral to submit, and hope for restitution and compensation from a court of prize; and if this duty be violated by the neutral master and crew, Now what is that case? An enemy master confiscation is the result. This is explanatory endeavors to recover his captured property, or of the judgment in the case of the Catharina rather, as appears to have been the fact, to take Elizabeth, and is there used by Sir William Scott the captured vessel; and Sir William Scott in- for that purpose. It shows, as the facts of the forms us that there is no harm in this, as regards case also show, that the court intended to conthe enemy master himself, and that it is quite fine its decision in the Catharina Elizabeth to clear that it cannot affect the neutral owner of the case of an enemy master already captured, the cargo. As to the enemy master, the quo- for whom, as he is in the custody of the captor, tation from Terence, "Lupum auribus teneo," whose business it is, not to trust, but to guard explains the whole matter. If I capture an and keep him, the neutral shipper is no longer enemy I must take care to hold him. He is not answerable. That the enemy master ceases the forced, unless under parole, to acquiesce; and, moment he becomes a prisoner, and his vessel if when opportunity offers he tries to withdraw prize, to be, for any purpose, the agent, or in himself and his property, or even to capture the any sense the associate of the neutral owner of captors, he does just what might be expected the cargo, and that their connection is utterly and what he has a right to do. He violates no dissolved by the seizure, is perfectly clear. It duty, and infringes no obligation. I admit all would, therefore, be monstrous to fasten upon this to be perfectly true; and I am ready to the neutral owner of the goods a continuing admit, if it will be of any service to the claim-suretiship for the peaceful conduct of the enemy ant, that the captain of the Nereide had a right master, after he has passed into the state of a not only to resist the Governor Tompkins, but prisoner of war. to capture her if he could. What I object against the claimant is, not that the captain of the Nereide resisted unlawfully, with a view to his own rights, but that the claimant, whose property was liable to unresisted visitation and search, and whose rights and obligations were very different from those of the captain of the Nereide, had identified himself with him, and was a party to that resistance, inasmuch as he was the hirer of the force with which it was made, knowing its hostile character, and had associated it upon the ocean with his property, aware of the hostile control to which it was subject. For a force thus qualified, and so employed by a neutral, I say that he is responsible upon the plainest grounds of law and reason, if it be used, as from its nature it must be, in a way in which he is not authorized to use it. I say, further, that a neutral cannot at all employ such a force, placed under such hostile control, without guilt; and that he incurs the confiscation of his goods if they are found connected with it, although there be no resistance on account of its being hopeless. I say, further, that if a neutral will have a resort to force, it must at his peril be such as is not from its character hurtful to the opposite belligerent, or inconsistent with a peaceable compliance on his part with all his neutral duties. And, surely, there

* Ovid Lib. 5 Fab. 9, 1. 597.
VOL. IL-8

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But in the consideration of the case of the Catharina Elizabeth, it must, in an especial manner, be borne in mind, that the French vessel was not armed at all, and of course not by or for the owner of the cargo; that she did not resist visitation, search or seizure; that the single circumstance upon which condemnation of the American cargo was urged, was some hostile attempt of the enemy master after capture consummated-which attempt was really and constructively his own personal act, not procured or facilitated, or influenced, directly or indirectly, remotely or immediately, by the owner of the cargo, to whom in law he had become a stranger. Who is it that can persuade himself that there is any resemblance between that case and the present, or that, if in that case there was supposed to be an arguable reason, if I may be allowed that expression, for visiting upon the neutral shipper the hostile conduct of the enemy master, the same tribunal would, in our case, have hesitated to condemn ?

Observe the contrast between the two cases. In our case, at the epoch of the resistance, the relation was subsisting in its full extent between him who made that resistance, and him who provides the means without providing any check upon the use of those means; in the other case, it was extinguished. In our case, the force employed was the original force, hired by the owner of the cargo, and left by

him to the direction of a hostile agent, who We are now, thank God, once more at peace. used it, as he could not but be sure he would, Our belligerent rights may, therefore, sleep for hostilely; in the other case, there was no original a season. May their repose be long and proforce; and that which was used was the per- found! But the time must arrive, when the sonal force of the enemy master, and not that interests and honor of this great nation will of the vessel. In our case, the force was ex- command them to awake, and when it does erted in direct opposition to the neutral's obliga- arrive, I feel undoubting confidence that they tion of submission with reference, to the cargo; will rise from their slumber in the fulness of and in the other, the neutral had already sub- their strength and majesty, unenfeebled and mitted, and his goods were in the quiet pos- unimpaired by the judgment of this high court. session of the captors. In our case, a general The skill and valor of our infant navy, which capacity, legal and actual, of annoyance, as has illuminated every sea, and dazzled the maswell as of resistance, had been given, by or for ter states of Europe by the splendor of its trithe neutral, to the vessel as a belligerent ves-umphs, have given us a pledge, which, I trust, sel, (a capacity which she preserved during her will continue to be dear to every American voyage,) for which alone, independently of re-heart, and influence the future course of our sistance in fact, the neutral is, as I confidently contend, liable to the penalty of confiscation; in the other, the vessel was an ordinary, unarmed, commercial vehicle, which the neutral might hire and employ with perfect innocence and safety.

*

The little strength, with which I set out, is at last exhausted, and I must hasten to a conclusion. I commit to you, therefore, without further discussion, the cause of my clients, identified with the rights of the American people, and with those wholesome rules which give to public law simplicity and system, and tend to the quiet of the world.

policy, that the ocean is destined to acknowledge the youthful dominion of the West. I am not likely to live to see it, and, therefore, the more do I seize upon the enjoyment presented by the glorious anticipation. That this dominion, when God shall suffer us to wrest it from those who have abused it, will be exercised with such justice and moderation as will put to shame the maritime tyranny of recent times, and fix upon our power the affections of mankind, it is the duty of us all to hope; but it is equally our duty to hope that we shall not be so inordinately just to others as to be unjust to ourselves.

SPEECH ON THE MISSOURI QUESTION.

This speech on a bill for the admission of Missouri into the Union, with a clause prohibiting the introduction of slaves into the new State, was delivered by Mr. Pinkney in the United States Senate on the fifteenth of February, 1820.*

As I am not a very frequent speaker in this assembly, and have shown a desire, I trust, rather to listen to the wisdom of others than to lay claim to superior knowledge by undertaking to advise, even when advice, by being seasonable in point of time, might have some chance of being profitable, you will, perhaps, bear with me if I venture to trouble you once more on that eternal subject which has lingered here, until all its natural interest is exhausted, and every topic connected with it is literally worn to tatters. I shall, I assure you, sir, speak with laudable brevity-not merely on account of the feeble state of my health, and from some reverence for the laws of good taste which forbid me to speak otherwise, but also from a sense of justice to those who honor me with their

See the speech of Rufus King, on the same subject, at page 44, preceding.

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attention. My single purpose, as I suggested yesterday, is to subject to a friendly, yet close posing, certainly, on account of the distinguished examination, some portions of a speech, imquarter from whence it came-not very imposing (if I may so say, without departing from that respect which I sincerely feel and intend to manifest for eminent abilities and long experience) for any other reason.

I believe, Mr. President, that I am about as likely to retract an opinion which I have formed, as any member of this body, who, being a lover of truth, inquires after it with diligence before he imagines that he has found it; but I suspect that we are all of us so constituted as that neither argument nor declamation, levelled against recorded and published decision, can easily discover a practicable avenue through which it may hope to reach either our heads or our hearts. I mention this, lest it may excite surprise, when I take the liberty to add, that the speech of the honorable gentleman from New York, upon the great subject with which it was principally occupied, has left me as great an infidel as it found me. It is possible, indeed, that if I had had the good fortune to hear that speech at an earlier stage of this debate, when all was fresh and new, although I feel confident

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