To the House of Representatives:
In compliance with the resolution of the House of Representatives of the 22d instant, requesting me to communicate to the House "whatever correspondence or communication may have been received from the British Government respecting the President's construction of the late British treaty concluded at Washington as it concerns an alleged right to visit American vessels," I herewith transmit a report made to me by the Secretary of State.
I have also thought proper to communicate copies of Lord Aberdeen's letter of the 20th December, 1841, to Mr. Everett, Mr. Everett's letter of the 23d December in reply thereto, and extracts from several letters of Mr. Everett to the Secretary of State.
I can not forego the expression of my regret at the apparent purport of a part of Lord Aberdeen's dispatch to Mr. Fox. I had cherished the hope that all possibility of misunderstanding as to the true construction of the eighth article of the treaty lately concluded between Great Britain and the United States was precluded by the plain and well-weighed language in which it is expressed. The desire of both Governments is to put an end as speedily as possible to the slave trade, and that desire, I need scarcely add, is as strongly and as sincerely felt by the United States as it can be by Great Britain. Yet it must not be forgotten that the trade, though now universally reprobated, was up to a late period prosecuted by all who chose to engage in it, and there were unfortunately but very few Christian powers whose subjects were not permitted, and even encouraged, to share in the profits of what was regarded as a perfectly legitimate commerce. It originated at a period long before the United States had become independent and was carried on within our borders in opposition to the most earnest remonstrances and expostulations of some of the colonies in which it was most actively prosecuted. Those engaged in it were as little liable to inquiry or interruption as any others. Its character, thus fixed by common consent and general practice, could only be changed by the positive assent of each and every nation, expressed either in the form of municipal law or conventional arrangement. The United States led the way in efforts to suppress it. They claimed no right to dictate to others, but they resolved, without waiting for the cooperation of other powers, to prohibit it to their own citizens and to visit its perpetration by them with condign punishment. I may safely affirm that it never occurred to this Government that any new maritime right accrued to it from the position it had thus assumed in regard to the slave trade. If before our laws for its suppression the flag of every nation might traverse the ocean unquestioned by our cruisers, this freedom was not, in our opinion, in the least abridged by our municipal legislation.
Any other doctrine, it is plain, would subject to an arbitrary and ever-varying system of maritime police, adopted at will by the great naval power for the time being, the trade of the world in any places or in any articles which such power might see fit to prohibit to its own subjects or citizens. A principle of this kind could scarcely be acknowledged without subjecting commerce to the risk of constant and harassing vexations.
The attempt to justify such a pretension from the right to visit and detain ships upon reasonable suspicion of piracy would deservedly be exposed to universal condemnation, since it would be an attempt to convert an established rule of maritime law, incorporated as a principle into the international code by the consent of all nations, into a rule and principle adopted by a single nation and enforced only by its assumed authority. To seize and detain a ship upon suspicion of piracy, with probable cause and in good faith, affords no just ground 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 limits of her 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 in those now communicated to the House. These declarations may well lead us to doubt whether the apparent difference 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 mere visit and inquiry is asserted with qualifications inconsistent with the idea of a perfect right.
In the dispatch of Lord Aberdeen to Mr. Everett of the 20th of December, 1841 as also in that just received by the British minister in this country made to Mr. Fox, his lordship declares that if in spite of all the precaution which shall be used to prevent such occurrences an American ship, by reason of any visit or detention by a British cruiser, "should suffer loss and injury, it would be followed by prompt and ample remuneration; "and in order to make more manifest her intentions in this respect, Lord Aberdeen in the dispatch of the 20th December makes known to Mr. Everett the nature of the instructions given to the British cruisers. These are such as, if faithfully observed, would enable the British Government to approximate the standard of a fair indemnity. That Government has in several cases fulfilled her promises in this particular by making adequate reparation for damage done to our commerce. It seems obvious to remark that a right which is only to be exercised under such restrictions and precautions and risk, in case of any assignable damage to be followed by the consequences of a trespass, can scarcely be considered anything more than a privilege asked for and either conceded or withheld on the usual principles of international comity.
The principles laid down in Lord Aberdeen's dispatches 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 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, protect 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 most 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 my opinion, is its plain and fair interpretation. I regarded the eighth article as 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 burden 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.
Denying as we did and do all color of right to exercise any such general police over the flags of independent nations, we did not demand of Great Britain any formal renunciation of her pretension; still less had we the idea of yielding anything ourselves in that respect. We chose to make a practical settlement of the question. This we owed to what we had already done upon this subject. The honor of the country called for it; the honor of its flag demanded that it should not be used by others to cover an iniquitous traffic. This Government, I am very sure, has both the inclination and the ability to do this; and if need be it will not content itself with a fleet of eighty guns, but sooner than any foreign government shall exercise the province of executing its laws and fulfilling its obligations, the highest of which is to protect its flag alike from abuse or insult, it would, I doubt not, put in requisition for that purpose its whole naval power. The purpose of this Government is faithfully to fulfill the treaty on its part, and it will not permit itself to doubt that Great Britain will comply with it on hers. In this way peace will best be preserved and the most amicable relations maintained between the two countries.
John Tyler, Special Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/200788