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At this day, looking not only to the causes of the war — the utter disregard of our flag in the impressment of our seamen, aggravated, even so early as June, 1807, by the act of a British admiral, scarcely disavowed and most inadequately atoned for, in wresting, after the loss of several lives, four of the crew from a ship of war of the United States, and the condemnation of our vessels, in pursuance of Orders in Council, which even the British courts of admiralty did not venture to assert were consistent with the law of nations, but to the manner in which it was conducted — subjecting to conflagration edifices consecrated to legislation, setting at naught the ties of a common origin and introducing the tomahawk of the Indian among the weapons of British warfare, it is scarcely possible to believe that those, to whom the Constitution confided the conduct of our foreign affairs, did not receive the unanimous support of the American people and of the State authorities.
Such, however, was not the fact. It is true that some of the most illustrious, in the annals of federalism, merged all party considerations in their patriotic obligations,—that the coadjutor of Jefferson in the declaration of Independence and his great rival, at the origin of the government, the Ex-President Adams, exclaimed, “How it is possible that a rational, social, or moral creature can say that the war is unjust, is to me utterly incom- · prehensible. I have thought it both just and necessary for five or six years.” Such, also, were the often reiterated opinions of Oliver Wolcott, Secretary of the Treasury under the administrations of Washington and Adams. Samuel Dexter, another member of the last cabinet of the federal party, whose political reputation was merged in his forensic fame, and Rufus King, deservedly esteemed one of the most enlightened statesmen ' among the founders of the government, and who was looked to as the individual, on whom alone President Madison's opponents
| See case of The Chesapeake. American State Papers, vol. v. p. 480.
could consistently rally for the chief magistracy, though not approving the war in advance, achieved for themselves an eternal claim to the gratitude of their country, by sustaining the administration, when menaced by foreign armies and internal foes.'
Not only were the energies of the government shackled by local legislatures denying, in the very midst of hostilities, the sufficiency of the causes of the war, and justifying the acts of Great Britain as being retaliatory of those of France, while even the victories achieved by our own infant navy were availed of to repudiate their glorious exploits, as unbecoming the approbation of a moral and religious people; but the federal author. ities were, in 1813, brought into direct collision with those of Massachusetts and Connecticut. The Governors of those States assumed the right of determining for themselves the
exigencies, which authorized the calling out of the militia, · even in time of war, and refused to allow them to be placed
in any case under the orders of the officer of the United States, commanding the regular troops within the military department. The unconstitutionality of these pretensions, which it was obvious would have defeated the main object for which the federal government was formed, and which, as pronounced by the Supreme Court of the United States, it was one of his last acts, when connected with that tribunal, to report," was, at the time, ably exposed by Mr. Wheaton in the columns of his journal. It was, also, his duty to point out the highly objectionable nature of the convention of delegates from some of the New England States, held at Hartford, in 1814, for the purpose of considering their sectional interests; but which the news of peace, arriving almost simultaneously with their adjournment, rendered wholly innocuous.
Among the articles of the Advocate, which appropriately
Wheaton's Reports, vol. xii. p. 29. Martin v. Mott. See also Ibid. vol. v. p. 1. Houston v. Moore. Kent's Com. vol. i. p. 265.
belong to the department of international law, was a vindication on the authority of Vattel and Bynkershoek, of the right of expatriation, in answer to Gouverneur Morris, an eminent statesman and diplomatist of the Anti-Republican party. Nor was this subject then a mere theoretical question. Great excitement had prevailed, in consequence of the menaces of the enemy to execute the naturalized citizens of British origin, who might be taken prisoners of war, the barbarity of which was not a little increased by the fact that military service was exacted from natives of the United States domiciled in Canada. The retaliatory measures of the American government, in selecting as hostages British prisoners to double the number of the individuals whose lives were in jeopardy, seems to have prevented a perseverance in the threat. Questions of maritime law were frequently discussed, and in the columns of his friend's paper first appeared Judge Story's opinion, deciding the illegality of enemy's licenses — a subject which, from the extent to which they were then used in order to supply with provisions the British armies in the Spanish Peninsula, attracted great attention.
Enjoying, as Mr. Wheaton did, the confidence of the members of the Cabinet, the Advocate was frequently selected as a medium through which to acquaint the people with the views of the administration. Such was the case, as regards the statement of the reasons, which, at an eventful period of the war, induced the removal of General Dearborn from the command of the army, and of the causes of the failure of the subsequent campaigns of Generals Wilkinson and Hampton, with which he was furnished by the Secretary of War, General Armstrong. He received, after the conclusion of peace, through the AttorneyGeneral, Mr. Pinkney, an expression of the obligations of all his colleagues for the able support which he had rendered to the government, with a special commendation of the papers published by him on the treaty, and which that eminent jurist declared to be “ as well as could be wished.”
Of an oration pronounced on 4th of July, 1814, and while the war still continued, a notice remains in a letter of the gentleman who succeeded Mr. Pinkney as Attorney-General. He says: “I have read it with equal attention and pleasure. It is filled with correct, enlarged, patriotic, forcible thoughts, purely expressed, and oftentimes with energy and eloquence. I am glad to see the republican mind getting roused to the assertion of our great principles in times like these, when the aristocracy of the other hemisphere is so boldly attacking them. I am particularly delighted with the manner in which you have handled the European question.” .
It was not merely to American affairs that the discussions of the Advocate were confined. His knowledge of Europe, with his intercourse with those most familiar with passing events, including the French Minister, Mr. Serurier, of whom he was a correspondent, enabled its editor to present the different aspects of the great pending contest, which was destined to change the whole fabric of European organization. His sagacity anticipated the permanent predominance, which Alexander was already achieving for Russia in the affairs of Europe ; while the Emperor's accordance with us in maritime questions is shown to have been the reason, why, though united with him in an alliance, for continental matters, on which the destinies of both seemed to depend, Great Britain refused his proffered mediation, in the war with the United States.
While engaged in his editorial avocations, Mr. Wheaton received the commission of Division Judge-Advocate of the army. The unanimous confirmation of the appointment, on the 26th of October, 1814, was announced to him not only by letters from two distinguished Senators, but the venerable Vice-President Gerry made it the subject of a congratulatory communication, in which he says : — “Your appointment was not only unanimous, but the voice of the Senate was expressed with cordiality.” This was the more flattering, as General Armstrong had already quitted the War Office, and the National Advocate had
continued, in opposition to popular prejudice, excited against him on account of the disastrous affair of Washington, to support and sustain him, as “entitled to the gratitude of the nation, for having put out of the way the superannuated generals, and for bringing forward a set of generals, (Brown and Scott,) who rescued our country from eternal disgrace.”
In May, 1815, Mr. Wheaton left the National Advocate, on being appointed one of the Justices of the Marine Court, - a tribunal of limited jurisdiction, and which is now shorn of much of its former consideration; though in presiding over it, some of those, who were afterwards distinguished as the most eminent at the bar, passed a portion of their professional novitiate. Whilst occupying a seat in this court, which he continued to fill till July, 1819, he had occasion to vindicate the paramount treaty-making power of the Federal Government. The case arose in 1816, under the commercial convention with Great Britain of the preceding year, and the question was, whether the reciprocity provision extended to the exemption of British vessels from the discriminating charges imposed by a local law of the State on foreign vessels.
In 1815, under the modest title of a “ Digest of the Law of Maritime Captures or Prizes,” Mr. Wheaton published his first systematic treatise. This was a subject to which he appears to have directed his attention from the period when, by the declaration of war by the United States against England, the admiralty jurisdiction became a matter of serious attention to the members of the legal profession, resident in the seaports. But, though its preparation was induced by the want of a work, for the daily reference of the practising lawyer, its utility was far from being limited to the circumstances out of which it arose. The “ Digest" is not a mere index, but presents an exposition of the law of nations, as then understood and administered ; and though the language of the original authorities, to insure accuracy, is properly employed in preference to his own, no
position is stated, the full effect of which is not appreciated by • the writer.