Mr. Seward to Mr. McMath.

No. 2.]

Sir: This department has been informed by despatches from Mr. De Long, late the consul of the United States at Tangier, and by informal communications, made by the minister of France, of the arrest of two American citizens, Henry Myers and J. F. Tunstall, at that place, and of their delivery on board of an American vessel to be transferred to the United States, together with the popular proceedings which occurred at Tangier upon that occasion. I am now to explain the President’s views of the transaction.

It is well known that the insurgent piratical steamer Sumter has been resting several months in the port of Gibraltar, after a cruise in which she had destroyed much American property and several American merchant ships, off the coasts of South America, Africa, and Europe.

In the month of March last, a vague report reached this country through the foreign press to the effect that Semmes, the commander of the Sumter, had been arrested at Tangier by the American consul, but without any detail of facts or circumstances. The Secretary of State thereupon transmitted an instruction to the consul to send Semmes home to the United States, that his case might be disposed of by the federal government. This instruction, however, failed to reach the consul until after the entire transaction at Tangier was completed and ended. The Sumter at Gibraltar was destitute of coal and unable to procure it there, and her destructive career was arrested for that reason only. On the 19th [Page 874]of February last, Myers, who was a pretended lieutenant and purser of the Sumter, with Tunstall as an associate, embarked at Gibraltar on board of the French merchant steamer Ville de Malaga, as the consul reports, for the purpose of proceeding to Cadiz, to procure there a supply of coal for the Sumter. The Ville de Malaga stopped at Tangier, in Morocco, and those persons went abroad through that city at their pleasure, without reporting themselves in any way to the American consul, or giving him such notice of their arrival as all American citizens going there are required to give.

The consul therefore applied to the Moorish government for a military guard, and, with its aid, arrested the two sojourners, conveyed them to the consulate, and kept them confined there in irons until the arrival of the American ship of war Ino, when, with the aid of a like guard, granted on his application by the Moorish authorities, he transferred them in irons to that vessel, the commander of which afterwards shipped them on board an American merchantman, to convey them to the United States. They arrived at Boston on the 18th of April, and were there committed into military custody at Fort Warren. The essential details of the transaction will be brought out in the sequel of this paper.

The subject involves a consideration—

First. Of the rights and duties of this government in regard to the prisoners, who are citizens of the United States.

Secondly. The rights and duties of the United States as affected by their relations with the empire of Morocco.

Thirdly. The rights and duties of the United States as affected by their relations with France.

Fourthly. The same rights and duties of the United States as affected, independently of treaties, by the law of nations.

First. The rights and duties of the government considered in their relations to the prisoners themselves.

Assuming that the consul’s report is correct, these prisoners were taken virtually in the act of open revolutionary war against the government of their country. Their arrest, wherever it could lawfully be effected, was necessary as a means of suppressing the insurrection and maintaining the authority of the government. Manifestly they had no defence against arrest and detention by the government they were seeking to overthrow. True, they were put in irons, but the consul alleges that, without that temporary precaution, they could not have been held in custody or sent on board the vessel charged to convey them to the United States. The severity was merely an unavoidable incident of the transaction itself. A commission has been already charged by the Secretary of State to visit the prisoners and examine the facts in the case, and if the consul’s statement shall prove erroneous, or his proceedings shall be found to have been unnecessarily harsh or severe, the proper remedies will be immediately applied.

Secondly. How is the case affected by the relations existing between the United States and Morocco ? The empire of Morocco, like all the Mahomedan and Pagan powers, is regarded by Christian nations as a State only partially enlightened, or partially civilized. The traditional jealousies of Christian nations have induced them to treat such States as being exceptional ones, to which, in many respects, the law of nations, as recognized by Christian powers, does not apply. Thus all Christian nations refuse to the government of Morocco any right, power, or control whatever, in any circumstances, over the persons or property of Christians or Franks, as they are called, visiting or residing in that empire; and every Christian state holds all its subjects or citizens found in Morocco with their property as exclusively subject to its own laws, to be administered in all cases by its consular representative there, or by the government at home. Every citizen of the United States is required, when in Morocco, to seek from the consul and have a certificate, showing that he is under the consul’s protection. Failing to obtain this, he has no right by law to remain there. [Page 875]The treaty and laws of the United States recognize these relations, and confer on the consul authority to arrest, hold, and detain, try and punish, or send home for trial and punishment any American citizen, when he may deem such a proceeding necessary to the ends of justice at home or abroad. The treaty with Morocco authorizes the consul to apply to the Moorish authorities for military aid to enable him to execute these powers, and obliges these authorities unques-tioningly to grant it. On the first impression of the case the point under consideration would seem to be disposed of satisfactorily, by stating that the Moorish authorities granted the aid required by the consul, and that they have made no complaint concerning the transaction, either to the consul or directly to this government.

But some who sympathize with the arrested parties have naturally claimed to speak in behalf of Morocco as a powerless State, and to complain in her behalf. They say that, because the prisoners were political offenders, Morocco ought not to have been called upon to deliver them up to the consul. If the objection were well taken, then, manifestly, the fault will be found in the treaty, not in the proceedings under it. But the treaty is in exact harmony with the treaties made by all Christian nations with Morocco. The President, therefore, is not obliged to hear these complaints. Nevertheless he is not disposed to disregard them. The complainants assert that when Mr. De Long requested of the Moorish minister of state a military guard to enable him to effect the arrest, he suppressed the fact that the crimes of the accused were of the class of cases known as political offences. But, it may be asked, has any one of the Christian nations stipulated to except that class of offences from the operation of its treaty with Morocco ? Has any one agreed that Morocco shall be made by revolutionists a base for piratical or other hostile expeditions against such power itself ? If Christian nations treating with each other do agree to except political offenders from the liabilities to extradition, it is because they trust that the state under whose protection they are found will not allow them to abuse that authority to carry on hostile operations against the other contracting nation, or against society at large. If any Christian state has shown itself willing thus to trust the empire of Morocco, the treaty which reposes that confidence can be produced. The utmost that in this respect can be pretended is, that some Christian nations, including the United States, have informally manifested their approval of the extension of the right of asylum granted by the Sultan of Turkey to the Hungarian refugees in the late civil war in Austria. But they were no longer combatants ; their attempted revolution was ended, and the refugees were demanded by Austria, not on the ground of apprehensions of danger from the continued hostility, but to punish them for the treason which she alleged they had committed. Assuming the facts as reported, the offenders in this case were not held or sheltered in Tangier as exiles, or as refugees in asylum, but they were taken in the very act of war against this government.

It is unnecessary, however, to exhaust this argument. The record shows that, at the instance of the prisoners, their true character was made known to the Moorish governor, and he nevertheless thereafter still acquiesced in their being held in custody, and subsequently, on the application of the consul, opened the gates of the port and granted a new guard to aid him in conveying the prisoners to the ship which conveyed them from Tangier.

To this answer the complainants reply that this last act of acquiescence on the part of the Moorish minister was obtained through intimidation exercised by the American consul.

The facts, as reported, do not sustain this reply. On the day when the transfer of the prisoners from the consulate to the vessel was to take place, a mob of Europeans—or Franks, as they are there called—of various countries gathered about the American consulate, and, closing the gates of the port, or causing them to be closed, declared their purpose and made the attempt to set [Page 876]the prisoners free by combined and unlawful force, subversive of the peace and order of the Moorish empire. This was an act of intimidation practiced upon the Moorish authorities. It was on this occasion that the American consul required that the gates should be opened, and that a guard should be detailed to enable him to overcome the mob, saying that if these demands should not be granted he would strike his flag and leave the country. If this could be regarded as the language of menace, it was justified by a reasonable apprehension that the Moorish minister might deny a national American right under the intimidation of a foreign mob. Certainly no one should complain of it who is not prepared also to insist that international transactions of Christian powers in Morocco shall be conducted not, as now, by responsible agents of the states concerned, but by irresponsible, tumultuous, and violent assemblies of all the Franks in the public market-place. The President will, however, carefully reconsider the subject if the Emperor of Morocco or any sympathizing foreign state shall in any way express an opinion adverse to the conclusions at which I have arrived. He authorizes me to declare in advance his willingness to put the empire of Morocco on the same footing by treaty as any Christian state.

Thirdly. How is the case affected by the friendly relations which exist between the United States and France ? We have a mutual extradition treaty with that power, and it exempts political offenders from extradition. Moreover, France has pronounced the insurgents a public belligerent, and has conceded to them belligerent rights, a position in which the United States have not acquiesced, although they have conceded to France the exemption of her vessels from all molestation except when carrying contraband of war.

The French government has, in very friendly and courteous manner, asked us to consider whether the prisoners, while on shore at Tangier, were not to be regarded by construction as still being on board the Ville de Malaga, and therefore entitled to the protection of the French flag.

The question is an interesting one, and the President, if he could be satisfied that when conceding the position to France he could secure the assent of other maritime powers, might be disposed to yield it, because it would be an enlargement of the privileges of neutral commerce, an interest as dear to this country as it is to France. It would be found, however, very difficult to carry into practice the principle involved. If Myers and Tunstall were to be deemed still under the tri-colored flag of the Ville de Malaga when no longer on shipboard and while actually sauntering at their pleasure through the streets of Tangier, are they not much rather to be regarded as entitled to British protection at the same time, because they had entered Gibraltar in their own vessel, and had only left her deck on a ship’s errand of a day to Cadiz ? Does a French subject enjoy in London the protection of his own government to the exclusion of British authority when he leaves Calais in the morning by the French steamer and visits the British capital by rail at noon, with the purpose, all the time, of returning by British railroad and the same French steamer to Calais in the evening ? A different rule has obtained here. The captures of the Amistad were proclaimed free, under the operation of American law, by the Supreme Court of the United States, although they had been found on board a Spanish vessel forced by distress into American waters. In the same manner we hold, with Great Britain, that the British soldier is subject to British authority while he remains on the north side of the Niagara, and that he falls under the exclusive authority of the United States when, for any cause, under whatever flag, he has crossed to the south side of that river. The American slave becomes a freeman the moment he steps upon the soil of the islands or colonies of Great Britain. If this view is correct, it will be unnecessary to consider whether the protection which France, as a neutral, claims a right to extend to Americans, when sailing under her flag, covers persons who, in the language of the law, are called “military people,” namely, soldiers, seamen, and privateersmen.

[Page 877]

Fourthly. The rights and duties of the United States as they are affected, independently of treaties, by the law of nations.

It seems to have been imagined that the proceedings of the consul in making the arrest in this case were inconsistent with the principles hitherto maintained by the United States, as illustrated in the dispute between this government and that of Austria in regard to Martin Koszta. It has been assumed that in that instance the United States not only demanded impunity everywhere for all persons who were engaged, under any circumstances, in armed hostility to their own government, but even assumed a cosmopolitan championship for them. But this is very erroneous. Koszta had indeed been a revolutionist in Austria, and he was delivered by the United States authorities from the hands of Austrian agents in Smyrna, a province of Turkey, which is a Mahometan power whose relations to Christian states are the same as those of Morocco.

But the facts were that the civil war in Austria was at an end. Martin Koszta was a Hungarian by birth, and was a refugee; he had fled, and had been decreed an outlaw by Austria. He had taken asylum in America and had, under our laws, become domiciled and nationalized as an American, and as such was held entitled to the protection of this government under its treaty with the Sultan of Turkey. He held a guarantee of protection from our consul at Smyrna, a protection which was in conformity with the treaty and with our own laws. The agents of the Austrian government seized him and undertook to carry him away by force, against the remonstrances of our consul, and in defiance of the authorities of Turkey, and to subject him to arbitrary punishment as a subject of a state from which he had been transferred to the United States. It is not easy to understand how the proceedings of this government in that case can be deemed to commit it to tolerate revolution against itself by our own disloyal citizens.

If apprehensions of severe and cruel treatment by this government towards the two Sumter prisoners have produced any influence in exciting the discontents in the present case, those apprehensions may be expected to give way before the statement that, although this government has stood in its present constitutional form more than seventy years, with some experience of foreign war, and with one year’s painful experience of civil war, no person has yet forfeited his life for its maintenance, except as a volunteer in the battle-field ; no citizen has been banished; every person captured in war at home or abroad has been either freely dismissed, with or without parole, or has been exchanged or offered in exchange for another prisoner of class and character similar to his own.

It remains to say that the President disapproves of the circular letter written by the consul, Mr. De Long, to the representatives of France and other Christian powers at Tangier, in relation to the proceedings which has been reviewed. That letter was, doubtless, written under high excitement, and was inspired by motives eminently loyal and patriotic; yet its tone was improper, and the consul should, moreover, have left it to this government to make a complaint, if any were to be made. Nor does the President find any sufficient grounds for the complaints of the consul in the conduct of those representatives on the occasion which elicited them. These views will be made known to our consuls, and they will receive instructions not to repeat the discourtesy which Mr. De Long committed in this case.

I am, sir, your obedient servant,

WILLIAM H. SEWARD.

Jesse H. McMath, Esq.,&c., &c., &c.

[Page 878]