THE RIGHT OF SEARCH.
THE question regarding the right of search, which was raised by the American Minister, Mr. STEVENSON, is very unfairly argued by English Ministers and English journals. The former connect it exclusively with the question of the Slave-trade ; and the latter ' lay most stress upon that point, for the purpose of presenting in an odious light the jealousy of a right of search evinced by the Americans. And they both conveniently forget the reasonable enough demand of the Americans, that before they enter into a convention conceding a mutual right of search, their complaints that British cruisers have de facto searched American vessels without the warrant of such a convention shall be listened to. The right of search is a doctrine of international police, of much more extensive application than to the stoppage of the slave-trade : its concession or refusal—the limits within which when conceded its exercise is to be confined—cannot be properly fixed with reference to one offence alone. The controversy between the British and American Governments on this knotty point cannot be settled exclusively upon Anti-Slave-trade grounds. The truth is, that though a sympathy with the employers of Negro slaves may influence some Americans, this is not the sole, it is not even the principal cause of the distrust with which American statesmen listen to any proposal for the concession of a mutual right of search. A still more influential cause of jealousy is hinted at in one of Mr. STEVENSON'S letters to Lord ABERDEEN— Why might not the right of search for seamen and deserters, and that of impressment, be defended upon the principles of the present claim I Let it be supposed for purposes of illustration, that Great Britain had entered into treaties with other nations, by which the right of search for seamen or deserters was given by the vessels of each other ; and that some of the contracting states, in order to evade their engagements, should resort to the fraudulent use of the flags of other nations : and suppose also, that, with the view of enforcing these treaties, it should be deemed expedient to assert a right of hoarding and examining, upon the high sea, the vessels of nations who had surrendered the right and were not parties to the treaties : does Lord Aberdeen or her Majesty's Government believe that such a power would be tolerated by any independent nation on the face of the earth ? And yet, what difference would there be between Riche case and the one under consideration except that the one would relate to slavery and the other to impressment ?—subjects, probably, equally important in the view of her Majesty's Government."
It is clear that fear of a renewal of old and odious claims, on the part of the British Government, and that the right of search asserted in the case of suspected slavers might be perverted in the time of a hot press to facilitate searches for British seamen—or persons asserted by British officers to be British seamen—serving under the American flag, is, at the least, quite as operative in Mr. STEVENSON'S mind as any wish to favour the slave-trade. The intolerable abuse of this alleged right by British naval commanders has already occasioned one war between England and America, and any attempt to exercise it would inevitably occasion another. But it serves the purpose of a certain species of philanthropists, whose humanity sees nothing but Blacks, as Helena's imagination " carries no favour in it save my Bertram's," to overlook every other consideration in their eagerness to put down the slave-trade : it is deemed advisable by the Conservative Government to speak those sentimentalists fair ; and it would appear that a factious wish to discredit Lord AmnonTON'S mission has led some,to join in the cry who know better, but who grudge that the Tories should have had the sense to do what the Whigs most culpably neglected.
There seems to exist a general misapprehension of the question really at issue.
It does not appear that there is any objection on the part of the American authorities to entertain a proposal from the British Government to establish by convention such a guarded right of search as might place on a better footing the police of the high seas, provided their complaints of illegal searches already made are previouily settled, and sufficient guarantees provided against the abuse of the right in future. Mr. STEVENSON says, in his last letter to Lord ABERDEEN— "There remains only one other part of Lord Aberdeen's note which the undersigned deems it necessary at this time to notice. It is that in which his Lordship expresses the opinion, that any right of search which shall have been conceded to[quwre by ?] two such countries as France and Great Britain, can scarcely be considered as incompatible with the honour and independence of any nation upon earth. Now, if Lord Aberdeen's remark was intended to apply to the proposal which was made by her Majesty's Government to that of Site United States for a mutual right of search, secured and guarded by treatystipulations, the undersigned has no observation to make: but if the opinion of his Lordship was intended to apply to the right now asserted by Great Britain, and proposed by her Government to be exercised in the absence of all conventional arrangements, then the undersigned must be allowed to express his decided dissent. That the exercise of mutual rights, properly secured, might not be incompatible with national honour and sovereignty, he readily admits, inasmuch as the contracting parties would stand upon the footing of equality and security. This he presumes to be the case between France and Great Britain; but such would not be the case between Great Britain and the United States."
The truth is, that the Americans complain of a right of search having been asserted and put in force by British cruisers against vessels sailing under the American flag, although such right has never been conceded to them on the part of the United States. And the reply of both Lords PALMERSTON and ABERDEEN is not that such British cruisers possess such a right, but that they did not search the vessels whose owners complain. They admit the stopping of the vessels, but say that their papers only were examined, and that this does not amount to an act of search. "There is an essential and fundamental difference," says Lord PALMERSTON, "between searching a vessel and detaining her papers to See if she is legally provided with documents entitling her to the protection of any countbut especially of the 'country whose flag she may have hoisted at the time?" For though by common parlance the word ' flag ' is used to express the *test of nationality, and though according to that acceptation of the word her Mal, jesty's Government admit that British cruisers are not entitled in time of
peace to search merchant-vessels sailing under the American flag, yet her Ma
jesty's Government do not mean thereby to say that a merchantman can exempt herself from search by merely hoisting a piece of bunting with the
United States emblems and colours upon it : that which her Majesty's Govern
meat mean is, that the rights of the United States flag exempt a vessel front search when that vessel is provided with papers entitling her to wear that flag,
and proving her to be United States property. a • • The cruisers em ployed by.her Majesty's Government for the suppression of the slave-trade must ascertain, by inspection of the papers, the nationality of vessels met with
by them under circumstances that justify a suspicion that such vessels are engaged in the slave-trade, in order that if such vessels are found to belong to a country which has conceded to Great Britain the meted right of search, they may be searched accordingly ; and that if they be found to belong to a country which, like the United States has not conceded that mutual right, they. may be allowed to pass on free and unexamined, to consummate their Intended iniquity." These remarks are characterized by Lord PALMERSTON'S usual flippancy and insolence. He discusses a serious question of international law with the representative of an independent state in such slang phrase (" a piece of bunting") as he might have used in his old pasquinades against his new, allies the Whigs ; and he winds up with an imputation that might tell in that arena of personalities the House of Commons. The Ex-Secretary's law is as untenable as the language in which it is couched is wantonly offensive. "La simple pavilion neutre," says MARTENS, defining the limits of the right of search—la visite des navires rencontris—" arbore par un navire marchand rencontre, n'etant pas tine preuve suffisante n'est pas ennemi, la loi naturelle tie peut refuser awe puissances belligirantes, le droit de risiter les navires marchands que leur vaisseaux de guerre ou leurs armateurs rencontrent dans an lieu oh il serait permis de saisir le navire ennemi, et pal' consequent d'amener de tels vaisseaux, si la preuve gulls ne sont pas sujets a confiscation est insuffisante." These words are equally applicable to the act of simply stopping a vessel and examining her papers, in order to see whether they are valid and in due form, and to any more extensive rummage which Lord PAratzarrroie may think fit to de. signate exclusively " search." And the English jbrist, Lord STOWELL, is still more explicit—" I can find no authority that gives the right of interruption to the navigation of states upon the high seas, except that which the right of war gives to belligerents against neutrals. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the ocean, except upon the belligerent claim." Lord ABERDEEN takes up the same ground as Lord PALMERSTON, but in gentlemanly language. He "forbears from entering into any particulars of the visitation of the vessels, 'Which has formed the principal matter of Mr. Stevenson's complaint to her Majesty's Government " ; but he asserts, in terms quite as broad and explicit as Lord PALMERSTON'S, the right of " visitation "— " The undersigned renounces all pretension on the part of the British Government to visit and search American vessels in time of peace. • Nor lilt as American that such vessels are visited. But it has been the invariable prat. tice of the British navy, and, as the undersigned believes, of all the navies its the world, to ascertain by visit the real nationality of merchant-vessels met with on the high seas, if there be good reason to apprehend their illegal character." "The undersigned believes": in a question of so much impor-: tance, it does appear that his Lordship might have taken the trouble to ascertain that the fact was so before hp made the allegation. As the maker of the assertion, the prooftlies with him ; and it is at least presumptive evidence against its accuracy, that neither MARTENS, nor, "we believe," any other Continental authority in international law, draws the distinctiitn between " visit" and• "search" introduced by Lords PALMERSTON and ABERDEEN, in the face of Lord STOWELL'S declaration that they are one and the same thing. The whole of the latter Secretary's rather lengthy argument goes to prove, not the existence of a right of "visitation," but the expediency of conceding it. He declines entering into the question whether Mr. STEVENSON'S complaints that American vessels have been searched without the warrant of a convention are well founded ; and in the same breath suggests that convention ought to be arranged. This is his conclusion " Great Britain makes no pretension, claims no right, which she is not ready and desirous to concede to the United States. A mutual right of search, regulated in such a manner as to prevent the occurrence of irritating circumstances, has always appeared to the undersigned to be the most reasonable, the most simple, and the most effectual method of attaining the great object which both Governments have in view. But this proposal has already been rejected by the United States; and the undersigned is not instructed again to offer it for consideration. It is for the American Government alone to consider what may be due to skid regard for their national dignity and national interests ; but the undersigned must be permitted to express his conviction, that rights which have been mutually conceded to each other by the Governments of Great Britain and France, can scarcely be incompatible with the honour and independence of any state upon the earth." This declaration, coupled with the foregoing assertion of a right of " visitation" amounts, when translated into plain English, to this—The British Government thinks that "the most reasonable, the most simple, and most effectual method" of putting down the slave-trade, would be a regulated mutual right of search arranged by itself and the American Government : but the United States having rejected the proposal, Great Britain will enforce its own wishes under the name of international law. Great Britain is contented to obtain a right of search by conventions with all the European powers : but the United States having declined entering into such a convention Great Britain resolves to assert a right of search under the delicate name of "visitation.' The only recognized basis of international/ "I is the mutual consent of nations but Lords PALMERSTON and ABERDEEN, like the rough wooer in the play, having "got their own consent," seem inclined to make light of the inclinations of the other party. It is evident that there is more in this controversy regarding the right of search, than a mere anxiety on the one hand to support, on the other to put down the slave-trade. The right of "visitation and search" is declared by the weightiest authorities in international law to be confined to the case of " belligerents against neutrals." The American Government complains of specific instances of " interrupticin to the navigation" of its vessels "on the high seas "—of the exercise of "visitation and search" towards them by British cruisers in a time of profound peace; and is told that a right of " visiting" their vessels only is claimed, not of "searching" them. The one act is as derogatory to the rights and the honour of a national flag as is the other, unless performed with its own consent. And an attempt is made to bully the Americans from insisting upon their rights, by raising the outcry against them that they are seeking to screen the slavetraders. Even though the slave-traders were the only parties likely to be affected by the assumption of a right of search, it would be the right and duty of an independent nation to protest against the enforcement of a new principle in international law without its consent being obtained. There are numerous examples in this country's annals of Ministers seeking to cloak infringeraents of popular rights by appealing to the bad private character of the individuals attacked. The same trick is now employed to justify an insidious extension to times of peace of a right hitherto restricted to times of war ; and the slavers are selected on account of their bad character, in order to reconcile people to the innovation. But Mr. STEVENSON has shown that it is a regard for the interests of other parties as well as slavers that animates the Americans in their resistance to an extension of the right of search. They naturally fear, that if Great Britain be allowed in this case to take a right of search without their leave, the first hot press will see captains of British men-of-war searching for British seamen in American merchant-vessels ; and seizing (as has been the case before now) any sailor whom the veriest blackguard among their own crew could be got to say was a British subject. . There can be no doubt that it would be conducive to the suppression of piracy, and other crimes committed on the high seas, if "a mutual right of search, secured and guarded by treaty-stipulations," could be recognized by all nations : but it cannot be tolerated that, without any such guarantees, unarmed peaceable traders should be liable to be interrupted and examined by commanders of vessels of war. The risk incurred by submitting to such assumption of authority is greater than any thing that can be gained by it. A good police is useful ; but unless the people retain a control over, its officers, it is sure to be perverted into a tool of arbitrary power : and what is true of domestic is equally true of international police. The Quarterly Review attempts to establish a parallel between the one-sided claim to a right of search on the high seas and the passport system—" Does any American gentleman, travelling on the Continent of Europe, complain as an infraction of the laws of nations, that his passport is examined at every fortress and frontier, and that the authorities satisfy themselves by inquiries, often very dilatory and vexatious, that the passport is genuine, and that be is the party to whom the passport if genuine belongs ? " The American gentleman submits to the law of the land in which be is; but he denies that there is on the ocean any law binding him to what the consent of his nation has not been explicitly given to. The Morning Chronicle suspects that Lord ASHBURTON "cares very slightly for the suppression of the slavetrade." So much the better. It is understood that one object of that nobleman's mission is to obtain an arrangement of the question of a right of search. Any convention relating to this matter will be all the more useful and satisfactory, that it is prepared by a statesman keeping in view all the objects of the high police of the ocean, instead of attending only to one subordinate branch of it.
If our British statesmen are as anxious as they profess to improve the morality and police of the high seas, let them begin at home. Let them strike a deathblow at the use of slave-labour by underselling it, and forcing the slave-owners to have recourse to free labour. The means of doing this are no secret. Let them, by reforming or abolishing the odious system of impressment, render the British mercantile marine as eligible as the American ; and one great cause of distrust and animosity between the kindred nations will be abolished. When these reforms have been accomplished, there will remain no cause of umbrage, and much advantage, in the exercise of a limited and guarded right of search. The Americans will then readily enter into such an arrangement ; but they will not do it sooner—and they ought not.
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