"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 re garded 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 stipu lating 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 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." President Tyler, message of Feb. 27, 1843. House Ex. Doc. 192, 27th Cong., 3d sess. "The eighth and ninth articles of the Treaty of Washington constitute a mutual stipulation for concerted efforts to abolish the African slave trade. This stipulation, it may be admitted, has no other effects on the pretensions of either party than this: Great Britain had claimed as a right that which this Government could not admit to be a right, and in the exercise of a just and' proper spirit of amity a mode was resorted to which might render unnecessary both the assertion and the denial of such claim. "There are probably those who think that what Lord Aberdeen calls a right of visit, and which he attempts to distinguish from the right of search, ought to have been expressly acknowledged by the Government of the United States; at the same time there are those on the other side who think that the formal surrender of such right of visit should have been demanded by the United States as a precedent condition to the negotiation for treaty stipulations on the subject of the African slave trade. But the treaty neither asserts the claim in terms nor denies the claim in terms; it neither formally insists upon it nor formally renounces it. Still the whole proceeding shows that the object of the stipulation was to avoid such differences and disputes as had already arisen, and the serious practical evils and inconveniences which, it cannot be denied, are always liable to result from the practice which Great Britain had asserted to be lawful. These evils and inconveniences had been acknowledged by both Governments. They had been such as to cause much irritation, and to threaten to disturb the amicable sentiments which prevailed between them. Both Governments were sincerely desirous of abolishing the slave trade; both Governments were equally desirous of avoiding occasion of complaint by their respective citizens and subjects; and both Governments regarded the 8th and 9th articles as effectual for their avowed purpose, and likely, at the same time to preserve all friendly relations, and to take away causes of future individual complaints. The Treaty of Washington was intended to fulfill the obligations of the Treaty of Ghent. It stands by itself, is clear and intelligible. It speaks its own language and manifests its own purpose. It needs no interpretation and requires no comment. As a fact, as an important occurrence in national intercourse, it may have important bearings on existing questions respecting the public law; and individuals, or perhaps Governments, may not agree as to what these bearings really are. Great Britain has discussions, if not controversies, with other great European states upon the subject of visit and search. These states will naturally make their own commentary on the Treaty of Washington, and draw their own inferences from the fact that such a treaty has been entered into. Its stipulations, in the mean time, are plain, explicit, satisfactory to both parties, and will be fulfilled on the part of the United States, and it is not doubted on the part of Great Britain also, with the utmost good faith. "Holding this to be the true character of the treaty, I might, perhaps, excuse myself from entering into the consideration of the grounds of that claim of a right to visit merchant ships, for certain purposes, in time of peace, which Lord Aberdeen asserts for the British Goverment, and declares that it can never surrender. But I deem it right, never theless, and no more than justly respectful towards the British Government not to leave the point without remark. "The right of search, except when specially conceded by treaty, is a purely belligerent right, and can have no existence on the high seas during peace. The undersigned apprehends, however, that the right of search is not confined to the verification of the natiouality of the vessel, but also extends to the object of her voyage and the nature of the cargo. The sole purpose of the British cruisers is to ascertain whether the vessels they meet with are really American or not. The right asserted has, in truth, no resemblance to the right of search, either in principle or practice. It is simply a right to satisfy the party who has a legitimate interest in knowing the truth that the vessel actually is what her colors announce. This right we concede as freely as we exercise. The British cruisers are not instructed to detain American vessels, under any circumstances whatever; on the contrary, they are ordered to abstain from all interference with them, be they slavers or otherwise. But where reasonable suspicion exists that the American flag has been abused, for the purpose of covering the vessel of another nation, it would appear scarcely credible, had it not been made manifest by the repeated protest of their representative, that the Government of the United States, which has stigmatized and abolished the trade itself, should object to the adoption of such means as are indispensably necessary for ascertaining the truth." Mr. Webster, Sec. of State, to Mr. Everett, Mar. 28, 1843 [quoting a note of "Visit, as it has been understood, implies not only a right to inquire into the national character, but to detain the vessel, to stop the progress of the voyage, to examine papers, to decide on their regularity and authenticity, and to make inquisition on board for enemy's property, and into the business which the vessel is engaged in. In other words, it describes the entire right of belligerent visitation and search. Such a right is justly disclaimed by the British Government in time of peace. They nevertheless insist on a right which they denominate a right of visit, and by that word describe the claim which they assert. Therefore it is proper, and due to the importance and delicacy of the questions involved, to take care that, in discussing them, both Governments understand the terms which may be used in the same sense. If, indeed, it should be manifest that the difference between the parties is only verbal, it might be hoped that no harm would be done; but the Government of the United States thinks itself not chargeable with excessive jealousy, or with too great scrupulosity in the use of words in insisting on its opinion that there is no such distinction as the British Government maintains between visit and search, and that there is no right to visit, in time of peace, except in the execution of revenue laws or other mu nicipal regulations, in which cases the right is usually exercised near the coast, or within the marine league, or where the vessel is justly suspected of violating the law of nations by piratical aggression; but wherever exercised it is a right of search. Nor can the United States Government agree that the term 'right' is justly applied to such exercise of power as the British Government thinks it indispensable to maintain in certain cases. The right asserted is a right to ascertain whether a merchant vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which render her liable to the suspicion, first, that she is not entitled to the protection of the flag; and, secondly, that if not entitled to it, she is, either by the law of England an English vessel, or, by the provisions of treaties with certain European powers, subject to the supervision and search of British cruisers. "An eminent member of the House of Commons (Mr. Charles Wood) thus states the British claim, and his statement is acquiesced in and adopted by the first minister of the Crown: "The claim of this country is for the right of our cruisers to ascertain whether a merchant vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which rendered her liable to the suspicion, first, that she was not entitled to the protection of the flag; and, secondly, if not entitled to it, she was, either under the law of nations or the provisions of treaties, subject to the supervision and control of other cruisers.' "Now, the question is: By what means is this ascertainment to be effected? "As we understand the general and settled rules of public law in respect to ships-of-war sailing under the authority of their Government 'to arrest pirates and other public offenders,' there is no reason why they may not approach any vessels descried at sea for the purpose of ascertaining their real characters. Such a right of approach seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear a right that no ship is, under such circumstances, bound to lie by or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. Her right to the free use of the ocean is as perfect as that of any other. An entire equality is presumed to exist. She has a right to consult her own safety; but at the same time she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers, either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties simply because of conjectural dangers. |