and the reasons originally urged by the British Government for the assertion and prosecution of this pretension furnish by their very nature a powerful argument against its validity. It was contended in its support that without its exercise the stipulations of certain antislave-trade treaties (to which the United States were not a party) could not be enforced, and that 'the present happy concurrence of the states of Christendom in this great object (the suppression of the slave trade), not merely justifies but renders indispensable the right now claimed and exercised by the British Government;' and it was also contended, that, without it, even the laws of England might be set at defiance by her own subjects; and these considerations were formally presented to this Government by the British Government in justification of this attempt to change the maritime law of the world. But they are rejected by the United States, who claim inviolability for their vessels, and hold on to that great code whose integrity it is the interest of the strong as well as the weak to maintain and defend, and they deny the right of any power or of any partial combination of powers to interpolate into it any new principle, however convenient this may be found."

Mr. Cass, Sec. of State, to Lord Napier, Apr. 10, 1858. MSS. Notes, Gr. Brit. In instructions by Lord Malmesbury to Lord Napier June 11, 1858 (Brit. and For. St. Pap., 1857-258, vol. 50, 537), is the following:

"General Cass observes, in his note to Mr. Napier of April 10, 1858, that a merchant-vessel upon the high seas is protected by her national character. He who forcibly enters her, does so upon his own responsibility. Undoubtedly, if a vessel assumes a national character to which she is not entitled, and is sailing under false colors, she cannot be protected by this assumption of a nationality to which she has no claim. As the identity of a person must be determined by the officer bearing a process for his arrest, and determined at the risk of such officer, so must the national identity of a vessel be determined, at the like hazard to him who, doubting the flag she displays, searches her to ascertain her true character. There no doubt may be circumstances which would go far to modify the complaints a nation would have a right to make for a violation of its sovereignty. If the boarding officer had just grounds of suspicion, and deported himself with propriety in the performance of his task, doing no injury, and peaceably retiring when satisfied of his error, no nation would make such an act the subject of serious reclamation.' His Majesty's Government (continues Lord Malmesbury), agree entirely in this view of the case, and the question, therefore, becomes one solely of discretion on the part of the boarding officer." But General Cass adds to the extract above given the following important qualification, overlooked by Lord Malmesbury: "It is one thing to do an act avowedly illegal, and excuse it by the attending circumstances; and it is another and quite a different thing to claim a right of action, and the right, also, of determining when, and how, and to what extent, it shall be exercised. And this is no barren distinction, so far as the interest of this country is involved, but it is closely connected with an object dear to the American people-the freedom of their citizens upon the great highway of the world."

"Our old Palmerstonian haters are said to be already on his (Clarendon's) track; but they will be kept at bay by the threat of exposing the orders issued to British naval officers by the former Government, which are hinted to have involved not merely a search against slave traders, but one also against William Walker and his associate filibusters. At the royal ball, the night before last, I was assured, with emphasis, by one of the ministry, that he positively knew what had caused and motived the sudden outrages upon our vessels; he did not feel at liberty to communicate it, but it would come out. The men now in power had nothing to do with it. He rather thought too much had been conceded; but, he added, I am content, as, rather than bring our two countries into collision, I would concede a great deal more."

Mr. Dallas, minister to Great Britain, to Mr. Cass, Sec. of State, June 11, 1858. 2 Dallas, Letters from London, 72.

"No nation can exercise a right of visitation and search upon the common and unappropriated parts of the ocean, except from the belligerent claim."

Lord Stowell, as adopted by Mr. Cass, Sec. of State, in instructions to Mr. Dallas, June 30, 1858. MSS. Inst., Gr. Brit.

"It is my earnest desire that every misunderstanding with the Government of Great Britain should be amicably and speedily adjusted. It has been the misfortune of both countries, almost ever since the period of the Revolution, to have been annoyed by a succession of irritating and dangerous questions, threatening their friendly relations. This has partially prevented the full development of those feelings of mutual friendship between the people of the two countries, so natural in themselves and so conducive to their common interest. Any serious interruption of the commerce between. the United States and Great Britain would be equally injurious to both. In fact, no two nations have ever existed on the face of the earth which could do each other so much good or so much harm.

"Entertaining these sentiments I am gratified to inform you that the long-pending controversy between the two Governments, in relation to the question of visitation and search, has been amicably adjusted. The claim, on the part of Great Britain, forcibly to visit American vessels on the high seas in time of peace, could not be sustained under the law of nations, and it had been overruled by her own most eminent jurists. This question was recently brought to an issue by the repeated acts of British cruisers in boarding and searching our merchant vessels in the Gulf of Mexico and the adjacent seas. These acts were the more injurious and annoying, as these waters are traversed by a large portion of the commerce and navigation of the United States, and their free and unrestricted use is essential to the security of the coastwise trade between the different States of the Union. Such vexatious interruptions could not fail to excite the feelings of the country, and to require the interposition of the Government. Remonstrances were addressed to the British Government against these violations of our rights

of sovereignty, and a naval force was at the same time ordered to the Cuban waters, with directions 'to protect all vessels of the United States on the high seas from search or detention by the vessels-of-war of any other nation.' These measures received the unqualified and even enthusiastic approbation of the American people. Most fortunately, however, no collision took place, and the British Government promptly avowed its recognition of the principles of international law upon this subject as laid down by the Government of the United States in the note of the Secretary of State to the British minister at Washington of April 10, 1858, which secure the vessels of the United States upon the high seas from visitation or search in time of peace, under any circumstances whatever. The claim has been abandoned in a manner reflecting honor on the British Government, and evincing a just regard for the law of nations, and cannot fail to strengthen the amicable relations between the two countries."

President Buchanan, Second Annual Message, 1858.

"I have to inform your lordship that Her Majesty's Government have received with lively satisfaction the note which General Cass addressed to your lordship on the 8th of November.

"The friendly tone in which it is written, and the high appreciation which it displays of the importance of terminating the irritating discussions in which both countries have been so long involved, cannot but tend to render that termination near at hand and permanent.

"I feel it to be a duty to do justice to the accuracy with which General Cass has recapitulated the circumstances under which the controversy has been sustained, and the efforts hitherto employed to settle it have failed."

Earl Malmesbury to Lord Napier, Dec. 8, 1858. Brit. and For. St. Pap. (1857-58), vol. 48, 745.

A report by Mr. Cass, Sec. of State, Dec. 15, 1858, on visitation by officers of the British navy of American vessels in the waters of New Mexico is given in House Ex. Doc. 11, 35th Cong., 2d sess.

The President, while "earnestly opposed to the African slave trade, and thus determined to give full effect to the laws of the United States for its suppression, cannot permit himself in so doing to concur in any principle or assent to any practice which he believes would be inconsistent with that entire immunity of merchant vessels upon the high seas in time of peace for which this Government has always contended, and in whose preservation the commerce of the world has so deep an interest."

Mr. Cass, Sec. of State, to Mr. Sartiges, Jan. 25, 1859. MSS. Notes, France. "The forcible visitation of vessels upon the ocean is prohibited by the law of nations, in time of peace, and this exemption from foreign jurisdiction is now recognized by Great Britain, and, it is believed, by ali other commercial powers, even if the exercise of a right of visit were essential to the suppression of the slave trade. Whether such a right S. Mis. 162-VOL. III145

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should be conceded by one nation to its co-states of the world is a question for its own consideration, involving very serious consequences, but which is little likely to encounter any prejudiced feelings in favor of the slave trade in its solution nor to be influenced by them. But there is just reason to believe that the value of a right of visitation, as a means of putting an end to this traffic, has been greatly overrated. The object of such visitation is to ascertain the national character of the vessel. If found to belong to the same nation as the cruiser making the visit, and violating its laws, she may be seized. If belonging to another nation she must be released in whatever employment she may be engaged, unless indeed she has become a pirate, in which case she is liable to be captured by the naval force of any civilized power. If the United States maintained that by carrying their flag at her mast-head any vessel became thereby entitled to the immunity which belongs to American vessels, they might well be reproached with assuming a position which would go far toward shielding crimes upon the ocean from punishment. But they advance no such pretensions, while they concede that if, in the honest examination of a vessel sailing under American colors, but accompanied by strongly marked suspicious circumstances, a mistake is made, and she is found to be entitled to the flag she bears, but no injury is committed and the conduct of the boarding party is irreproachable, no Government would be likely to make a case thus exceptional in its character a subject of serious reclamation.

"The police over their own vessels being a right inherent in all independent states, each of them is responsible to the public opinion of the world for its faithful preservation, as it is responsible for the execution of any other duty. The measures it will adopt, must depend upon its own judgment, and whether these are efficient or inefficient no other nation has a right of interference; and the same principles are applicable to territorial jurisdiction. Good laws it is the duty of every Government to provide, and also to make suitable provision for their just administration. But because offenders sometimes escape, nations are not therefore disposed to admit any participation in the execution of these laws, even though such a measure might insure their more faithful execution."

Mr. Cass, Sec. of State, to Mr. Dallas, Feb. 23, 1859. MSS. Inst., Gr. Brit. "This country is desirous of the extinction of the slave trade, and is employing a larger force for that purpose in proportion to its naval means than any other power whatever. But it has other great interests upon the ocean-the immunity of its flag, the protection of its citizens, and the security of its commerce-which it does not intend to put to hazard by permitting the exercise of any foreign jurisdiction over its merchant vessels."

Same to same, Mar. 31, 1860; ibid.

"It must be a source of sincere satisfaction to all classes of our fellow citizens, and especially to those engaged in foreign commerce, that the claim on the part of Great Britain forcibly to visit and search American merchant vessels on the high seas in times of peace has been abandoned." President Buchanan, Fourth Annual Message, 1860.

As to correspondence in respect to the treaty with Great Britain for search of slavers, see Mr. Seward, Sec. of State, to Mr. Adams, July 31, 1862. MSS. Inst., Gr. Brit.

"The right of search for contraband is a right to be exercised against a public enemy only on the high seas. It cannot there lawfully be exercised against a neutral who has not recognized both parties as belligerents. If, therefore, the commanders of our men-of-war should ascertain that a vessel of the United States is about to be searched on the high seas by a Spanish vessel, they may be authorized to resist such search with all the force at their disposal. If, also, they should fall in with a vessel of the United States which has been captured by a Spaniard on the high seas on the ground of being a carrier of contraband, or on any other pretext involving a claim to belligerent rights in that quarter, they may be authorized to recapture the prize if they should feel competent for that purpose. The maritime jurisdiction of Spain may be acknowledged to extend not only to a marine league beyond the coast of Cuba itself, but also to the same distance from the coast line of the several islets or keys with which Cuba itself is surrounded. Any acts of Spanish authority within that line cannot be called into question, provided they shall not be at variance with law or treaties.

Mr. Fish, Sec. of State, to Mr. Borie, May 18, 1869. MSS. Dom. Let.

The right of foreign cruisers to search vessels of the United States in times of peace on the high seas is denied by the United States, and when such search is insisted on reparation will be required.

Mr. Fish, Sec. of State, to Mr. Roberts, Jan. 13, 1872. MSS. Notes, Spain. The steamer Virginius, bearing the flag of the United States, was captured by the Spanish war steamer Tornado on November 3, 1873, on waters claimed by the Spanish authorities to be territorial, and brought to Cuba with her crew and passengers, amounting on the whole to nearly one hundred and seventy prisoners, the charge being "piracy" and connection with certain Cuban insurgents. (See supra, § 230.) To this transaction the following papers refer:

"The steamer Virginius was, on the 26th day of September, 1870, duly registered at the port of New York as a part of the commercial marine of the United States. On the 4th of October, 1870, having received the certificate of the register in the usual legal form, she sailed from the port of New York, and has not since been within the territorial jurisdiction of the United States. On the 31st day of October last, while sailing under the flag of the United States, on the high seas, she was forcibly seized by the Spanish gunboat Tornado, and was carried into the port of Santiago de Cuba, where fifty-three of her passengers