duty of closing such markets forever." By article XI. it is provided that the eighth article shall continue in force five years after the ratification, and afterwards until either of the parties shall signify a wish to terminate it.

In carrying out the provisions of this treaty the squadrons of the two nations have acted in concert a good

Practice under the treaty.

part of the time since 1842, and with considerable success. There are, however, serious difficulties in the way of putting an end to the slave-trade under this arrangement. The United States admit no right of search of vessels sustaining their national character. If, then, a British cruiser boards a vessel of the United States whose papers are right, no search can be made, notwithstanding the most flagrant suspicion. Should the boarded vessel, on the other hand, prove to be concerned in a lawful traffic, the cruiser is responsible for the damage of the detention. Unless, then, ships of the two nations "hunt in couples," or officers of one accompany the ships of the other, with authority to superintend the visit, the trade cannot wholly be prevented. Or rather such entire prevention will be impossible until the coast of Africa shall be skirted with Christian colonies, until its interior be stimulated into an industry which shall create a demand for labor at home, and until the slave-trade shall become piracy by the voice of all nations.

$ 200.

What does the right of search mean?

A question has arisen between the government of the United States and that of Great Britain as to the true notion of the right of search? Is there any difference between the right of visitation so called, and the right of search,—between the right to ascertain by an inspection of the ship's papers that she has the nationality which she claims, and the subsequent right of inspecting the vessel and cargo, for the purpose of ascertaining whether she has certain kinds of merchandise, as slaves for instance, on board, or whether her pa pers are fraudulent? The English doctrine touching this point is expressed by Lord Aberdeen in a note addressed to our min

ister in London, of which the following words are a part: "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 nationality of the vessel, but also extends to the objects of the 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 in 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... 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.”

A little later we find the English envoy at Washington in a communication from his government giving notice that Great Britain still "maintained and would exercise, if necessary, its own right to ascertain the genuineness of any flag which a suspected vessel might bear; that if, in the exercise of this right, either from involuntary error, or in spite of every precaution, loss or injury should be sustained, a prompt reparation would be offered; but that it should entertain for a single instant the notion of abandoning the right itself would be quite impossible."

The government of the United States, on the other hand, has maintained that there is no right of visiting Doctrine held by a vessel, for the purpose of ascertaining its nation- the United States. ality and distinct from the right of search, known to the law of nations; that the right to visit, in order to be effectual, must

in the end include search; that the right differs in no respect. from the belligerent right of search; and that every case of detention of an American vessel for this purpose is a wrong, calling for reparation. These views are set forth by Mr. Webster, then Secretary of State, in a letter to the ambassador of the United States at London. "No such recognition," he there says [i. e. of the right claimed by England], "has presented itself to the United States; but, on the contrary, it understands that public writers, courts of law, and solemn treaties, have for centuries used the word 'visit' and 'search' in the same sense. What Great Britain and the United States mean by the 'right of search,' in its broadest sense, is called by continental writers and jurists by no other name than the 'right of visit.' Nor can the government of the United States 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." Again, "there is no right to visit in time of peace, except in the execution of revenue laws or other municipal regulations, in which cases the right is usually exercised near the coast, or within a marine league, or where the vessel is justly suspected of violating the law of nations by piratical aggression; but whenever exercised it is the right of search.

To Lord Aberdeen's declaration, that reparation would be made for injury sustained through the exercise of this right of visit, it is replied that, "if injury be produced by the exercise of a right, it would seem strange that it should be repaired as if it had been the effect of a wrongful act. The general rule of law certainly is, that in the proper and prudent exercise of his own rights, no one is answerable for undesigned injury. It may be said that the right is a qualified right, that is, a right to do certain acts of force at the risk of turning out to be wrongdoers, and of being made answerable for all damages. But such an argument would prove every trespass to be matter of right, subject only to just responsibility. It is ‘as if a civil officer on land have process against one individual and through mistake arrest another; this arrest is wholly tortious. No one would think of saying it was done under any lawful exercise

of authority, or that it was anything but a mere trespass, though an unintentional trespass. The municipal law does not undertake to lay down beforehand any rule for the government of such cases; and as little does the public law of the world lay down beforehand any rule for the government of cases of involuntary trespasses, detentions and injuries at sea, except that in both cases, law and reason make a distinction between injuries committed through mistake, and injuries committed by design, the former being entitled to fair and just compensation, the latter demanding exemplary damages, and sometimes personal punishment." In another passage the inquiry is made, “By what means is the ascertainment of the nationality of a vessel to be effected? Must it lie to? Or, if it pursue its voyage, may force be used? Or, if it resist force and is captured, must it not be condemned as resisting a right, which cannot exist without a corresponding obligation imposed on the other party? Thus, it appears that the right exercised in peace differs nothing, as to the means of enforcing it which must be adopted, from the right of search exercised in war, which the English government disclaims the use of. The government of the United States. admits that its flag can give no immunity to pirates, nor to any other than regularly documented vessels, and it was upon this view of the whole case, that it cheerfully assumed the duties of the treaty of Washington."*

in

This discussion took place between 1841 and 1843. Since then, in 1858, the British government having New discussion stationed cruisers near Cuba, for the purpose of of the right of preventing the slave-trade with that island, certain 1859. American vessels were visited on suspicion, and loud complaints arose. The Senate of the United States, thereupon, passed the following resolution: "that American vessels on the high seas in time of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong; and, therefore, any visitation, molestation, or detention of such

* Comp. Wheaton's Hist. pp. 585-718 (from which we have freely drawn), and Webster's Works, Vol. VI., p. 329, et seq.

vessels, by force, or by the exhibition of force on the part of a foreign power, is in derogation of the sovereignty of the United States."

From the explanations which have since taken place, it does not appear that the British government was disposed to deny the right which this resolution implies. Knowing or believing slavers to have an American nationality, it has, at least since 1842, disclaimed the right to detain them, and finding them to be American, upon examination of their papers, it admits that it cannot search them without a violation of international law. What, then, is the point upon which the two governments differ. Is it that the flag shall always protect the vessel which carries it? We do not understand our government to take this almost absurd position, which would prevent, in fact, the execution of the treaties establishing the right of mutual search into which England has entered with Spain and Portugal, and would render nugatory all attempts. to put down the slave-trade. Is it that if an American vessel is detained by mistake, no reparation shall ever be paid? But the contrary has been asserted by Lord Aberdeen and others. who have spoken for the British government. The only questions between the two powers ought to be these: in ascertaining the nationality of a vessel under suspicion, what procedure shall be prescribed to the officer in charge of the matter, and if injury is done by the detention, in what way shall it be discovered and compensated? The English and French governments have agreed on a code of instructions relating to this subject which are identical, and that code has been submitted to our government for its adoption.*

New arrangements in 1862.

So stood the discussion between the two governments on the right of search down to 1860, when the first edition of this work was published. A new face affairs by the treaty signed at Washington, April 7, 1862, and ratified at London, May 25, by which the two powers conceded the mutual right of search to public

was put on

* Speech of Lord Malmesbury, of Feb. 14, 1859.