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AN INQUIRY INTO C|( |Ugp flf tisit 01' l^proaclj, BY SHIPS OF WAR. BY JAMES WIIITMA]S% ESQ., B.A., BARRISTER AT LAW, OP NOVA SCOTIA. . • • • *,*• ' ' *. • • . • NEW YORK: PUBLISHED BY JAMES MILLER No. 430 BROADWAY. 1858. Entered, according to Act of Congress, in tlio year If^oS, By James Wiiitmax, In the Clerk's Office of the District Court of the United States for the Soutliern District of New York. •:■ . *• i/ ; *.: ••• ••• . . •' * • •• NEW VOKK ; BILLIN AND BROTHER, PRINTERS, XX, NORTH WILLIAM ST. AN INQUIRY INTO THE RIGHT OF VISIT OR APPROACH, BY SHIFS OF* -V^j^Tl. >■♦♦- The recent visitation of several United States vessels, off the coast of Cuba, brought to the knowledge of Mr. Secre- tary Cass by newspaper reports, which, in several instances, have received contradiction by the masters of the vessels represented as having been outraged by such interference,* has been deemed of sufficient importance for a dispatcli, dated 18th May last, to Mr. Dallas, the American minister to England, by which he is instructed to lay down cer- tain principles for the information of the British Foreign Secretary. In that dispatch, to which all possible pub- licity has been given. General Cass, while basing his com- plaint npon the highly-colored newspaper r.>;M»rts of the occurrences, yet writes in regard to them, " The statements in the public journals contain the details of these transac- tions, but no authentic report on the subject has yet reached the department." Will it be believed, also, that these very occurrences, of * Besides other cases, see letters in New Yorh Tomes of 26th May last, and other papers, from masters of brig " ,S. Thurston," schooner " Marcki Tribou," and ship "Escourt." which Mr. Cass com])lains as outrageous proceedings, have ha{)[)eiiod as the natural result of his own request aiul di- rections 'i It will be recollected, hy almost every hody who reads the newsi)a])ers, that on the 24:th of December last (1857) Lord Kapier, Her J>ritannic Majesty's minister at AV^isliing- ton, adchvssed a i)owerful remonstrance to the American Secretary of State, calling attention to " the present activity of the Af/'ican slave trade ; to the fact that it is now chiefly proseouteilhy the criminal cmd fraudulent assuniption of the United States fay, and to the inconimensurate means ichich are employed'''' (by the Secretary's government) "/<:>/' its sup- pression.'''' His Lordship adds: "Li illustration of the statements which I have brought under your notice, it may be desira- ble that I should add a brief catalogue of the vessels cap- tured by IIci* Majesty's cruisers on the west coast of Africa, previous to the month of October last, with some of the cir- cumstances attending the seizure; but, in framing this list, I must regret that there may be others of which the desig- nation has not yet reached ller Majesty's Legation." Cases were then cited as follows : 1st. The "Adams Gray," seized 10th April, by Iler Majesty's ship "Prometheus;" her name and "New Or- leans" being painted on the stern, and her captain and mate, to all appearance, American citizens. 2d. The schooner "Jupiter," with 70 slaves on board; fitted out at New Orleans; captured by 11. M. ship "An- telope." .3d. The "Abbott Devereux," taken by the "Teazer," with two hundred and seventy slaves on board ; sailed from olf the coast of the United States, via Havana. 4th. The brigantine "Eliza Jane;" fitted out at New York ; seized by the " Alecta," on 22d August. 5th. Tiie schooner "Jos. IL Eecord," from Newport, Rhode Island ; seized by " Antelope," with one hundred and 6 ninoty-ont! slaves on board; five (Tiiitod States citizens anion^ the crew. (Itli. Tlie "William Clark," of New Orleans; seized by "Firefly;" exhibited American colors, and for^^^ed Ameri- can papers. The vessel was remarked to be in correspond- ence with another craft in the othng, nnder American colors. Ttli. The bri<>jantine "Onward," of Boston; owned by Messrs. Lafitte, of New York, and fnlly fitted for the slave trade. Sth. The bark " Charles," of Baltimore ; fitted ont at New Orleans. 9th. " General Pinckney," or Pierce. 10th. The bark " Splendid," of Boston. llth. Tlio "North Hand," of New York. 12th. The " W. D. Miller," nnder American colors. 13th. The "Panchita," of New York. 14th. The " Nancy," of New Orleans. 15th. The " Minentonga," stated by Admiral Grey, com- manding at Cape of Good Hope, to be one of several Amer- ican vessels fitted oat for the slave trade, as follows : 16th. The " Isle of Cnba." 17th. The " Jamestown," of New York. 18th. The " Putnam." 19th. The " Charlotte," of New York. 20th. The " Wizard," of New Orleans. 21st. The " Petrel," of New Yoik. 22d. The " Ellen," of New York. 23d. The " Cole." 24th. The " Globe." 25th. The "Spirit of '76." 26th. The " Eeindeer." 27th. The " Vesta." 28th. The " Flying Eagle." 29th. The " James Buchanan." Or nearly an American slaver for every state in the Union, and one of them bearing the name of its chief magistrate. r> But while tills letter of Lord Nupior'fi, puMisliotl in most of the Now York joiirimlrt of iiboiit the tilst of Miiy last, inuy be well remembered, tlio reply which it called forth i'rom General (Jass seems to be almost universally over- looked, niitwithstandin^ its pertinence to the [)resent dis- cussion. Mr. Cass, re}»lyiiig to Lord Xaj)ler, under date of 10th A])ril, 1S5S, (see Wanh'iuytoii Union of 24:th April Bubse- quent,) remarks: "Experience has come to test the measures proposed, and they have been found iiuulccpuite to the extinction of the evil, so much so, that, in the oj>inion of your government, its present activity demands increased exertions on the part of the United States, with a view to accomplish the object. Those exertions, it is suggested, should 1)0 directed to the coast of Africa, in order to render the blockade more effect- ual, and especially to examine and deal with vessels bearing the American flag and suspected of being engaged in this trade. This system of a joint blockade has been pursued for some years, and the benefit it has j^roduced bears no reason- able proportion, I regret to say, to the expenditure of life and treasure it has cost. But this failure need not discourage the anxious hopes of Christendom. There is another way of proceeding, without the dangers, and doubts, and difficul- ties, and inefficiency which beset a blochtde, and lohich is sure to succeed if adoj}ted and pei'severed in, and that is, to close the slave mart of the wc^rld, OB R ATIIEB, OF THE ISLAND OF CUBA, which is now almost the only region ivere the slave dealer can find a market. If these unfortunjite victims could not be sold, they would not be bought. To shut the 2>orts of Cuba to their entrance, is to shut the ports of Africa to their departure, and to effect this, nothing would seem to be wanting but the cordial co-operation of the Spanish government. The conventional arrangements which exist between Great Britain, and France, and Spain for their mutual co-operation in the suppression of the slave tiwloaro voiy importV'ctly known l<> me, l>iit it is nn(l that Spain lias entered int(t en<;a^H-nients witlj (treat liritain, it' not with France also, llmt she will use her best exertions to prevent the importation of slaves iiiio lier dominions. Tills pledi-iti8h government turned its attention, for the supprcrsioii of the slave trade, from Africa to Cuba; deeming that the right of visit, as it had been exercised on the one coast, would be unobjectionable upon the other. It is true that the Icgitinuite trade of the United States on the coast of Africa is of such small amount as to give rise to grave suspicions, when the American tlag is frequently dis- played : but, on the other hand, the island of Cuba is the great slave mart, and as most of the vessels known to be engaged in the trade are American built, the occasional in- convenience to which legitimate American traders on the coast of Cuba are subjected, ought n^t to be nuide a mat- ter of serious complaint. If the Britisli naval officer generally meets the demand of his country, which "expects him to do his duty," there is none more anxious not to overstep the line of his instruc- tions; and, in this particulai- case, the following letter from Commodore Rogers, bears an intelligent and honest testi- mony to the total absence of design on the part of Her Ma- jesty's officers to injure or insult the flag of the United States. AVhen such insinuations as we daily hear uttered in high places as to the malignant designs of England, or its 8 government, to force a war upon America, are received with general credence, the prospect of continual peace will become gloomy indeed. But to the whole English nation there could be presented no state so horrible as a war with America — none to which they would make greater sacrifices to avoid. No journal that suggested any benefit to be derived therefrom, could live an hour, thr nigli the public execration it would invoke. No minister who valued his position, his fame, nay, even his personal safety or existence, w^ould dare, in England, to lay measures in such train as to produce that fearful calamity ; nor do we suppose, when the angry cloud of passionate mis- representation wliich has been thrown around the subject of the recent visits to American vessels shall have passed away, that the American people will be less disposed to acknowl- edge that the trut&t interests of America, as of England, lie in peace with each other, at any sacrifice but that of duty ; or that they will less honor such men as Rogers than those whose misguided or malignant patriotism paint the scenery of war with a brilliant light, oidy directed to reveal its spoils and prizes, while casting its train of suffering and horrors into intentional shade. But let the better language of Commodore Rogers speak : IT. S, Steamer Water-Witch, Key West, Thursday, June 3, 1858. Sir: I arrived here safely to-day for coal. AH well on board. I leave to-mon-ow for Havana, where I shall find 11. B. M. steamer " Devastation," which has brought in- structions from Admiral Seymour to the cruisers upon the coast of Cuba. II. B. M. steam gunboat " Jasper," commanded by Lieutenant William II. Pym, came into this harbor this morning in search of the " Styx," to deliver dispatches from the Admiral. Lieutenant P". stated to me that his instruc- tions were printed, and were dated, he believed, 1849; that they were, at all events, the mstructmis lie had acted icpon on the coast of Africa n'me years ago. He said he believed, 9 or rather w.ir sure, no new instrnctions had been received from the British government for the guidance of the vessels on the coast of Cuba. lie said that the "Creole" was a slaver, and that soon after her capture colors and papers both disappeared, the captain declaring that he was not en- titled to American papers or colors. He said that, in another case, where he had sent his quartermaster with a spy-glass to ask perniission to ascend the mast of the outermost vessel in the harbor of Matanzas, in order to see whether the "Styx" was in sight, the cap- tain said laughingly afterwards, that he had hoaxed a news- paper writer into the belief that he had been boarded by British lillibusters. He asserted that he was sure, upon ex- amination, he would be found to have done no wrong to the American flag. He admitted that^ in certain casen^ he had fired near vesnels to make them show their colors, and asked TYie if he had heen guilty of any wrong in so doing. To this I said that I had no official opinion, hut that I thought not. However the law may be in this case, it is held, as far as I know, the usage of the sea service (itself a law) for men- of-war to show their flags to one another ; and it is the gen- eral opinion of naval men that merchant vessels, upon neg- lect or refusal to do so, may be compelled to do it, without trenching upon their rights. Lieutenant Pym seemed sur- prised at the light in which the acts of the British cruisers are regarded by the government of the United States. I have the honor to be, your obedient servant, JOHN RODGERS, Connnander, United States Navy. The Hon. Isaac Toucey, Secretary of the Navy. "Audi alteram 2yci'i'teni,^'' is a j^rinciple which all men, not given np to such influences as the gods first inflict upon those whom they wish to destroy, will naturally follow be- fore they thunder out their decision, founded solely upon the story told them first. Brief and unsatisfactory as the interval has been to ob- tain a full hearing of the other side, we have yet, through partisan channels, such vindication with regard to the vis- itation of American vessels before alluded to, as the fol- lowing communication, which, without any very uneasy 10 stretch of the imae either easily or conveniently done without flrst boarding her for the purpose. But says Mr. Webster, in his letter on this subject to Mr. Everett, dated 28th March, 1843 : "If visit or visitation be not accompanied by search, it will be in most cases nearly idle. A siglit of papers may be demanded, and papers may be produced. But it is known that slave-traders carry false papers, and different sets of papers. A search for other papers, then, must be made where suspicion justifies it, or else the whole proceed- ing would be nugatory. In sus])icious cases, the language !!i 14 and general appearance of the crew are among the means of ascertaining tlie national character of the vessel. The cargo on board, also, often indicates the country from which she comes. Her log-book, showing the previous course and events of her voyage, her internal iltment and equij)ment, are all evidences for l»er, or against her, on her allegation of character. These matters, it is obvious, can only be ascertained by rigorous search." The objection to this argument has been so intelligibly and conclusively met by the editorial of the Evening Post of June 7th ultimo, that we cannot do better than subjoin that part of it which relates to this particular point : "If papers are not conclusive proof of a vessel's nation- ality, when demanded by a British cruiser, on suspicion of being engaged in the slave trade, how are they conclusive proof of her neutrality, wlien boarded by belligerent cruisers in time of war; or how do they 'show her national charac- ter, or the lawfulness of her voyage in the ports of those countries to which she may pi'oceed for purposes of trade V If they maybe forged, or held in duplicate in one case, why not in the other ? Suppose a war broke out between Eng- land and France to-morrow, and Yankee speculators sent cargoes of rifles or gunpowder or any othei' article contra- band of war to Havre, and the ships were boarded on the way in the middle of the Atlantic, why might they not ex- hibit forged i^apers showing their destination to be Constan- tinople, and why might not tliis very possibility be used as an argument by General Cass against their being boarded at all^ If Mr. Webster's argument proves any thing, it proves the absurdity of giving a ship any papers whatever, or askinf^ her to carry any cf>lors. Custom-house clearances are, by this reasoning, a stupid formality, and Howell Cobb's elaborate refusal of tliem to Messrs. Lafitte & Co., the other day, for the purpose of bringing over ' African apprentices,' a piece of barren diatectics." That the right of visit, as claimed and now acted upon by Great Britain, has been the doctrine ever since the establish- ment of any recognized principles of international law, there can hardly be any reasonable doubt. It has been the 15 principle upon which the seas have been so happily cleared of pirates. It is a princi[)le which is being daily acted uj)on in the Chinese and Eastern seas, to the exercise of wMch, in those waters, no manner of ol)jection Avould ever be taken by the United States, if the flag of that country were fraud- ulently .assumed by Malay or other eastern rovers ; because the pirates of that region, as hostes humani generis, are dreaded by American ships themselves, and they feel that the submission to the claim of visit is but the surrender of a part of their natural liberty for its better ultimate protec- tion and warranty as a whole. In carrying out the logical consequence of the principle as contended for by General Cass, the reductio ad ctbsurdum becomes evident in the following application. We will suppose an English vessel, engaged as a pirate, a slaver, or indeed, engaged in any trattic whatever, to hoist an American flag in sight of a British cruiser, whose suspicions are excited as to her really being an American vessel, and which suspicions are, by actual visit, confirmed in the discovery of the true character of the vessel. Now, in this case, a violation of the American doctrine will have been committed, and according to that doctrine, an outrage, also, to the American flag will have been offered ; for both of which, a})ology must be oft'ered, and redress awarded. But to whom is the measure of damages to be paid ? And, seriously, is it expected that Great Britain, or any other nation, will, or can, part with jurisdiction over her own subjects, by concurring in a ductrine whose legal and nec- essary consequence would compel her so to do \ Should the doctrine hold, that the flag alone, without any further authentification of nationality, protects every ship from visit, we shall soon see the ocean again infested with pirates, and perhaps a bloody battle fought between two great nations before the liberty to extirpate them can be obtained. But whether that would happen or not, the ob- taining of such doctrine would be a virtual relinquish- 16 inent of all interference with the slave trade, if not, indeed, the signal for its speedy legalization and vigorous re-estab- lislinient. While General Cass points to Cuba as the only existing slave mart of the world, it is well known that active meas- ures and a large amount of capital are in operation along the banks of the Mississippi for the introduction of slaves from Africa into that region. Whether as yet any cargoes have been successfully introduced, no one can either affirm or deny, but public rumor is rife on the subject. We have seen by the letter of Commodore Rogers, that the British cruisei's are doing nothing more on the coast of Cuba with regard to American vessels than they have been doing on the coast of Africa, since 1849, and not half so much as they were then and there previously in the habit of doing, ever since the slave trade had been nuide illegal by the laws of the two nations. Indeed, it appears by the recent debate in the House of Lords, on the 17th of June last, that Lord Aberdeen, speak- ing of the instructions under which he supposes the British cruisers to be at present acting, states, " they were drawn up with great care and attention, communicated at the time to the AmeHcan govermnent^ and acquiesced in hy Mr. Webster on the part of that government .^" Some expressions dropped by Lord Malmsbnry, in that debate, have given rise to an impression of an acquies- cence by the British government in the doctrine claimed by the ultra advocates of the American right, viz. : that the mere hoisting of an American flag by any vessel, no matter how strong the suspicions may attach to her of not being American, and of her being engaged in criminal or unlaw- ful traffic, gives such vessel perfect immunity from any visit or molestation by ships of war other than those of the American nation. Sure it is, that no one present at that debate, so under- stood the noble Secretary for Foreign Afiairs, nor can we 11 J ii-aibly conceive sncli to liavc been his meaning. Lord Miilmbbmy said the British government liad, upon consult- ation with the legal adviisers of the crown, come to an acquiescence with the doctrine as to the right of visitation and search, put forth by General Cass on behalf of the American government, in his dispatch to Mr. Dallas, of the 18th of May last. But what doctrine was that? Quite different from that expounded by the American Secretary on otlier occasions, and in effect similar to the doctrine upon which Great Britain has for some years been acting, viz., in Mr. Cass's own language : — "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 as- smne 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 bear- ing a })rocess for his arrest, and determined at the risk of such officer, so must the national identity of a vessel be de- termined at the like hazard to him who, doubting the flag she displays, searches her to ascertain her true character. 27iere, no douht, may he circumstances which would go far to modifij the complaints a nation would have a right to make for such a violation of its sovereignti/. If the hoard- ing officer had. fist grounds for suspicion, and deported him- self with propriety in the perf on nance of his task, doing no injury, and i^^aeuthly retiring 'when satisfied of his error, no nation would make such an act the suhject of serious reclo.m- ationy This is the acquiescence in the American doctrine which Lord Malmsbury, in the Peers, and Mr. Fitzgerald, in the Commons, announced the British government as having come to. But Lord Aberdeen had written to the American minister as early as 1841, in defence of the claim of the right of visit under warrantable suspicion, that, " if in spite of the utmost caution, an error should be committed, it will be followed by prompt reparation, and the British 18 cruisers have no v\(^\[t to iiitcrtbro with American vessels, whatever their destiuatioii, even it' en;^ii^ed in tlie slave trade.'" Any nation in earnest to put down the shivo trade must allow ships of war the right to visit merchant vessels, under suspicious circumstances; otherwise, all laws for tlie su[)i)re8- sionof such criminal pursuits will remain a dead letter. In the language of Mr. Eunnett, counsel for the ai)i)ellants in the case of the "Marianna Flora," 11 Wheatou, p. 11 : — "The dangerous ])irates are, for the most part, not ditKcult to distinguish. Their haunta^ tlieir habits, their appearance, point them out; and though the commissicmed olHcer acts on his own risk, yet, if he act. on those '' ituUcia^ and on in- formation and evidence of guilt, he incurs no real danger of being liable to damages, and, in any event, may rely on the justice and liberality of his own government for protection." Lord Stowell, that enlightened ex})ounder of the law of nations, as applied to maritiuio rights, whose decision in the case of "Le Louis" is so often quoted as such high author- ity by the advocates of the American view of the question of the right of visit, says, in the case of the "Maria," 1 Kobinson, Admit. Rep., p. 372 : "Even those who coiitend for the" (then) " inadmissible rule that free ships make free goods, must admit the exercise of the right of visitation and search, for the purpose of ascertaining whether the shijjs are free or not.^^ This, though spoken of as the exercise of a belligerent right respecting neutrals, is a precisely analogous mode of reasoning in the case of the right of visit to ships in time of peace, under the suspicion of being engaged in carrying slaves, in order to ascertain whether they are so engaged or not, or whether the ships are free from seizure or not, from being so engaged. Kent, the great expounder of American law, lays down the doctrine in a note to the first volume of his Com- mentaries, page 153, sixth edition, as follows: "The in- ID tcrvisitatioii of ships at sea is a braiicli ot' the law of sclt- (Icfuiico, and is, in point of fact, priu't'tuctl h>j tJir puhi'n' r>'s- aeh of (ill tuitions, incliidiiig those of tlw rn'iiid Sftdi's, wlion the piratical character of a vessel is susj)ecte(l. The right of visit is conceded for the sole ])iiri>ose of ascertaininl, says: ''The African slave trade is an offence against the ninnieipal lau of most nations in Knrope, and it is declared to he j>iriicy by tiie statute laws of Kiigland and the United States." In the h»n^ and tedious tie^otiations for iIh; ?^u])j)ression of the slave trade, between the j^overninents of (Jrcat Hrit- aiu and the Tnited States, Mr. Adams, then minister of the latter country at London, in a letter of ;31st March, 182.3, to Sir S. Canniui^, transmitted therewith a copy of the act of Con<^ress of IHth May, jsilo, by which "any citizen of the United States, being of the crew of any foreign shii) en- gaged in the slave trade, or any person whatever being of the crew of any ship owned, in whole or in part, or navi- gated on behalf of American citizens, partici])ating in the slave trade, is declared to Jiave incurivd the i)enalty ^^^ pi- racy, and nnide liable to at(Hie for the crime with his life." (See Wheatoj' on the llight of Search, pp. !S8, 84.) So long, then, as the laws (»f this country and ln!r conven- tion with Great Britain remain as they are, making the slave trade piracy, it is impossible to 6U[)i)ose that vessels, natu- rally subjecting themselves, or l)eing subjected, to susjticions of being engaged in that trafhc, whether ^vom the fact of their vicinity to such places where the trade is carried on, or from the fact of the Hag of their countr}- having been prostituted to its protection, can be released from that su- pervision, on the part of vessels of war, necessary to ascer- tain their real character, whether it be called an act of visit, or apjjroaeh., or by any other name ; and such is the view taken by many of the reallj' candid and intelligent journals of the United States. The Charleston Mercury says ui>on this subject : — " Here, again, we see the humiliating position in wdiich the United States are put by our absurd legislation with regard to the 22 AtViciin slave t'-ade. As a pirate is hastes humani generia^ no cruiser of any nation, it is supposed, can be blamed for ascertaining by force whether a vessel is a pirate or not. '-'- lltnce the cruisers of every nation hi the world have a right to come upon our coasts, and overhaul every vessel which they thhk jrroper to suspect of being engaged in the African slave trade, the laws of the United States declaring them to he j)irates.^^ The position assumed by this leading journal is the more open and manly one, of repealing the laws of the United States, and denouncing the treaties making the slave trade piracy, rather than continuing them and making them a dead letter, by the denial of their necessary consequences. The fact then is, so far from the right of visit under rea- sonable suspicion, even in time of peace, being an interpo- lation of the law of nations, the right to resist it is a doctrine which, until late years, has never been assumed, and that only by the United States. If they deny the power of any one nation, or indeed as they do, of any number of nations without the consent of all, to change any of the recognized principles of interna- tional law, how absurd that they should assume a right with respect to themselves, to which all other nations submit ; a right, too, which England as freely concedes with regard to her own vessels as she claims with regard to others. The weakness of any principle of international law upon which the resistance of the right of visit can be based, is evident from the urgency and haste with which the decision of Lord Stowell, in the case of "Le Louis" is pressed to nuiinlain it. Any one at all familiar with the decisions of this learned Judge, and indeed with the particulars of that decision itself, will know the fallacy of the assertion, that any dicta of Lord Stowell's can be adduced, other than as confirmatory of the ground which Great Britain maintains upon this (piestion. Li the case of " Lc Louis," (2 Dodson's Adm. Reports, p. 23 237,) the slave trade was then (1816) not only not declared piracy by the Uiws of the country to which that vessel be- longed, but actually protected by them. Had the laws of France and her convention with England then allowed it, Lord Stowell %vould have sustained the capture and condem- nation of the French ship " Le Louis," and, of course, sup- ported the right of visitation as necessarily incidental, in the same manner as he had previously sustained the con- demnation of the American ships "Amedie" and "For- tuna," to the particulars of which we shall afterwards recur. Li regard to "Le Louis," Lord Stowell says : — "The right of visitation being in this present case exercised in time of peace, the question arises, how is it to be legalized ?" — there- by admitting that it could be legalized — " and looking to what I have described as the known existing law of nations, evidenced by all authority and all i)ractice, it must he upon the ground that the captund vessel is to he taken legally as a pirate^ or else some new ground is to be assumed, on which this right which has been distinctly admitted not to exist, can be supported." Arguing the question that the slave trade was not then piracy by the laws of England or France, his lordship says: — " No lawyer, I presume, could be found hardy enough to maintain that an indictment for piracy could be supported by the mere evidence of a trading in slaves." The learned Judge then goes on to show the legality of the slave trade as previously permitted and encouraged by dif- ferent civilized nations, arguing tliat in the absence of direct and positive statutes it could not be considered a violation of national law, and further Bhowing that in this case of "Le Louis" there was no violation of the municipal law of the country to which tluit vessel belonged, and that England had no right to inflict a punishment upon the subjects of France in the prosecution of a trade, wliich, though it might even be considered criminal by the laws of other nations, 24 was tolerated by those of their own. Ilence the reason for tliat so often misquoted remark, tliat " to press forward to a great principle by breaking through every other great prin- ciple that stands in the way of its establishment ; to force the way to the liberation of Africa, by trampling on the independence of other states in Europe ; in short to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice. Obtain the concurrence of other nations if you can, by application, by remonstrance, by exam})le, by every other peaceable in- strument which man can employ to obtain the consent of man. But a nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose, nor in setting out upon a moral crusade of converting other nations by acts of unlawful force." Nowhere throughout the whole of this case does Lord Stowell refer to any change of his opinion, as expressed in the cases of the " Amedie" and " Fortuna," but six yeare previously. Had the circumstances given rise to any such change, he would have avowed it, and given his reasons for it. The fact is, there was no change in his opinion. Only the circumstances of the case of "Le Louis," not the prin- ciples upon which it was decided, were difierent from those of the "Amedie" and "Fortuna." In the • ise ' -f the " Amedie," (1 Acton's Admiralty Re- ports, p. 24' Sir William Grant decided, that "Transport- ation of slaves from the coast of Africa to Matanzas, in the island of Cuba, a colony of the enemy, was illegal, and af- fects the property of the ship and her cargo of slaves. The decree of the court below atHrmed, condemning the cargo of slaves as prize, (afterwards set at liberty,) and the ship as lawful prize to the captor. The trade considered to be pro- hibited by the American law, which, having been officially notified to the court, the neutral was excluded from the 25 benefit ho would otherwise have derived from the silence or permission of the law of America, notwithstanding the prohibitory enactments of Great Britain." The doctrine in the " Fortuna," as laid down by Lord Stowell, then Sir William Scott, was: "that any trade con- trary to the general law of nations, although not tending to, or cux'ompanied with, any infraction of the helligercnt rights of that country whose tribunals are called upon to consider it, may subject the vessel enijdoyed in that trade to confis- cation. The slave trade is now deemed, by this country, contrary to the law of nations, unless tolerated by the mu- nicipal regulations of the state to which the owners of the vessel engaged in the trade may belong." (1 Dodson's adm. Reports, p. 81.) The judgment of Sir William Grant in the previous case of the " Amedie" was referred to and endorsed by Sir Wil- liam Scott in this case of the " Fortuna," in the following terms: "the case of the 'Amedie' will bind the conscience of this court to the effect of compelling it to pronounce sen- tence of confiscation." See also condemnation of the " Africa," " Nancy," and " Anne," American slavers, 2 Acton's Adm. Rep., pages 1 to 11. In the case of the "Diana," a Swedish vessel, condemned at Sierra Leone for being engaged in the slave trade. Sir William Scott, on appeal, reversed the decision, on the ground that Sweden had not abolished the slave trade. Tliis decision was given in 1813, four years prior to that of "Le Louis;" and as tJie cases are analogous, and the learned Judge refers in that of the "Diana" to the judg- ment of Sir A\^illiam Grant in that of the "Amedie," as containing no princii)le at variance with his decision regard- ing the " Diana," we can easily see how the case of " Le Louis" has been tortured to an apjdication which does not belong to it ; and that the j^f^ncijdes of Lord Stowell's judgment in "Le Louis" and Sir AVilliam Scott's in the 26 a Fortuna," are as identical as the Judge wlio decided upon both cases. At tlie risk of being tedious on this point, it will be nec- essary to give the following extract from the judgment of Sir William Scott in the "Diana." " Tlie principle which has been extracted by the Judge of the court below, from the case of the " Amedie," is the reverse of the real principle there laid down by the Supe- rior Court, which was, that where the municipal laws of the country to which the parties belong have prohibited the trade, the tribunals of this country will hold it to be illegal upon the general principles of justice and humanity, and refuse restitution of the property ; but, on the other hand, though they consider the trade to be generally contrary to the principles of justice and humanity, where not tolerated by me laws of the country, they will respect the property of persons engaged in it under the sanction of the laws of their own country. Tlie Lords of Appeal did not mean to set themselves up as legislators for the whole world, or pre- sume in any manner to interfere with the commercial regu- lations of other states, or to lay down general principles that were to overthrow their legislative provisions with re- spect to the conduct of their own subjects." Mr, Wheaton in his treatise on the Eight of Search, takes strong ground against even the right of visit, but argues the question with a partiality painful to see in a person of such varied accomplishments and acknowledged ability. lie takes great credit to the United States as being the first to abolish the slave trade. This is not altogether correct. The slave trade was certainly prohibited to Americans as far as foreign states were concerned, in 1794, but w^as permitted between Africa and the United States up to the year 1808, while the British act prohibiting this traffic was passed on the 25th of March, 1807, though it had previously passed the Commons in 1794. So tliat, in reality, the British na- tion was the first to prohibit it, as it has always been 27 the most urgent and most active in the enforcement of the consequences of sucli prohibition. According to Wheaton, (International Law, p. 178,) " The final abolition of the African shive trade was stipuhated by the treaties of Paris, Kiel, and Ghent, in 1814: ; confirmed by the declaration of the Congress of Vienna, of tlie 8th of February, 1815, and reiterated by the additional article an- nexed to the treaty of peace concluded at Paris on the 20th of November, 1815. The accession of Spain and Portugal to the principles of the abolition was finally obtained by the treaties between Great Britain and those powers, of 23d September, 1817, and the 22d of January, 1815 ; and by a convention concluded with Brazil in 182(5, it Avas made piratical for the sid)jects of that country to be engaged in the trade after 1830." " By the treaties of the 30th of November, 1831, and 22d of May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geographical limits, as a means of suppressing the slave trade. The provisions of these treaties wore extended to a wider range by the quintuple treaty, concluded on the 26th of Deceniber, 1812, between the* live great European powers, and subsequently ratified between them, except by France, which power still remained only bound by her treaties of 1831 and 1833 with Great Britain." By the treaty concluded at Washington the 9th of August, 181:2, between the United States and Great Britain, referring to the 10th article of the Treaty of Ghent, by which it had been agreed that both the contracting parties should use their best endeavors to promote the entire abolition of the traffic in slaves, it was provided, article 8, that " the parties mutually stipulate that each shall prepare, equip, and main- tain in service, on the coast of Africa, a sufficient and ade- quate squadron, or naval force of vessels, of suitable num- bers and descriptions, to carry in all not less than eighty 28 guns, to enforce separately and respectively tlie laws, rights, and obligations of each of the two countries for the suppres- sion of the slave trade, the said squadrons to be independent of each other, but the two governments stipulating, never- theless, to give such orders to the officers commanding their respective forces as shall enable them most eftectually to act in concert and co-operation, uj3on mutual consultation as exigencies may arise, for the attainment of the true objects of this article ; copies of all such orders to be communicated by each government to the other respectively." This is the present and only treaty which has ever gone into eft'ect between Great Britain and the United States for the suppression of the slave trade ; though other nations, even Spain and Brazil, have entered into far more strin- gent arrangements. The American government seems almost always to have evaded the question of treaty stipulations for the suppression of the slave trade with Great Britain, whose constant endea- vors have been so long and uniformly exerted to bring the United States into some settled plan of concert wUh other nations on the subject. So much so has this been the case, that it has given rise to strong doubts as to its sincerity in desiring the su})pression of the slave trade. First, we find Lord Castlereagh zealously urging the mat- ter upon Mr. Rush, American minister at London, and while Mr. Adams, the Secretary at Washington, instructed the lat- ter to reply, that the President desired him " to give the strongest assurances to the British government that tlic so- licitude of the United States continued, with all the earnest- ness that had ever distinguished the course of their policy in respect to that odious traffic," we find these mere professions considered quite satisfactory, and as all that could really be done. Next, in 1820, Sir Stratford Canning, the British minister at Washington, brought . r; matter before Mr. John Quijcy Adams, the American . oretary of State, but with no more 29 satisfactory an issue than a lengthy reply, describing the horrors of the slave trade, with counter-proposals. Sir Stratford returned to the charge in 1828, but only received a copy of an act of Congress, stating the slave trade to be piracy, and that American citizens should be hung if taken in jlagrajite. But Sir Stratford was n( >t fated to be so successful in his negotiations with the rising republic, as he has since been with the dcs})otrc Porte. He kept on writing and urging, but to little purport, save at last, in April, 1824-, a treaty was concluded making the slave trade })iracy, and conceding the mutual right of visitation and search between the ves- sels of Great Britain and the United States, on the coast of Africa, America, and the West Indies, and signed on the part of Mr. Eush for the latter, and Mr. Iluskinson and Mr. Canning for the former country. What fascinations could have been brought to bear on Mr. Bush to sign an agree- ment so soon to be repudiated at home 'I Then we must pass over a long, barren bleak, till we come to the unfertile arrangements of 1842, the terms of wdiich we have previously given, and which seem only to have resulted in the notoriety they have won for the Amer- ican flag as a safeguard to slave-trading interests, and the principles they have instilled into the minds of the recent meeting of the soi-disant ship-ow-ners of New York, that " our flag covers the cargo, whether that cargo consists of niggers or nothing." If the deck of an American vessel is to be considered as inviolable as American soil, are these the means by which it is to be brought about ? The argument that a ship at sea and a man ashore hold equal rights with regard to visit or arrest, is simply absurd ; though if the policeman, following on the wake of a sus- picious character on land, can get into his haunts to ascer- tain the nature of the cargo he is carrying away, he does not generally hesitate upon the question of his right to visit. 80 But as tlic sea is different from the land, so are the police regulations which govern each. No nation — at least (rreat Britain does not — clain?8 the right to stop or rule Aniei'ican vessels at sea. England only claims the right to know whether the vessels she meets and suspects of being pirates upon the ocean, are — though hoisting an American flag — really American vessels or not. As before cpioted from Judge Story, the doctrine of any ship's appropriating so much of the ocean as she may choose, and preventing any nearer approach, seems to be novel, and not supj^orted by any authority. "It goes," he says, "to establish upon the ocean a territorial jurmllction^ like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded ujx^n the principles of sovereign and jxu'ma)ient appropriation, and has never heen successfully asserted he- yond it. A ship at sea is, as it were, a floating island upon the ocean. If it were fixed and stationary as the soil, then it would be the duty of all vessels to know and respect its ter- ritory. But inasmuch as it is transitory in time and mov- able in space, as it occupies a portion of an element com- mon to all other vessels, it becomes necessary, when suspi- cions warrant the inquiry, before full credit can be given to the display of a mere signal, hundreds of wdiich, of dif- ferent nationalities, it can display in as many hours, that the documents which really create the ship's nationality should be produced, in order to give her claim to that inviolability which appertains to the soil of the country to which she belongs. Despite the unreasonableness of the cause, one cannot but admire the spirited position taken by the American people against what tliey conceive to be an injury or affront put upon their national pride. But the chief danger in the im- petuosity manifested upon such occasions, lies in the imag- ination of injury where none is intended, or exists; and the 31 rash measures so openly advocated by leading niend)er8 of Congress, are a consequence of such imagination, or worse still, a concosbion to a supposed state of puldic opinion, which perhaps, after all, has no real existence. Any one who n- derstands the American people, knows them to he as gener- ous, and quick to acknowledge what they feel to he candid and correct treatment, as they are hasty and im})rndent in resisting what they consider the reverse. Even if their posi- tion should be the correct one, upon the question of visit, an amicable settlement of that matter can easily be arranged by dii)lomatic effort, as far as the slave trade is concerned, which is the only case where the right can ever be objection- ably exercised by Great Britain. Let us hope the day is dis- tant, nay, will never come, when these two great powers of Christendom shall so falsify tlieir moral and political creed, as to commit the settlement of such disputes to the bloody arbitration of war.