6 rain sous l'escorte d'un bâtiment de l'état sont exempts de la visite.' He adds, Un seul auteur, Wheaton, paraît contraire à cette opinion' (vol. iii. p. 148). For the present it is enough to inform your readers that the unquestionable rule is exactly the opposite-viz. that no convoy is entitled to protect a neutral merchantman from the search and capture of a properly commissioned belligerent cruiser. Chancellor Kent, a writer who, by the way, seems beneath the notice of M. Hautefeuille, writes as follows: The doctrine of the English Admiralty on the right of visitation and search, and on the limitations of the right, has been recognised in its fullest extent by the courts of justice in America. The very act of sailing under the protection of a belligerent or neutral convoy for the purpose of resisting search, is a violation of neutrality. The Danish Government asserted the same principle in its correspondence with the Government of the United States, and in the royal instructions of March 10, 1810; and none of the Powers of Europe have called in question the justice of the doctrine. Speaking of the attempt of the Baltic Confederacy to introduce the doctrine of exemption from search of ships under convoy, the same author says: The attempt was speedily frustrated and abandoned, and the right of search has since that time been considered incontrovertible. Now, in juxtaposition with these passages from the great American publicist, let me ask your attention to the following sentence of M. Hautefeuille, which is followed by whole pages of tirade against Great Britain :— Une seule nation, la Grande Bretagne, élève aujourd'hui la prétension de soumettre à la visite les navires neutre convoyés. (Vol. iii. p. 135.) It is such reckless and unfounded assertions as these which, in my opinion, justify the severity with which I have spoken of a work which any one who reads the Discours Préliminaire will perceive to be actuated by a violence of passion and prejudice against England that makes accuracy of statement or fairness of argument impossible. There is only one other point which I must notice. I have seen it asserted in journals, which should have been better informed, that we ought not to tolerate the American right of search, because the American Government denied that right to us in the case of the slave trade. This is a complete mistake, and one which it is desirable decisively to correct. The right, of search is exclusively a belligerent right. Neither the American nor any other Government has ever disputed the right of search in war. What the American Government denied in the discussions on the subject of the slave trade was the right of search in time of peace. In this discussion the American Government was unquestionably right in point of law. The English Government, without maintaining explicitly the right of search in time of peace-a pretension which would not bear argument-had contended for a modification of that right disguised under the name of a right of ‘visitation,' which it was contended was necessary for the purpose of verifying the bonâ fides of the ship's flag, and ascertaining her nationality. This doctrine was, however, found on examination to be unsustainable, and the Government of Lord Derby in 1858 very properly intimated to the Americans their formal abandonment of the pretension. The following words are from the speech of Mr. S. Fitzgerald, the Under-Secretary of Foreign Affairs, July 12, 1858 (Hansard, vol. 151, p. 1307): As I stated to the House not long ago, as soon as Her Majesty's Government found that the right which we have hitherto asserted of verifying the national flag was one which we were not entitled to put forward, they thought it only becoming the dignity of a great nation at once to say so, and not to put forward a right which we could not justly and legitimately assert. Lord Lyndhurst in the same volume (p. 2082) exposes the absurdity of the distinction between visit and search. He says: : What is the use of visiting if you can do nothing? The moment you ask a single question it becomes a search. But suppose a party visits only in the strict sense of the word, what right, I ask, has any person to go on board a vessel to visit it without the consent of the master? Lord Castlereagh in 1815 applied to the French Government to establish some mutual system by which cruisers could visit the vessels of each country; but the Duc De Richelieu replied that France would never consent to a maritime police being established on her own subjects, except by persons belonging to her own country. The practical difficulties in the way of ascertaining the nationality of the vessel were insisted upon by the English Government; but the Americans refused, and refused successfully, to admit this as any ground for departure from the rule of law. In the same debate Lord Malmesbury (p. 2089) said, without objection: The American Government assert that they had a right to maintain their own police, and that, whatever might be on board a vessel, if the American flag was flying we had no right to visit it. They said that they constantly carried out a visitation by their own police, and that they would not be meddled with by any other country. This being the state of the law as to the right of the case, the position of the cruiser is no doubt a difficult one, as is pointed out by Lord Aberdeen (p. 2081). If he visits a ship which he suspects of carrying false colours he does so at his own risk. As Lord Aberdeen says, 'If it should turn out that the vessel is an American, and has a right to use the flag suspected, he must, of course, apologise for his acts and make ample compensation for any injury done.' And he likens it to the case of a writ where the officer arrests the wrong man. At the same time that the English Government made a formal abandonment of the claim of visitation, they announced that they had commenced negotiations both with the French and the American Governments in order to settle some plan and draw up instructions which should meet this difficulty and prevent the fraudulent use of international flags. This, of course, was only a matter of mutual agreement, the claim of right being withdrawn. In 1858 the American Government expressed their willingness to listen to and consider any suggestions' on this point. What was the result of those negotiations I am not aware. It has been asked whether there has been any alteration in the Instructions to Naval Officers.' 6 What may be the present state of things under any agreement with the American Government I know not; but it is clear from the speech of Lord Malmesbury that in 1858 a very material modification of them was contemplated and even effected. The then Secretary for Foreign Affairs says (p. 2089):— The noble Earl (Aberdeen) has asked whether I have altered those instructions. I have not done so. They remain precisely as they were. But I do not think they are so safely worded as they might be, and I think that they might be improved so as not to expose our officers to the risk of making 184 LETTER OF HISTORICUS ON THE RIGHT OF SEARCH. mistakes which amount to an infraction of international law, and which place them in an unfair position, such as no officers, and especially young officers, ought to occupy. Pending the arrangement I have sketched out, that English cruisers should search suspected English vessels, and that Americans should search suspected American vessels, and that French cruisers should search suspected French vessels, without actually altering the instructions heretofore acted upon, we have thought it right to suspend them until the negotiations have proceeded further. We have also ordered our cruisers on that coast to respect the American flag under any circumstances. It will be seen from this passage, that, not only in principle, but in practice, the right was absolutely abandoned to visit an American vessel, except by the express consent of her own Government. Whether any subsequent understanding has been come to between the two Governments on this subject, I am not aware. My only object at present is to ascertain the rights of the several parties by the general Law of Nations, and to show that the American Government had not, as has been supposed, on former occasions, questioned that right of belligerent search which it now claims to exercise. The belligerent right of search is a totally different thing. Neither America nor any other nation has disputed or disputes it. And it is not for us to blunt an instrument, or rather to destroy a shield, which we have employed, and shall employ again, whenever we have the misfortune to be at war. Honesty and prudence alike forbid such a course. The propositions I have stated are so simple and so elementary, that it is incredible how they should be called in question. I will venture to say, that there is no English naval officer who is so ill instructed in his duties as to have meditated the conduct which is gratuitously attributed to the commander of the Leopard.' However, as the paragraphs which are 'going the round of the papers' show that the public mind is not very accurately informed on these topics, I have thought it right to trouble you with this letter. 6 |