Lords Sitting of 7 February 1843

MINUTES.
BILLS. Public—2ª. Law of Evidence.

RIGHT OF SEARCH—STATEMENT IN THE FRENCH CHAMBER.
Lord Brougham said: I said yesterday that I should call the attention of your Lordships to a matter of great importance—I mean the real state of the question between the United

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States of America and England, during the years 1823 and 1824 on the important subject of the right of search. I am the more inclined to do so from, doubtless, the misapprehension in France of the plain and undeniable (for it was no matter of controversy) terms adopted by the Congress and Government of the United States, during the negotiations I have alluded to. This misapprehension has been fallen into by a a gentleman for whom I have a sincere friendship, and of whom I can justly say, as all who know him can bear witness, that he is esteemed, respected, and admired for his brilliant talents and his great learning, the distinguished lawyer who holds the high situation of Attorney-general of the Court of Cassation. I need hardly add that I allude to Monsieur Dupin. He has been misled into an exceedingly inaccurate statement of what took place between America and England, and (what is more important, for on this the whole question turns), between the two houses of representatives, and the executive government in America, as to the right of search. He has been misled to the extent of permitting himself to state, in his place, that the Senate of America refused to touch the question of the right of search, or to ratify a treaty on that right, under whatever form it could be presented to their attention. Nay more, that they deemed any such question inconsistent with the independence of the nation, and the honour of their flag. Now in that assertion, he and I are at issue. I am wrong in the statement I made to your Lordships, at the very same time that my learned friend was asserting the contrary in his place in that legislature, of which he is a most distinguished ornament, and I am now entirely wrong, if I cannot prove to demonstration, that not only the Senate of the United States did not refuse to touch the question under any form, on account of the supposed inconsistency of such a course with the honour of the flag and the independence of the States; not only did it not refuse to adopt the principle of the right of search, in the form in which it was presented, but it volunteered to enter into the question, and itself proposed the concession of that right of search. The Congress passed an almost unanimous resolution — first of the two houses of representatives, and then of the Senate, the one house represents all the people,
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the other all the property of America, embodying the public opinion of America on this question—embodying their feeling of national independence, and embodying their feeling as to the honour of the flag of America in connexion with the right of search, and that all but unanimous resolution called on the President, who rather differed from them on the subject, and who entertained some lingering prejudices with respect to the flag of his country, to overcome his scruples, and induced him, in execution of that resolution, to press on the minister of this country the adoption of the views of America. I defy any man who has read the records of the American Congress, to contradict the statement which I now make; or any man, who reads the official records of the negotiations which I hold in my hand, and which passed between the two countries on the subject, to gainsay, contradict, or, in the most minute particular, alter, affect, or modify my statement. The proposition came over, not only in the form of a despatch, but in the form of a despatch enclosing a draft of a treaty, which had been previously recommended by the Senate of the United States. Your Lordships are aware that the American executive does not represent the United States as the Sovereign here represents our country. The executive, in making peace or war here, represents the community; and Parliament can only ratify by vote that which the Crown, as the representative of the country, has determined upon. But in America, the Senate as well as the President, ratifies every treaty, and no treaty can be concluded without the satisfaction of the Senate. The executive power is for this purpose in commission. [Lord Ashburton: Two-thirds of the Senate must agree to any treaty.] True, and the Senate prospectively exercising the power which it might be supposed well-inclined to exercise, suggested and the President sent over the draft of a convention, which was laid before the Secretary of State in this country, a late right hon. Friend of mine, Mr. Huskisson, and a most able negotiator, Mr. S. Canning, now Sir S. Canning. It was to this effect:
"That the cruisers of each party may detain, examine, capture, and deliver over for trial vessels engaged in the Slave-trade, and carrying the flag of either power."
Now such was the proposal sent by America, which was adopted by this country,

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and signed on the 7th March, 1824; and this was sent back to America for ratification by the President and Senate. It was signed by Mr. Rush on the part of America, and by Mr. Huskisson and Mr. S. Canning on the part of this country. On being sent back to America, it was there ratified with one alteration: the bounds within which the right was to be exercised were proposed to be Africa, the West Indies (including the Spanish Main), and America; but when this proposal was considered by the President, who had been an old stickler for the privileges of the American flag, whose repugnance had been overruled by the unanimous voice of his countrymen, he said (and I think with some show of reason, advocate though I am of this right)—
"Why should you have a right to search in Baltimore or New York Harbour, where nobody pretends the slave trade was ever carried on, unless you are prepared to allow the same right to Americans in the Medway or the Thames? The principle of this treaty is that of reciprocity, and let us act on it strictly."
Therefore he struck out the word America, and the Senate ratified the treaty so corrected. The signature and seal of ratification having been thus appended to it, the treaty came over to this country, where it was rejected, but on what ground? Not peremptorily and finally, but on the specious allegation,
"This was your own treaty—you sent us over the convention, which we adopted; and when it goes back, you choose to make an alteration which was never thought of before."
But for that trifling omission, an alteration wholly immaterial as to the principle, if possible still more immaterial to the French government because no one now dreams of any search except on the African and West Indian coasts; but for this trifling change in the bounds, this would have been the binding and authoritative treaty existing between the two countries from that time to this. Now, in order to show those who are longing to revoke the treaties of 1831 and 1833, between this country and France, on the ground that America refused to admit such a right, I will just remind them of the "universal crusade" (for such were the words of Sir William Scott, a strong supporter of the maritime supremacy of this country), which that very America entered upon in defence of, and for the promulgation of this right. And with the phrase I have no quarrel;
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for surely never was the cross inscribed on a more appropriate banner; never dd a Christian soldier contend more gloriously for the propagation of the gospel of peace and goodwill amongst men, and never was the spirit of that gospel more embodied in outward and visible signs, than in the negotiations which Sir William Scott was pleased to designate as an "universal crusade." Well, not only did they send their convention here, but to Mr. Everett, at the Netherlands—not my respected friend who is here at present, but, I believe, a near relative of his. They made a similar communication to another gentleman who represented them at St. Petersburgh; likewise to their representative in Austria, in Prussia, in Denmark, in Lisbon, and they even interceded with Columbia, where they were not likely to meet with so good a reception as in England. They communicated with my noble friend Viscount Chateaubriand, whom though differing widely from him in opinion, I highly respect as a man of great political consistency as well as of great genius, who, though strenuously opposed to the slave-trade himself, met their appeal with this remonstrance:—
"Really it is so very lately we have been at daggers drawn with England; it is so very lately that victories have been achieved which we still feel the results of; our territory has been so lately occupied, that there exists a soreness of feeling among our people and in our Chambers, and we cannot venture to propose this right of search; it would be looked on as an additional 'concession' (the very word now used in France), and I should very much wish to postpone the matter for the present."
Now you will observe how important this declaration is. It utterly refutes the notion lately set up, that the treaties of 1831 and 1833 were adopted per incuriam. It demonstrates, on the contrary, that they were adopted post litem motam. Sofar were "maritime rights and sovereignty of the sea" from being overlooked in 1831 and 1833, that the question said to affect them was agitated several years before, and the right of search was then confirmed, because the jealousies of former years had died away, and the questiou was then ripe for such an adjustment. This state of the facts should not be lost sight of by our neighbours on the other side of the channel, to whom I acknowledge I am directing, kindly and respectfully directing, my observations rather than to your Lordships. I come

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back to the instructions which the United States gave her representatives at all the courts of Europe. The following was the language held by Mr. Everett at Brussells, in his note to Baron Nagel:—
"The pretended commerce bears all the characteristic of piracy — that is of felony committed on the sea; and as it has been denounced as a crime by the greater part of civilized nations, it ought to fall into the particular class of crimes to which it naturally belongs, and undergo the penalty which usage and the law of nations impose upon it. A unanimous declaration of the Christian Powers would inevitably produce an entire cessation of the practice. The public ships of each nation would then be authorised by the law of nations to cruise against all persons who might be engaged in it, without regard to the colour of the flag under which they might pretend to be sheltered, whilst if the trade is only treated in each country as an offence against municipal laws, it would be lawful for any one nation alone, and this is the foundation of the argument, and the reason why we wish the right of search to be universally conceded—it would be lawful for any one nation alone, by permitting it, to afford an asylum under its flag to the pirates of all other nations."
If my noble Friend at the head of the Foreign department were to devise a despatch indited in the strongest and most forcible language, for the purpose of inducing other governments to coincide in his righteous undertaking, he could not employ words more apt and appropriate than those addressed by the American minister, representing the people of the United Slates. I do then venture to express a hope that we shall no longer hear our neighbours shelter themselves behind the example of America, and maintain they cannot ratify the treaty of 1841, and that they must revoke those of 1831 and 1833, on the ground that the United States were irreconcilably hostile to any right of search whatever. They are, on the contrary, the patrons of the right of search. They are its proposers; they are its advocates; they are its champions; they are "crusaders" (to use the language of a great English judge) in favour of that right of search which they would be the last to believe was the slightest impeachment of national independence, or exposed to the possibility of fixing the most remote stain on their national flag. I understand my Lords that the six despatches to which I have referred, as well as that containing the draft of the convention, are in the possession of the House, with the usual
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documents. I wish, however, that my motion may be considered as a motion for the production of them unless the papers have already been put in the possession of the House.

LAW OF EVIDENCE.
On the motion of Lord Denman, the Law of Evidence Bill was read a second time.
Lord Campbellhoped it would be borne in mind elsewhere that this bill was universally approved of in that House.
Adjourned to Thursday.