§ LORD LYNDHURST
, in rising to put the Question of which he had given notice to the Secretary of State for Foreign Affairs with respect to the right of visit, said, your Lordships, no doubt, have most of you read a speech which was made by Mr. Dallas, the American Minister, a short time since, at a meeting of his fellow-subjects, to celebrate the anniversary of American Independence. On that occasion the hon. Gentleman stated that the question of the right of visiting American vessels in time of peace on the high seas had been finally settled. This is a subject, my Lords, of so much importance and such deep interest that it is material that we should receive a distinct and precise account of the terms on which that settlement is based; and I have therefore given notice of a question which I Intend to propose to my noble Friend the Secretary of State for Foreign Affairs, in order that he may give us some explanation on the sub- 2079 ject to which I have referred. Many persons—perhaps I ought not to say "many persons," but several persons, and those in a high political position—appear to think that that proceeding was not justified, and that in point of fact we have surrendered a most valuable and important right. The answer which I make to that is, that we have surrendered no right, for that, in point of fact, no such right as that which is contended for has ever existed. We have, my Lords, abandoned the assumption of a right, and in doing so we have, I think, acted justly, prudently, and wisely. Now, my Lords, with your permission, I shall proceed to make a few observations upon the general question, and to refer to some of the most eminent authorities on the subject; but I assure you that I should not have troubled you were it not that I think it is of great importance that this question should be distinctly and finally understood and settled. The first proposition which I state is this:—That in no writer on international law has that right ever been asserted; and, in the next place, that there is no decision of any court of justice having jurisdiction to decide such questions in which that right has been admitted. I wish, in making this assertion, to fortify myself by some authorities; and I cannot quote a higher or a better English authority than that of Lord Stowell, who states distinctly, in the words which I am about to read—in conformity with what I have stated—that no such right has ever been asserted by any competent authority. His words are these:—I can find no authority that gives the right of interruption to the navigation of States in amity upon the high seas excepting that which the rights of war give to both belligerents against neutrals.That is a distinct statement made by that noble and learned Lord. In addition, I beg leave to refer to Wheaton, the eminent American authority on international law, who states the proposition in these terms:—It is impossible to show a single passage in any institutional writer on public law, or the judgment of any court by which that law is administered, which will justify the exercise of such a right on the high seas in time of peace, independent of special compact.So that your Lordships perceive that both on this side of the water and in America, by the best authorities and by the highest jurists, that right, in the passages to which I have referred, is controverted instead of being admitted. It has been agitated long 2080 between this country on the one side and America on the other. The eminent jurist on the other side of the water makes his statement and assertion; our corresponding authority on this side of the water makes his assertion; and those assertions directly and distinctly agree. For myself, my Lords, I have never been able to discover any principle of law or reason on which that right could be supported. I will refer again to the same high English authority—Lord Stowell—upon this subject, and you shall hear what he emphatically states with respect to it. That distinguished jurist says:—No nation can exercise the right of visitation and search on the high seas except on the belligerent claim. No such right has ever been claimed, nor can it be exercised, without the oppression of interrupting and harassing the real and lawful navigation of other countries, for the right, when it exists at all, is universal, and will extend to all countries. If I were to press the consideration further, it would be by stating the gigantic mischiefs which such a claim is likely to produce.I may add, that another very high authority—the American Judge Storey—in the well known case of the Marianne and the Flora, expressed the same opinion in almost the same terms and in language as emphatic. So here again is a coincidence of authority between the two parties agitating the question—the authority on this side of the water corresponding exactly with the authority on the other. But I do not think it necessary to refer to any cases in support of the question I am considering; I will refer only to the principle on which the question rests. What is the rule with respect to the high seas and to the navigation of the high seas? All nations are equal upon the high seas? Whether they be strong and powerful, or weak and imbecile, all are on a footing of perfect equality. What is the position of a merchant ship on the high seas? A ship is part of the dominion of the country to which she belongs, and what right has the ship of one nation to interfere with the ship of any other nation, where the rights of both parties are equal? The principle is so clear and so distinct that it will not admit of the smallest doubt. I am unwilling on a question of this kind to refer to any arguments of my own, or to any authority which I can possess on the subject; but hear what is said by Lord Stowell with respect to the navigation of the high seas. His language is this:—All nations being equal all have an equal right to the uninterrupted use of the unappropriated 2081 parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all States meet on a footing of entire equality and independence, no one State or any of its subjects has a right to assume or exercise authority over the subjects of another.That is a confirmation of the doctrine which I have stated, that the principle on which this question is to be decided is the equality of all nations on the high seas. Admitting this principle, how can it be asserted that the ships of one nation can interfere in any way with the vessels of another? Then, having laid down this principle, the consideration next occurs that difficulties may arise out of frauds which may be practised on the high seas; and it is said that the flag of America may be assumed by another Power to cover the basest of purposes. But how can the act of a third power, or of the subjects of a third Power, by possibility affect any right existing on the part of the United States? Take this case:—By our treaty with Spain we have a right to visit and search Spanish vessels with a view to prevent the slave trade. But how can that agreement between us and Spain by any possibility affect the rights of America? Clearly in no way at all. But, then, what are our cruisers to do? They are placed in a most difficult position, because it is quite clear and plain, if one of our cruisers see a vessel bearing w the American flag, and have reason to believe that that flag is assumed, he must examine and inquire into her right to carry that flag as best he can. If the result should be to give him a strong suspicion that the vessel has no right to the flag that she bears, he may certainly visit her and have an examination of her papers, and if he then find that his suspicions are correct he may deal with her in the manner in which he would be justified in dealing with her according to the relations existing between England and the country to which she belongs. The American Government has no right to interfere in this case. The matter is entirely between the English cruiser and the vessel seized. But, if it should turn out that the vessel is an American, and has a right to use the flag suspected, the situation is this,—he must of course apologize for his acts and make ample compensation for any injury done. That is exactly the position in which the two countries are placed. The American Minister for Foreign Affairs thus states the case of the United States. He says:—If a police magistrate gives a warrant to a police officer to seize a particular person, the 2082 officer, if he does not know the person, will make inquiries before he ventures to execute the warrant, and should the result of his inquiries satisfy Min as to the identity of the individual he will execute the warrant. If his information turn out correct his proceedings are correct also but if it turn out that he has made a mistake and arrested the wrong man he must make ample compensation for the injury which he has done.The two cases seem to me to be perfectly analogous. A distinction has been attempted to be drawn—for which I think there is no foundation—between the right of visit and the right of search. Visit and search are two words which are always placed together in our vocabulary of international law, but they express what is conveyed by a single term in foreign vocabularies "le droit de visite." What is the use of visiting if you can do nothing? How can a mere visit convey the information which you desire to obtain?—and the moment you call for an examination of the papers—the moment you ask a single question the visit becomes a search—so that the visit to a particular vessel for the purpose of inquiry, is in effect the exercise of a right comprehended in the words droit de visite. 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? The same principle applies that I have just laid down. Treaties have been entered into between England and foreign countries giving the right of visit. But why enter into such treaties if the right of visiting is a national right founded on international law? What took place in the year 1815 after the Treaty of Vienna? Lord Castlereagh applied to the French Government to establish some mutual system by which cruisers could visit the vessels of either country; but the Due de Richelieu replied, that France never would consent to a maritime police being established over her own subjects, except by persons belonging to her own country. I think I have now gone far enough to establish the position with which I started—that there is, in truth, no such thing as the right of visit. Whatever arrangement may have been made with the American Government, we have renounced no right that we ever possessed. It would be material, if possible, to adopt some plan by mutual understanding for verifying the flag, yet maintaining the integrity of the rights of both countries. I am told that some negotiation and some correspondence is going on for that end. It is a difficult question, and I hope it may 2083 be brought to a favourable termination. I conclude with what I stated at the beginning, that Her Majesty's Government were wise, prudent, and just in the course which they have pursued. To prosecute a claim which you cannot enforce consistently with law, or to make an attempt to enforce it which must lead to resistance, and which may afterwards lead to war, would be a most unwise and imprudent mode of proceeding. No war is so deplorable as a war founded on injustice. Before sitting down I must, in justice to the hon. Gentleman to whose statement I referred before, read to your Lordships the concluding words of his speech, because it is in complete accordance with the high character which he has always borne both in America and in this country where he acts as her representative. The hon. Gentleman said:—While I am able to announce to you this gratifying fact, I think it should be accompanied also by the assurance that the termination of that for which we have struggled for nearly half a century has been brought about with a degree of honourable candour and fair dealing on the part of the British Government deserving of every acknowledgment on our part.That statement is in perfect unison with the excellent character of the hon. Gentleman to whom I have referred. My Lords, I thought it my duty to make these observations, and to bring this matter clearly before you, accompanied by the quotations which I have read—with which, no doubt, many of your Lordships are perfectly familiar—in order to afford an opportunity to any noble Lord to refute the positions which I have laid down if they are capable of refutation. The question which I wish to put to my noble Friend the Foreign Secretary is this,—whether he is prepared to lay on the table of the House the correspondence with the American Government with respect to the Right of Visitation?
§ THE EARL OF MALMESBURY
—My Lords, I have to thank my noble and learned Friend for having come forward, and, as I may say, made the occasion himself whereby he has given us an opportunity of hearing his opinion upon this very important subject. I think, my Lords, that that opinion must be of immense consequence and value both in Europe and in America, when it becomes fully known. Indeed, I feel I may say that that opinion must finally settle the disputed point; and that if ever a similar question should be again mooted the opinion just expressed by my noble and learned Friend must be quoted with as great weight as my noble 2084 and learned Friend has quoted the authority of his great predecessor, Lord Stowell. It is with great pleasure that we have heard the views of my noble and learned Friend on this important subject, because they conform precisely to the opinion of the law officers of the Crown, whom we thought it our duty to consult before we sent any answer to the communications we received from the American Government. When we received General Cass's communication, which was addressed to Her Majesty's Government, we immediately consulted the law officers of the Crown, and they unanimously asserted that the international law in relation to this question was precisely as it has been just described by my noble and learned Friend. Upon that opinion Her Majesty's Government at once acted, and we frankly confessed that we have no legal claim to the right of visit and of search which has hitherto been assumed. Her Majesty's Government therefore abandoned both those claims; but at the same time they placed before the American Government the paramount necessity of agreeing upon the adoption of some instructions, perfectly identical in character, to be placed in the hands of the officers of both Governments,—and, indeed, in the hands of the officers of all maritime nations—by which all Powers should be ruled—so as for the future to avoid all obstruction to commerce; while at the same time the fraudulent use of national flags may be prevented. At all events, such instruction as would have the effect of saving us from quarrels arising out of the assertion of an assumed right. The negotiations have gone on thus far. Having given up, as I have said, the right of visit and of search, the American Government on their part have received our communications with equal frankness, and have stated to Her Majesty's Government they are ready to listen to and to consider any suggestions we may make to them with the view to the verification of the international flags. We have, my Lords, gone further than that; for we have made the same suggestions and offer to the Government of France. That Government has answered us in the same spirit, and in a manner which showed that they entirely appreciated the great importance of the question. My Lords, the Government of France have agreed to consider any proposition we shall make on the subject, and to suggest upon their part any proposition which they may consider 2085 to be useful or conducive to the ends we have all in view. Considering the enormous dimensions that commerce generally has assumed throughout the world at the present time—seeing as we do the sea covered with the ships of all nations—I say, my Lords, I do not think there can be any doubt of the necessity of establishing some sort of security against the fraudulent use of the national flags. Further than this our negotiations have not proceeded. Although it is most unusual, in the midst of negotiations to produce any of the correspondence on the subject, nevertheless Her Majesty's Government have no objection whatever to place in your Lordships' hands the correspondence that has taken place as far as it goes. Your Lordships will understand that we have gone no further than this—that we have abandoned the right of search and visit; and that the American Government have agreed to entertain and to consider any suggestion we may make to give security against the fraudulent use of the flags of either nation; and that the French Government are ready and anxious to assist us in our endeavours to attain the same object.
§ THE EARL OF ABERDEEN
My Lords, it happened to me, when formerly at the Foreign Office, to have to write a great many despatches upon this subject—more I hope than will ever fall to the lot of the noble Earl (the Earl of Malmesbury). But the correspondence which then took place left the question, as I supposed, completely settled, and, therefore, it was with great astonishment I heard of anything which could give rise to complaint on the part of the American Government. It was in the years 1842 and 1843 that a long correspondence took place between the American Minister of that time—Mr. Webster—and myself, and Mr. Webster declared over and over again to the late Lord Ashburton, that the matter was perfectly and satisfactorily settled. The noble Earl talks of referring to the Law Officers of the Crown as if this were a new question. The instructions under which our officers acted—and I suppose they are the same instructions now—were drawn up under the supervision of Dr. Lushington, Sir George Cockburn, and the Admiralty authorities of the day. They were communicated to Mr. Everett, the American Minister, and I never heard a word intimated against them. I was therefore astonished to hear my noble and learned Friend (Lord Lyndhurst) quote the statement of the highly respected American 2086 Minister who is now in this country, to the effect that we had given up frankly and finally the right of visit and search. Twenty years ago the Government of that day repudiated the assertion of any such right, and therefore, what the noble Earl the Secretary of State for Foreign Affairs can have given up I am at a loss to understand. Any such right was given up then as frankly and finally as it possibly can be given up at this moment. After my noble and learned Friend's quoting the high authority of Lord Stowell, it may appear ludicrous in me to quote myself. At the same time, in order to show how the matter stood twenty years ago, I will just quote a note of my own. Though an humble authority, still I was speaking the language of the British Government, and that language was received by the American Government with acquiescence and satisfaction. My words were these:—The undersigned resigns all pretensions on the part of the British Government to visit and search American vessels in time of peace; nor is it as American vessels that such vessels are ever visited. But it has been the invariable practice of the British navy, and, the undersigned believes, of all navies in the world, to ascertain by visit the real nationality of merchant vessels met on the high seas, if there were good reason to apprehend their illegal character. In certain latitudes, and for particular objects, vessels are visited not as American, but either as British vessels engaged in an unlawful traffic and assuming the American flag for criminal purposes, or as belonging to States which have by treaty conceded to Great Britain the right of search, and which right it is attempted to defeat by fraudulently bearing the protective flag of the Union; or, finally, they are visited as piratical outlaws, having not the least title to any flag or any nationality whatever.Under those three categories we have exercised the right to visit vessels so suspected. But, if our officers knew that an Americans vessel was full of slaves, they would have no right whatever to visit or arrest her, unless they had good ground to suspect that she was not an American vessel. No doubt the flag is primà facie evidence of nationality; but the flag alone is not sufficient evidence, and is not sufficient to outweigh information to the contrary received from any quarter, or any other grounds of reasonable suspicion. No doubt our cruisers may commit a mistake and overhaul an American vessel, believing her to be a Spaniard or a pirate. But it has been found over and over again that instant and ample reparation has been offered for such an involuntary error, and that is all that can be expected between two nations acting in good faith with each other. 2087 I saw, some time ago, an extract from a despatch of General Cass, which appeared to me to state the case with perfect fairness, and they are the very words which I used myself. As I have said already, I have written more upon this subject than I hope it will ever be necessary for the noble Earl to write, and the result of that writing has been perfect content and tranquillity for sixteen or eighteen years, until this year, when we hear for the first time of British outrages. I believe it has arisen from the zeal of our cruisers. The addition of a squadron on the coast of Cuba, instead of operations being confined to the coast of Africa, has led to a more frequent exercise of the right of visit, and I am afraid the zeal of our cruisers has converted into a rule that which was only intended to be an exception. Without any ground of suspicion, the American flag is sufficient evidence of nationality, and it is only when there are grounds of suspicion that the British cruiser is entitled to see whether the suspected vessel is American or not. That is all that ever was asserted by us; and when the American Minister declares Her Majesty's Government have given up, frankly and finally, the right of visit—a declaration which is received with great enthusiasm by his countrymen—I am at a loss to understand what is given up. Twenty years ago we repudiated the existence of such a right. We never made assertion of any such right, and therefore we cannot give it up. But the noble Earl the Secretary of State for Foreign Affairs added, that it is important some mode should be taken to verify the nationality of any vessel on the ocean, without which we can have no security whatever. The instructions to which I have referred were framed in the most careful and cautious manner, and we had the advantage of the assistance of the noble Earl now at the head of the Government. If the noble Earl the Secretary of State can make any regulations, or issue any instructions, which shall be more effectually and more carefully guarded, I shall be very glad to see them; but, notwithstanding the desirableness of the object, I doubt whether he will find it practicable. I do not complain of the noble Earl, because the subject was probably new to him, but those who advised him ought to have recollected that this subject occupied, during many months, a great deal of care and attention. At the time to which I allude, the question was at its 2088 height. It excited much more interest than it does now, and it assumed a much more serious character. I will not follow this subject further, but I will read an extract from the last despatch I wrote on this matter:—I have no intention to renew the discussion, and it is the less necessary because my last note has remained for more than four years without an answer, and the Secretary of State has declared to the British Plenipotentiary at Washington, that the explanations given were entirely satisfactory. The President is assured and believes that Great Britain will always respect the just claims of the United States. We have no pretensions to interfere in any manner, either by detention, visitation, or search, with vessels of the United States, known or believed to be such. But we still maintain and will exercise the right and necessity of ascertaining the genuineness of any flag that suspected vessels may carry. If, in the exercise of this right, any involuntary error should be made; if, in spite of every precaution, any loss or injury should be sustained, prompt reparation will be afforded; but that we should abandon the right itself is quite impossible.That is the footing of common sense and common justice on which the question stands at this moment, and I was much pleased to see from the despatch of General Cass that he adopted the same opinion, and that he made the same statement and used the words which I myself employed. The exercise of our right, if it be cautiously and prudently asserted, as it has been for the last sixteen or eighteen years, will not leave us in a very bad position if no change is made. If, however, the noble Earl can improve the system which has prevailed during that time I can have no objection,
§ EARL GRANVILLE
I never heard that the state of the law as laid down by my noble and learned Friend had been questioned, nor am I aware that any complaint was made against the late Government for the instructions issued by them. No alterations in these instructions was made by the late Government, and I wish to know whether it is the intention of the noble Earl to abide by the instructions which have heretofore been acted upon until the communications with the American Government on this subject have been concluded. The case to be provided for is that of a vessel belonging to a nation which has conceded the right of search to Great Britain by treaty assuming the American flag for fraudulent purposes; and I wish to know whether the Government intend to maintain the existing instructions.
§ THE EARL OF MALMESBURY
The noble Earl (the Earl of Aberdeen) omitted to mention one very important matter. No doubt the noble Earl and the ministry with which he was connected assumed that the law was such as it has been laid down by my noble and learned Friend; but he did not say that the American Government invariably went further, and asserted that they had a right to maintain their own police, and that whatever might be on board a vessel, if the American flag were 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. Then came the question of discretion. I admit that lately—I know not by whose orders—there has appeared to be an increased activity exhibited by our cruisers in searching American vessels. There can be no doubt that the accounts given to the American Government have been immensely exaggerated, and I may state that after a careful examination I have not found any instance in which our cruisers have behaved even with incivility to the officers of any American vessel which they have boarded; but at the same time I must admit that in the exercise of that discretion which is given to them under the instructions of the noble Earl there has been a want of judgment in some cases, and that our officers have visited vessels which there was no fair reason to suppose were engaged in the slave trade. The noble Earl has asked me 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 they might be improved so as not to expose our officers to the risk of making 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 which I have sketched out, that English cruisers should search suspected English vessels, 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, The Ameri- 2090 cans, on their part have added a considerable number of cruisers on the coast, and have promised, during this period of inactivity on our part, which, I trust, may be but short, to use all the activity they can in order that the American flag, which I fear has been several times used by slavers, may not be prostituted to the purposes of the slave trade.