The national era. [volume] (Washington [D.C.]) 1847-1860, 1858-06-17
VOL. XII.


ty to pursue her voyage in her own way. and
to use sll necessary pre- cautions to avoid AM
suspected sinister enterprise or hostile s,,ooI
Her right to the free use of the ocean is "a rs,
feet as that of any other ship. An er,;..
eqslity is presumed to exist. She has a rias.
to consult her own safety, but al the sams
time she must take care not to violate the ,igb,.
OF others. She may use any precautions d;c,s
ted by the prudence or fears of her oficars
either as to delay or the progress or course ~
her voyage out she is not at liberty TO il e,o,
injuries upon other innocent parties. simtlv bs
cause of conjectural dangers.
"But if the vessel thus approached a.tAur,,
to avoid the vessel appros ching, CT does p.
comply with her commanders order to se,i
him her papers for his inspection, nor copse,,
to be visited or detained, what is next 10 J..
done? Is force to be used2 And if f,rca ~
used, may that force be lawiulIy repeiIe3s
These questions lead at once to the ,lemen,s
principle-tbe essence of the British clan
Suppose the merchant vessel be in truth A.
American vessel engaged in lawful commarcs
and that she does not choose to be detain.d
Suppose abe resists the visit. What is the con-
sequence? In ell cases in which the bell;pe,
emit right of visit exists, resistance to the evs,
else of that right is regarded as lust capse =,
condemnation both of vessel and cargo. /.
that penalty, or what ether penalty, TO be IN.
CURED by resistance to visit in time of pesc.q
Or suppose that force be met by force. guo
returned tor gun, and the commander Of tic
cruiser or some OF his seamen be killed VIA,
description OF offence will have been c5nmi,.
tedf IL would be said in behalf of the com.
mapder OF the cruiser, that he mistook the w..
sci tor vessel Of England, Brszil, or Portugal.
but does this mistake of his take away from ,Ia
American vessel the right of selfdefence? tn.
writer's OF authority declare it 10 be a princirla
OF natural law, that the privilege of self defence
exists AGAINST an assailant who mistakes the
object OF his attack for another whom he had
the right to assail
Lord Aberdeen cannot fail to see. Therefore
what serious consequences might ensue if i
were to be admitted that this claim to visit in
time OF peace, however limited or defined
should be permitted to exist as strict mali,
of right for if it exists as right, it must h.
followed by corresponding duties and obGpa.
tons, and the failure to fulfil those duiie,
would naturally draw penal conse uuences at >,
1t, TIL ere long it would become, in truth. Tai4
less or little other than the belligeren. rirbt NJ
search.
=" Ii visit or visitation be not accompanied he
search, it will be in most cases merely idle 4
sight CT papers may be demanded, and paper.
may be produced. But it is known thai sIsrs
traders carry false papers, and different sets Of
papers. A search for other papers, then. must
De made where suspicion justfes it, or else the
whole proceeding would be nugatory. In su,.
picious cases, the language and general An.
pearance OF the crew are among the means O,
ascertaining the national character of the YES.
sci. The cargo on board also often indicates
the country from which she comes. Her loo
10 oh he
OF her voyage, her internal fitment and comm.
ment, are all evidences for her, or against her
on her allegation of character. These natter
II is obvious, can only be ascertained by rigor
Gus search.
1t may be asked, if vessel NAV not be
called on to show her papers, why does she
| carry papers No doubt she may be called
on to chow her papers but the question is
where, when, and by whom? Not in time Of
peace, on the high seas, where her rights are
equal to the rights of any other vessel, and
where none has a right to modest her. The
use OF her papers is, in time of war, to prove
her neutrality when visite. by bellgerent cruis.
ers; and in both peace and war to show her
national character and the lawfuness of Der
voyage, in those ports of other countries 10
which she may proceed for purposes of trade
:" 1t appears to the Government of the United
States that the view of this whole subject which
is the mcst naturally taken is also the ncs
legal, and most in analogy with other cases
british cruisers have right to detain British
merchantmen Tor certain purposes and thfy
have right, acquired by treaty to detain mer
chant vessels OF several other nations fer the
same purposes. But they have no right at al
to detain an American merchant vessel. TIL:
Lord Aberdeen admits in the fullest manner.
Any detention Of en- American vessel bv
British cruiser is therefore a wrong, a uespass;
although it may be done under the belief that
she was British vessel or that she belonged
to nation which had conceded the right of
such detention to the British cruisers and the
trespass therefore an involuntary trtspass. II
ship OF war, in thick weather or in The dark.
ness Of the night fire upon az sink a neutral
vessel, under the belief that she is an enemys
vessel, this is a trespsss, a mere wrong, AID
cannot be said to be an act done uader any
right, accompanied by responsibility for dana.
ges. SO if a civil officer on land Rave
process against one il dividual ard through l
mistake arrest another, this arrest is wholly l
toruous; no one would think of saying that II
was done under any lawful exercise of author
y, subject only 10 responsibility, CT that it IVES
anything but mere trespass, though an unir
territorial trespass. The municipal law does
rule for the government of such cases and IS
little, in the opinion of the Government Of tie
United States, does the public law Of the word
lay down beforehand any rule for the govern
ment OF cases Of involuntary trespasses, deter i
tons, and injuries at sea except that in beth II
classes OF cases law and reason make q ts \
unction between injuries committed thrcu,h II
mistake and injuries committed BY design: iLe
former being entitled to fair and Just comgyn.
satioD, the latter demanding exemplary dsm,
ages, and sometimes personal punisbmaa 1
The Government of the United States has I
frequently made known is opinion, which i |
now repeats, that the practice Of detailils /
American vessels, though subject to Just con-
pensalion, 1t such detention afterwards turn
out to have been without good cause, hoSeyd
guarded by instructions, or however cautou'iy
exercised, 2eceesari,y leads to serious incOn'
venience and injury. The amount of loss can.
not be always we'll ascertained. Compensate,
If 1t be adequate in the amount, may still,
necessarily, be long delayed and the pendercy
OF such claims always proves troublesome 10
the Government of both countries. These u
detentions, too, frequently irritate individua.s
cause warm blood, and produce nothing but III
effe cts on the amicabe relations existing De-
tween the countries. We wish, therefore 10
put an end to them, and to avoid all occasions
for their recurrence
"On the whole, the Government Of the
United States, while il has not conceded a MI
tual right of visit or search, as has been cone
by the parties to the quintuple treaty OF Deem
Der, lS4l, does not admit that by the Law all
practice of nations there is any such thing s.
a right of visit, distinguished by wellkncT-
rules and definitions from the right OF search
MI
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