The Portage sentinel. [volume] (Ravenna, Ohio) 1861-1862, 1861-11-23
The Hight Of search.


We had occasion some months ago, as our
readers will find on recurring to The National
hteRigencer of May "a, ID animadvert on GER
tain observations made about that time by
English journals, which indicated an imper-
feet knowledge beth Of the, general principles
of public law and Of the peculiar attitude ira
ditionally assumed by our Government in the
matter of ceftain rights and duties defined by
that code. These animadversions were direct
ly ELECTED by some cotemporaneous reflections
of The London Hagss, which had fallen into a
singular misconcept:on with regard to the po-
sition Of the United States respecting the right
Of search, as denied by US in former negoti-
atoms with the British Government That
Iiournal, in the immediate prospect of the civil
war between the National Government ana the
Seeded States had said: "9,.
English cruisers on the coast of Africa for
the purpose of suppressing the slave trade were
paalyzed by the claim put forward by the
United States to resist not only a right OF
search, but also right Of visit in the case OF
vessel who chose to hoist the American flag.
This resistance of the Americans caused a
principle favorable to piracy to become part
Of the maritime law of the world. By that
law the American marine must now be ruled.
The merchant ships which will trade between
Europe and the Confederate States have only
to hoist an English or French flag, and the
great war steamer of the United States navy
must, in obedience to the law of their own
Government has in other cases enforced, allow
them to pass Their holds may be full OF
warlike materials, they may be crammed with
the Armstrong guns now being bought up at
Liverpool; but if the tricolor is flying at the
mizzen, the Minnesota cannot FIRE shot to
bring one of those vessels to at sea without
peril of war with France"
In eonfutation of this strange misapprehen-
sion, which we then imputed 10 "the extra
ordinary ignorance or still more extraordinary
solhistry" of our London contemporary, we re-
called the fact that scarcely two years ago the
American doctrine on this whole subject had
been authoritatively expounded by our Gov
ernment, and had finally received the adhesion
of Great Britain. About that time, it will be
remembered, some British cruisers had repeat
edly overhauled United States merchant ves-
sells in the Gulf of Mexico, under the color of
suppressing the slave-trade, and by this vexa-
ton to our commerce had raised anew the
question respecting the time and conditions
necessary to the legitimate exercise Of the right
of search. The doctrine for which our Gov
ernment contended was simply this, that the
right of search, being in its nature and objects
a purely belligerent right, could not be lawful
ly exercised in time Of peace, or by any other
than belligerent power.
The right of a belligerent to detain and
search vessels of neutrals was not the question
in debate. 1t is enough to quote on this point
a single passage from the dispatch of Mr.. Cass
to Mr.. Dallas, dated February 20, 1859:
There is no right of visit, except, as Lord
Stowell said, from the belhgerent claim. The
forcible visitation of vessels upon the ocean is
prohibited by the law of nations in time OF
peace and this exemption from foreign juris-
diction is now recognized by Great Britain,
and, it is believed, by all other commercial
Powers"
The United States, however, although de-
nying the British claim of visitation in time
of peace, and though denying the right of
search for seamen which England once claim
ed, have never denied the bellgerent right of
search. "This" says Chief Justice Marshall,
sis belligerent right which cannot be drawn
into question" And in the case of the Ne
reide, that great Judge states the ground held
by this country briefly, but, in terms which
exactly define the origin and justification of
the right:
"Belligerents have full and perfect right
to capture enemy goods contraband of war;
To the exercise of that right the right of
search is essential. Itis means justified by
the end. 1t has been truly denominated a
right growing out of and ancillary to the
greater right of capture.'-9 Cranch, 427.
1t will thus be seen that Capt. Wilkes, in
visiting the British steamer Trent and search
ing for Messrs Mason and Slidcll, exercised a
bellgerent right, which, just6able in time
of war, would have been, according to the
American doctrine, an offense against the Bri-
tish flag if ventured in time of peace or by
other than a party to our civil war; 1t is from
failing properly to discriminate between the
right of search, as always admitted by our
Government to obtain in time of war, and de-
MED to exist in time of peace, that some even
of our own citizens have been tempted to fear
that the proceedings of Capt. Wilkes was ta-
ken in contravention of our traditional policy
on this subject. Such fears happily have no
foundation, as the right of search ancillary
to the bcllgerent right Of capture, has been
universally conceded by the Government of
the United States in all its negotiations under
this head with foreign Unconstitutional IN
teIhgencer, Nou. 10. p" H.nE d..
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