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Second-Right of Detention. No visit or detention can take place, except by a commissioned officer having the instructions above referred to, as his special authority for the same; nor can he detain
and carry into port any vessel so visited, except on the single and simple fact of slaves found on board. There is a saving clause to distinguish domestic slaves, acting as servants or sailors, from those strictly appertaining to the traffic. The powers mutually engage to make the officer personally responsible for any abusive exercise of authority, independent of the pecuniary indemnity to be paid, as hereafter stated, to the owner, for the improper detention of his vessel.
The visiting officer finding slaves on board, as he conceives, contrary to law, may carry the vessel into whichever of the two ports is the nearest, where the mixed commission belonging to the capturing and captured vessels shall reside; but by doing so, he not only renders himself personally responsible to his own government for the discretion of the act, but he also makes his government answerable to the government of the State to whom the vessel so detained belongs, for the full compensation, in pecuniary damage, which the mixed commission may award to the owners for the detention, if unjustifiably made.
The mixed commission has no jurisdiction of a criminal character, and consequently can neither detain nor punish the persons found on board ships so detained, for any offences they may, by such slave trading, have committed against the laws of their particular State. The mixed commission has no other authority than summarily to decide whether the ship has been properly detained, or not, for having slaves illicitly on board. If this is decided in the affirmative, the ship and cargo (if any on board) are forfeited, the proceeds to be equally divided between the tuo States; the slaves to be provided for by the State in whose territory the condemnation takes place.
If the mixed commission orders the vessel to be released, it is required at the same moment to award such pecuniary compensation to the owners for the detention, as appears to them reasonable.
A table of demurrage is given in the treaties, and the government of the detaining officer is bound to discharge the sum so awarded, without appeal, within twelve months.
The mixed commission is composed of a commissary judge, and a commissary arbitrator, of each nation, as was provided in the convention signed between Great Britain and France, in 1815, for adjudicating the private claims.
Fourth—the Sphere of Operation. In the Spanish and Portuguese conventions, there is no other restriction as to the limits within which detention, as above, may take place, than what arose naturally out of the state of the laws, viz: that so long as either Power might lawfully trade in slaves to the South of the equator, no detention should take place within those limits.
In the convention with Holland, a line is drawn from the Straits of Gibraltar to a point in the United States, so as to except out of the operation what may be called the European seaș.
In all these conventions, the whole range of voyage, from the coast of Africa to the opposite shores of both Americas, including the West Indies, is subjected to the regulated surveillance thus established.
Upon the first head, it does not occur that any further restrictions than those provided in the Netherlands' convention can be required. But this is always open to negotiation.
The same observation appears applicable io the second head.
The same observation applies also to the third head, with this distinction; that a State, such as Austria for example, agreeing to the measure, but having little or no trade on that coast, instead of immediately going to the expense of constituting commissions, might reserve the power of doing so whenever she thought fit; or might be enabled, if she prefer it, to authorize the commissioners of any other State to take cognizance, in her name, of any cases in which the property of Austrian subjects might be concerned.
The fourth head seems most susceptible of comment, as it admits the possibility of search over the whole surface of the Atlantic, and in the West Indian seas, where the trading vessels of commercial States are more numerous than on the coast of Africa.
Great Britain was herself so fully satisfied, that, under the checks established, abuse is so little to be presumed, that she did not hesitate to expose her own commerce in those seas, however extended, to this, as she conceives, imaginary inconvenience; considering that so urgent a claim upon her humanity would not only justify, but impose upon her as a moral duty even a greater sacrifice.
But notwithstanding what Great Britain has already done in her treaties with the three powers with whom she has contracted, and is ready to do with all other civilized States, namely, to run some risk of inconvenience for so noble a purpose, there is a distinction which may reasonably be taken between giving effect to this system upon the coast of Africa, and for a cer. tain distance, say two hundred leagues from that particular coast, and the extending the same over the entire of the Atlantic and West Indian seas. The latter, as the most effectual measure, Great Britain has preferred, with whatever of inconvenience it may be connected in its operation; but she would not be the less disposed to attach value to the more limited application of the principle.
It may be stated, that, so long as the laws of any one State shall permit a trade in slaves, or that any flag shall exist in the world which is not comprehended in this system of maritime police against the contraband slave trader, the evil will continue to exist. This reasoning, although plausible, should not discourage a common effort against the abuse committed, and upon close examination it will be found fallacious.
1st. The whole of the African coast North of the line, is at this moment emancipated from the traffic by the laws of all States having colonies.
2dly. By the 20th May, 1820, no flag of any such state will be enabled legally to carry on the traffic any where to the North of the line on either side of the Atlantic; nor any flag, other than the Portuguese, be authorized to trade South of the line.
Supposing, for a moment, that Portugal should not abolish to the South of the line, till the expiration of the eight years complete from the declaration
of Vienna, viz. 1823, what an immense sphere, nevertheless, of salutary opeeraiion, would not this conservative alliance have in the interval?
The other branch of the objection is not more solid; it is true, that the ship and flag of the smallest Power might, in legal theory, cover these transactions; but, where the property is not belonging to a subject of that Power, butof a state that has abolished, the flag of that power, so used in fraud, would be no cover, and the property thus masked would be condemned, whilst the sovereign, whose flag was thus prostituted, neither could nor would complain.
But so long as any of the great Powers, such as France, having a considerable extent of commerce on those coasts, shall refuse to adopt the system, not only their example will discourage other States, whose interest is merely nominal, from taking a part, but it will furnish the illicit slave trader with a fag, not only so much to be respected in itself, but so presumable to be found on the coast for purposes of innocent commerce, that no commissioned officer will run the risk of looking into such a vessel, at the hazard of involving himself and his government in a question with a foreign Power. The practical as well as the moral effects of the principal maritime States making common cause upon this subject is incalculable. In fact, it must be decisive: without it, their flags must be made the instrument of reciprocally withdrawing the subject from the authority of the sovereign, when committing this offence.
This latter point will appear clear, when we consider the working of the system under the two alternatives. If all the great maritine States adopt the principle, their cruizers form but one squadron against the illicit slave traders, and none of their flags can be made to cover the fraudulent transaction; the immediate effect of which would be considerably to multiply the number of the cruizers, consequently the chance of captures, whilst it would reduce the number of the flags which the illicit slave traders could assume. Whereas, if France acts alone, the danger to the French illicit trade is reduced to the chance of what her own cruizers may be enabled to effect along the im-' mensity of that coast; and even where a French armed ship falls in with a French slave trader, by hoisting English, Spanish, Portuguese, or Dutch colors, the French officer, supposing him anxious to do his duty, will be very cautious in hazarding a visit where there is so reasonable a presumption that the vessel may be what the flag announces.
But take the other supposition, that all the principal maritime Powers shall act in concert, and that the vessel suspected of having slaves on board hoists the flag of any nther State, suppose the Hanseatic flag, the presumption is so conclusive against a Hamburg vessel trading in slaves on her own account, that no officer would hesitate to search the vessel in order to detect the fraud.
It may be further confidently asserted, that, if the Powers having a real and local interest, come to an understanding and act together, the other states will cheerfully come into the measure, so far as not to suffer their flags to be so monstrously perverted and abused. The omission of France is above all other's important, from its station in Europe, and from its possessions in Africa; its separation from the common effort, more especially if imitated by Russia, Austria, and Prussia, will not only disappoint all the hopes which the world has been taught to form, with respect to the labors of the conference established in London under the third additional article of the treaty of November, 1815, but will introduce schism and murmur into the ranks of the friends of abolition. The States having abolished, will no longer form
one compact and unanimous body, laboring to affiliate the state which has yet to abolish, to a common system, and to render their own acts efficacious; but they will compose two sects, one of States that have made the possible inconvenience of a restricted visit to their merchant ships, bend to the greater claims of humanity; the other, of States considering their former objection as so far paramount, as not to admit of any qualification, even for the indisputable advantage of a cause, to the importance of which they have at Vienna given a not less solemn sanction. This must materially retard the ultimate success of the measure, and it may in the interval keep alive an inconvenient degree of controversy and agitation upon a subject which has contributed, above all others, seriously to excite the moral and religious sentiments of all nations, but especially of the British people, by whom the question has long been regarded as one of the deepest interest.
Despatch from Viscount Castlereagh to Earl Bathurst, ceted
AIX-LA-CHAPELLE, November 12, 1818. My LORD: I have the honor to enclose to your Lordship the Protocol of the conferences of the allied ministers of the 4th instant
This Protocol details the further proceedings upon the slave trade, and has annexed to it the memorandum drawn up by me on the same subject, which was communicated to your Lordship in my despatch of the 2d instant.
I have, &c.
CASTLEREAGH. EARL BATHURST, &c. &c.
ENCLOSURE IN No. Fo.
Protocol of the conferences between the Plenipotentiaries of the five
Powers, held at Aix-la-Chapelle, the 4th of November, 1818. In reference to the communications made to the conference on the 24th of October, Lord Castlereagh this day developed his propositions relative to the abolition of the slave trade; propositions the object of which is, on the one hand, to complete and extend the measures already adopted for the attainment of the definite extinction of this traffic, and on the other hand, to ensure the execution and the efficacy of those measures. As to the first obo ject, Lord Castlereagh proposed that some measures should be adopted towards his majesty the king of Portugal and Brazil, and that a letter should be written in the name of the sovereigns, in the most pressing, and at the same time the most affectionate terms, in order to engage his most faithful majesty, reminding him of the part he had taken in the declaration of Vienna, of the 8th of February, 1815, to fix without further delay the period for the definitive abolition of the slave trade throughout his possessions, & period which, after the engagements entered into by the plenipotentiaries of his said majesty at Vienna, and inserted in the Protocol of the 20th November, 1815, should not extend beyond the year 1823, but which the allied
sovereigns desire, from the interest they take in this great cause, to see coincide with that which his majesty the king of Spain has adopted in fixing the 30th of May, 1820, as the final term of that traffic. This proposition was unanimously received.
Lord Castlereagh, in calling the attention of the conference to the declaration of the plenipotentiaries of his most faithful majesty, made at Vienna, on the 6th of February, 1815, “that they were forced to require, as an indispensable condition for the final abolition, that his Britannic majesty should on his side consent to the changes which they had proposed to the commercial system between Portugal and Great Britain,” renewed the assurance that his majesty the king of Great Britain was ready to accede to all the reasonable modifications which should be proposed in the existing treaties of commerce with Portugal; which assurance he had repeatedly given to the Portuguese minister in London. Lord Castlereagh, above all, desired to call the attention of the conference to the expression reasonable modifications, which he made use of, because he could not suppose that the Portu. guese ministers intended to demand, on the part of a single Power, sacrifices which one state could not well expect of another as indispensable conditions of a general measure, having for its object the good of humanity alone.
As to the second object, Lord Castlereagh communicated a memorandum (A.) containing explanations of the treaties concluded in 1817, between Great Britain, Spain, and Portugal, and the kingdom of the Netherlands, establishing the right of visit against the vessels evidently suspected of being engaged in the trade, in direct contravention of the laws already existing, or hereafter to be made by the different states. Persuaded that, after the explanations given, and the modifications proposed in the said memorandum, such a measure might be adopted without any serious inconvenience, Lord Castlereagh invited the plenipotentiaries to take it into their consideration in the sense the most favorable to the success of the abolition, and to agree to it; or if not, at least to substitute some counter project effectually to prevent the abuse which the illicit trader will not fail to make of the flag of the Powers who should refuse to concur in the above mentioned general measure. The memorandum of Lord Castlereagh was annexed to the Protocol, sublit. A.
Lord Castlereagh added to these propositions, that, according to the opinion of several persons, whose authority was of great weight on this question, it would be useful, and perhaps necessary, to consider the trade in slaves as a crime against the law of nations, and to this effect to assimilate it to piracy, as soon as, by the accession of Portugal, the abolition of the traffic shall have become an universal measure. He requested the plenipotentiaries to take this opinion into consideration, without making at present a formal proposition upon it.