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connected with the forms of proceeding, and peculiar construction of the mixed commissions, would be completely avoided; and, with respect to any embarrassments attending the disposal of condemned vessels and liberated slaves, it has already been suggested by a committee of the House of Representatives that the provisions of the act of Congress passed the 3d of March, 1819, might be applied to them without difficulty or inconvenience.
The question being thus relieved from all connexion with the mixed com missions, every constitutional objection, arising out of their alleged incompatibility with the institutions of the United States, is at once removed from consideration. The remaining obstacles may be reduced under the following heads: the unpopularity of the right of search in this country; its tendency, if mutually employed, to produce an unfriendly collision between the two nations; and a certain supposed inequality, which would attend its exercise.
With respect to any doubt of its utility, created by a persuasion that very few vessels under American colors have been discovered, for some time past, on the coast of Africa, it requires but little reflection to prove that no conclusive inference can be drawn from that circumstance. Not to dwell upon the extent and nature of the slave coast, peculiarly favorable to the concealment of trading vessels, it must be remembered, that the United States have maintained, at no time, a greater number of cruizers than two, rarely more than one, and latterly, during several months together, no ship of war whatever, on the African station. As late as the 14th of January, 1822, it was stated, officially, by the Governor of Sierra Leone, “ that the fine rivers Nunez and Pongas were entirely under the control of renegado European and American slave dealers.
But, if it were even manifest, that the active and judicious exertions of your naval officers, in that quarter, had really effected a total disuse of the American flag in slave trading, the right of search would still be most highly desirable, in order to secure and extend so important an advantage. As an example, indeed, to other Powers, particularly to France, whose subjects, encouraged by the loose and equivocal measures of their Government, are convicted, by a mass of evidence too strong to be resisted, of being concerned, to a deplorable degree, in this atrocious commerce, the concurrence of the the United States in asystem of which the very first result is to augment considerably the means of bringing offenders to justice, can hardly be rated at too high a value. The example which they are called upon to give, is not merely due to the claims of humanity: Great Britain and the United States are not only pledged to put down the slave trade, within the limits of their immediate jurisdiction; they are also bound, by solemn obligations, to employ their utmost endeavors for its complete and universal extermination. They have both succeeded in their great and benevolent object, so far as the rigor of legislative enactments is capable of counteracting the temptation of enormous profit, which stimulates the unprincipled avarice of the slave merchant. It is the facility of escaping detection, and not any want of severity in the punishment attached to a violation of their laws, which, as far as they are concerned, requires a more decisive remedy; and a remedy adequate to the evil can only be found in such measures as will strip the illicit trader of every disguise, and throw the chances entirely on the side of failure in his inhuman speculations. In the case of a search at sea, the means unavoidably employed in the commission of this crime are fortunately, it may be said providen
tially, of such a nature as in general to furnish a plain substantial body of proof for the conviction of the criminal.
For the satisfaction of those who seriously apprehend that the friendly relations subsisting between the two countries would be endangered by the admission of a practice which, in their opinion, must necessarily produce a vexatious exercise of authority on the part of the searching officer, and frequent complaints on that of the merchant whose vessel is subjected to search, with the supposed aggravation of an unequal pressure on one of the contracting parties, his Majesty's Government would, doubtless, agree to confine the right of visit to a fixed number of cruizers on each side, restricted, in the performance of this duty, to certain specified parts of the ocean,
of and acting under regulations, prepared by mutual consent, for the purpose preventing abuses. To these important limitations, if not deemed sufficient, others might easily be added; the arrangement, for example, might be temporarily, adopted, in the first instance, for a short period, and only to be continued in the event of its being found, on trial, to operate in a satisfactory manner. With this understanding, a speedy termination would at least be ensured to any objectionable result attending its operation; and, for the sake of interests so dear to humanity, an experiment, of which the advantage, as to its main object, is certain and complete, the inconvenience contingent and momentary, might surely be reconciled with a due regard to considerations exclusively national.
Supposing that inconvenience should be found, in practice, to press unequally on either of the two parties, Great Britain, and not the United States, is most likely to have cause of complaint, inasmuch as the greater extent of her trade, especially on the coast of Africa, must naturally expose her, in a greater degree, to any injurious consequences of the agreement. Great Britain, however, is less disposed to shrink from any sacrifice, by which she can materially advance the sacred cause of abolition, than to lament, and if possible, to dispel those mistaken notions and unfounded jealousies, which deprive her exertions of their full effect, and serve, but too successfully, to protract the existence of a mischief which all unite in deploring. In point of principle, the honor of neither flag would be tarnished by having its protection withdrawn for a season from those who perpetrate the atrocities of the slave trade; and permit me, sir, to add, that what Great Britain is ready to allow, in a matter so vital to her pride and to her power, may surely be allowed, reciprocally, by any other nation, however scrupulous in the maintenance of its maritime independence.
That an agreement between our respective cabinets, founded on a mutual right of search, thus guarded and explained, would fail to obtain the consent of the American Senate, or that a-nation so inquiring and enlightened as the United States would confound the proposed measure with that practice which afforried matter of painful contention during the last wars in Europe, is what I am extremely unwilling to anticipate. The two objects are, in fact, so totally distinct from each other, in principle, purpose, and mode of execution, that the proposal of the British Government need only be presented to the examination, I will not say of a elect and experienced assembly, but of the people at large, in order to be seen in its true bearings.
So far is the British proposal from tending to commit the American Government on the long disputed question of the belligerent right of search, that, if it may be supposed to touch that question at all, it appears rather to operate in the sense of the United States than unfavorably for their view of the subject.
The officers entrusted on either side with the duty of examining suspected vessels, would necessarily act under instructions calculated to ensure a perfect harmony between the principle and the application of this conceded right; nor is it to be feared that they would presume, in any case, to extend the visit thus authorized at sea beyond the particular and specified object to which it is meant to be confined.
I have the honor to request, Sir, that you will again accept the assurance of my highest consideration.
STRATFORD CANNING. Hon. JOHN QUINCY ADAMS,
Secretary of State, &.c.
Mr. Adams to Mr. Canning.
DEPARTMENT OF STATE,
Washington, 241h June, 1823. Sır: In the letter which I had the honor of addressing you on the 31st of March last, a proposal was made, to be submitted to the consideration of your Government, ihat the principle assumed in an act of the Congress of the United States, of 15th of May, 1820, of considering and punishing the African slave trade as piracy, should be adopted as the basis of a stipulation by treaty between the United States and Great Britain, and to be urged separately upon the adoption of France, and upon the other maritime nations of Europe, in the manner most conducive to its ultimate success. It was observed that this offer was presented as a substitute for that of conceding a mutual right of search, and a trial by mixed commissions, to which the United States could not be reconciled, and which would be rendered useless by it.
Your letter of the 8th of April, to which I have now the honor to reply, intimates that his Majesty's Government will be disposed to receive this offer only as an acknowledgment that measures more efficient than any now generally in force are indispensable for the suppression of the slave trade; and that
, although they have never opposed the consideration of any other plan, brought forward as equally effective, yet, having from the first regarded a mutual limited concession of the right of search as the only true and practical cure for the evil, their prevailing sentiment will be of regret at the unfavorable view still taken of it by the Government of the United States. Your letter, therefore, urges a reconsideration of the proposal for this mutual concession of the right of search, and, by presenting important modifications of the proposal heretofore made, removes some of the objections which had been taken to it, as insuperable, while it offers argumentative answers to the others which had been disclosed in my previous communications on the sub
In the treaties of Great Britain with Spain, Portugal, and the Netherlands, for the suppression of the slave trade, heretofore communicated, with the invitation to the United States to enter into similar engagements, three principles were involved, to neither of which the Government of the United States felt itself at liberty to accede. The first was the mutual concession of the right of search and capture, in time of peace, over merchant vessels, on the coast of Africa. The second was, the exercise of that right even over vessels under convoy of the public officers of their own nation; and the third
ject to you.
was the trial of the eaptured vessels by mixed commissions in colonial settlements, under no subordination to the ordinary judicial tribunals of the country to which the party brought before them for trial should belong. In the course of the correspondence relating to these proposals, it has been suggested that a substitute for the trial by mixed commissions might be agreed to; and in your letter of the 8th of April, an expectation is authorized, that an arrangement for the adjudication of the vessels detainec!, might leave them to be disposed of in the ordinary way, by the sentence of a Court of Admiralty in the country of the captor, or place them under the jurisdiction of a similar court in the country to which they belonged; to the former alternative of which you anticipate the unhesitating admission of the United States, in consideration of the aggravated nature of the crime, as acknowledged by their laws, which would be thus submitted to a foreign jurisdiction But it was precisely because the jurisdiction was foreign that the objection was taken to the trial by mixed commissions; and if it transcended the constitutional authority of the Government of the United States, to subject the persons, property, and reputation of their citizens, to the decisions of a court partly composed of their own countrymen, it might seem needless to remark, that the constitutional objection could not diminish, in proportion as its cause should increase, or that the power incompetent to make American citizens amenable to a court consisting one-half of foreigners, should be adequate to place their liberty, their fortune, and their fame, at the disposal of tribunals entirely foreign. I would further remark, that the sentence of a Court of Admiralty in the country of the captor is not the ordinary way by which the merchant vessels of one nation, taken on the high seas, by the officers of another, are tried in time of peace. There is, in the ordinary way, no right whatever existing, to take, to search, or even to board them; and I take this occasion to express the great satisfaction with which we have seen this principle solemnly recognised by the recent decision of a British Court of Admiralty. Nor is the aggravation of the crime for the trial of which a tribunal may be instituted, a cogent motive for assenting to the principle of subjecting American citizens, their rights and interests, to the decision of foreign courts; for, although Great Britain, as you remark, may be willing to abandon those of her subjects who defy the laws and tarnish the character of their country, by participating in this trade, to the dispensation of justice even by foreign hands, the United States are bound to remember that the power which enables a court to try the guilty authorizes them also to pronounce upon the fate of the innocent; and that the very question of guilt or innocence is that which the protecting care of their constitution has reserved for the citizens of this Union, to the exclusive decision of their own countrymen. This principle has not been departed from by the statute which has branded the slave trader with the name, and doomed him to the punishment of a pirate. The distinction between piracy by the law of nations, and piracy by statute, is well known and understood in Great Britain; and while the former subjects the transgressor guilty of it to the jurisdiction of any and every country into which he may be brought, or wherein he may be taken, the latter forms a part of the municipal criminal code of the country where it is enacted, and can be tried only by its own courts.
There remains the suggestion, that the slave trader captured under the mutual concession of the power to make the capturc, might be delivered over to the jurisdiction of his own country. This arrangement would not be liable to the constitutional objection, which must ever apply to the jurisdiction
of the mixed commission, or of the admiralty courts of the captor; and if your note is to be understood as presenting it in the character of an alternative, to which your Government is disposed to accede, I am authorized to say, that the President considers it as sufficient to remove the insuperable obstacle which had precluded the assent of the United States to the former proposals of your Government, resulting from the character and composition of the tribunals to whom the question of guilt or innocence was to be committed..
The objections to the right of search, as incident to the right of detention and capture, are also in a very considerable degree removed, by the introduction of the principle, that neither of them should
be exercised, butunderthe responsibility of the captor to the tribunals of the captured party, in damages and costs. This guard against the abuses of a power so liable to abuse, would be indispensable; but, if the provisions necessary for securing effectually its practical operation, would reduce the right itself to a power merely nominal, the stipulation of it in a treaty would serve rather to mark the sacrifice of a great and precious principle, than to attain the end for which it would be given up.
Io the objections heretofore disclosed to the concession desired, of the mutual and qualified right of search, the principal stress was laid upon the repugnance which such a concession would meet in the public feeling of this country, and of those to whom its interests are entrusted in the department of its Government, the sanction of which is required for the ratification of treaties. The irritating tendency of the practice of search, and the inequalities of its probable operation, were slightly noticed, and have been contested in argument, or met by propositions of possible palliatives, or remedies for anticipated abuses, in your letter. But the source and foundation of all these objections, was, in our former correspondence, scarcely mentioned, and never discussed. They consist in the nature of the right of search, at sea, which, as recognised or tolerated by the usage of nations, is a right exclusively of war, never exercised but by an outrage upon the rights of peace. It is an act analogous to that of searching the dwelling-houses of individuals on the land. The vessel of the navigator is his dwelling-house; and, like that, in the sentiment of every people that cherishes the blessings of personal liberty and security, ought to be a sanctuary, inviolable to the hand of power, unless upon the most unequivocal public necessity, and under the most rigorous personal responsibility of the intruder. Search at sea, as recognised by all maritime nations, is confined to the single object of finding and taking contraband of war. By the law of nature, when two nations conflict together in war, a third, remaining neutral, retains all its rights of peace, and friendly intercourse with both. Each belligerent, indeed, acquires, by war, the right of preventing a third party from administering to his enemy the direct and immediate materials of war; and, as incidental to chis right, that of searching the merchant vessels of the neutral on the high seas, to find them.
Even thus limited, it is an act of power which nothing but necessity can - justify, inasmuch as it cannot be exercised, but by carrying the evils of war
into the abodes of peace, and by visiting the innocent with some of the penalties of guilt. Among the modern maritime nations, an usage has crept in, not founded upon the law of nature, never universally admitted, often successfully resisted, and against which, all have occasionally borne testimony, by renouncing it in treaties, of extending this practice of search and seizure, to all the property of the enemy in the vessel of the friend. This practice was, in its origin, evidently an abusive, and wrongful extension of the search