Page images

nation scoundrels. It is now principally carried on in the Baltic, where the orders have no operation. Wherever it co-exists with the orders in council, it is not as a consequence of them; but in derogation to them. It complicates the process, obscures the principle, and brings into doubt the justice of the original orders: while it shares, in common with the other relaxations of those ore ders, and we think more justly than any of them, the fate of being thanklessly accepted by those for whose benefit ít is professedly intended. If no relaxation had taken place in the orders in council of November, 1807, and no licences whatever had been granted, the effect of the naval power of Great Britain would have been felt by the enemy more severely, and might even have given a different turn to the war. We cannot but regret that the experiment was not tried upon the northern powers, by hermetically sealing the Baltic, and not suffering a single vessel of any description to pass or repass the Sleeve, which could effectually be done by a small squadron of frigates. A single season of such complete exclusion, would have brought Russia and Sweden to sue for our alliance; whereas, by the licence system, they have enjoyed all the advantages of carrying on, without restriction and without risk, a trade which to ns has been a trade of mere necessity, discouraging to the increase of British shipping and to the growth of British seamen. Had the orders in council been rigidly carried into execution, had the licence system never existed, and had America, instead of thwarting, seconded the views of Great Britain, we believe indeed that

the evils of his own injustice' would have been retorted on the enemy; and that neutral commerce would long ere this have been restored to its ancient footing.

2. We now proceed to the right of search. Grotius, Puffendorff, Vattel, and others, on whose opinions the practice of all the foreign courts of Europe has been founded, condemn, as lawful prize, any neutral ship resisting search, on the ground that such resistance alone affords a presumption of her being employed in an unfair trade. If a neutral were permitted to supply one of the belligerents with the means of carrying on the war, he would become to all intents and purposes a party in that war, and could have no just ground of complaint if treated as an enemy by the other party. But the fact of merchant vessels carrying articles contraband of war, can only be ascertained by visiting them. The inconvenience arising to any vessel, so searched, is no more than a momentary detention on her voyage; it extends only to an inspection of her papers, unless strong suspicions of fraud should appear.

The right of search for seamen is precisely of the same nature as that for goods contraband of war. It is an instruction, as ancient as the navy itself, to the commanders of his Majesty's ships, to VOL. VII. NO, XIII.



search foreign vessels for English seamen, and to compel their masters to deliver them up, and to pay them their wages. Similar instructions have at all times been given by the French to the commanders of their ships of war. The practice is perfectly conformable to the law of nations. Every sovereign has a right to the services of his subjects ; but if, on the breaking out of a war, these subjects avoid his service, by running on board neutral vessels, which perhaps may be employed in aiding the enemy, the right would be a dead letter if the power were denied of visiting neutral vessels, and taking them out wherever found. This right is, and always has been, thus exercised by Great Britain. Every commander of a ship of war is instructed,

" When he meets with any foreign ship or vessel, to send a lieutenant to inquire whether there may be on board of her any seamen who are subjects of his Majesty, and if there be, he is to demand them, provided it does not distress the ship; he is to demand their wages up to the day; but he is to do this without detaining the vessel longer than shall be necessary, or offering any violence to, or in any way illtreating, the master or his crew.'

It is hardly necessary to observe, that, in the present day, merchant vessels only are intended by that instruction. It is distinctly pointed out, not only by whom, but in what manner, the search is to be made. If it be done by any officer below the rank of a lieutenant-if it be done in a violent and unbecoming manner-if the vessel searched be detained longer than necessary-or if, by the removal even of his Majesty's subjects, she be distressed, the commander of the king's ship is guilty of a breach of his instructions, and becomes responsible for any ill consequences that may befal the neutral. The American government, of all others, has the least reason to complain of any tardiness, on the part of that of Great Britain, to punish offenders in this way, or to render ample justice to the injured party. We need scarcely remind it of the immediate removal of Captain Bradley from the command of the Cambrian, for impressing, which he had a right to do, some English seamen from an English ship, but lying within an American harbour, before the President of the United States had time even to prefer a complaint—of the trial of Captain Whitby, by court-martial, for the murder of an American seaman, killed by an accidental shot from the Leander-or of the removal of Admiral Berkeley from his mand, upon his own statement of the affair of the Chesapeake, and before any complaint from America reached England.

Before the disavowal of the British government had reached America, it might be possible for the American government to suppose that the act of Admiral Berkeley was authorized by his inblructions; and consequently that it was intended by Great Britain



[ocr errors]

to set up a new claim,' or rather (properly speaking) to revive our old claim to search ships of war. But that disavowal was founded on the very ground that such a claim was not intended to be set up; and was expressly recorded in a solemn proclamation issued by his Majesty within a few weeks after the affair of the Chesapeake was krown in this country, containing instructions for the exercise of the right of search, from which ships of war were specifically exempted.

After so plain and anxious an exposition of the principles mamtained by the British government on this subject, it might have been hoped, that the imputation of intending to act upon the new claim, as it is called, would be silenced. But as not only the French, as might be expected, still maintain this assertion; it has also been argued upon here, by writers who are in the habit of finding most things wrong in the conduct of their own government, it may not be amiss to say a few words on the history of the claiın in question; which, as we have already stated, so far from being a new claim now advanced, is a very old one, long since abandoned. In the instructions given by the Earl of Northumberland, Lord High Admiral of England, to Sir John Pennington, dated the 4th April, 1640, is to be found the following article. As you meet with

any men of war, merchants, or other ships or vessels belonging to any foreign prince or state, either at sea, or in any road or other place, where you or any of his Majesty's fleet shall happen to come, you are to send to see whether there be any of his Majesty's subjects on board them; and if any seamen, gunners, pilots, or mariners (either English, Scotch or Irish) shall be found on board any of them, you are not only to cause such of his Majesty's subjects to be taken forth, committed, or disposed on board, or otherwise, in such sort, as they be forthcoming, and answer their contempt of his Najesty's proclamation in that kind; but also friendly to admonish the captain, and other principal commanders and officers in such foreign ships and vessels, that they do not receive nor entertain on board any of their ships, no more of his Majesty's subjects, that his Majesty may have no cause to resent it at their hands, &c.'

This instruction, so far from being grounded on“ a new claim, even at that time, had invariably been acted upon, not in two cases only, and no more, as the writers above alluded to assert, but in twenty others. We shall content ourselves with three :—The first is, that of Sir Thomas Allen, who, in 1667, took several British seamen from three French men of war in the Channel, commanded by Monsieur de la Roche.

The second case is that of Captain Jenifer, of the Saudadoes, who, in consequence of four Englishmen on board the Dutch ad miral's ship, (which, with two or three more men of war of that nation, were lying in the Downs,) having written to pray that he BO


would demand them, took them, on being refused, by force. This occurred in the year 1676.

In 1687, a Dutch man of war, coming into the Downs, was visited by the English guard-ship, and four Scotchmen and a boy taken out of her. The Dutch ambassador to the court of London complained of this in a memorial, which he addressed to the secretary of state. The memorial was referred to Sir Richard Raines, then judge of the Admiralty Court, who 'argnied the point' in a .very

able manner. He defended the principle on the natural right which sovereigns have to the services of their subjects, and on the practice which had been followed in all ages. He contended that his Majesty having this right, must be allowed to have the liberty of means effectual to this end, which means are, to compel his subjects to do their duty, otherwise the right is vain and so are the means, if they must be used only by words and proclamations.' The memorial complained that this practice might be inconvenient to foreign ships in time of danger and stress of weather. As if his Majesty,' says the learned judge, 'should omit his own present right and interest, in regard of some future contingent inconveniences, which may, by the wind and the weather, happen to some foreign ships, and should provide against their dangers, but not his own. The memorial goes on to allege that the practice would deprive foreign ships of their men, and hinder merchant ships in their voyages, and men of war in their expeditions— As if his Majesty,' observes the judge, must be deprived of the use of his own subjects, for his own expeditions, that foreigners may make use of them in theirs ;'-and he concludes, I do, with all humble submission, think, that a grant of what is prayed in the memorial would make the sovereign right of no effect, and at one blow destroy all the precedents and continued practices, by which hitherto it has been exercised and confirmed.'

The complaints of the Dutch of our unfriendly treatment of them, in visiting ships of war, in search of English seamen, had indeed induced King Charles II. to bring the matter under serious consideration. In 1677 it was discussed at the Board of Admiralty, at which the king, as was not unusual in those days, presided in person. The standing instructions being read, and the first point, regarding the search of foreign ships of war for English subjects, and the demanding and taking them out, being submitted, it was resolved -It is our right, and to be continued. It appears, however, from the Pepysian Papers, ultimately to have been settled that, although the practice was too ancient, as well as justified by the king's natural rights, to make any variation in the instruction, with respect to the demanding them from foreigners, yet it was judged advisable to leave out the clause which compels the master to pay them their wages, as being unreasonable on many accounts; and though the article of examining foreigners was to continue in the public instructions, yet Mr. Pepys was directed to draw out a private article, instructing our commanders to be discreet in the execution of it to foreign merchantmen; and as to men of war, only to make use of such fair means as they could, without any force; to inform themselves of the number and names of his Majesty's subjects on board them, and, if refused to deliver them up on a fair demand, to report the matter to the Admiralty, in order that the king may demand them together with satisfaction for their detention. (Pepys' MS. Collection.) We are not aware that any instructions subsequent to the reign of Charles II. authorized the searching of men of war, nor do we know of a single instance of the kind having occurred since that of 1687, till the affair of the Chesapeake.


The conduct of Admiral Berkeley in this business was, as we have stated, wholly disapproved by his government, and he was immediately removed from his command. For this unauthorized act of force, committed against an American ship of war, his Majesty did not hesitate to offer immediate and spontaneous reparation. In the mean time Mr. Jefferson, instead of waiting the result of his representations to the British government, issued a violent proclamation, calculated to irritate the minds of the American people against the English ;-and interdicting the waters of America to all British ships of war: an interdiction which was itself a measure of hostility, forasmuch as the ships of war of the French, the other belligerent, were at that time, in full enjoyment of the shelter and convenience of the American harbours. Even after the voluntary offer of reparation, twice repeated, to the utmost possible extent of the injury, with the single proviso that this hostile proclamation of Mr. Jefferson should be recalled, it was not till a few months ago that the petulant and perverse humour of the American government would accept the reparation; and not even then without an insulting and offensive observation from Mr. Robert Smith, who is charged by the President to say, that while he forbears to insist on any farther punishment of the offending officer, he is not the less sensible of the justice and utility of such an example, nor the less persuaded that it would best comport with what is due from his Britannic Majesty to his own honour. There is something so ludicrous in Mr. Madison's instructing his secretary to convey lessons of honour to his Britannic Majesty, that we feel anything but indignation at the intended insult.

We are at a loss to discover what could have prevailed on Mr. Madison to insert in his message any notice of the affair of the Lille Belt, in the shape of a complaint, since his own officers have proved, by their evidence, that Commodore Rodgers was the aggressor.

« PreviousContinue »