of this question until 1858, when the operations of British cruisers in visiting American vessels, in the gulf of Mexico, suspected of being engaged in the slave trade, brought about a direct issue between the two Governments. The United

1 In that year, after considerable correspondence between the British, French, and United States' Governments, a code of instructions was agreed upon. This was issued, with immaterial variation, to the cruisers or vessels of war of each country, and may be said to express the view of each of the three countries on the subject. It is as follows :—

1. The treaty with France for the suppression of the slave trade having been abrogated, I am commanded by my Lords Commissioners of the Admiralty to acquaint you that, under an arrangement which has been adopted provisionally between the British and French Governments, their lordships desire that all commanding officers of Her Majesty's ships will strictly attend to the following regulations with regard to visiting merchant vessels suspected of fraudulently assuming the French flag. 2. In virtue of the immunity of national flags, no merchant vessel navigating the high seas is subject to any foreign jurisdiction. A vessel of war cannot therefore visit, detain, arrest, or seize, except under Treaty, any merchant vessel not recognised as belonging to her own nation.

3. The colours of a vessel being prima facie the distinctive mark of her nationality, and consequently, of the jurisdiction to which she is subject, it is natural that a merchant vessel on the high seas, on finding herself in presence of a ship of war, should hoist her national flag in declaration of her nationality. So soon as the ship of war has made herself known by the display of her own colours, the merchant should, accordingly, hoist her proper national flag.

4. Should the merchant vessel refuse to do so, it is admitted by both Governments that a warning may be given to her, first by firing a blank gun, and should that be without effect, it may be enforced by a second gun, shotted, but pointed in such a manner as to ensure that she is not struck by the shot.

5. Immediately that the colours are hoisted, and that the merchant vessel has in this manner announced her nationality, the foreign vessel of war can no longer pretend to exercise a control over her. At most, in certain cases, she may claim the right to speak with her, and demand answers to questions addressed to her by a speaking trumpet or otherwise, but without obliging her to alter her course. When, however, the presumption of nationality resulting from the colours which may have been shown by a merchant vessel, may be seriously thrown in doubt, or be questionable from positive information, or from indications of a nature to create a belief that the vessel does not belong to the nation whose colours she has assumed, the foreign vessel of war may have recourse to the verification of her assumed nationality.

6. A boat may be detached for this purpose towards the suspected vessel, after having first hailed her to give notice of the intention. The verification will consist in an examination of the papers establishing the nationality of the vessel; nothing can be claimed beyond the exhibition of these documents.

7. To inquire into the nature of the cargo, or the commercial operations of the vessel, or any other fact, in short, than that of the nationality of the vessel, is prohibited. Every other search, and every inspection whatever, is absolutely forbidden.

8. The officer in charge of the verification should proceed with the greatest discretion, and with every possible consideration and care,

States regarded such visits as a violation of their flags, and protested against the acts of these cruisers. Before acting

and should quit the vessel immediately that the verification has been effected, and should offer to note on the ship's papers the circumstances of the verification, and the reasons which have led to it.

9. Except in the case of legitimate suspicion of fraud, it should never otherwise be necessary for the commander of a foreign ship of war to go on board, or to send on board a merchant vessel. Apart from the colours shown, the indications are numerous which should be sufficient to satisfy seamen of the nationality of a vessel.

10. In every case it is to be clearly understood that the captain of a ship of war, who determines to board a merchant vessel, must do so at his own risk and peril, and must remain responsible for all the consequences which may result from his own act.

11. The commander of a ship of war who may have recourse to such a proceeding should, in all cases, report the fact to his own government, and should explain the reason of his having so acted. A communication of this report, and of the reasons which may have led to the verification, will be given officially to the government to which the vessel may belong which shall have been subjected to inquiry as to her flag.

'In all cases in which this inquiry shall not be justified by obvious reasons, or shall not have been made in a proper manner, a claim may arise for indemnity.

'You will clearly understand that the foregoing instructions have reference only to vessels navigating under the French flag, and are intended mutually to prevent misunderstanding beween the British and French governments, but cannot affect the vessels of other nations with whom Great Britain has treaties for the suppression of the slave trade, or deprive Her Majesty of the right to seize and detain vessels engaged in the slave trade, when not entitled to the protection of any national flag.'

Whilst the correspondence on this subject was pending, General Cass, without distinctly recognising the right of a vessel of war to compel a merchant vessel to display colours, said that the simple fact of refusing to exhibit colours was so high a ground of suspicion that it might seem to sanction boarding and further inquiry, and that even if such inquiry were not justified by the result, the Government of the United States would not demand redress for an act of visit executed under those circumstances.

The question may be considered as finally settled.

By the Treaty of Washington, signed the 7th April, 1862, between Great Britain and the United States, it was agreed that those ships of the respective navies of the two nations which should be provided with special instructions for that purpose, as thereinafter mentioned, might visit such merchant vessels of the two nations as might upon reasonable grounds be suspected of being engaged in the African slave trade, or of having been fitted out for that purpose, or of having, during the voyage on which they should be met by the cruisers,been engaged in the African slave trade, contrary to the provisions of the Treaty, and that such cruiser might detain and send or carry away such vessels, in order that they might be brought to trial in the manner thereinafter agreed upon; and it was by the said Treaty further stipulated and agreed that the reciprocal right of search and detention should be exercised only within the distance of two hundred miles from the coast of Africa, and to the southward of the thirty-second parallel of north latitude, and within thirty leagues from the

upon this direct issue the British Ministry referred the question to the law officers of the Crown, and the answer to this

coast of the Island of Cuba; by a Treaty of the 17th February, 1863, it was further agreed between the two nations that the reciprocal right of visit and detention, as defined in the article aforesaid, might be exercised also within thirty leagues of the Island of Madagascar; within thirty leagues of the Island of Puerto Rico; and within thirty leagues of the Island of San Domingo; and that the additional Article should have the same force and validity as if it had been inserted word for word in the Treaty of the 7th April, 1862, and should have the same duration as that Treaty.

By the 36 and 37 Vict. c. 88, it is enacted that where a vessel is, on reasonable grounds, suspected of being engaged in or fitted out for the slave trade, it shall, subject, in the case either of the vessel of a foreign State, or of the commander or officer of a cruiser of a foreign State, to the limitations, restrictions, and regulations, if any applicable thereto, contained in any existing slave trade Treaty made with such State, be lawful: (a) if the vessel is a British vessel, or is engaged in the slave trade within British jurisdiction, or is not a vessel of a foreign State, for any commander or officer of any of Her Majesty's ships, for any officer bearing Her Majesty's commission in the army or navy, for any officer of Her Majesty's customs in the United Kingdom, Channel Islands, or Isle of Man, for the governor of a British possession, or any person authorised by any such governor, and for any commander or officer of any cruiser of a foreign State, authorised in pursuance of any existing slave trade Treaty; and (b) if the vessel is the vessel of a foreign State, for any commander or officer of any of Her Majesty's ships, when duly authorised in that behalf, in pursuance of any treaty with that State, and for any commander or officer of any cruiser of that foreign State, to visit and seize and detain such vessel, and to seize and detain any person found detained or reasonably suspected of having been detained as a slave, for the purpose of the slave trade, on board any such vessel, and to carry away such vessel and person, together with the master and all persons, goods, and effects on board any such vessel, for the purpose of bringing in such vessel, person, goods, and effects for adjudication (s. 3.)

The High Court of Admiralty of England and every Vice-Admiralty Court in Her Majesty's dominions out of the United Kingdom shall have jurisdiction to try and condemn or restore any vessel, slave, goods, and effects, alleged to be seized, detained, or forfeited, in pursuance of this act, and on restoring the same to award such damages in respect of the visitation, seizure, or detention of such vessel, goods and effects, and of any person on board such vessel, and in respect of any act or thing done in relation to such visitation, seizure, or detention, or in respect of any such matters, and in any case to make such order as to costs as, subject to the provisions of this Act and of any existing slave trade treaty, the court may think just.

Provided that nothing in this section shall give to any court any jurisdiction inconsistent with any existing slave trade treaty over a vessel which is shown to such court to be the vessel of any foreign State, and which has not been engaged within jurisdiction in the slave trade, but where any vessel of a foreign State is liable to be condemned by a British slave court, such court shall have the same jurisdiction as if she were a British vessel.

The regulations contained in any existing slave trade treaty for the time being in force, with respect to any mixed court or commission, shall

reference was, as predicted by Mr. Webster and Mr. Wheaton, that no authority could be found to support the pretensions of Lord Aberdeen; and the right of visit in time of peace, as distinguished from the belligerent right of visitation and search, was then distinctly and unequivocally disavowed by the British Government. The Earl of Malmesbury, Minister of Foreign Affairs, announced in the House of Lords, on the 26th of July, 1858, that, on receiving the unanimous opinion of the law officers of the Crown, 'her Majesty's Government at once acted, and we frankly confessed that we had no legal claim to the right of visit and of search which has hitherto been assumed. Her Majesty's Government have therefore abandoned both these claims.' Lord Lyndhurst, on the same occasion, in answer to the charge that the Government had surrendered a most valuable and important right, said, 'We have surrendered no right at all; for, in point of fact, no such right as that contended for has ever existed. We have, my lords, abandoned that assumption of right, and, in doing so, I think that we have acted justly, prudently, and wisely.' After quoting several authorities, he continues, 'Your lordships will perceive that both on this side of the water, and in America, the highest authorities on the subject have pronounced against any such supposed right. For myself, I may say I have never been able to discover any principle of law or of reason upon which such a right could rest.' Again, ‘I will refer now only to the principle on which the question itself rests. What is the rule in respect to the high seas, and to the navigation on the high seas? All nations are equal on the high seas. Whether they be the most powerful or the weakest, their vessels on the high seas are placed upon a perfect footing of equality. What is the position of a merchant ship upon the high seas? Why, it is part of the dominion of the country to which it belongs.

have effect as if they were enacted in this Act, and such court or commission shall have all necessary jurisdiction for the purpose of carrying into effect any treaty referring to them, and in particular shall have jurisdiction to try, condemn, and restore British vessels seized in pursuance of such treaty on suspicion of being engaged in the slave trade, and shall, for the purpose of their jurisdiction, have the same power as any Vice-Admiralty Court in Her Majesty's dominions has, and may accordingly take evidence, administer oaths, summon and enforce the attendance of witnesses, and acquire and enforce the production of documents in like manner as any such court (s. 8.)

What right has one nation, then, to interfere with another when their rights on the high seas are coequal? What right has one nation to interrupt or to interfere with the navigation of another nation? Why, the principle is so clear and so distinct that it will not admit of the smallest doubt.' 'Having stated this principle, the next question which arises is this: How are those difficulties to be met which arise out of frauds practised on the high seas? It may be said that the flag of America may be assumed by another power to cover the basest of purposes. But how can that affect the right? How can the conduct of a third power affect any right existing on the part of the United States? By our treaty with Spain we have, no doubt, the right to visit and search Spanish vessels with the view to the suppression of the slave trade. But how can the treaty between Spain and us affect the rights of America? Why, common reason is decisive on the subject. Well, but what other course can we take? I say that the course is quite clear and plain. If one of our cruisers see a vessel with the American flag, and has reason to believe it is assumed, he must examine and inquire into the facts as well as he can. If he ascertains, to the best of his judgment, that the vessel has no right to use the American flag, he may certainly visit and examine her papers, and if he finds his suspicions correct, he may deal with the vessel in a manner justified by the particular relation existing between England and that country to which the vessel belongs. America, in such a case, would have no right to interfere. The matter would simply be one between an English cruiser and the particular vessel seized. But, on the other hand, if it should turn out that the vessel after all was an American one, that was perfectly justified in using the flag suspected, our situation is this, that we should immediately apologise for the act that was committed, and make the most ample reparation for the injury that was committed.' The foregoing remarks of Lord Lyndhurst were adopted by the British Minister of Foreign Affairs as expressive of the opinions of his Government.1

§ 10. Although it is universally conceded that the vessels

1 Lawrence, On Visitation and Search, pp. 181, et seq.; Monthly Law Reporter, vol. xxi., p. 265; London Times, July 27, 1858; Revue des Deuz Mondes, July 1, 1858.