International Right of Search in the United States
The Struggle for an International Right of Search (1820–1840) and the International Status of the Slave-Trade (1783–1863)
In the book “The Suppression of the African Slave Trade to the United States of America 1638-1870” (1), W. E. B. Du Bois explained the following: Whatever England’s motives were, it is certain that only a limited international Right of Visit on the high seas could suppress or greatly limit the slave-trade. Her diplomacy was therefore henceforth directed to this end. On the other hand, the maritime supremacy of England, so successfully138asserted during the Napoleonic wars, would, in case a Right of Search were granted, virtually make England the policeman of the seas; and if nations like the United States had already, under present conditions, had just cause to complain of violations by England of their rights on the seas, might not any extension of rights by international agreement be dangerous? It was such considerations that for many years brought the powers to a dead-lock in their efforts to suppress the slave-trade.
At first it looked as if England might attempt, by judicial decisions in her own courts, to seize even foreign slavers.25 After the war, however, her courts disavowed such action,26 and the right was sought for by treaty stipulation. Castlereagh took early opportunity to approach the United States on the matter, suggesting to Minister Rush, June 20, 1818, a mutual but strictly limited Right of Search.27 Rush was ordered to give him assurances of the solicitude of the United States to suppress the traffic, but to state that the concessions asked for appeared of a character not adaptable to our institutions. Negotiations were then transferred to Washington; and the new British minister, Mr. Stratford Canning, approached Adams with full instructions in December, 1820.28
Meantime, it had become clear to many in the United States that the individual efforts of States could never suppress or even limit the trade without systematic co-operation. In 1817 a committee of the House had urged the opening of negotiations looking toward such international co-operation,29 and a Senate motion to the same effect had caused long debate.30 In 1820 and 1821 two House committee reports, one of which recommended the granting of a Right of Search, were adopted by the House, but failed in the Senate.31 Adams, notwithstanding this, saw constitutional objections to the 139plan proposed by Canning, and wrote to him, December 30: “A Compact, giving the power to the Naval Officers of one Nation to search the Merchant Vessels of another for Offenders and offences against the Laws of the latter, backed by a further power to seize and carry into a Foreign Port, and there subject to the decision of a Tribunal composed of at least one half Foreigners, irresponsible to the Supreme Corrective tribunal of this Union, and not amendable to the controul of impeachment for official misdemeanors, was an investment of power, over the persons, property and reputation of the Citizens of this Country, not only unwarranted by any delegation of Sovereign Power to the National Government, but so adverse to the elementary principles and indispensable securities of individual rights, … that not even the most unqualified approbation of the ends … could justify the transgression.” He then suggested co-operation of the fleets on the coast of Africa, a proposal which was promptly accepted.32
The slave-trade was again a subject of international consideration at the Congress of Verona in 1822. Austria, France, Great Britain, Russia, and Prussia were represented. The English delegates declared that, although only Portugal and Brazil allowed the trade, yet the traffic was at that moment carried on to a greater extent than ever before. They said that in seven months of the year 1821 no less than 21,000 slaves were abducted, and three hundred and fifty-two vessels entered African ports north of the equator. “It is obvious,” said they, “that this crime is committed in contravention of the Laws of every Country of Europe, and of America, excepting only of one, and that it requires something more than the ordinary operation of Law to prevent it.” England therefore recommended:—
1. That each country denounce the trade as piracy, with a view of founding upon the aggregate of such separate declarations a general law to be incorporated in the Law of Nations.
2. A withdrawing of the flags of the Powers from persons not natives of these States, who engage in the traffic under the flags of these States.
3. A refusal to admit to their domains the produce of the colonies of States allowing the trade, a measure which would apply to Portugal and Brazil alone.
These proposals were not accepted. Austria would agree to the first two only; France refused to denounce the trade as piracy; and Prussia was non-committal. The utmost that could be gained was another denunciation of the trade couched in general terms.33