Handbook of Maritime Rights/Chapter 3
CHAPTER III.
The Right of Search.
The right to seize enemies cargoes is often, though improperly, called "the right of search." This latter right is of course included in the larger right of seizure, but it is by no means co-extensive with it. Even if the right of seizure were abolished the right of search would remain, with a view to ascertain the ship's nationality, and also that she had no contraband of war on board. It has never been proposed to abolish the right of search, and as long as contraband of war is prohibited the right of search must remain.
A certain limitation of the right of search was proposed by the Powers who formed the second armed Neutrality of 1800, viz., that merchant vessels under convoy should not be searched; that the man-of-war under whose protection the convoy was sailing should be, as it were, a guarantee that no contraband was on board; and that a merchantman belonging to any one of the coalesced neutrals might put itself under the protection of a man-of-war belonging to any of the coalesced neutrals that it might chance to meet in the open sea, and that such convoy should be sufficient to protect it against search. England, however, refused to acknowledge this pretension, issued letters of marque against the coalesced neutrals, and within twelve months dissolved this armed neutrality. It is fair to state that, when peace was made, England made one concession to the armed Neutrality, viz., that merchant-men under convoy should only be searched by men-of-war and not by privateers.
It is sometimes, very incorrectly, stated that the war of 1812 with the United States was brought about by the exercise on the part of this country of the right of search. No statement can be more absurd, and it is an instance, among so many, of the extremely loose way in which technical expressions are used, and patent historical facts perverted. The overt cause of war with the United States was the right claimed by this country of impressing English sailors found on board American vessels. That English sailors often took refuge under the American Flag to avoid impressment was notorious, but that the right claimed by this country was often very injudiciously exercised, and that bona fide citizens of New York, and Boston were often impressed under the mistaken idea or pretext that they were Britishers, appears now to be acknowledged.
The American Government did not deny that the English had a grievance, and they offered to redress it by a change in their municipal law if we would abandon our high-handed proceedings; but for many years before this, between 1809 and 1812, many irritating discussions had taken place between the two Governments relative to the abuses of so-called maritime rights on our side and fraudulent evasions of neutral obligations on the part of the Americans, and in all these discussions, which are to be found at length in the official correspondence with the American Government during those years, not one word appears concerning the right of search. The real irritating topic was our paper blockades, by which we practically prohibited all neutral trade; and what greatly aggravated the feeling of irritation on the part of the Americans, as distinctly stated by the American President, was an exception to this general prohibition which we made in favour of our own trade so that whilst forbidding neutrals to trade with our enemy we actually traded with him ourselves and enriched ourselves at the neutrals' expense. The Americans retaliated on our Orders in Council by passing "Acts of non-intercourse" with us; and with France too, on account of her Berlin and Milan decrees (1806 and 1807) which forbade all trade with England and England's produce, and which were in fact the pretext and the alleged justification for our Orders in Council, which claimed rights beyond what the law of nations accorded us and were justifiable only as retaliatory acts. It is clear therefore that the right of search had absolutely nothing whatever to do with the war of 1812. It was the impressment of sailors which was the cause, working on ground already prepared by previous controversies on the subject of blockade. The right of search was a pretension and a right which the Americans acknowledged a few years before on so memorable an occasion that I cannot do better than refer to it.
On the 6th February 1778, the United States made a treaty with France, one clause of which contained the provision that, as between these two countries, the Flag (neutral) should cover the merchandise {i.e. the enemies'). In 1794 they made a treaty of commerce and navigation with Great Britain, one clause of which contained expressly the opposite provision, viz. that, as between these two nations, the flag should not cover the merchandise. When the war broke out between England and France the English proceeded (not only by virtue of their express stipulation with the United States, but in accordance with the law of nations on the subject), to seize French goods on board American vessels; the French on the other hand, in consequence of their treaty with the United States, could not seize English goods on board American ships. The French loudly complained of this inequality, and quoted the "most favoured nation" clause in their treaty with the United States as a ground for claiming reciprocity of right in this matter. The American President however, refused to recognize either the claim or the ground on which it was urged, stating distinctly that the English right was founded not on England's treaty with the United States but on the general law of nations, and was therefore prior to and independent of the provisions of the French treaty with the United States. These are the words of Jefferson—no partisan of this country "Before the treaty with Great Britain the treaty with France existed. It follows then that the rights of England being neither diminished nor increased by compact, remained precisely in their natural state, which is to seize enemies' goods whenever found. And this is the received and allowed practice of all nations where no treaty has intervened." Thus has the quarrel with the United States in 1812 (relative to a matter of municipal jurisdiction, the right of impressment, and not of international law at all), been, by an ignorant or perverse confusion of terms, called a quarrel about the right of search, and as this term is often loosely used to express the right of capturing enemies' goods under the neutral flag, the current fallacy has arisen of supposing that the war of 1812 had something to do with the exercise of this latter right.