"The Right of Search"
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THE RIGHT OF SEARCH.—
The English press has, in several unexpected instances, come out strongly against the position assumed by their government on the Creole question.1 And some of their ablest legislators, too, have broken ground on the right side. Lord Stowell recently remarked:—"It is said that every country has a right to enforce its own navigation laws; and so it certainly has, so far as it does not interfere with the rights of others. It has a right to see that its own vessels are duly navigated, but it has no right in consequence to visit and search all the apparent vessels of other countries on the high seas, in order to institute an inquiry whether they are not in truth British vessels violating British laws. No such right has ever been claimed, nor can it be exercised without the oppression of interrupting and harassing the real and lawful navigation of other countries. It is no objection to say that British ships may thus by disguise elude the obligations of British law. The answer of the foreigner is ready—that you have no right to provide against that inconvenience by imposing a burthen upon his navigation."2
That is the right sort of doctrine, and ma'ma England ought to hold to it.
Notes:
1. An American slave revolt occurred in November 1841 on a United States slave ship called the Creole. 128 slaves gained freedom when they took command of the ship and sailed it to Nassau in the Bahamas. British officials there ruled that the slaves were free upon arrival, and they had the right to use force to gain freedom because they were held illegally as slaves. This caused strained relations between the United States and Great Britain. For more on the Creole revolt, see Arthur T. Downey, The Creole Affair: The Slave Rebellion that Led the U.S. and Great Britain to the Brink of War (Lanham, MD: Rowman & Littlefield, 2014). [back]
2. William Scott Stowell (1745–1836) was an English civil lawyer turned jurist and later a judge. Whitman was mistaken in saying that Stowell had "recently" made the remark. Not only had Stowell died in 1836, but the quotation comes from a court case in 1817, in which a French ship was condemned for participating in the slave trade and resisting search by the King's cruisers (Edward Stanley Roscoe, Lord Stowell: His Life and the Development of English Prize Law [Boston and New York: Houghton Mifflin Company, 1916], 1-2; John Dodson, Reports of Cases Argued and Determined in the High Court of Admiralty Commencing with the Judgements of the Right Honor Sir William Scott, Trinity Term, 1811 [Boston: Little, Brown, and Company, 1853], 253). [back]