of the Creole were entitled to their freedom, by those laws under the jurisdiction of which they then lived. They were under duress. It was the duty of the authorities knowing this fact, to put them in a situation where they could act as free agents. This they accomplished in an effectual manner, by putting them on shore. There is no assertion, and we do not believe, that any official force was used, to prevent their return to the vessel if they chose. In a case already alluded to, the master of slaves, who had escaped to a British vessel of war, was allowed to come on board, and use all the arts of entreaty, all means short of violence, to induce them to return.' Lord Palmerston, in his correspondence with Mr. Stevenson with regard to the Comet, Encomium, and Enterprise, explicitly declares that no control would be exercised over refugee or shipwrecked slaves, to prevent their voluntary return to their masters.

But even if the authorities of the Bahamas have detained the negroes of the Creole against their will, we do not think, however harsh such a measure may be, that the United States can complain. The Creole being within the protection of the English law, the local right of property of the American master over his slaves had ceased. If any restraint was put upon them, it was a matter solely between them and the British government. It was a grievous wrong. It was inconsistent with the British principle that they had become free men. But admitting that they were enfranchised, it was no wrong to their former owners, who had lost their possession and their property together.

The moment the negroes came within the British jurisdiction, all American interest in their subsequent fate ceased. If any wrong has been done to the American owner, it commenced at an earlier period, it consists in the avowal of the principle lying at the bottom of the whole difficulty, that

1 Forbes v. Cochrane.

the slave, by coming within the British jurisdiction, is by that fact emancipated. But we have endeavored to show, that Britain was justified in the maintenance of that principle; and the restraint, if any, put upon the negroes to prevent their leaving the island, to go whither they would, is therefore an injury to them, and not to their owners. Such forced kindness is, it is true, a legal injury to the subject of it, and it is a departure from the principles which the British government has avowed. We have already said, that the protest does not allege any official coercion towards the negroes, except those engaged in the revolt, farther than ordering them to go on shore, where they might exercise their free agency; and, from the ambiguity on this point of a paper which is otherwise very direct and explicit in its charges, we are strongly inclined to believe that this coercion was nothing more than the manifestation of passionate and tumultuous feeling on the part of the colored population of the island, and that after the negroes of the Creole had found themselves in a situation of absolute security, and enjoying the sweets and the certainty of liberty, they were easily persuaded to remain. And we have no doubt, that, in this and in all future cases, the British government will reiterate its declaration, that fugitive slaves may be reclaimed by persuasion and compact, in whatever part of its dominions they may be found. It will not force any man to accept the boon of liberty, though at the same time it is offered freely to all.

The statements of the protest with regard to the baggage of the negroes, and a quantity of blankets alleged to have been forcibly taken from the Creole, present a transaction, in which, if unexplained, the conduct of the authorities is indefensible. Some question might, perhaps, be raised about permitting the negroes to retain the clothes which they actually wore, but certainly they had no more property in the baggage and other property said to have been taken,

than they had in the vessel and cargo. But if the great principle involved in the protection of the persons of the slaves is amicably adjusted, we have no apprehensions that any difficulty will arise out of so insignificant a matter as this. The loss cannot amount to more than a few hundred dollars, and the right of property in these articles being clearly in favor of their original owners, England can, without any dishonorable concession, make suitable reparation. The subject is so trifling that we have hesitated to allude to it at all. With an issue of such grave, nay, of such tragic interest, depending between the two countries, they will hardly be guilty of the bathos, of making this trivial and incidental circumstance, a matter of serious discussion.

J. C.

ART. V. THE RIGHT OF VISITATION AND SEARCH IN TIME OF PEACE.

CERTAIN vessels, belonging to citizens of the United States, having been subjected to visitation and search by British cruisers, very grave discussions have followed between the American minister resident at London, and the British government, respecting the claim made by that government to visit and search vessels sailing under the American flag, for the purpose of determining their national character. It seems to have been supposed that Great Britain had adopted a new principle of maritime law on this subject, for the guidance of her cruisers, and to be administered by her prize tribunals. We do not, however, entertain that opinion. There has been no attempt, except by convention, to change the established principles of international law in relation to the right of search, and we are confident that the British

courts of admiralty will administer the law in all cases of capture and detention, and where claims for consequent damages are interposed, with that comprehensive and impartial view of national rights for which they have so long been distinguished.

The maxim, which is equally applicable to torts and crimes on the sea, as to common law offences on the land, is, that innocence shall be presumed, until the contrary presumption is established. The pirate and the slave trader have the benefit of this rule, and by whatever circumstances of suspicion they may be affected, which excuse a seizure, the captor incurs the responsibility of damages, and can only justify himself by the event. If it can be proved that a crime has been committed, or a law violated, then the seizure is justified, and every invasion of personal rights, or of the right to property, will be sanctioned, which is necessary to bring the offender to punishment.

The right of search, as a general rule, depends upon the right to capture.' If that can be justified, then the offender can make no claim for damages, as his right to personal immunity depended upon his innocence, and the security of his property consisted in its exemption from the conseqences of crime. The law has sedulously guarded individuals. against the invasions of power, and from the unauthorized interference of the government to which they are subject. A ship at sea is for some purposes regarded as a colony of the state, and the protection of the law is extended with the same watchful care to the individuals which compose it, as if they were dwelling within the body of a county, under the immediate jurisdiction of the government to which they belong. Whilst the law is thus vigilant in its

"It has been truly denominated a right growing out of, and ancillary to the greater right of capture. When this greater right may be legally exercised without search, the right of search can never arise or come into question." The Nereide, 9 Cr. Rep. 427, Opinion of chief justice Marshall.

protection of the citizen from invasion on the part of those who administer it, a still greater degree of sensitiveness exists in regard to unauthorized interference by the agents of a foreign government. The cruisers of a foreign state, in time of peace, may seize the private vessels of the United States, under suspicion of having been engaged in practices which would justify a capture, but the burden of proof devolves on the captor, and if in the event it cannot be shown that a crime has been committed, of which foreign tribunals have jurisdiction, or that there exists the excuse of probable cause, he is liable to damages, as the penalty of his mistake. What then is the character, and what are the limits, of the belligerent right of visitation and search which is universally acknowledged to exist, and which is an established rule of international law? Are the maxims of good sense, and the rules which constitute the security of individuals abandoned, and the principles of evidence reversed, because two or more nations happen to be at war? It is a rule, universally acted upon in time of war, that a neutral vessel must exhibit evidence of her true national character, of her destination, and of the nature of her cargo, and if no evidence is offered to show the true character of her trade she is still liable to seizure, and it is the duty of the belligerent cruiser to bring her in for adjudication. No such rule exists in time of peace. If a vessel is suspected of being a pirate, or of having violated some municipal regulation, she is not bound to exhibit evidence of her character or conduct, and if seized and brought in for adjudication, the captor must support the claim upon which the seizure is founded by satisfactory proofs. A neutral is not permitted to resist or avoid the visitation and search of a belligerent cruiser, and resistance and flight, or concealment and spoliation of papers, are in themselves causes of confiscation. In time of peace, a vessel may avoid visitation from the cruisers of a foreign state; concealment and spoliation are no cause of