The right of search issue first arose at the same time that a simmering border dispute over the boundary between the British colony of New Brunswick and the state of Maine threatened to boil over into a full-blown conflict between Britain and the United States, known as the Aroostook War. The state of Maine prepared to send militia units into the disputed zone and unilaterally adjust the boundary by force of arms; the New Brunswick colonists also prepared their local militia. As this border issue loomed, the anti-British U.S. press focused on the British outrages at sea and linked the obscure local boundary question to the more nationally inflammatory issue of outrageous insults to the flag. As in 1812 the rhetoric of honor, as applied to maritime affairs, was used to enlist wide support for a war from which inland regions had more to gain. One U.S. resident in the disputed Maine–New Brunswick zone flew the U.S. flag; when New Brunswick authorities arrested him and confiscated his flag, the insult to the flag—this one ashore—became further fuel for the rising war fever in Maine and the United States.21
The United States had outlawed the importation of slaves into the United States in 1808. To prevent slave export from Africa by U.S. ships, U.S. naval ships, beginning with the Cyane in 1820, patrolled off West Africa. Blacks rescued from slavers by U.S. warships were taken to Monrovia, Liberia, where the American Colonization Society had established a colony for resettled African Americans. British captures went to Freetown, Sierra Leone, where commissions ruled on whether there was sufficient evidence of slave trading to condemn the ship and award prize money to the capturing ship.
Until the late 1830s, the British refrained from confiscating slave ships off West Africa unless there were actually slaves on board; that is, an empty slave ship, outfitted for the trade, flying the flag of Spain or Portugal, was not confiscated in this early period. In 1835 Spain agreed that ships outfitted for the trade under the Spanish flag could be seized even if they carried no slaves; Portugal agreed to the same principles in 1836. British naval officers immediately began stopping and seizing such suspected slave ships and taking them to Freetown, Sierra Leone, for adjudication.
By the late 1830s, some of the Spanish slave traders’ ships had adopted the false use of the U.S. flag, especially when no slaves were on board, thereby hoping to avoid British inspection. As a consequence, in 1839–1841 at least five (and probably more) ships bearing the American merchant flag were stopped by the British West African Anti-Slavery Squadron and found to be in fact Spanish-owned slavers and slave-equipped ships falsely flying the U.S. flag. These five were the brigantines Douglass and Iago, searched by the HMS Termagant; the brig-sloop Susan, stopped by the HMS Grecian; the brigantine Mary, searched by the HMS Forester; and the brigantine Hero, searched by the HMS Lynx.22
The U.S. minister to England, Andrew Stevenson, protested vehemently against the British assumption of the right of search in these five cases, even though there had been no way to determine if the flag was legitimate without examining the ship papers. An exchange of diplomatic notes (often in not very diplomatic language) followed.
The right of search issue was divisive on both sides of the Atlantic, and the individuals involved contributed their personal tone to the debate. Among the most vehement defenders of the U.S. position were Andrew Stevenson, Daniel Webster, and Lewis Cass. On the British side, Lord Wellington and Lord Ashburton were conciliatory, whereas Lord Palmerston was intolerant of the U.S. position.23
For the British, the core question was this: How could British officers determine if a ship was fitted out for slavery or was flying the U.S. flag legitimately unless they searched the ship and inspected both it and the documents it carried? Traditional British practice accepted that the right of search existed only during war unless specifically conceded by treaty, as in the Spanish and Portuguese cases. In 1841 the United States took the position that only U.S. authorities had the right to investigate and punish false uses of the U.S. flag. The U.S. objection may seem rather technical now but simply illustrates the sensitivity over national honor that perceived insults to the flag could evoke during the nineteenth century. As a practical matter, the British held that searching suspected slavers was the best way to interdict the slave trade. Some U.S. officials and editorialists who opposed the British practice believed that Britain was exerting the right of search to interfere with legitimate American African trade, to impress naturalized U.S. citizens into the Royal Navy (no evidence of impressment in these cases exists), and to arrogantly and illegally insult U.S. national honor. Among the minority, William Lloyd Garrison’s Liberator and other antislavery and pro-British U.S. journals argued that the British were simply being practical.24
For other editorialists, the issues of British arrogance and trampling on U.S. maritime rights were of far greater importance than stopping the slave trade. Some of these writers might have hoped to provoke a war with Britain during which the United States could seize portions or all of Canada; regardless of their motives, these editorialists used a rhetoric of honor similar to the rhetoric of 1812.
By 1844 Britain had treaties with Spain, Portugal, Brazil, Austria, Prussia, Russia, and some Spanish-American republics that either explicitly conceded the right of search or made arrangements for visitation to verify documents. However, Britain had no such treaty with the United States. The British acted as though they needed treaties with European and Latin American nations but could dispense with treaties when dealing with the United States. America’s status as a nation among nations was being disrespected.
Decline of the Controversy
Beginning in 1842 the right of search issue rather suddenly subsided. William Henry Harrison died after thirty days in office in 1841; his successor, John Tyler, did not share Jackson’s and Harrison’s strong anti-British views, and neither did the members of Tyler’s new administration. In fact, several of the most hostile individuals on both sides of the Atlantic were replaced with more conciliatory men, and this may have been the most striking contributor to the reduction of tensions. Under Tyler’s more conciliatory leadership, the Webster-Ashburton Treaty was signed August 9, 1842. The treaty settled the Maine–New Brunswick border dispute, established reciprocity of extradition for crimes, and implemented cooperation between British and U.S. naval officers on antislavery patrol. Although the treaty did not explicitly concede the right of search in peacetime, it did take a step toward resolution of the issue.
The treaty was initially successful largely because it defined the new border between Maine and New Brunswick. Before the treaty was signed, members of the Maine state legislature had received copies of a “Red Line” map conveniently found in French archives by Daniel Webster’s friend and fellow New Englander, the historian Jared Sparks. The map purported to show the British boundary claim more than conceded by Benjamin Franklin in 1783. Maine legislators who had threatened to fund a state militia to attack Canada backed down on being shown the map,25 and the new border was included in the treaty. With the Aroostook boundary settled, those editorialists who had sought to invoke the right of search issue to win anti-British support over the land dispute no longer had a motive to make such appeals. More broadly, the resolution of the Maine border issue and the apparent agreement to cooperate in suppressing the slave trade was seen as a “vindication of national honor.”26
For the British, there were several additional reasons for the controversy over the right of search to recede. Between 1815 and the 1860s, the British government faced major problems adjusting to a peacetime economy that was increasingly urban and industrial. Its response included the abandonment of the Navigation Laws in 1848 and nine major revisions of duties in 1860.27 Eric Hobsbawm has pointed out, “The years from 1848 to the mid 1870s saw Britain involved in considerably more warfare than the preceding thirty or succeeding 40 years.” These incidents were “either brief operations decided by technological and organisational superiority . . . or mismanaged massacres on which even the patriotism of the belligerent countries has refused to dwell