The increased tension over the issue was grounded in a series of specific detentions on the high seas. The British boarded at least fifteen U.S.-flagged ships in 1858, and probably more.48 After the flurry of press concern over repeated affronts to U.S. honor in the spring of 1858, the issue once again subsided, and there were only scattered further reports of British searches of ships flying (honestly or not) the U.S. flag. The settlement of the revived dispute came on June 17, 1858, during a discussion in the British Parliament of U.S. concern over the right of search. Several members of Parliament made it clear that Britain recognized no right of search in time of peace but that inspection of papers to ensure that a flag was legitimate had to be accomplished or all sorts of pirates and smugglers would use false flags, knowing they could never be boarded to determine if the flag was legitimate. Although this had always been the British position, the explicit recognition in Parliament that there was no right of search in time of peace satisfied some northern editorialists and, according to reports, also President James Buchanan and even his testy secretary of state, Lewis Cass.49 At least, the U.S. politicians who had been outraged by the British insult could now correctly assert that the British had conceded that they had no right of search in peacetime.
The British indicated that while they accepted the U.S. position, they hoped to work out some practical means of determining the legitimacy of the flag, without giving offense. The United States rejected a British suggestion that a man-of-war’s boat could approach alongside the suspected vessel and request the papers to be handed down (without boarding).50
Secretary Cass, in his complaint to the British, stated that like police approaching a suspect on a public street, naval officers could only visit a ship to confirm the legitimacy of the flag, and only if there was reasonable suspicion that the flag was misused.51 Cass admitted that the legitimacy of the flag could be determined only by examining papers, but if a ship was wrongly boarded, the boarding officer and the British government would be liable for the financial damage from delay and a full diplomatic apology would be expected. This communication provided a final way through the impasse—indicating that officially the U.S. government would not object if a search revealed that a flag had been falsely employed but would expect an apology and restitution for any damages in cases of error. Although U.S. editorialists believed the British had stopped many innocent vessels, such complaints greatly diminished after the exchange of notes. For students of international law, the concession of inspection, especially when it revealed a false use of the flag, without conceding a right of search—Cass’ solution—was entirely correct and fully justified, according to Wilson in his modern analysis of the issue. The fact that several British parliamentarians had agreed that Britain could not claim a right of search in peacetime also helped put the issue at rest.52
The Buchanan administration began to use steamers, and the U.S. Africa Squadron was much more active in 1859–1860 in apprehending ships, taking twelve vessels with more than three thousand slaves on board.53 The number of reported English-on-American-flag incidents declined, although from time to time one would still make the news. One of the last was in 1859. The New York Times reported a “British Outrage” (noting the phrase with quote marks in the headline and thus mocking the concept) when the steamer HMS Viper overhauled, examined, evacuated, and burned the brigantine Rufus Soule off West Africa on October 11 or 12, 1858, later landing the crew on a beach. A ship of the U.S. West African Squadron rescued the stranded mariners. The news of the event did not reach the United States until February 1859. In that case, the master of the brigantine had tossed his papers overboard, certainly an indication they were fraudulent, according to Lieutenant Commander Austin B. Hodkinton, commander of the British steamer. No doubt the fact that the ship was obviously a slaver contributed to the mocking tone of the headline. In the growing antislavery climate of the North in 1859, it was hardly an “outrage” that the British interdicted an obvious slave ship.54 The few continuing episodes of inspection to determine the legitimacy of registration no longer raised the specter of war, and the U.S. press turned its attention to the internal impending crisis with John Brown’s raid on October 16, 1859.
The right of search controversies of the 1840s and 1850s demonstrated several underlying facts about the official and public attitudes toward the maritime flag at sea. First, the maritime code of honor was still strongly in place, despite the decreasing acceptance of the practice of dueling, especially in the Northeast. Second, the symbolic nature of the flag remained firmly entrenched in the public mind. The flag was flown proudly on exploration ships to the Arctic and Antarctic and, in 1846–1848, was planted in Chapultepec and throughout the new territories gained from Mexico. Third, at least some Americans regarded infringement of U.S. sovereignty at sea, as represented by the merchant flag, as an outrage sufficient to threaten armed conflict. Yet diplomacy prevailed. Even the strongly anti-British U.S. secretary of state, Lewis Cass, who saw the British actions as clear infringements of U.S. maritime rights, was willing, in the interests of maintaining peace, to find a diplomatic pathway through the issues. The U.S. Civil War, however, would bring further nuances to the relationship between the merchant flag and U.S. national identity.
Portions of this chapter appeared in conference presentations and in two articles by the author and are reused with permission: “The American Maritime Code Duello,” Northern Mariner 21, no. 2 (April 2011): 159–69; and “The Right of Search Controversies, 1841–42 and 1857–58,” Northern Mariner 22, no. 4 (October 2012): 409–20.
Flagging-Out in the U.S. Civil War
During the U.S. Civil War, hundreds of shipowners in the North decided to operate under a foreign flag because of the depredations of Confederate cruisers, including Sumter, Alabama, Florida, Shenandoah, and Georgia. Together the cruisers destroyed 237 ships registered under the U.S. flag, but more than a thousand other American merchant ships switched registry to foreign flags.1
These transfers-out reflected a reciprocal principle to the issue of attacks on, or infringement on the rights of, U.S. ships during the prior six decades. Instead of offering protection, the U.S. flag opened ships at war to capture or seizure by a declared enemy. Although the Lincoln administration refused to recognize the Confederacy as a national entity but insisted on referring to secession as an act of rebellion, the Union military in fact applied the rules of war to Confederate soldiers, sailors, and ships. That is, while the Union government officially regarded the Confederacy as simply an area in rebellion, it treated captured soldiers and officers not as traitors but as prisoners of war. Furthermore, although the United States had not ratified the 1856 Declaration of Paris, which set up rules regarding blockade, the nation announced in 1861 that it would abide by the terms of the declaration and instituted a blockade of Southern ports, as if the Confederacy were a foreign nation. By doing so, the Union was de facto recognizing the Confederacy as a belligerent, not an area in rebellion, for maritime purposes. Confederate officers, both army and navy, also applied the rules of war. The Confederate cruisers sought out and destroyed U.S. merchant ships, while at the same time being careful to preserve the lives of crews and passengers. U.S.-flagged ships were suddenly at risk of destruction or seizure by Confederate cruisers.