to set up a new claim,' or rather (properly speaking) to revive our old claim to search ships of war. But that disavowal was founded on the very ground that such a claim was not intended to be set up; and was expressly recorded in a solemn proclamation issued by his Majesty within a few weeks after the affair of the Chesapeake was known in this country, containing instructions for the exercise of the right of search, from which ships of war were specifically exempted.

After so plain and anxious an exposition of the principles maintained by the British government on this subject, it might have been hoped, that the imputation of intending to act upon the 'new claim,' as it is called, would be silenced. But as not only the French, as might be expected, still maintain this assertion; it has also been argued upon here, by writers who are in the habit of finding most things wrong in the conduct of their own government, it may not be amiss to say a few words on the history of the claim in question; which, as we have already stated, so far from being a new claim now advanced, is a very old one, long since abandoned. In the instructions given by the Earl of Northumberland, Lord High Admiral of England, to Sir John Pennington, dated the 4th April, 1640, is to be found the following article.

'As you meet with any men of war, merchants, or other ships or vessels belonging to any foreign prince or state, either at sea, or in any road or other place, where you or any of his Majesty's fleet shall happen to come, you are to send to see whether there be any of his Majesty's subjects on board them; and if any seamen, gunners, pilots, or mariners (either English, Scotch or Irish) shall be found on board any of them, you are not only to cause such of his Majesty's subjects to be taken forth, committed, or disposed on board, or otherwise, in such sort, as they be forthcoming, and answer their contempt of his Majesty's proclamation in that kind; but also friendly to admonish the captain, and other principal commanders and officers in such foreign ships and vessels, that they do not receive nor entertain on board any of their ships, no more of his Majesty's subjects, that his Majesty may have no cause to resent it at their hands, &c.'

This instruction, so far from being grounded on a new claim,' even at that time, had invariably been acted upon, not in two cases only, and no more, as the writers above alluded to assert, but in twenty others. We shall content ourselves with three :-The first is, that of Sir Thomas Allen, who, in 1667, took several British seamen from three French men of war in the Channel, commanded by Monsieur de la Roche.

The second case is that of Captain Jenifer, of the Saudadoes, who, in consequence of four Englishmen on board the Dutch admiral's ship, (which, with two or three more men of war of that nation, were lying in the Downs,) having written to pray that he

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would demand them, took them, on being refused, by force. This occurred in the year 1676.

In 1687, a Dutch man of war, coming into the Downs, was visited by the English guard-ship, and four Scotchmen and a boy taken out of her. The Dutch ambassador to the court of London complained of this in a memorial, which he addressed to the secretary of state. The memorial was referred to Sir Richard Raines, then judge of the Admiralty Court, who argued the point' in a very able manner. He defended the principle on the natural right which sovereigns have to the services of their subjects, and on the practice which had been followed in all ages. He contended that his Majesty having this right, must be allowed to have the liberty of means effectual to this end, which means are, to compel his subjects to do their duty, otherwise the right is vain and so are the means, if they must be used only by words and proclamations.' The memorial complained that this practice might be inconvenient to foreign ships in time of danger and stress of weather. As if his Majesty,' says the learned judge, should omit his own present right and interest, in regard of some future contingent inconveniences, which may, by the wind and the weather, happen to some foreign ships, and should provide against their dangers, but not his own.' The memorial goes on to allege that the practice would deprive foreign ships of their men, and hinder merchant ships in their voyages, and men of war in their expeditions- As if his Majesty,' observes the judge, must be deprived of the use of his own subjects, for his own expeditions, that foreigners may make use of them in theirs;'-and he concludes, I do, with all humble submission, think, that a grant of what is prayed in the memorial would make the sovereign right of no effect, and at one blow destroy all the precedents and continued practices, by which hitherto it has been exercised and confirmed.'

The complaints of the Dutch of our unfriendly treatment of them, in visiting ships of war, in search of English seamen, had indeed induced King Charles II. to bring the matter under serious consideration. In 1677 it was discussed at the Board of Admiralty, at which the king, as was not unusual in those days, presided in person. The standing instructions being read, and the first point, regarding the search of foreign ships of war for English subjects, and the demanding and taking them out, being submitted, it was resolvedIt is our right, and to be continued.' It appears, however, from the Pepysian Papers, ultimately to have been settled that, although the practice was too ancient, as well as justified by the king's natural rights, to make any variation in the instruction, with respect to the demanding them from foreigners, yet it was judged advisable to leave out the clause which compels the master to pay them their.

wages,

wages, as being unreasonable on many accounts; and though the article of examining foreigners was to continue in the public instructions, yet Mr. Pepys was directed to draw out a private article, instructing our commanders to be discreet in the execution of it to foreign merchantmen; and as to men of war, only to make use of such fair means as they could, without any force; to inform themselves of the number and names of his Majesty's subjects on board them, and, if refused to deliver them up on a fair demaud, to report the matter to the Admiralty, in order that the king may demand them together with satisfaction for their detention. (Pepys' MS. Collection.) We are not aware that any instructions subsequent to the reign of Charles II. authorized the searching of men of war, nor do we know of a single instance of the kiud having occurred since that of 1687, till the affair of the Chesapeake.

The conduct of Admiral Berkeley in this business was, as we have stated, wholly disapproved by his government, and he was immediately removed from his command. For this unauthorized act of force, committed against an American ship of war, his Majesty did not hesitate to offer immediate and spontaneous reparation.' In the mean time Mr. Jefferson, instead of waiting the result of his representations to the British government, issued a violeut proclamation, calculated to irritate the minds of the American people against the English;-and interdicting the waters of America to all British ships of war: an interdiction which was itself a measure of hostility, forasmuch as the ships of war of the French, the other belligerent, were at that time, in full enjoyment of the shelter and convenience of the American harbours. Even after the voluntary offer of reparation, twice repeated, to the utmost possible extent of the injury, with the single proviso that this hostile proclamation of Mr. Jefferson should be recalled, it was not till a few months ago that the petulant and perverse humour of the American government would accept the reparation; and not even then without an insulting and offensive observation from Mr. Robert Smith, who is charged by the President to say, that while he forbears to insist on any farther punishment of the offending officer, he is not the less sensible of the justice and utility of such an example, nor the less persuaded that it would best comport with what is due from his Britannic Majesty to his own honour.' There is something so Judicrous in Mr. Madison's instructing his secretary to convey lessons of honour to his Britannic Majesty, that we feel anything but indignation at the intended insult.

We are at a loss to discover what could have prevailed on Mr. Madison to insert in his message any notice of the affair of the Lille Belt, in the shape of a complaint, since his own officers have proved, by their evidence, that Commodore Rodgers was the aggressor.

It is proved that Commodore Rodgers bore down on the Lille Belt; it is proved that he endeavoured to place his ship in a position for raking the Lille Belt; it is proved that Captain Bingham wore three times to avoid the President's taking this advantage. Commodore Rodgers avows that he took a position to windward on the same tack, within short speaking distance,' and that the chace appeared, from his manoeuvres, anxious to prevent it. The aggression then is on the part of Commodore Rodgers. But which of the two fired the first shot? If we consider the difference of force, we must set down Captain Bingham as a madman, before we can consent to allow the Lille Belt to have given the first shot. The minutes of a court of inquiry, held at Halifax, prove the President to have fired first; the minutes of the American court-martial prove the Lille Belt to have fired first. Hence the quantity of proof is pretty nearly equal; as to the quality of the evidence, we shall not make one single observation. But there were two seamen on board the President at the time of the aggression, who have voluntarily made oath as follows. William Burkett, an Englishman, sworn at Deptford, deposes that the President fired the first gun by accident; that he turned round to acquaint the lieutenant with this circumstance, but that, before he could do it, the whole broadside of the President was discharged; and that immediately after, a general order was given to 'fire away as quick as possible.' John Russell, an American, sworn at Bristol, deposes that he was on board the President at the time of the action; that the first gun was fired by accident from the President: that the guns had locks, and were all cocked; that, after the action, he was informed by the men in the waist, that a man had been entangled with the lanyard of the locks, which occasioned the gun to go off. But we really do not think it worth an argument who fired first; the true question is, who chaced? who took an hostile position? who placed the ships in that situation in which even the accidental firing of a gun, must inevitably produce decided warfare? who came down with his ship cleared for action,-the crew at their quarters, -guns double-shotted, matches lighted? The neutral! He who had not an enemy on the seas, makes a display of all this 'pomp and circumstance of war,' and then complains of the hostility of those who had used all their endeavours to avoid his double-shotted neutrality. If to all these circumstances we add the important consideration that Captain Bingham was directed, by Admiral Sawyer's instructions, to be particularly careful not to give any just cause of offence to the government or subjects of the United States of America;' and that Mr. Madison has thought fit to conceal the orders under which Commodore Rodgers chaced the Lille Belt, we think it is pretty clear, that the wisest policy of the American

government would have been to have wrapped up the conduct of their Commodore in profound obscurity, and covered, with the veil of discretion, this uncalled for effusion of American valour.

England has voluntarily and distinctly disclaimed the practice of searching ships of war. Not content with this concession, the United States set up the pretension that free ships make free goods,' and 'claim the right to use the ocean as the common and acknowledged highway of nations.'

This claim, we presume, is put forward either to deny the right of search' of merchant vessels, or to provoke a discussion of the English title to the dominion and sovereignty of the seas. It will not be our misfortune, we sincerely hope, to see the day when the former shall be abandoned. As to the latter, we are of opinion that the pretensions to this right, set up by Selden and others, went no farther than that right which conquest, and an uninterrupted superiority of naval power, had achieved, and which had obtained the sanction of most of the nations of Europe.

Great Britain never pretended to any legal and possessory right, to the exclusion of others. The first idea of sea dominion seems to have been taken from the ordination of the laws of, Oleron, which were promulgated from that island by Richard I. on his return from the Holy Wars, obeyed by all seafaring people in the western parts of the world, and made the common standard of right and wrong in the maritime law of nations. It must, however, be observed that Richard was Duke of Aquitain aud Normandy, and, in right of the latter, lord on both sides the English Channel; for which reason a code of laws was necessary to regulate the intercourse between his English and French subjects and those of his allies, and for the more speedy and impartial determination of all controversies which might occasionally arise. The laws of Oleron are but, in fact, a transcript of the old Rhodian laws to which all the surrounding nations conformed; and the adoption of them in England infers no more a sea dominion, than it conferred on the Romans the sovereignty of the Mediterranean, for conforming themselves, in their maritime affairs, to the laws of the little republic of Rhodes. The ordinance at Hastings, made by King John in the second year of his reign, ordered all ships laden or empty, to strike their sails at the command of the King's governor or admiral, or his lieutenant.' King John, being in possession of Normandy, was lord of both shores; and it has never been disputed that he is lord of the intermediate river who is lord of both banks. This, therefore, was nothing more thau a mere municipal regulation for merchant vessels, and implied nothing whatever of sovereignty.

The right of the flag was demanded from all nations in the British seas, from a very early period of our naval history.

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