courteously replied that he could not think that the United States seriously intended to make its flag a refuge for slave-traders;[55] and Aberdeen pertinently declared: "Now, it can scarcely be maintained by Mr. Stevenson that Great Britain should be bound to permit her own subjects, with British vessels and British capital, to carry on, before the eyes of British officers, this detestable traffic in human beings, which the law has declared to be piracy, merely because they had the audacity to commit an additional offence by fraudulently usurping the American flag."[56] Thus the dispute, even after the advent of Webster, went on for a time, involving itself in metaphysical subtleties, and apparently leading no nearer to an understanding.[57]
In 1838 a fourth conference of the powers for the consideration of the slave-trade took place at London. It was attended by representatives of England, France, Russia, Prussia, and Austria. England laid the projet of a treaty before them, to which all but France assented. This so-called Quintuple Treaty, signed December 20, 1841, denounced the slave-trade as piracy, and declared that "the High Contracting Parties agree by common consent, that those of their ships of war which shall be provided with special warrants and orders ... may search every merchant-vessel belonging to any one of the High Contracting Parties which shall, on reasonable grounds, be suspected of being engaged in the traffic in slaves." All captured slavers were to be sent to their own countries for trial.[58]
While the ratification of this treaty was pending, the United States minister to France, Lewis Cass, addressed an official note to Guizot at the French foreign office, protesting against the institution of an international Right of Search, and rather grandiloquently warning the powers against the use of force to accomplish their ends.[59] This extraordinary epistle, issued on the minister's own responsibility, brought a reply denying
that the creation of any "new principle of international law, whereby the vessels even of those powers which have not participated in the arrangement should be subjected to the right of search," was ever intended, and affirming that no such extraordinary interpretation could be deduced from the Convention. Moreover, M. Guizot hoped that the United States, by agreeing to this treaty, would "aid, by its most sincere endeavors, in the definitive abolition of the trade."[60] Cass's theatrical protest was, consciously or unconsciously, the manifesto of that growing class in the United States who wanted no further measures taken for the suppression of the slave-trade; toward that, as toward the institution of slavery, this party favored a policy of strict laissez-faire.
73. Final Concerted Measures, 1842–1862. The Treaty of Washington, in 1842, made the first effective compromise in the matter and broke the unpleasant dead-lock, by substituting joint cruising by English and American squadrons for the proposed grant of a Right of Search. In submitting this treaty, Tyler said: "The treaty which I now submit to you proposes no alteration, mitigation, or modification of the rules of the law of nations. It provides simply that each of the two Governments shall maintain on the coast of Africa a sufficient squadron to enforce separately and respectively the laws, rights, and obligations of the two countries for the suppression of the slave trade."[61] This provision was a part of the treaty to settle the boundary disputes with England. In the Senate, Benton moved to strike out this article; but the attempt was defeated by a vote of 37 to 12, and the treaty was ratified.[62]
This stipulation of the treaty of 1842 was never properly carried out by the United States for any length of time.[63] Consequently the same difficulties as to search and visit by English
vessels continued to recur. Cases like the following were frequent. The "Illinois," of Gloucester, Massachusetts, while lying at Whydah, Africa, was boarded by a British officer, but having American papers was unmolested. Three days later she hoisted Spanish colors and sailed away with a cargo of slaves. Next morning she fell in with another British vessel and hoisted American colors; the British ship had then no right to molest her; but the captain of the slaver feared that she would, and therefore ran his vessel aground, slaves and all. The senior English officer reported that "had Lieutenant Cumberland brought to and boarded the 'Illinois,' notwithstanding the American colors which she hoisted, ... the American master of the 'Illinois' ... would have complained to his Government of the detention of his vessel."[64] Again, a vessel which had been boarded by British officers and found with American flag and papers was, a little later, captured under the Spanish flag with four hundred and thirty slaves. She had in the interim complained to the United States government of the boarding.[65]
Meanwhile, England continued to urge the granting of a Right of Search, claiming that the stand of the United States really amounted to the wholesale protection of pirates under her flag.[66] The United States answered by alleging that even the Treaty of 1842 had been misconstrued by England,[67] whereupon there was much warm debate in Congress, and several attempts were made to abrogate the slave-trade article of the treaty.[68] The pro-slavery party had become more and more suspicious of England's motives, since they had seen her abolition of the slave-trade blossom into abolition of the system itself, and they seized every opportunity to prevent co-operation with her. At the same time, European interest in the question showed some signs of weakening, and no decided action was taken. In 1845 France changed her Right of
Search stipulations of 1833 to one for joint cruising,[69] while the Germanic Federation,[70] Portugal,[71] and Chili[72]enounced the trade as piracy. In 1844 Texas granted the Right of Search to England,[73] and in 1845 Belgium signed the Quintuple Treaty.[74]
Discussion between England and the United States was revived when Cass held the State portfolio, and, strange to say, the author of "Cass's Protest" went farther than any of his predecessors in acknowledging the justice of England's demands. Said he, in 1859: "If The United States maintained that, by carrying their flag at her masthead, any vessel became thereby entitled to the immunity which belongs to American vessels, they might well be reproached with assuming a position which would go far towards shielding crimes upon the ocean from punishment; but they advance no such pretension, while they concede that, if in the honest examination of a vessel sailing under American colours, but accompanied by strongly-marked suspicious circumstances, a mistake is made, and she is found to be entitled to the flag she bears, but no injury is committed, and the conduct of the boarding party is irreproachable, no Government would be likely to make a case thus exceptional in its character a subject of serious reclamation."[75] While admitting this and expressing a desire to co-operate in the suppression of the slave-trade, Cass nevertheless steadily refused all further overtures toward a mutual Right of Search.