To James Monroe
Department of State January 5th 1804
The information and observations which you have as yet received from me since your arrival in London, on the impressment of our seamen, and other violations of our rights, have been in private letters only.1 The delay in making these injuries the subject of official communications, proceeded first from an expectation that the British Government would have notified formally to the United States, as a neutral power, the state of war between Great Britain and France, which would have been an apt occasion, for combining with assurances of the fairness with which our neutral obligations would be fulfilled, our just claims on a correspondent respect for our neutral rights, and particularly of those which had been least respected during the last war: secondly from the expected arrival of Mr. Merry, which, if he should not be charged with such a notification, might be a favorable opportunity for commencing the explanations and discussions which must precede a thorough correction of the wrongs which we experience.
Since the arrival of Mr. Merry, accordingly, no time has been lost in calling his attention to the subject, and in preparing both it and him, for the negotiation which is now to be committed to you. If appearances are to be trusted, his impressions and representations will be friendly to it. In my conversations with him, which have been free and full, he has expressed the best dispositions, has listened with candor to the appeals made as well to the considerations of justice, as of the solid interest of his nation; and altho’ he suggests serious difficulties on certain points, he will, I believe, sincerely co-operate in lessening them, and in bringing about an arrangement which will be acceptable to this country. The only topic on which any thing has passed in writing between the Department of State and him, is that of the pretended blockade of St Domingo. Copies of my letter to him, and of his answer, are herewith enclosed; as also of the letter written to Mr. Thornton some time before,2 and referred to in that to Mr Merry, in relation to a like blockade of Martinique and Guadaloupe.
Altho’ there are many important objects which may be thought to invite conventional regulations between the United States and Great Britain, it is evedently proper to leave for subsequent consideration, such as are less urgent in their nature or more difficult in their adjustment; and thereby to render the way plainer and shorter to an agreement with respect to objects which cannot be much longer delayed without danger to the good understanding of the two nations. With this view, the plan of a Convention contemplated by the President, is limitted to the cases of impressments of our seamen, of blockades, of visiting and searching our vessels, of contraband of war, and of the trade of hostile Colonies, with a few other cases affecting our maritime rights; embracing however, as inducements to Great Britain to do us justice therein, a provision for the surrender of deserting seamen and soldiers, and for the prevention of contraband supplies to her enemies.
The plan digested for your use is subjoined. The first column contains the articles which are to be proposed in the first instance, and which are considered as within our just expectations: The second modifies the articles into the concessions which the British Government may possibly require, and which it may be expedient for us ultimately to admit.
A Convention3 between the United States and Great Britain
|1st Proposal.||2d & Ultimatum.|
|Art. 1 No person whatever, shall upon the high seas and without the jurisdiction of either party, be demanded or taken out of any ship or vessel belonging to citizens or subjects of one of the other parties, by the public or private armed ships belonging to or in the service of the other, unless such person be at the time in the Military service of an enemy of such other party.||Art 1 No seaman, sea faring or other person, shall upon the high seas and without the jurisdiction of either party be demanded or taken out of any ship or vessel belonging to the citizens or subjects of one of the parties, by the public or private armed ships belonging to or in the service of the other party; and strict and effectual orders shall be given for the due observance of this engagement; but it is to be understood that this article shall not exempt any persons on board the ships of either of the parties from being taken thereout, by the other party, in cases where they may be liable to be so taken according to the laws of nations; which liability however, shall not be construed to extend in any case to seamen, or sea faring persons being actually part of the crew of the vessel in which they may be, nor to persons of any description passing from one port to another port of either of the parties.|
|Art II Same.||Art. II No person, being a subject or citizen of one of the parties, and resorting to or residing in the dominions of the other, shall in any case be compelled to serve on board any vessel whether public or private belonging to such other party: And all citizens or subjects whatever of the respective parties, at this time compulsively serving on board the vessels of the other, shall be forthwith liberated, and enabled by an adequate recompence to return to their own Country.|
|Art III Same.||Art III If the ships of either of the parties shall be met with, sailing either along the coasts or on the high seas by any ship of war or other public or private armed ship of the other party, such ships of war or other armed vessels shall; for avoiding all disorder, in visiting and examining the same, remain out of cannon shot, unless the state of the sea or the place of meeting render a nearer approach necessary, and shall in no case compel or require such vessel to send her boat or her papers or any person from on board, to the belligerent vessel; but the belligerent vessel may send her own boat to the other and may enter her to the number of two or three men only, who may in an orderly manner make the necessary enquiries concerning the vessel and her cargo; and it is agreed that effectual provision shall be made for punishing violations of any part of this article.|
|Art IV Same.||Art IV Contraband of war shall consist of the following articles only; Salt Petre[,] Sulphur, Cuirasses, pikes, swords, sword belts, knapsacks, saddles and bridles, cannons, Mortars, Fire arms, Pistols, Bombs, Grenades, Balls, Bullets, firelocks, flints, Matches and Gun powder; excepting however, the quantity of the said articles which may be necessary for the defence or use of the ship, and those who compose the crew; and no other articles whatever not here enumerated, shall be reputed contraband, or liable to confiscation, but shall pass freely without being subjected to the smallest difficulty, unless they be enemys property; and it is to be particularly understood that under the denomination of enemy’s property, is not to be comprized the merchandize of the growth produce or manufactures of the countries or dominions at war which shall have been acquired by the citizens or subjects of the neutral power, and shall be transported for their account, which merchandize cannot in any case, or on any pretext be excepted from the freedom of the neutral flag.|
|Art V Same.||Art V In all cases where the prize Courts of either party shall pronounce judgment against any vessel or property claimed by citizens or subjects of the other, the sentence or decree shall mention the reasons or motives on which the same shall have been founded, and an authenticated copy of the sentence or decree and of all the proceedings in the case, shall, if demanded be delivered to the Commander or Agent of the said vessel without any delay, he paying the legal fees for the same.|
|Art VI Same||Art VI In order to determine what characterizes a blockaded port, that denomination is given only to a port where there is by the dispositions of the power which attacks it with ships stationary or sufficiently near an evident danger in entering.|
|Art VII Omit the preamble.||Art VII (In consideration of the distance of the ports likely to be blockaded by either party from the ports of the other party, and of other circumstances incident to their relative situation) it is agreed that no vessel sailing from the ports of either, shall altho’ cleared or bound to a blockaded port, be considered as violating in any manner the blockade, unless on her approach towards such port, she shall have been previously warned against entering the same.|
|Art VIII Omit “Captains, officers”||Art VIII It is agreed that no refuge or protection shall be afforded by either party to the (Captains officers) mariners, sailors or other persons not found to be its own Citizens or subjects, who shall desert from a vessel of the other party, of the crew whereof the deserter made a part; but on the contrary all such deserters shall be delivered up on demand to the commanders of the vessels from which they shall have deserted, or to the commanding officers of the ships of war of the respective nations, or to such other persons as may be duly authorized to make requisition in that behalf; provided that proof be made within two years from the time of desertion, by an exhibition of the ships papers, or authenticated copies thereof, and by satisfactory evidence of the identity of the person, that the deserters so demanded were actually part of the crew of the vessels in question.|
|And for the more effectual execution of this article adequate provision shall be made for causing to be arrested, on the application of the respective Consuls or vice Consuls to the competent authorities, all deserters as aforesaid, duly proved to be such, in order tha⟨t⟩ they may be sent back to the Commanders of the vessels to which they belonged, or removed out of the Country, and all due aid and assistance shall be given in searching for, as well as in seizing and arresting the said deserters, who shall even be detained and kept in the prisons of the Country at the request and expence of the said Consuls or vice Consuls, until they shall have found an opportunity of sending them back or removing them as aforesaid. But if they be not so sent back or removed within three months from the day of their arrest they shall be set at liberty, and shall not again be arrested for the same cause.|
|Art IX Omit “officers or”||Art IX It is further agreed that no refuge or protection shall be afforded by either of the parties to any (officers or) Soldiers not found to be its own citizens or subjects who shall desert from the military service of the other; but that on the contrary, effectual measures shall be taken, in like manner, and under like regulations, and conditions as with respect to sailors, for apprehending any such deserting Soldiers, and delivering them to the Commanding officers of the Military Posts forts or Garrisons from which they shall have deserted; or to the Consuls or vice Consuls on either side, or to such persons as may be duly authorized to demand their restitution.|
|Art X Omitted||Art X It is however understood that no stipulation herein made shall be construed to empower the Civil or Military officers of either of the parties, to enter forcibly into any of the forts, Garrisons posts or other places, or to use violence of any sort, within the jurisdiction of the other party; or be construed in any manner to contravene or derogate from the prohibition contained in the first of the above articles against demanding or taking persons out of vessels on the high seas, and without the jurisdiction of either of the parties.|
|Art XI Each party will prohibit its citizens or subjects, from clandestinely carrying away from the territories or dominions of the other any seaman or Soldier belonging to such other party.|
|Art XII Neither party shall permit any of the articles above enumerated as contraband of war, to be cleared out from its ports, to any place within the jurisdiction of an enemy of the other party, and in order to enforce this regulation, due proof and security shall be required that all such articles of contraband as may be exported from the ports of either of the parties, have been actually deliverd elsewhere, than within the jurisdiction of an enemy of the other party.|
|Art XIII This convention shall be in force for the term of five4 years from the date of the exchange of ratifications. It shall be ratified on both sides within 35 months from the date of its signature or sooner if possible; and the ratifications exchanged without delay in the United States at the City of Washington.|
Observations on the preceding plan.
The first article relates to impressments from american vessels on the high seas. The Commanders of British armed vessels, have, as is well known, been long in this practice. They have indeed not only continued it, under the sanction of their superiors, on the high seas, but have with impunity, extended it to our own coasts, to neutral ports, even to neutral territory, and in some instances, to our own harbours. The article does not comprehend these latter cases, because it would not be very honorable in Great Britain to stipulate against the practice of such enormities, nor in the United States, to recur to stipulations, as a security against it; and because it may be presumed that such particular enormities will not be repeated or unpunished, after a general stop shall have been put to impressments.
The article, in its first form, renounces the claim to take from the vessel of the neutral party, on the high seas any person whatever not in the military service of an enemy; an exception which we admit to come within the law of nations, on the subject of contraband of war.
With this exception, we consider a neutral flag on the high seas as a safeguard to those sailing under it. Great Britain on the contrary asserts a right to search for and seize her own subjects; and under that cover, as cannot but happen, are often seized and taken off, citizens of the United States and citizens or subjects of other neutral countries, navigating the high seas, under the protection of the American flag.
Were the right of Great Britain, in this case, not denied, the abuses flowing from it, would justify the United States in claiming and expecting a discontinuance of its exercise. But the right is denied, and on the best grounds.
Altho’ Great Britain has not yet adopted in the same latitude with most other nations, the immunities of a neutral flag, she will not deny the general freedom of the high seas, and of neutral vessels navigating them, with such exceptions only as are annexed to it by the law of nations. She must produce then such an exception in the law of nations in favor of the right she contends for. But in what written and received authority will she find it? In what usage except her own, will it be found? She will find in both, that a neutral vessel does not protect certain objects denominated contraband of war, including enemies, serving in the war nor articles going into a blockaded port, nor as she has maintained, and as we have not contested, enemy’s property of any kind. But no where will she find an exception to this freedom of the seas, and of neutral flags, which justifies the taking away of any person not an enemy in military service, found on board a neutral vessel.
If treaties, British as well as others, are to be consulted on this subject, it will equally appear that no countenance to the practice can be found in them. Whilst they admit a contraband of war, by enumerating its articles, and the effect of a real blockade by defining it; in no instance do they affirm or imply a right in any sovereign to enforce his claims to the allegiance of his subjects, on board neutral vessels on the high seas. On the contrary, whenever a belligerent claim against persons on board a neutral vessel, is referred to in treaties, enemies in military service alone are excepted from the general immunity of persons in that situation; and this exception confirms the immunity of those who are not included in it.
It is not then from the law or the usage of nations, nor from the tenor of treaties, that any sanction can be derived for the practice in question. And surely it will not be pretended that the Sovereignty of any nation extends, in any case whatever, beyond its own dominions, and its own vessels on the high seas. Such a doctrine would give just alarm to all nations, and more than any thing, would countenance the imputation of aspiring to an universal empire of the seas. It would be the less admissible too, as it would be applicable to times of peace as well as to times of war, and to property as well as to persons. If the law of allegiance, which is a municipal law, be in force at all on the high seas, on board foreign vessels it must be so at all times there, as it is within its acknowledged sphere. If the reason alledged for it be good in time of war, namely that the sovereign has then a right to the service of all his subjects, it must be good at all times, because at all times he has the same right to their service. War is not the only occasion for which he may want their services; nor is external danger, the only danger against which their service may be required for his security. Again; if the authority of a municipal law can operate on persons in foreign vessels on the high seas, because within the dominion of their sovereign, they would be subject to that law, and are violating that law by being in that situation, how reject the inference, that the authority of a municipal law may equally be enforced on board foreign vessels on the high seas, against articles of property exported in violation of such a law; or belonging to the country from which it was exported? And thus every commercial regulation in time of peace too, as well as of war, would be made obligatory on foreigners and their vessels, not only whilst within the dominion of the sovereign making the regulation, but in every sea, and at every distance, where an armed vessel might meet with them. Another inference deserves attention. If the subjects of one sovereign may be taken by force from the vessels of another, on the high seas, the right of taking them when found implies the right of searching for them; a vexation of commerce, especially in time of peace, which has not yet been attempted, and which for that as well as other reasons, may be regarded as contradicting the principle, from which it would flow.
Taking reason and justice for the tests of this practice it is peculiarly indefensible; because it deprives, the dearest rights of persons, of a regular trial, to which the most inconsiderable article of property captured on the high seas, is entitled; and leaves their destiny to the will of an officer, sometimes cruel, often ignorant, and generally interested, by his want of mariners, in his own decisions. Whenever property found in a neutral vessel is supposed to be liable on any grounds to capture and condemnation, the rule in all cases is that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages, for an abuse of his power. Can it be reasonable then or just, that a belligerent commander who is thus restricted and thus responsible in a case of mere property of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiances, and to carry that decision into instant execution, by forcing every individual he may chuse, into a service abhorent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest dangers. Reason, justice and humanity unite in protesting against so extravagant a proceeding. And what is the pretext for it? It is that the similarity of language and of features between american citizens and British subjects are such as not easily to be distinguished; and that without this arbitrary and summary authority to make the distinction, British subjects would escape, under the name of american citizens from the duty which they owe to their Sovereign. Is then the difficulty of distinguishing a mariner of one country from the mariner of the other, and the importance of his services, a good plea for referring the question, whether he belongs to the one or to the other, to an arbitrary decision on the spot, by an interested and unresponsible officer? In all other cases, the difficulty and the importance of questions, are considered as reasons for requiring greater care and formality in investigating them, and greater security for a right decision on them. To say that precautions of this sort are incompatible with the object, is to admit that the object is unjustifiable; since the only means by which it can be pursued are such as cannot be justified.
The evil takes a deeper die when viewed in its practice as well as its principles. Were it allowable that British subjects should be taken out of american vessels on the high seas, it might at least be required that the proof of their allegiance should lie on the British side. This obvious and just rule is however reversed; and every seaman on board, tho’ going from an american port, and sailing under the american flag, and sometimes even speaking an idiom proving him not to be a british subject, is presumed to be such, unless shewn to be an american citizen. It may safely be affirmed that this is an outrage and an indignity, which has no precedent, and which Great Britain would be among the last nations in the world to suffer if offered to her own subjects, and her own flag. Nor is it always against the right presumption alone, which is in favor of the citizenship corresponding with the flag, that the violence is committed. Not unfrequently it takes place in defiance of the most positive proof, certified in due form by an american officer. Let it not be said, that in granting to american seamen this protection for their rights as such, the point is yielded, that the proof lies on the american side; and that the want of it in the prescribed form, justifies the inference that the seaman is not of american allegiance. It is distinctly to be understood that the certificate usually called a protection to american seamen, is not meant to protect them under their own or even any other neutral flag on the high seas. We maintain, and can never admit, that in such a situation any other protection is required for them, than the neutral flag itself, on the high seas. The document is given to prove their real character, in situations, to which neither the law of nations, nor the laws of their own Country are applicable; in other words to protect them within the jurisdiction of the British laws, and to secure to them, within every other jurisdiction, the rights and immunities due to them. If in the course of their navigation even on the high seas, the document should have the effect of repelling wrongs of any sort, it is an incidental advantage only, of which they avail themselves, and is by no means to be misconstrued into a right to exact such a proof, or to make any disadvantageous inference from the want of it.
Were it even admitted that certificates for protection might be justly required in time of war from american seamen, they could only be required in cases, where the lapse of time from its commencement had given an opportunity for the American seamen to provide themselves with such a document. Yet it is certain that in a variety of instances, seamen have been impressed from american vessels, on the plea that they had not this proof of citizenship, when the dates and places of the impressments, demonstrated the impossibility of their knowing, in time to provide the proof, that a state of war had rendered it necessary.
Whether therefore, we consult the law of nations, the tenor of treaties or the dictates of reason and justice, no warrant, no pretext can be found for the British practice of making impressments from american vessels on the high seas.
Great Britain has the less to say in excuse for this practice, as it is in direct contradiction to the principle on which she proceeds in other cases. Whilst she claims and seizes on the high seas, her own subjects voluntarily serving in American vessels, she has constantly given; when she could give, as a reason for not discharging from her service american citizens, that they had voluntarily engaged in it. Nay, more; whilst she impresses her own subjects from the american service, altho’ they may have been settled and married, and even naturalized in the United States, she constantly refuses to release from hers, american citizens impressed into it, whenever she can give for a reason that they were either settled or married within her Dominions. Thus, when the voluntary consent of the individual, favors her pretensions, she pleads the validity of that consent. When the voluntary consent of the individual stands in the way of her pretensions, it goes for nothing! When marriage or residence can be pleaded in her favor, she avails herself of the plea. When marriage and residence, and even naturalization are against her, no respect whatever is paid to either! She takes by force her own Subjects voluntarily serving in our Vessels—She keeps by force American Citizens involuntarily serving in hers. More flagrant inconsistencies cannot be imagined.
Notwithstanding the powerful motives which ought to be felt by the British Government to relinquish a practice which exposes it to so many reproaches; it is foreseen that objections of different sorts will be pressed on you. You will be told first, of the great number of British Seamen in the American Trade and of the necessity for their services in time of War and Danger. 2. of the right and the prejudice of the British nation with respect to what are called the British or narrow Seas, where its domain would be abandoned by the general stipulation required. 3. Of the use which would be made of such a Sanctuary as that of American Vessels, for desertions and traiterous communications to her enemies, especially across the Channel to France.
1. With respect to the British Seamen serving in our Trade, it may be remarked first, that the number tho’ considerable, is probably less than may be supposed; secondly, that what is wrong in itself, can not be made right by considerations of expediency or advantage; thirdly, that it is proved by the fact, that the number of real British Subjects gained by the practice in question, is of inconsiderable importance even in the scale of advantage. The annexed report to Congress on the subject of impressments6 with the addition of such cases as may be in the hands of Mr. Irving will verify the remark in its application to the present War. The statement made by his Predecessor during the last War, and which is also annexed,7 is in the same view still more conclusive. The statement comprehends not only all the applications made by him in the first instance, for the liberation of impressed Seamen, between the Month of June 1797, and Septr. 1801, but many also which had been made previous to his Agency by Mr. Pinckney and Mr. King, and which it was necessary for him to renew. These applications therefore may fairly be considered as embracing the greater part of the period of the War; and as applications are known to have been pretty indiscriminately made, they may be further considered as embracing if not the whole, the far greater part of the impressments, those of British Subjects, as well as others. Yet the result exhibits 2.059 cases only; & of this number, 102 Seamen only “detained as being British Subjects,” which is less than 1/20 of the number impressed; and 1142 discharged or ordered to be so, as not being British Subjects, which is more than half of the whole number; leaving 805 for further proof, with the strongest presumption, that the greater part if not the whole were Americans or other Aliens, whose proof of Citizenship had been lost or destroyed, or whose situation would account for the difficulties and delays in producing it. So that, it is certain, that for all the British Seamen gained by this violent proceeding, more than an equal number who were not so were the victims; it is highly probable that for every British Seaman so gained, a number of others not less than 10 for 1 must have been the victims; and it is even possible that this number may have exceeded the proportion of twenty to one.
It cannot therefore be doubted that the acquisition of British Seamen, by these impressments, whatever may be its advantage, is lost in the wrong done to Americans ignorantly or wilfully mistaken for British Subjects; in the jealousy and ill will excited among all maritime nations by an adherence to such a practice; and in the particular provocation to measures of redress on the part of the U. States, not less disagreeable to them, than embarrassing to G. Britain, and which may threaten the good understanding which ought to be faithfully cultivated by both. The copy of a bill brought into Congress, under the influence of violations committed on our flag, gives force to this latter consideration. Whether it will pass into a law, and at the present Session, is more than can yet be said. As there is every reason to believe, that it has been proposed with reluctance, it will possibly not be pursued into effect, if any hope can be supported of a remedy by an amicable arrangement between the two nations. But such is the feeling thro’ this Country produced by the reiterated and atrocious cases of impressment and other insults on our flag, that a remedy of some kind will ere long be called for in a tone not to be disregarded. A copy of the bill referred to is herewith enclosed.8
There is a further consideration which ought to have weight in this question. Altho’ the British Seamen, employed in carrying on American commerce, be in some respects lost to their own nation, yet such is the intimate and extensive connextion of this Commerce, direct and circuitous, with the Commerce, the manufactures, the Revenue and the general resources of the British nation, that in other respects its mariners, on board American Vessels, may truly be said to be rendering it the most valuable services. It would not be extravagant to make it a question, whether Great Britain would not suffer more by withdrawing her Seamen from the merchant Vessels of the United States, than her enemies would suffer from the addition of them to the crews of her ships of war and cruizers.
Should any difficulty be started concerning seamen born within the British dominions, and naturalized by the UStates since the Treaty of 1783, you may remove it by observing; first that very few of any such naturalizations can take place; the law here requiring a preparatory residence of five years with notice of the intention to become a citizen entered of record two years before the last necessary formality;9 besides a regular proof of good moral character; conditions little likely to be complied with by ordinary sea faring persons: secondly, that a discontinuance of impressments on the high seas will preclude an actual collision between the interfering claims. Within the jurisdiction of each nation, and in their respective vessels on the high seas, each will enforce the allegiance which it claims. In other situations the individuals doubly claimed will be within a jurisdiction independent of both nations.
2d The British pretentions to domain over the narrow seas are so obsolete, and so indefensible, that they never would have occurred as a probable objection in this case if they had not actually frustrated an arrangement settled by Mr. King with the British Ministry on the subject of impressments from American Vessels on the high seas. At the moment when the articles were expected to be signed, an exception of the “narrow Seas,” was urged and insisted on by Ld. St. Vincent; & being utterly inadmissible on our part, the negotiation was abandoned. Mr. King, seems to be of opinion however that with more time, than was left him for the experiment, the objection might have been overcome.10 This is not improbable if the objection was not merely an expedient for evading a relinquishment of a favorite practice.
The objection in itself has certainly not the slightest foundation. The time has been indeed when England not only claimed but exercised pretentions scarcely inferior to full sovereignty, over the Seas surrounding the British Isles, and even as far as Cape Finisterre to the South, and Vanslaten in Norway to the North. It was a time however, when reason had little share in determining the law and the intercourse of Nations, when power alone decided questions of right, and when the ignorance & want of concert among other maritime Countries, facilitated such an usurpation. The progress of civilization & information has produced a change in all those respects; & no principle in the code of public law is at present better established than the common freedom of the Seas, beyond a very limited distance from the Territories washed by them. This distance is not indeed fixed with absolute precision. It is varied in a small degree by written authorities, and perhaps it may be reasonably varied in some degree by local peculiarities. But the greatest distance which would now be listened to any where, would make a small proportion of the narrowest part of the narrowest seas in question.
What are in fact the prerogatives claimed and exercised by Great Britain over these seas? If they were really a part of her domain, her authority would be the same there as within her other domain. Foreign vessels would be subject to all the laws and regulations framed for them, as much as if they were within the harbours or rivers of the Country. Nothing of this sort is pretended. Nothing of this sort would be tolerated. The only instances in which these seas are distinguished from other seas, or in which Great Britain enjoys within them, any distinction over other nations, are, first, the compliment paid by other flags to hers; secondly, the extension of her territorial jurisdiction in certain cases to the distance of four leagues from the coast. The first is a relic of ancient usurpation, which has thus long escaped the correction which modern and more enlightened times have applied to other usurpations. The prerogative has been often contested however, even at the expence of bloody wars; and is still borne with ill will and impatience by her neighbors. At the last Treaty of peace at Amiens, the abolition of it was repeatedly and strongly pressed by France; and it is not improbable that at no remote day it will follow the fate of the title of “King of France,” so long worn by the British Monarchs and at length so properly sacrificed to the lessons of a magnanimous wisdom. As far as this homage to the British flag has any foundation at present, it rests merely on long usage and long acquiescence; which are construed, as in a few other cases of maritime claims, into the effect of a general tho’ tacit convention. The second instance is the extension of the territorial jurisdiction to four leagues from the shore. This too, as far as the distance may exceed that which is generally allowed, rests on a like foundation; strengthened perhaps, by the local facility of smuggling, and the peculiar interest which Great Britain has in preventing a practice affecting so deeply her whole system of revenue, commerce, and manufactures: whilst the limitation itself to four leagues, necessarily implies that beyond that distance no territorial jurisdiction is assumed.
But whatever may be the origin or the value of these prerogatives over foreign flags in one case and within a limitted portion of these seas in another; it is obvious, that neither of them will be violated by the exemption of american vessels from impressments which are nowise connected with either; having never been made on the pretext either of withholding the wanted homage to the British flag or of smuggling in defiance of British laws.11
This extension of the British law to four leagues from the shore is inferred from an act of Parliament passed in the year 1736 (9 g. 2 C. 35)12 the terms of which comprehend all vessels, foreign as well as British. It is possible however, that the former are constructively excepted. Should your enquiries ascertain this to be the case, you will find yourself on better ground, than the concession here made.
With respect to the compliment paid to the British flag, it is also possible that more is here conceded, than you may find to be necessary. After the peace of 1783, this compliment was peremptorily withheld by France in spite of the remonstrances of Great Britain, and it remains for your enquiry, whether it did not continue to be refused, notwithstanding the failure at Amiens to obtain from G Britain a formal renunciation of the claim.
From every view of the subject, it is reasonable to expect that the exception of the narrow seas from the stipulation against impressments, will not be inflexibly maintained. Should it be so, your negotiation will be at an end. The truth is that so great a proportion of our trade direct and circuitous passes thro’ those channels, and such is its peculiar exposure in them to the wrong practised, that with such an exception any remedy would be very partial. And we can never consent to purchase a partial remedy by confirming a general evil, and by subjecting ourselves to our own reproaches, as well as to those of other nations.
3. It appears, as well by a letter from Mr. Thornton, in answer to one from me, of both which copies are herewith inclosed,13 as from conversations with Mr. Merry that the facility which would be given, particularly in the British channel by the immunity claimed for American vessels, to the escape of traitors, and the desertion of others whose services in time of War may be particularly important to an enemy, forms one of the pleas for the British practice of examining american crews, and will be one of the objections to a formal relinquishment of it.
This plea, like all others, admits a solid and satisfactory reply. In the first place, if it could prevail at all against the neutral claim, it would authorize the seizure of the persons described only, and in vessels bound to a hostile country only; whereas the practice of impressing is applied to persons, few or any of whom are alledged to be of either description, and to vessels whithersoever bound, even to G. Britain herself. In the next place, it is not only a preference of a smaller object on one side, to a greater object on the other; but a sacrifice of right on one side to expediency on the other side.
Considering, nevertheless, the possible adherence of the British Government to this last objection, and the extreme importance to our seafaring citizens and commerce, of a stipulation suppressing a practice, flagrant in its nature, and still more so in the abuses inseparable from it, you are left at liberty to concur if necessary, in the modification as it stands in the Second column. You will observe that this guards in all cases the crews of our vessels from being meddled with; and in referring for an exception to the immunity on board our vessels, to the law of nations, yields no principle maintained by the United States; inasmuch as the referrence will be satisfied by the acknowledged exception of enemies in military service. Should persons therefore, other than such, be taken, under pretext of the law of nations, the United States will be free to contest the proceeding; and there is the less difficulty in leaving the stipulation on this footing, as the case may never happen, and will be pretty sure to happen but rarely. You will observe also, that in the passage from one port to another of the respective countries, the vessels of the neutral parties are to protect all persons without exception. Independently of the general principle asserted by the United States, this respect is due to the peculiar character of the coasting trade, and the utter improbability that it will at any time be a vehicle to persons of any obnoxious description.
On Article II.
The reasonableness of this article is manifest. Citizens or Subjects of one country residing in another, though bound by their temporary allegiance to many common duties, can never be rightfully forced into military service, particularly external service; nor be restrained from leaving their residence when they please. The law of nations protects them against both; and the violation of this law, by the avowed impressment of american citizens residing in Great Britain, may be pressed with the greater force on the British Government, as it is in direct inconsistency with her impressment of her own subjects bound by much stronger ties to the United States as above explained; as well as with the spirit of her commercial laws and policy, by which foreigners are invited to a residence. The liberation of the persons comprehended by this article, therefore, cannot be justly or honorably refused, and the provision for their recompence and their return home, is equally due to the service rendered by, and the wrong done to, them.
On Article III.
This regulation is conformable to the law of nations, and to the tenor of all treaties which define the belligerent claim of visiting and searching neutral vessels. No treaty can be cited in which the practice of compelling the neutral vessel to send its boat, its officers, its people or its papers to the belligerent vessel, is authorized. British Treaties, as well as those to which she is not a party, in every instance, where a regulation of the claim is undertaken, coincide with the article here proposed. The article is in fact almost a transcript of the XXVI article of the Treaty of 1786 between G.Britain and France.14
The regulation is founded in the best reasons—1st. It is sufficient for the neutral, that he acquiesces in the interruption of his voyage, and the trouble of the examination, imposed by the belligerent commander. To require a positive and active co-operation on his part in behalf of the latter, is more than can be justified on any principle—2d. The belligerent party can always send more conveniently to the neutral vessel, than this can send to the belligerent vessel; having neither such fit boats for the purpose, especially in a rough sea, nor being so abundantly manned. 3d. This last consideration is enforced by the numerous and cruel abuses committed in the practice of requiring the neutral vessel to send to the belligerent. As an example you will find in the documents now transmitted a case where neither the smallness and leakiness of the boat, nor the boisterous state of the weather, nor the pathetic remonstrances of the neutral commander had any effect on the imperious injunctions of the belligerent, and where the task was performed at the manifest peril of the boat, the papers, and the lives of the people. The limitation of the number to be sent on board the neutral vessel is a reasonable and usual precaution against the danger of insults and pillage.
On Art: IV.
This enumeration of contraband articles is copied from the Treaty of 1781 between Great Britain and Russia.15 It is sufficiently limitted; and that Treaty is an authority more likely than any other to be respected by the British Government. The sequel of the article, which protects the productions of a hostile Colony, converted into neutral property, is taken from the same model,16 with the addition of the terms “in any case or on any pretext.” This addition is meant to embrace more explicitly, our right to trade freely with the Colonies at war with Great Britain, and between them and all parts of the world in Colonial productions, being at the time not enemy’s, but neutral property: a trade equally legitimate in itself with that between neutral countries directly & in their respective vessels, and such Colonies; which the British regulations do not contest.
In support of this right, in opposition to the British doctrine, that a trade not allowed by a nation in time of peace cannot be opened to neutrals in time of war, it may be urged, that all nations are in the practice of varying more or less in time of war their commercial laws, from the state of these laws in time of peace, a practice agreeable to reason, as well as favorable to neutral nations; that the change may be made in time of war, on considerations not incident to a state of war, but on such as are known to have the same effect in time of peace; that G. Britain herself is in the regular practice, of changing her navigation and commercial laws, in times of war, particularly in relation to a neutral intercourse with her Colonies; that at this time she admits a trade between neutral countries and the Colonies of her enemies, when carried on directly between them, or between the former and herself; interrupting only a direct trade between such Colonies and their parent state; and between them and Countries in Europe, other than those to which the neutral trade may respectively belong; that as she does not contest the right of neutrals to trade with hostile colonies, within these limitations, the trade can be, and actually is carried on indirectly between such colonies and all Countries, even those to which the Colonies belong; and consequently that the effect of her doctrine and her practice, is not to deprive her enemy of their Colonial trade, but merely to lessen the value of it in proportion to the charges incident to the circuitous course into which it is forced; an advantage to her which if just in itself, would not be sufficiently so, to balance the impolitic vexations accruing to neutral and friendly nations.
These views of the subject have entered into my conversations with Mr. Merry.17 He expresses, notwithstanding, a belief that Great Britain will turn an unfavorable ear to any proposition calculated to give her enemies the resources of their Colonial Trade, beyond the degree in which her present regulations permit. This is doubtless to be apprehended; but considering the proposition as an article which may find a balance in the general bargain, it may not be inadmissible; or if inadmissible in the extent proposed, a middle ground may perhaps be accepted. The Colonial Trade in question consists of four branches; first between the Colonies and Great Britain herself, Secondly, between the Colonies and the neutral Countries carrying on the Trade; thirdly, between the Colonies and neutral Countries not themselves carrying on the Trade; fourthly, between the Colonies and the Countries to which they belong or which are parties to the War with Great Britain.
The first and second branches are those with which her own regulations accord. The last is that to which her aversion will of course be the strongest. Should this aversion be unconquerable, let it be tried then, and then only, whether on our yielding or rather omitting that point, she will not yield to us in return the direct Trade between hostile Colonies and neutral Countries generally. You will be careful however so to modify the compromise as will mark as little as may be, a positive relinquishment of the direct Trade between the belligerent nations and their Colonies.
Should such a compromise be altogether rejected, you will limit the article, to the simple enumeration of contraband; it being desireable that without a very valuable consideration, no precedent should be given by the United States of a stipulated acknowledgement that free Ships do not make free goods. And you will omit the article altogether, if a proper list of contraband, cannot be agreed on, particularly, one that excludes money, provisions and naval Stores.
On Art V.
This article is taken from the Convention of 1800 between the United States and France,18 is conformable to the general practice of the prize Courts in the latter, and is the more worthy of adoption every where, as it would contribute so much to the consistency and stability of the rules of Admiralty proceedings. Without a single objection justly lying against it, it will have the important advantages, of being a check on the inferior tribunals, of enabling the superior tribunal where a faulty reason appears on the face of the sentence, to correct the wrong without delay or expence, and of being a check moreover on the decisions of the superior tribunal itself. As prize causes also are tried by Courts not of a third party, but of one of the parties interested, it is but reasonable that the ground should be known to the other on which judgment has passed against its citizen or subject; in order, if deemed proper, that negotiations may be employed for redressing past or guarding against future injustice.
On Art. VI
The fictitious blockades proclaimed by Great Britain and made the pretext for violating the Commerce of neutral nations, has been one of the greatest abuses ever committed on the high Seas. During the late War they were carried to an extravagance which would have been ridiculous, if in their effects they had not inflicted such serious and extensive injuries on neutral nations. Ports were proclaimed in a state of blockade, previous to the arrival of any force at them; were continued in that state without regard to intermissions in the presence of the blockading force; and the proclamations left in operation, after its final departure: The British Cruisers during the whole time seizing every Vessel bound to such Ports, at whatever distance from them, and the British prize Courts pronouncing condemnations wherever a knowledge of the proclamation at the time of sailing could be presumed, altho’ it might afterwards be known that no real blockade existed. The whole scene was a perfect mockery, in which fact was sacri[fi]ced to forms, and right to power and plunder. The United States were among the greatest sufferers; and would have been still more so, if redress for some of the spoliations proceeding from this source, had not fallen within the provisions of an Article in the Treaty of 1794.19
From the effect of this and other arbitrary practices of Great Britain, on the temper and policy of neutral nations towards her; from the spirit of her Treaty made near the close of the late War with Russia; from the general disposition manifested at the beginning of the present, towards the United States, and the comparative moderation observed in Europe with respect to blockades (if indeed the two cases of the Weser and Elbe are not to be excepted) it was hoped that the mockeries and mischiefs practised under the name of blockades, would no where be repeated. It is found however that the West Indies are again the Theatre of them. The three entire and extensive Islands of Martinique, Guadaloupe & St. Domingo have been published as in a state of blockade, altho’ the whole naval force applied to the purpose is inconsiderable; altho’ it appears that a part of this inconsiderable force is occasionally seen at the distance of many leagues at sea; altho’ it does not appear that more than one or two ports at most, have at any time been actually blockaded, and altho’ complaints are heard; that the British Ships of War do not protect their own trade against the numerous Cruisers from the Islands under this pretended blockade.
Inclosed herewith are three letters on this subject; two from me, the first to Mr. Thornton, the second to Mr. Merry; and the third from Mr. Merry to me.20 You will observe that he does not pretend to justify the measures pursued in the West Indies, but on the contrary, wishes them to be regarded as proceeding from an Officer, who does not pursue the intentions of his Government. Still such measures prove that no general regulations or orders have been yet issued by that Government against the evil, as might reasonably have been expected; and that a stipulated security against it, is an object as important as it is just.
In the two letters to Mr. Thornton and Mr. Merry, the ground is marked out on which you will be able to combat the false blockades, and to maintain the definition of a real one, contained in the proposed Article, which is a literal copy from the 4th. Art. of the Russian Treaty above cited.21 In addition to these letters, you will find inclosed a letter of the of 22 to Mr. Pinckney, in which some views are taken of the subject, which may also be of use in your discussions with the British Government.
On Art. VII
This article is due, if not to all neutrals, at least to the United States, who are distinguished by the distance of their situation. Decisions of the British Court of Admiralty, have so far respected this peculiarity as to admit a want of information as a plea for going to a blockaded Port, where such a plea would be refused to less remote Countries. But more than this may fairly be claimed. A vessel, knowing that a particular blockade existed two Months before, may well conjecture that before her arrival at the Port, which will require two months more, the blockade will have ceased; and may accordingly clear & steer for such a Port, with an honest intention, in case of finding on her approach, the fact otherwise, not to attempt an unlawful entrance. To condemn vessels under such circumstances would be manifestly unjust; and to restrain them from a distant voyage to a port once in a State of Blockade, until information of a change, shall have travelled a like distance, must produce a delay and uncertainty, little short of an absolute prohibition of the Commerce. To require them even to go out of their course, to seek at other ports information on the subject, would be an unreasonable imposition. The British Government can have little objection to this Article, after defining blockades as is agreed with Russia and as is here proposed; since our distance is of itself, a security against any concert with the blockaded, for surreptitious entries, which might be attempted by nearer adventurers; and since in the case of blockades by a force actually present, a preliminary notice may be required without impairing their efficacy, as might be the case with blockades such as the preceding article guards against.
The only difference between the articles as standing in the different columns, consists in the preamble to that which is to be admitted, if the proposition of the other, should not succeed. The article is preferable without the recital of any reason particular to the United States; because as a naked stipulation, it strengthens instead of weakening a general principle friendly to neutral and pacific Nations.
On Art. VIII and IX. & X.
These are articles which are known to have been long wished and contemplated on the part of Great Britain, and together with the justice and in many views the expediency to Great Britain herself, of the articles desired on our part, may induce her to accede to the whole. The articles are in substance the same with a project offered to the American Administration in the year 1800 by Mr. Liston,23 who appears to have borrowed it from corresponding stipulations in the Convention between the United States and France in the year .24 The project was at that time dropped, owing perhaps in part to the change in the head of the Department of State, between whom and Mr Liston it had been discussed; and principally, to the difficulty of combining with it proper stipulations against British impressments on the high seas. Without such an equivalent, the project had little to recommend it to the United States. Considered by itself it was too the less admissible as one of its articles, under some obscurity of expression, was thought to favor the British pretension to impress British seamen from american vessels on the high seas.
A copy of this document is inclosed,25 as it may be not without use in shewing the ideas of the British Government at that time; so far at least as its minister here was an organ of them.
The terms in which these articles are to be proposed, differ but slightly from those in which they may be admitted. In the former the delivery of deserters is confined to soldiers and seamen, without requiring a delivery of Officers, whose desertion will not be from the service of their Country, but on account of Offences, for which it might sometimes be more agreeable to the United States to be unbound to give them up for trial and punishment. At the same time this consideration ought not to be a bar to an arrangement, which in its general character will be so important to the interests of the United States.
On Art XI.
This is a stipulation which is not to be yielded but in the event of its being made an indispensable condition. It cannot be essential for the object of it, whilst the British Government is left free to take the precautions allowable within its own jurisdiction for preventing the clandestine departure of its seamen or its soldiers in neutral vessels. And it is very ineligible to the United States; inasmuch as it will be difficult to enforce the prohibition, whether we regard the embarkation of such persons in British ports, or their landing on the american shores; and inasmuch as the inefficacy of regulations for such purposes, tho’ made with due sincerity and care, may become a source of secret jealousy and dissatisfaction, if not of controversy and reproach.
The article is copied from that in the arrangement (of which you have a copy) discussed and brought near to a conclusion between Mr King and the British Ministry;26 and you are authorized to accede to it, on the supposition, that it may again be insisted on. It is to be recollected however, that the article was then understood to be the only price given for relinquishing the impressment of American seamen. The other offers now substituted, will justify you in pressing the omission of the original one.
On Art XII
The law of nations does not exact of neutral powers the prohibition specified in this article. On the other hand it does not restrain them from prohibiting a trade which appears on the face of the official papers proceeding from the Custom House, to be intended to violate the law of nations, and from which legitimate considerations of prudence may also dissuade a Government. All that can be reasonably expected by belligerent from neutral powers, is that their regulations on this subject be impartial; and that their stipulations relative to it, when made in time of war at least, should not preclude an impartiality.
It is not certain what degree of value GBritain may put on this article, connected as it essentially is with the article which limits the list of contraband. It will at least mitigate her objection to such a limitation. With the range given to contraband by her construction of the law of nations, even as acquiesced in by the United States, a stipulation of this sort would be utterly inadmissible.
The last article, in making this city, the place for exchanging the ratifications, consults expedition in putting the Treaty into operation, since the British ratification can be forwarded at the same [sic] with the instrument itself. And it is otherwise reasonable that as the negotiation and formation of the Treaty will have taken place at the seat of the British Government, the concluding formality should be at that of the Government of the U States.
In addition to these articles, which with the observations thereon, I am charged by the President to communicate to you as his instructions, he leaves you at liberty to insert any others which may do no more than place British armed vessels with their prizes on an equality within our ports and jurisdiction with those of France. This would only stipulate what would probably be done by gratuitous regulations here, and as it would no doubt be acceptable to GBritain, it may not only aid in reconciling her to the principal objects desired by the U States, but may induce her to concur in the further insertion of articles, corresponding with those in the Convention of 1800 with France, which regulate more precisely and more effectually the treatment of vessels of the neutral party on the high seas.27
The occasion will be proper also, for calling the attention of the British Government to the reasonableness of permitting american Consuls to reside in every part of her dominions, where and so long as she permits our citizens to trade. It is not denied that she has a natural right to refuse such a residence, and that she is free by her treaty with us, to refuse it in other than her European dominions. But the exception authorized with respect to the residence of Consuls elsewhere, having reference to the refusal of our trade elsewhere, the refusal of the one ought manifestly to cease with the refusal of the other. Where our vessels and Citizens are allowed to trade to ports in the West Indies, there is the same reason for a cotemporary admission of Consuls to take care of it, as there is for their admission in ports where the trade is permanently allowed. There is the juster expectation of your success on this point, as some official patronage is due to the rights of our Citizens in the prize Courts established in the West India Islands. Should the British Govt. be unwilling to enter into a stipulated provision, you may perhaps obtain an order to the Governors for the purpose. Or if Consuls be objected to altogether, it is desirable that Agents may be admitted, if no where else⟨,⟩ at least in the Islands where the Vice Admiralty Courts are established.
It has been intimated that the articles as standing in the different columes, are to be considered, the one as the offer to be made, the other as the ultimatum to be required. This is however not to be taken too strictly; it being impossible to foresee the turns and the combinations, which may present themselves in the course of the negotiation. The essential objects for the U. States are the suppression of impressments, and the definition of Blockades. Next to these in importance, are the reduction of the list of contraband and the enlargment of our neutral trade with hostile Colonies. Whilst you keep in view therefore those objects, the two last as highly important and the two first as absolutely indispensable, your discretion in which the President places great confidence, must guide you in all that relates to the inferior ones. With Sentiments of great respect & esteem I remain Sir. Yr Most Obedt. svt.