Philadelphia, 26th February 1800.
In obedience to your direction to report my opinion upon the matters contained in the two Letters of his Britannic Majesty’s Minister to the Secretary of State, dated 2d and 4th instant, the following is respectfully submitted to your consideration.
In the first mentioned Letter a claim is made by the express order of his Britannic Majesty, that three American Merchant Vessels, namely the Brigantine Experience, the Ship Lucy and the Brigantine Fair Columbian, which had been stopped and detained upon the high Seas by several British Ships of War, under a suspicion of having Enemies’ property on board, and afterwards taken out of the hands of the Prize-masters, the two first by force and the last without force and brought into the United States should be delivered up to the minister together with the British Seamen and Deserters who assisted in those Rescues, that they may be sent by him to one of the British Colonies to be there, dealt with according to Law. This claim is to be considered as it relates to American Ships, and as it relates to the British Seamen.
The American Ships.
No Stipulation in the Treaties between the two Nations authorises the demand for Restitution of the American Ships. It is therefore to be decided by the practice of friendly nations which upon this subject is the only law.
It is not denied that a Belligerent has a right to stop a neutral ship on the high sea suspected to have on Board either contraband merchandize destined to an Enemy’s port, or Enemies’ goods, and a right to send such neutral ship to a competent Court for examination and trial: and it is equally true that this Right is recognized in the President’s Instructions to the American Ships of War. But while the Right of searching neutral Ships is acknowledged, it is not acknowledged that the Sovereign of the neutral nation is under any obligation by active measures to aid and assist the Sovereign of the Belligerent nation in the Exercise of this Right. It is a right derived from war, which the Belligerent nation is suffered to exercise in consequence of its superior force, upon condition that reasonable satisfaction be made in all cases of unjust detention to the Neutral Ships, and all that is expected of the Sovereign of the Neutral nation is to remain passive.
The practice of searching and detaining neutral ships being grounded on the right which one enemy has of injuring and weakening the other, the neutral nation permits her Merchant Ships under certain circumstances to be stopped, treated and held as an Enemy by the Belligerent, but the Belligerent in so doing must depend on his own Strength and means, and may not call upon the Sovereign of the Neutral to aid him in enforcing the Rights of War against his own neutral subjects in those cases where no positive stipulations have been made by treaty. Hence arises the practice of putting on board a neutral ship when detained and sent for adjudication a prizemaster and a sufficient number of men for carrying her into port against the will of the neutrals.
That a neutral nation should be required to exert its power in aid of the right of detaining and searching its own Ships, which Belligerents are allowed to exercise is believed to be without precedent. If ever a restitution of neutral Ships detained and rescued under similar Circumstances has been claimed by the Sovereign of a Belligerent nation, from the Government of a neutral Nation, the case is unknown to me. Such a claim is believed never to have been made, or if made never granted. Whatever Right the British Captors have (if any they have) to the possession of the American Ships is of a nature cognizably before the Tribunals of Justice which are open to hear their complaints.
For these Reasons the President is advised to abstain from any Act for the Restitution of the Ships and that the British Minister be informed that this part of the claim cannot be complied with.
The British Seamen.
In demanding the British Seamen who were brought in the repossessed Vessels into the United States, I see nothing improper or unreasonable. These may be apprehended by Warrants to be issued by any Justice of the Peace upon due proof, in those states where the state Laws have so provided, & being apprehended may be delivered to the Master or other person duly authorized to receive them. The Act of Congress concerning Seamen is believed to be confined to American Seamen only, and consequently will afford no aid or remedy in the present case: and the remedy under the State Laws may not be always found to answer the purpose. The Claim of the British Seamen in the present instance being reasonable, the minister may be answered that every assistance shall be given for the Recovery of them which the Laws of this Country admit and direct.
It certainly is an object of particular concern to the British nation to come to an agreement with the United States relative to Deserters from the Sea Service, and it is not less interesting to the United States to come to an agreement with Great Britain relative to the Impressment of American Seamen. The project of an article relative to Deserters, as proposed by Mr: Liston so far as I understand it appears to be reasonable: but the 7th clause of that project is so expressed as not to be certainly understood by me, and will require to be otherwise expressed, that its meaning may not be misapprehended. If this Article is associated with another concerning the Impressment of American Seamen in terms satisfactory to our Government, I think it will be highly advisable to agree upon such stipulations. The one will be very agreeable to the British and the other to the American Nation, and especially at a time when the Sensibility of the two nations seems a little excited upon those Subjects. A proposal of this kind I think should be made without delay to the British Minister here.
I am with perfect Respect Sir / Your most obedient Servant
Signed Charles Lee
DLC: James McHenry Papers.