Department of State, February 3--1807
The triplicate of your communication of Novr. llth. has just been received. Those of Sepr. l2, had been previously received in due time.
The turn which the negotiation has taken, was not expected, and excites as much of regret as of disappointment. The conciliatory spirit manifested on both sides, with the apparent consistency of the interest of Great Britain, with the right of the American flag, touching impressments, seemed to promise as much success to your efforts on that subject as on the others; and, notwithstanding the perseverance of the British Cabinet in resisting your reasonable propositions, the hope is not abandoned that a more enlightened and enlarged policy will finally overcome scruples which doubtless proceed more from habits of opinion and official caution than from an unbiassed regard to all the considerations which enter into the true merits of the question.
In the mean time the President has with all those friendly and conciliatory dispositions which produced your mission, and pervade your instructions, weighed the arrangement held out in your last letter, which contemplates a formal adjustment of the other topics under discussion, and an informal understanding only, on that of impressment. The result of his deliberations which I am now to state to you, is, that it does not comport with his views of the national sentiment or the Legislative policy, that any treaty should be entered into with the British Government which, whilst on every other point it is either limited to, or short of strict right, would include no article providing for a case which both in principle and in practice is so feelingly connected with the honor and Sovereignty of the nation as well as with its fair interests; and indeed with the peace of both nations.
The President thinks it more eligible, under all circumstances, that if no satisfactory and formal stipulation on the subject of impressment be attainable, the negotiation should be made to terminate without any formal compact whatever, but with a mutual understanding, founded on friendly and liberal discussions and explanations, that in practice each party will entirely conform to what may be thus informally settled. And you are authorized, in case an arrangement of this kind shall be satisfactory in its substance, to give assurances that as long as it shall be duly respected in practice by the other party, more particularly on the subjects of neutral trade and impressments, it will be earnestly, and probably successfully recommended to Congress by the President, not to permit the nonimportation Act to go into operation. You are also authorized to inform the British government that the President adhering to the sentiments which led him to recommend to Congress at the commencement of the Session, a suspension of that act, and trusting to the influence of mutual dispositions and interests in giving an amicable issue to the negotiations, will, if no intervening intelligence forbid, exercise the authority vested in him by the Act of continuing its suspension from the 1st. day of July to the time limited by the Act, and which will afford to Congress, who will then be in Session, the opportunity of making due provision for the case.
You will perceive that this explanation of the views of the President, requires that if previous to the receipt of it, a Treaty not including an article relating to impressments should have been concluded and be on the way, the British Commissioners should be candidly apprized of the reasons for not expecting its ratification, and that on this ground they be invited to enter anew on the business, with an eye to such a result as has just been explained and authorized.
Having thus communicated the outline assigned by the President, as your guide in the important and delicate task on your hands, I proceed to make a few observations which are suggested by the contents of your last dispatches, and which may be of use in your further discussions and your final arrangements.
The British Government is under an egregious mistake in supposing that "no recent causes of complaint have occurred" on this subject. How far the language of Mr Lymans books may countenance this error I cannot say; but I think it probable that even there the means of correcting it may be found. In the American seas, including the West Indies, the impressments have perhaps at no time been more numerous or vexatious. It is equally a mistake therefore to suppose, "that no probable inconvenience can result from the postponement of an article" for this case.
The remedy proposed in the note from the British Commissioners, however well intended, does not inspire the confidence here which gave it so much value in their judgment. They see the favorable side only of the character of their naval Commanders. The spirit which vexes neutrals in their maritime rights, is fully understood by neutrals only. The habits generated by naval command, and the interest which is felt in the abuse of it, both as respects captures and impressments render inadequate every provision which does not put an end to all discretionary power in the Commanders. As long as the British Navy has so complete an ascendency on the high seas, its Commanders have not only an interest in violating the rights of neutrals within the limits of neutral patience, especially of those whose commerce and mariners are unguarded by fleets: they feel moreover the strongest temptation, as is well known from the occasional language of some of them, to covet the full range for spoliation opened by a state of war. The rich harvest promised by the commerce of the UStates, gives to this cupidity all its force. Whatever general injuries might accrue to their nation, or whatever surplus of reprisals might result to American Cruizers, the fortunes of British Cruizers would not be the less certain in the event of hostilities between the two nations.
Whilst all these considerations require in our behalf the most precise and peremptory security against the propensities of British Naval Commanders, and on the tender subject of impressment more than any other, it is impossible to find equivalent or even important motives on the British side for declining such a security. The proposition which you have made, aided by the internal regulations which the British Government is always free to make, closes all the considerable avenues through which its seamen can find their way into our service. The only loss consequently which could remain, would be in the number at present in this service, with a deduction of those who might from time to time voluntarily leave it, or be found within the limits of Great Britain or of her possessions; and in the proportion of this number who might otherwise be gained by impressment. The smallness of this loss appears from the annual amount of impressments, which has not exceeded a few hundred British seamen, the great mass consisting of real Americans and of subjects of other neutral powers. And even from the few British seamen ought to be deducted those impressed within neutral ports, where it is agreed that the proceeding is clearly unlawful.
Under this view of the subject the sacrifice which Great Britain would make dwindles to the merest trifle, or rather, there is just reason to believe that instead of a loss, she would find an actual gain in the excess of the deserters who would be surrendered by the UStates, over the number actually recoverable by impressment.
In practice therefore Great Britain would make no sacrifice by acceding to our terms; and her principle, if not expressly saved by a recital as it easily might be, would in effect be so by the tenor of the arrangement; inasmuch as she would obtain for her forbearance to exercise what she deems a right, a right to measures on our part which we have a right to refuse. She would consequently merely exchange one right for another. She would also by such a forbearance, violate no personal right of individuals under her protection. The UStates on the other hand, in yielding to the claims of G Britain, on this subject, would necessarily surrender what they deem an essential right of their flag and of their Sovereignty, without even acquiring any new right; would violate the rights of the individuals under the protection of both, and expose their native Citizens to all the calamitous mistakes voluntary and involuntary of which experience gives such forcible warning.
I take for granted that you have not failed to make due use of the arrangement concerted by Mr King with Lord Hawkesbury in the year 1802 for settling the question of impressment. On that occasion, and under that administration, the British principle was fairly renounced in favor of the right of our flag; Lord Hawkesbury having agreed to prohibit impressments altogether on the High seas; and Lord St. Vincent requiring nothing more than an exception of the narrow seas; an exception resting on the obsolete claim of Great Britain to some peculiar dominion over them. I have thought it not amiss to inclose another extract from Mr Kings letter giving an account of that transaction.
In the note of Novr. 8. from the British Commissioners, the Security held out to the Crews of our vessels is that instructions have been given, and will be repeated for enforcing the greatest caution &c. If the future instructions are to be repetitions of the past, we well know the inefficacy of them. Any instructions, which are to answer the purpose, must differ essentially from the past, both in their tenor and their sanctions. In case an informal arrangement should be substituted for a regular stipulation, it may reasonably be expected from the candor of the British Government that the instructions on which we are to rely, should be communicated to you.
It may reasonably be expected that on this subject the British Government will not persist in attempting to place the United States on a worse footing than Russia. In agreeing to consider the storing for a month, and changing the ship, as a naturalization of the property, the concession would be on our side not on theirs; and in making this a condition on which alone we could trade with enemy colonies even directly to and from our own ports, beyond the amount of our own consumption, we should make every sacrifice short of a complete abandonment of our principle, while they would retain as much of their pretension as is compatible with any sacrifice whatever, a pretension too which they have in so many ways fairly precluded themselves from now maintaining. In addition to the many authorities for this remark already known to you, you will find one of the highest grade in 5th. Vol. of Tomlin’s Edition of Brown’s cases in Parliament p. 328, Hendricks and others against Cunningham and others, where it was expressly admitted by the House of Lords, in a war case before them, that "it is now established by repeated determinations, that neither ships nor Cargoes, the property of subjects of neutral powers, either going to trade at, or coming from the French West India Islands, with Cargoes purchased there, are liable to capture: and therefore when a ship and Cargo so circumstanced are Seized and condemned, the Seizure and condemnation shall be reversed and the value of the ship and cargo accounted for and paid to the owners by the captors."
As it has generally happened that the British Instructions, issued to the Vice Admiralty Courts and naval Commanders have not come first to light in British prints, I inclose one of Novr. l4, which has made its appearance in ours. As it relates to the present subject, it claims attention as a proof that all question as to the legality of the voyage, in a Russian Trade with the Enemies of Great Britain is excluded, by limiting the right of capture to the cases where the innocence or ownership of the articles is questioned. The Instruction may at least be considered as coextensive in its favorable import with the Art. in the Russian Treaty; which you have been authorized to admit into your arrangements; and in that view, as well as on account of its date, the instruction may furnish a convenient topic of argument or expostulation.
If the British Government once consent that the United States may make their ports a medium of Trade between the Colonies of its Enemies and other Countries belligerent as well as neutral, why should there be a wish to clog it with the regulations suggested? Why not, in fact, consent to a direct trade by our merchants, between those Colonies and all other Countries? Is it that the price may be a little raised on the Consumers by the Circuit of the voyage, and the charges incident to the port regulations? This can not be presumed. With respect to the Enemies of Great Britain, the object would be unimportant⟨;⟩ with respect to her neutral friends, it would not be a legitimate object. Must not the answer then be sought in the mere policy of lessening the competition with and thereby favoring the price of British and other Colonial productions re-exported by British Merchants from British ports? and sought, consequently, not in a Belligerent right, or even in a policy merely belligerent; but in one which has no origin or plea but those of commercial jealousy and monopoly.
On this subject, it is fortunate that Great Britain has already in a formal Communication admitted the principle for which we contend. It will be only necessary therefore to hold her to the true sense of her own act. The words of the communication are, "that vessels must be warned not to enter." The Term warn technically imports a distinction between an individual notice to vessels, and a general notice, by proclamation or diplomatic communication; and the terms, not to enter, equally distinguishes a notice at or very near the blockaded port, from a notice directed against the original destination, or the apparent intention of a vessel, nowise approaching such a port.
Marginal Jurisdiction on the High Sea.
There could surely be no pretext for allowing less than a marine league from the shore, that being the narrowest allowance found in any authorities on the Law of Nations. If any nation can fairly claim a greater extent, the United States have pleas which cannot be rejected; And if any Nation is more particularly bound by its own example not to contest our Claim, Great Britain must be so, by the extent of her own claims to Jurisdiction on the Seas which surround her. It is hoped at least that within the extent of one league you will be able to obtain an effectual prohibition of British Ships of war, from repeating the irregularities which have so much vexed our Commerce and provoked the public resentment; and against which an article in your instructions emphatically provides. It cannot be too earnestly pressed on the British Government, that in applying the remedy copied from regulations heretofore enforced against a violation of the neutral rights of British harbors and Coasts, nothing more will be done than what is essentia⟨l⟩ to the preservation of harmony between the two Nations. In no case is the temptation or the facility greater to Ships of war, for annoying our Commerce, than in their hovering on our Coasts, and about our harbours; nor is the National sensibility in any case more justly or more highly excited than by such insults. The Communications lately made to Mr. Monroe, with respect to the conduct of British Commanders even within our own waters, will strengthen the claim for such an arrangement on this Subject, & for such new orders from the British Government as will be a satisfactory security against future causes of complaint.
East & West India Trades.
If the West India Trade cannot be put on some such footing as is authorized by your Instructions, it will be evidently best, to leave it as it is; and of course, with a freedom to either party to make such regulations as may be justified by those of the other.
With respect to the East India Trade, you will find a very useful light thrown on it, in the remarks of Mr. Crowninshield, of which several Copies were forwarded in October. They will confirm to you the impolicy, as explained in your instructions, of putting the Trade under the Regulations admitted into the Treaty of 1794. The general footing of other nations in peace with Great Britain will be clearly more advantageous; and on this footing it will be well to leave or place it, if no peculiar advantages, of which there are Intimations in Mr. Crowninshield’s remarks, can be obtained.
The justice of these ought to be admitted by Great Britain whenever the Claim is founded on violations of our rights, as these may be recognized in any new arrangement or understanding between the parties. But in cases of which there are many examples where the Claim is supported by principles which she never contested, the British Government ought to have too much respect for its professions and its reputation, to hesitate at concurring in a provision analogous to that heretofore adopted.
It is not satisfactory to allege that in all such cases, redress may be attained in the ordinary course of Judicial proceedings. If this were true, there would be sound policy as well as true equity and eoconomy in transferring the complaints, from partial Tribunals occupied with a great mass of other cases, to a Joint Tribunal exclusively charged with this special Trust. But it is not true that Redress is attainable in the ordinary course of Justice, and under the actual Constitution and Rules of the Tribunals which administer it in cases of Captures. Of this the facts within your knowledge, and particularly some which have been lately transmitted to Mr. Monroe, are ample and striking proofs; and will doubtless derive, from the manner of your presenting them, all the force with which they can appeal to the sentiments and principles which ought to guide the policy of an Enlightened Nation. I have the Honor to remain, with great Consideration & Respect, Gentlemen, Your Very Obedt. Servant,
DLC: Papers of James Monroe.