University of Virginia Library

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, and 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 vessels 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 alleged 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 services 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
irresponsible 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 law 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 principles 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
& 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. Secondly—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. Thirdly—Of the use which
would be made of such a sanctuary as that of American
vessels, for desertions and traitorous communications to her
enemies, especially across the channel to France.

1st.

• 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 cannot be made right by considerations
  

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  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 impressments, with the addition
  of such cases as may be in the hands of Mr. Erving, 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, 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
  September 1801, but many also which had been made
  previous to this 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 be pretty indiscriminately made, they may further be
  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, and 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 American 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 one must have been the victims, and it is even
  possible that this number may have exceeded the proportion
  of twenty to one.

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  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 United States not
  less disagreeable to them, than embarrassing to Great 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
  probably 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 impressments
  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 inclosed.

  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
  connection 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.

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  Should any difficulty be started concerning seamen born
  within the British dominions, and naturalized by the United
  States since the Treaty of 1783, you may remove it by observing;
  first that very few if 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;
  besides a regular proof of good moral character;
  conditions little likely to be complied with by ordinary seafaring
  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 pretensions 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
  Lord St. Vincent; and 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.
  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 pretensions scarcely inferior to
  full sovereignty over the seas surrounding the British Isles,
  and even as far as Cape Finisterre to the south and Nanstaten
  in Norway to the north. It was a time however, when reason
  

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  had little share in determining the law and the intercourse of
  nations, when power alone decided questions of right and when
  the ignorance and want of concert among other maritime
  countries facilitated such an usurpation. The progress of
  civilization and information has produced a change in all
  those respects; and 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 Britian 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
  

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  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 usuage 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 limited
  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 wonted homage to the British flag, or of smuggling in
  defiance of British laws.

  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) 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
  

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  failure at Amiens to obtain from Great 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.

3d.

• It appears, as well by a letter from Mr. Thornton, in
  answer to one from me, of both which copies are inclosed, 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 alleged to be of either description,
  and to vessels whithersoever bound, even to Great 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
  

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  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 reference
  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.