The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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| TO JAMES MONROE AND WILLIAM PINKNEY |
 | The writings of James Madison, |  |
TO JAMES MONROE AND WILLIAM PINKNEY
My letter of March 18th acknowledged the receipt of
your dispatches and of the Treaty signed on the 31 Decr.,
of which Mr Purviance was the bearer, and signified that
the sentiments and views of the President formed on the
any useless delay, be communicated.[163] The subject is
will be charged. To render his passage the more sure
will convey him to a British port, on her way to the Mediterranean.
L'Orient, with dispatches for Genl Armstrong and Mr Bowdoin,
you may have occasion to make to those gentlemen.
The President has seen in your exertions to accomplish the
great objects of your instructions, ample proofs of that zeal
that your success has not corresponded with the reasonableness
of your propositions, and the ability with which they were
Government has not yielded to the just and cogent considerations
which forbid the practice of its Cruizers in visiting and
flag, and guarded by the laws of the high seas, which ought
to be sacred with all nations.
The President continues to regard this subject in the light
in which it has been pressed on the justice and friendship
our sea faring citizens, or with the sensibility or sovereignty
would expose on the high seas, their liberty, their lives, every
thing in a word that is dearest to the human heart, to the
against their allegiance, by officers of a foreign Government,
whom neither the law of nations, nor even the laws of that
Government will allow to decide in the ownership or character
of the minutest article of property found in a like situation.
It has a great and necessary weight also with the President,
that the views of Congress, as manifested during the Session
which passed the non-importation Act, as well as the primary
rank held by the object of securing American Crews against
British impressment, among the objects which suggested the
solemnity of an Extraordinary Mission, are opposed to any
Conventional arrangement, which, without effectually providing
for that object, would disarm the United States of
the means deemed most eligible as an eventual remedy.
It is considered moreover by the President the more reasonable
that the necessary concession in this case should be made
by Great Britain, rather than by the United States, on the
double consideration; first, that a concession on our part
would violate both a moral and political duty of the Government
to our Citizens; which would not be the case on the
other side; secondly that a greater number of American Citizens
than of British subjects are, in fact, impressed from our
United States, than of right to Great Britain; taking even
her own claim for the legal criterion.
On these grounds, the President is constrained to decline
any arrangement, formal or informal, which does not comprize
a provision against impressments from American vessels
on the high seas, and which would, notwithstanding be a bar
to legislative measures, such as Congress have thought, or
may think proper, to adopt for controuling that species of
aggression.
Persevering at the same time in his earnest desire to
establish the harmony of the two nations on a proper foundation,
and calculating on the motives which must be equally
felt by Great Britain to secure that important object, it is
his intention that your efforts should be revived, with a view
to such alterations of the instrument signed on the 31st Decr,
as render it acceptable to the United States.
That you may the more fully understand his impressions
and purposes, I will explain the alterations which are to be
regarded as essential; and proceed then to such observations
on the several Articles, as will shew the other alterations which
are to be attempted, and the degree of importance respectively
attached to them.
- Without a provision against impressments, substantially
such as is contemplated in your original instructions,
no Treaty is to be concluded. - The eleventh Article on the subject of Colonial
trade cannot be admitted, unless freed from, the conditions
which restrict to the market of Europe, the reexportation
of Colonial produce, and to European Articles, the supplies
to the Colonial market. - The change made by the 3d Article in the provisions
of the Treaty of 1794, relative to the trade with the British
possessions in India, by limiting the privilege to a direct
trade from the United States, as well as to them, is deemed
an insuperable objection. - Either an express provision is to be insisted on for
indemnifying sufferers from wrongful captures, or at least
a saving, in some form or other, of their rights against any
implied abandonment. - Article 18 and 19 to be so altered as to leave the
United States free as a neutral nation to keep and place other
belligerent nations on an equality with Great Britain. - Such an alternative as is presented by the declaratory
note on the subject of the French decree of Novr 21–1806
will be admissible.
1st.
2d.
3d.
4th.
5th.
6th.
First. The considerations which render a provision on the
subject of impressments indispensable, have been already
sufficiently explained.
Second. The essential importance of the amendment
required in the 11th article, results from the extensive effect
which the article, if unamended, would have on the system
of our commerce as hitherto carried on, with the sanction
or acquiescence of Great Britain herself.
It was hoped that the British Government in regulating
the subject of this article, would at least have yielded to the
example of its Treaty with Russia. It could not have been
supposed, that a modification would be insisted on, which
shuts to our neutral commerce important channels, left open
by the adjudications of British Courts, and particularly by
the principle officially communicated by that Government
to this, thro' Mr King in the year 1801.
According to that principle and those adjudications, the
indirect trade thro' our neutral ports was as free from
enemy Colonies to every other part of the world, as to Europe;
and as free to such Colonies, in the Articles of all other
Countries, as in European Articles.
According to the tenor of the Article, and the general
prohibitory principle assumed by Great Britain, to which it
has an implied reference, the productions both of the Continental
and of the insular Colonies in America, can no longer
be re-exported as heretofore to any part of Asia or Africa,
into the trades carried on, from the United States, to the
Asiatic and African shores of the Mediterranean; nor to any
of the places, beyond the cape of Good Hope offering a market
for them; nor finally to any other enemy or neutral Colonies
in this quarter, to which in reason, as well as according to
practice, they ought to be as re-exportable, as to the Countries
in Europe to which such Colonies belong.
In like manner the importations from beyond the Cape
of Good Hope, more especially the cotton fabrics of China and
India, can no longer be sent, as heretofore, to the West
Indies, or the Spanish Main, where they not only now yield
a great profit to our merchants, but being mixed in cargoes
with the produce of this Country, facilitate and encourage
the trade in the latter. Besides the effect of the Article in
abridging so materially our valuable commerce, the distinction
which it introduces between the manufactures of Europe
and those of China and India, is charged with evils of another
sort. In many cases it might not be easy to pronounce on
the real origin of the Articles. It is not improbable that
supposititious attempts also might be occasionally made,
by the least scrupulous traders. With such pretexts as
these, arguing from the abuse made of less plausible ones,
the interruptions and vexations of our trade, by the greedy
cruizers which swarm on the ocean, could not fail to be
augmented in a degree, not a little enforcing the objection
to the article in its present form.
As the prohibitory principle of Great Britain does not extend
to the case of a Colonial Trade usually open, and no judicial
decision has professedly applied the principle to such
a trade, it is a reasonable inference, that the Article will be
so construed as to interfere with the trade of that description,
between enemy Colonies beyond the Cape of Good Hope,
and other Countries and ports, in that quarter. But on the
other hand, it may not be amiss to guard against a construction
of the Article that would abolish the rule observed in
Eastern Colonies, presumes that these ports were always
open, and thereby throws on the captors, instead of the
claimants, the disadvantage of proving the fact in
question.
It is observable that the duration of this article is limited
to the period of the present hostilities, whilst the others are
to be in force for ten years; so that if there should be a peace
and a renewal of the war, as is very possible, within the latter
period, the onerous parts of the bargain would survive a part,
in consideration of which, they were assumed. Justice and
reciprocity evidently require that the more important articles
of the Treaty should be regarded as conditions of each other,
and therefore that they should be co-durable. In this point
of view, you will bring the subject under reconsideration;
and without making this particular amendment an ultimatum,
press it with all the force which it merits. This amendment
ought to be the less resisted on the British side, as it would
still leave to that side, an advantage resulting from the nature
of the two great objects to be attained by the United States,
namely, the immunity of our crews, and of our neutral commerce,
which are connected with a state of war only; whereas
the stipulations, valued by Great Britain, will operate constantly
throughout the period of the Treaty, as well in a
state of peace, as in a state of war.
Whatever term may finally be settled for the continuance
of the regulation, it will be proper to retain the clause which
saves the right involved in the article, from any constructive
abandonment or abridgement. Even the temporary modification
of the right, as it will stand without the inadmissible
restrictions now in the article, is considered as an important
sacrifice on the part of the United States to their desire of
friendly adjustment with Great Britain. To an admission
of the Article with those restrictions, the President prefers
the footing promised to the Colonial trade, by the deference
of Great Britain for the maritime powers, and by an unfettered
to the course which her policy may take.
That the operations of the Article in its present form,
might be more fully understood, it was thought proper to
avail the public of the ideas of a citizen of great intelligence
and experience with respect to a valuable elucidation of the
subject. They will suggest, at the same time, some explanatory
precautions worthy of attention; particularly in the
case of Articles, which paying no duty on importation into
the United States, do not fall under the regulation of drawbacks;
and in the case of securing by bond, instead of actually
paying, the duties allowed to be drawn back. It appears by
the observations in your letter of Jany 3d that the bond was
understood, as it surely ought to be, equivalent to actual payment.
But this is a point so material, that it cannot be too
explicitly guarded against the misinterpretation of interested
Cruizers, and the ignorance or perverseness of inferior Courts.
3. The necessity of the change required in the third
article, in order to secure an indirect, as well as a direct trade
to the British East Indies, will be fully explained by the observations
which have been obtained from several of our best
informed Citizens on that subject, and which are herewith
inclosed.
As the latitude of intercourse was stipulated by the 13th.
Art of the Treaty of 1794, as judicially expounded by British
superior Courts; as it was enjoyed by the United States prior
to that epoch, and has been always enjoyed, both before and
since by other friendly nations; and as there is reason to
believe that the British Government has been at all times ready
since the Article expired, to renew it in its original form; it
may justly be expected that the inserted innovation will
not be insisted on. Should the expectation fail, the course
preferred is to drop the article altogether, leaving the trade
on the general footing of the most favored nation, or even
trusting to the interest of Great Britain for such regulation
as may correspond with that of the United States.
Should the negotiation take tip the East India Article of
the Treaty of 1794, you will find several amendments suggested
in the extracts above referred to, some of which may
be attempted with the greater chance of success, as they are
harmless, if not favorable, to the British system. To these
suggestions may be added a privilege to American vessels, of
touching at the Cape of Good Hope. The objection to such
a stipulation, under the present defeasible title of Great
Britain to the Cape, may be obviated by a descriptive provision,
not necessarily applicable to it, in the event of its
restitution by a Treaty of peace, but embracing it, in case
the British title should be established by that event: It
may be agreed "that vessels of the United States may touch
for refreshment at all the ports and places in the possession
of Great Britain on or in the African or Asiatic seas."
4. Without a provision, or a reservation, as to the claims
of indemnity, an abandonment of them may be inferred from
a Treaty as being a final settlement of existing controversies.
It cannot be presumed that a precaution against such an
inference, in any mode that may be most effectual, can be
opposed or complained of. On the contrary it excites just
surprise that so much resistance should be made to indemnifications
supported by the clearest rules of right, and by a precedent
in a former Treaty between the two Countries, from which
so many other Articles have been copied. The only colorable
plea for refusing the desired provision, flows from, a presumption
not only that the British Courts are disposed, but
that they are competent, to the purpose of complete redress.
Not to repeat observations heretofore made on this subject,
an unanswerable one is suggested by the clause in the
Article of the Treaty annulling the principle, or rather the
pretence, that vessels without contraband of war on board,
returning from a port to which they had carried articles
of that sort, were subject to capture and condemnation.
Previous even to this recognition, it had been settled as the
law of Nations by the British High Court of Admiralty, that
Yet a British order of August 1803 expressly declares them
to be lawful prize; and it is well known that a number of
American vessels have been seized and condemned under that
order. Here then is a class of wrongs, undeniably entitled
to redress, and which neither can nor ever could possibly
be redressed, in the ordinary course; it being an avowed rule
with the prize Courts to follow such orders of the Government,
as either expounding or superseding the law of nations. Even
cases not finally decided, would probably be considered as
falling under the rule existing at the time of the capture, and
consequently be added to this catalogue of acknowledged, but
unredressed injuries.
5. Articles 18 & 19—An effect of these Articles is to
secure to British Cruizers and their prizes, a treatment in
American ports, more favorable, than will be permitted to
those of an enemy, with a saving of contrary stipulations
already made, and a prohibition of any such in future. As
none of our Treaties with the belligerent Nations (France
excepted) stipulate to the Cruizers an equality in this respect,
and as there are parties to the War, with whom we have no
Treaties, it follows that a discrimination is made in the midst
of war between the belligerent nations, which it will not be
in the power of the United States to redress.
Weighty considerations would disuade from such a deviation
from a strict equality towards belligerent nations, if stipulated
at a time least liable to objection. But it would be difficult
to justify a stipulation, in the midst of war, substituting
for an existing equality, an advantage to one of the belligerent
parties over its adversaries; and that too, without any compensation
to the neutrals, shielding its motive from the appearance
of mere partiality. Hitherto the United States
have avoided as much as possible such embarrassments; and
with this view have gratuitously extended to all belligerents
the privileges stipulated to any of them. Great Britain
has had the benefit of this scrupulous policy. She can
benefit.
The last paragraph of the 9th Art, establishes a just
principle as to the responsibility of a neutral nation whose
territory has been violated by captures within the limits;
but by extending the principle to the two miles added to our
jurisdiction by the 12th art, qualified as that addition is,
it is made peculiarly important that an amendment should
take place.
Passing by the failure of a reciprocity, either in the terms
or the probable operation of the responsibility, the United
States seem to be bound to claim from the enemies of Great
Britain, redress for a hostile act, which such enemies may
not have renounced their right to commit within the given
space; making thus the United States liable to the one party,
without a correspondent liability to them in the other party;
and at the same time entitling Great Britain to redress for
acts committed by her enemies, which she has reserved to
herself a right to commit against them.
Should all the other belligerent nations contrary to probability,
concur, in the addition of two miles to our jurisdiction
this construction would still be applicable to their armed
ships; those unarmed alone being within the additional
immunity against British Cruizers; and the armed as well as
the unarmed ships of Great Britain, being expressly within the
additional responsibility of the United States.
6. No Treaty can be sanctioned by the United States,
under the alternative presented by the declaratory note on the
subject of the French decree of Novr 21st. It is hoped that
the occasion which produced it will have vanished, and that
it will not be renewed in connection with a future signature
on the part of Great Britain. The utmost allowable in such
a case would be a candid declaration that in signing or ratifying
the Treaty, it was understood on the part of Great Britain,
that nothing therein contained would be a bar to any measures,
which if no such Treaty existed, would be lawful as a retaliation
declaration, it would be proper, on the part of the United
States, to combine an equivalent protest against its being
understood, that either the Treaty or the British declaration
would derogate from any rights or immunities, against the
effect of such retaliating measures, which would lawfully
appertain to them, as a neutral nation, in case no such Treaty
or declaration existed.
Having given this view of the alterations which are to be
held essential, I proceed to notice such others as, tho' not
included in the ultimatum, are to be regarded as more or
less deserving your best exertions. This will be most conveniently
done, by a review of the several Articles in their
numerical order.
The 2, 4 & 5 all relate to the trade and navigation between
the two Countries. The two first make no change in the
stipulations of the Treaty of 1794. The last has changed, and
much for the better, the provisions of that Treaty, on the
subject of tonnage and navigation.
Two important questions however, enter into an estimate
of these articles.
The first is whether they are to be understood as a bar
to any regulations, such as navigation Acts, which would
merely establish a reciprocity with British regulations. From
the construction which seems to have always [been] put on the
same stipulations in the Treaty of 1794, it is concluded that
no such bar could be created, and consequently that the
Articles are in that respect unexceptionable. It may be
well, nevertheless, to ascertain that the subject is viewed
in this light by the British Government.
The second question is, whether the parties be, or be not,
mutually restrained from laying duties, as well as prohibitions,
unfavorably discriminating between Articles exported to them,
and like articles exported, to other nations.
According to the construction put by the United States on
the same clauses in the Treaty of 1794, the mutual restraint
discriminating duties on exports, introduced under the name
of Convoy duties and since continued and augmented under
other names, were accordingly combated, during the existence
of the Treaty, as infractions of its text. The British
Government however, never yielded to our construction
either in discussion or in practice. And it appears from what
passed in your negotiations on this subject, that the construction
which is to prevail, admits discriminating duties
on exports.
In this point of view, the stipulation merits very serious
attention. It cannot be regarded as either reciprocal or fair
in principle, or, as just and friendly in practice.
In the case of prohibitions, where both Governments are
on an equal footing, because it is understood that both have
the authority to impose them, neither is left at liberty to
exercise the authority.
In the case of duties, where the British Government possesses
the authority to impose them, but where it is well
known that the authority is withheld from the Government of
the United States by their Constitution, the Articles are silent;
and of course the British Government is left free to impose
discriminating duties on their exports, whilst no such duties
can be imposed by that of the United States. How will
it be in practice? Stating the exports of Great Britain to the
United States at 6 millions sterling only, the present duty
of 4 pCt levies a tax on the United States amounting to
240 thousand pounds, or One million, Sixty five thousand
Six hundred dollars; and there is nothing, whilst the War in
Europe checks competition there, and whilst obvious causes
must for a long time enfeeble it here, that can secure us
against further augmentations of the tribute.
Even under a regulation placing the United States on
the footing of the most favored nation, it appears that the
British Government would draw into its Treasury from our
consumption 3/8 of the revenue now paid by the United
giving the United States the benefits of the Check accruing
from the more manufacturing State of the European Nations.
But to be deprived of that check by the Want of an Article,
putting us on the footing of the Nations most favored by
Great Britain, and at the same time deprived of our own
checks, by clauses putting Great Britain on the Commercial
footing of the nations most favored by the United States,
would, in effect, confirm a foreign authority to tax the people of
the United States, without the chance of reciprocity or redress.
The British duty on exports to the United States has
another effect, not entirely to be disregarded. It proportionally
augments the price of British manufactures, reexported
from the United States to other markets, and so far
promotes a direct supply from Great Britain, by her own
merchants and ships. Should this not be the effect of her
regulations as now framed, there is nothing that would forbid
a change of them, having that for its object.
On these considerations it is enjoined upon you by the
President to press in the strongest terms, such an explanation
or amendment of this part of the Treaty, as will, if possible
restrain Great Britain altogether from taxing exports to the
United States, or at least place them on the footing of the
most favored nation; or if neither be attainable, such a change
in the instrument in other respects, as will reserve to the
United States the right to discriminate between Great Britain
and other nations in their prohibition of exports, the only
discrimination in the case of exports, permitted by the Constitution.
The unwillingness of the President to risk an
entire failure of the projected accommodation with Great
Britain restrains him from making an Amendment of this
part of the Treaty a sine qua non; but he considers it so
reasonable, and so much called for by the opinions and
feelings of this Country, that he is equally anxious and confident
with respect to a compliance on the part of the British
Government.
ART. 6.
This article as taking the case of the West India trade
out of any general stipulation of privileges granted to other
nations, may prove convenient, by disincumbering measures
which may be taken against the British monopoly, from, questions
of which that stipulation might otherwise be susceptible.
Art. 7, tho' to remain if desired, would be more reasonable
without the last paragraph, or with a right only to except
places and periods, at which the trade of the other party may
not be permitted.
ART. 8.
This article is framed with more accuracy than the 17th on
the same subject in the Treaty of 1794, and is improved by the
additional paragraph at the close of it. But as such general
stipulations have not been found of much avail in practice,
and as it continued to be the wish of the President to avoid,
especially at the present juncture, unnecessary confirmations
of the principle that a neutral flag does not protect enemies
property, an omission of the Article is much preferred,
unless it be so varied as to be free from the objection. This
may be easily done, by substituting a general stipulation,
"that in all cases where vessels shall be captured or detained
for any lawful cause, they shall be brought to the nearest
or most convenient port; and such part only of the Articles
on board as are confiscable by the law of nations shall be made
prize; and the vessel, unless by that law subject also to confiscation,
shall be at liberty to proceed &c."
There ought to be the less hesitation on the British side
in making this change, as the Article in its present form
departs from that of 1794; and there is the more reason on our
side for requiring the change, as the addition of "for other
lawful cause" after specifying the two cases of the enemy's
property and contraband of War, is probably valued by
Great Britain as supporting her doctrine, and impairing ours,
those specified, to which the right of capture is applicable,
is that of blockades, which might have been as easily specified,
as provided for by such a residuary phrase; and the pretext
for appropriating this phrase to the case of the Colonial trade
would be strengthened by the specific provision, in a subsequent
article for the case of blockades.
It cannot be alleged that the specifications of the two cases,
of enemy's property and contraband of war, are necessary to
prevent uncertainty and controversy; the United States having
sufficiently manifested their acquiescence in these causes
of capture. If there be a source of uncertainty and controversy,
it is in the expressions "other lawful cause" and "otherwise
confiscable" and this source could not be increased by
the change here proposed.
ART. 9.
This article is an improvement of that on the same subject
in the Treaty of 1794; inasmuch as it excepts from the list
of contraband, tar and pitch, when not bound to a port of
naval equipment, and when so bound, substitutes preemption
for forfeiture. It has an advantage also, in the clause renouncing
the principle of the British order of Augt 1803
against vessels returning from the places, to which they had
carried contraband of War.
On the other hand, it would not have been unreasonable to
expect that the British Government would, in a Treaty with
the United States, have insisted on no stipulation less favorable,
than her stipulation on the same subject, with Russia,
especially as the Naval stores exported from the United
States, are equally the growth and produce of the Country.
Consistency again, as well as reason evidently required,
that the exception in favor of tar and pitch should have been
extended to every species of naval stores, equally applicable
to other uses than those of War, and destined to places other
than those of naval equipment.
Lastly it is observable, that even turpentine and rosin
are not included with Tar and pitch in the favorable exceptions,
tho' of a character so kindred as to leave no pretext
for the distinction.
Neither has the British Government the slightest ground
for regarding as a concession, the stipulated immunity of
a vessel, which, on her outward voyage, had carried contraband
to a hostile port. The principle asserted by her order
on that subject is an innovation against the clearest right
of neutrals as recognized and enforced even by British Courts.
The very language of the Article implies that this is a
pretence for the innovation.
These considerations urge a remodification of the Article,
and they are strengthened by the great dislike of the President
to formal regulations at this particular moment, of
principles combated by some, and unfavorable to all neutral
nations. So ineligible indeed, in his view, is any step tending
in the least to retard the progress of these principles, that
naval stores are to be left on a stipulated list of contraband,
in the event only of an inflexible refusal of the British Government
to omit them; nor are they to be retained in any event,
without an addition or explanation that will except turpentine
and Rosin, as well as tar and pitch, there being no plausible
motive for the distinction; and the quantity and value of the
two former exported from the United States, being found, on
enquiry, to make them of equal importance with the two
latter. It can scarcely be supposed that the British Government
will insist on this unwarrantable distinction. It is not
indeed improbable, that it has been a mere inadvertence.
Such an inference is favored by the circumstance of your speaking,
in your comment on this article, of Tar and Turpentine,
as being the two exceptions. Whatever the true state of
the case may be, it is thought better to omit a list of
contraband altogether, than not to include in the exception
from it Turpentine and Rosin, as well as tar and
pitch.
ART. 10.
The abuse of Blockades has been so extravagant and has
produced so much vexation and injury to the fair commerce
of the United States, that, as on one hand it is of great importance
to find a remedy; so, on the other, it is the more
necessary, that the remedy should be such as not itself, to
admit of abuse. The considerations which reconciled you
to the tenor of the Article, as at least a constructive approach
to a solid provision for the case, are allowed the weight which
they justly merit; whilst the course which your discussions
took, are a proof of the exertions which were used to give
the Article a more satisfactory form.
The failure however of the British Commissioners to substantiate
a favorable construction of the Article, by a proper
explanatory letter addressed to you, with their reasons for
refusing to insert in the Treaty a definition of blockade,
justify apprehensions that the vague terms, which alone were
permitted to compose the Article, would be more likely to be
turned against our object, by Courts and Cruizers, and perhaps
by a less liberal Cabinet, than to receive in practice the
more favorable construction which candor anticipated.
The British doctrine of blockades exemplified by practice,
is different from that of all other nations, as well as from
the reason and nature of that operation of War. The mode
of notifying a blockade by proclamations and diplomatic
communications, of what too is to be done, is more particularly
the evil which is to be corrected. Against these nominal
blockades, the Article does not sufficiently close the door.
The preamble itself, which refers to distance of situation, as
a frequent cause of not knowing that a blockade exists, tho'
in one view giving the United States the advantage of a
favorable presumption, in another view, carries an admission
unfavorable to our principle, which rests not on the distance
of situation, but on the nature of the case, and which consequently
rejects, in all cases the legal sufficiency of notifications
also that it separates our cause from the common one of
neutral nations in a less distant situation, and that the principle
of it, may even be pleaded against us in the case of blockades
in the West Indies. These considerations would have been
outweighed by the advantage of establishing a satisfactory
rule on the subject, in favor of our trade; but without such a
provision in the article, it is thought less advisable to retain
it, than to trust to the law of blockades as laid down by all
writers of authority, as supported by all treaties which define
it, and more especially as recognized and communicated to
the United States by the British Government thro' its Minister
here in last; not to mention the influence, which the
course of events, and the sentiments of the Maritime Nations
in friendship with Great Britain may have in producing
a reform on this subject.
The last paragraph tho' subjecting persons in Civil as well
as military service of an enemy, to capture, in our vessels,
may prove a valuable safeguard to ordinary passengers and
Mariners, against the wrongs which they now frequently
experience, and which affect the vessels as well as themselves.
ART. 12.
It is much regretted that a provision could not be obtained
against the practice of British Cruizers, in hovering and
taking Stations for the purpose of surprizing the trade going
in and out of our harbours; a practice which the British Government
felt to be so injurious to the dignity and rights of
that nation at periods when it was neutral. An addition of
two miles nevertheless, to our maritime jurisdiction, so far
as to protect neutral and other unarmed vessels, notwithstanding
its want of anything like a due reciprocity, is not
without its value. This value will at the same time be very
materially impaired if the stipulation cannot be liberated
from the clause requiring the consent of the other belligerent
Nations, as necessary to exempt their vessels from search
fact unarmed vessels engaged in our trade, nor are they likely
to have any during the war; and these alone could derive
advantage from their consent; their armed vessels being expressly
excepted. There can be no motive with them therefore,
to agree to the regulation. They would rather be
tempted to embarrass it, with a view to continue as much as
possible vexations which lessen the mutual good will of the
parties. And as by their not agreeing to the regulations, the
right is reserved to British Cruizers to examine all vessels for
the purpose of ascertaining whether they may not belong
to a belligerent, the disturbance of our trade might be little
diminished within the additional two Miles. Besides the
mere interruption of a search concerning the vessel, it is hardly
to be expected from the general spirit of Cruizers, that the
search will not be extended to the Cargo, and if the latter
should be thus or otherwise found or suspected to be of a confiscable
sort that the temptation to capture would be resisted;
the less so perhaps, as the increased distance from the shore,
and the increased difficulty of proof would favor the chance
of condemnation, or at least countenance Courts in their
propensity to refuse damages and Costs to the claimants.
To secure the advantage promised by this Article, the
right of search ought to be suppressed altogether; the additional
space enjoying in this respect the same immunity
as is allowed to the marine league. To this object the
President wishes your endeavours to be directed.
I reserve for the 19th Art. another view of the subject which
will claim your attention.
ART. 13.
The general provision here copied from the Treaty of
1794, tho' not hitherto found of much effect, in controuling
the licenciousness of Cruizers, and very different from the
special rules in favor of neutrals contained in most treaties
which touch the subject of search, enters very properly into
The introductory sentence alone, which consists of new
matter invites particular notice. The expressions "as the
course of the war may possibly permit" and "observing as
much as possible the acknowledged principles and rules of the
law of nations" however favorably intended by the British
Negotiators, will not improbably be construed into a relaxation
of the neutral right in favor of belligerent pleas, drawn
from circumstances of which belligerent Agents will be the
Judges. The expressions may easily be so varied as to refer
simply to the law of nations for the rule, and to the friendship
of the parties, for the spirit, according to which the search
is to be conducted. If such an Amendment should be deliberately
rejected by the British Government, it will be a proof
of lurking danger, that will recommend an omission of what
relates to the subject of search in preference to retaining it.
Arts. 14, 15 & 16 call for no particular observation.
ART. 17.
So much of the Article as relates to the admission of ships
of war, would be advantageously exchanged for a general
stipulation, allowing on this subject the privilege granted
to the most favored nation. It would then be in the power
of the United States to limit the number admissible at one
time; whereas such an indefinite admission of British ships
imposes on our neutrality a like indulgence to the fleets of other
nations. Such an alteration of the article is the more reasonable
and important, as there will be little reciprocity in its
operation, the United States having but few ships; and the
inconveniences from British ships in our ports being much
greater than those from our ships in British ports.
The engagement to treat officers of the Navy with respect,
is not only too indefinite to be enforced by penal regulations,
but implies a reproachful defect of hospitality and civility.
In this light it was viewed during the discussions of the
Treaty of 1794, The clause probably grew then out of recent
on some occasion towards British officers. If latter occurrences
were to be consulted, it would be a more apt provision
now, to stipulate for the punishment of naval commanders
making insulting and ungrateful returns for the kindness and
respect shown them in our ports and towns. The President
makes almost a point of excluding this part of the Article.
Arts. 18 & 19 already noticed.
ART: 20.
Considering the great number of British merchants residing
in the United States, with the great means of influence
possessed by them, and the very few American Merchants
who reside in Great Britain, the inconvenience which may
be incident to such a protracted right to remain during a
state of war, is evidently much greater on our side than on the
other. In this view the stipulation is very unequal. The
liberal spirit of it is, at the same time, highly commendable.
It were only to be wished that the readiness of one side to
make sacrifices of this sort, to a spirit which ought to pervade
every part of a Treaty between the parties, had been less met
by an apparent disposition on the other side, rather to extort
from than to emulate it.
Art: 21. Not agreeable, but not to be an insuperable obstacle.
Art: 22 is altogether proper.
ART: 23.
This Article granting the privileges of the most favored
nation, seems to require explanation if not alteration. The
terms "shall continue to be on the footing of the most favored
nation," implies that the parties are now on that footing. To
look no further, the discrimination between Export from Great
Britain to Europe and to the United States is a proof that
the fact is otherwise.
But may not the expression be construed into a barrier
against the laws on the part of the United States, establishing
a reciprocity with the British navigation Act and West India
regulations. It might be impolitic to extend such laws to all
other nations, as it would be just to extend them to such as had
not adopted the restrictive system of Great Britain. And
yet a discrimination might be arraigned as not continuing
Great Britain in the same footing with other Nations.
The object of this Article, so far as it is a legitimate one,
would be sufficiently provided for by a mutual stipulation
of the privileges in trade and navigation enjoyed by the
most favored nation; and such stipulations moreover ought
in justice to import or imply, that where privileges are granted
to a third Nation in consideration of privileges received, the
privileges cannot be claimed under the stipulation, without
a return of the same or of equivalent privileges. The condition
is certainly not without difficulties in the execution,
but it avoids a greater evil. Should Spain or France open
her Colonies to our ships and productions, on our granting
certain privileges to her trade, these could not be claimed or
expected by the most friendly nation who would not pay the
price of them.
Arts: 24 & 25 are entirely proper.
ART: 26.
It is particularly desirable that the duration of the Treaty
should be abridged, to the term limited in the instructions
of the 5th Jany 1804.
Having taken this view of the subject with reference to a
formal Treaty under new modifications, it is necessary to
recollect that you were authorized by my letter of Feby 3d, to
enter into informal arrangements and that before the receipt
of my letter of March 18th a plan of that sort may have been
definitively settled. In such a state of things, it is impossible
to do better than to leave your own judgments, aided by a
knowledge of circumstances unknown here, and by the sentiments
far it may be eligible, or otherwise, to attempt to supersede
that informal arrangement, by opening the negotiation
herein contemplated.
Should, on another hand, the negotiation be found in the
state authorized by my letter of March 18th, that is to say,
matured provisionally only, and consequently leaving the
door open for the experiment now provided for, it must equally
remain with your own judgments, guided by a comparison
of the terms of the provisional arrangement, with the present
instructions, to decide how far it may be best to close the
former, or to pursue the objects of the latter with a view in
case of failure, to return to and close the former.
Whatever may be the course recommended by the actual
state of things, you will feel the propriety of smoothing
the way for it, by the explanations which will best satisfy
the British Government that the several steps taken on the
part of the United States have proceeded from their solicitude
to find some ground on which the difficulties and differences
existing between the two Countries, might be amicably and
permanently terminated. You will be equally aware of the
importance of transmitting hither as early and as circumstantial
information of your proceedings and prospects, as
opportunities will permit; and will particularly keep in
mind the earnest desire of the President to possess, in due time,
every material preparatory to the Communications relating
to our affairs with Great Britain, which will be so anxiously
expected on the meeting of Congress the first Monday in
December.
Since the contents of this Dispatch were determined on,
and mostly prepared, advices have been received of the
change which is taking place in the British administration.
Composed as the new one is likely to be, or rather is said to
be the event will subject our British affairs to new calculations.
The difference in the general complexion ascribed to the
politics of the rival parties towards the United States and the
the Cabinet, augur, on one hand, fresh obstacles to a favorable
negotiation. On the other hand, however, a less degree of
confidence in their own strength than was felt by their
predecessors, and a dread of furnishing these with such a topic
as might be found in a real or impending collision with this
Country, may be a powerful controul on illiberal dispositions
towards it. Another favorable consideration is, that an
important member of the New Ministry, Lord Hawksbury,
was formerly as the head of the foreign Department, the
person who negotiated with Mr. King a relinquishment of impressments
on the high seas, who made to the same public
minister, the Communications assuring to neutrals a re-exportation
of Colonial produce unfettered in any respect other
than by the condition of its having been landed and paid the
ordinary duties, and finally who communicated to this Government
thro' Mr. Merry, the instructions given to the British
Commanders and Courts in the West Indies, in which blockades,
and the mode of giving notice of them were defined in
terms liable to no objection. His concurrence therefore in an
admissible provision, on these cardinal points, is due to that
consistency which all men value more or less; and to which you
will of course appeal, as far as circumstances may invite and
delicacy permit. The inducement to touch that string is
the greater as it has not appeared that in any of the late
Parliamentary discussions, this nobleman has joined in the
unfriendly language held in relation to the neutral and commercial
rights of this Country. It is to be recollected also
that Lord Sidmouth, was at the Head of the administration
at the period alluded to, and consequently ought to be induced
by a like regard for his character to promote the adjustment
we claim, in case he should be excepted, as is said to be
not improbable, out of the dismission of his colleagues.
There are considerations moreover which cannot be without
weight with a prudent Cabinet, however composed. They
must know that apart from the obstacles which may be
States, by a mere reciprocation of the British navigation and
Colonial laws, may give a very serious blow to a favorite system,
a blow that would be felt perhaps as much too in its
example, as in its immediate operation. Should this policy
be adopted by the United States, as it respects the British
West Indies, the value of those possessions would be either
speedily lost, or be no otherwise than by a compliance with
the fair reciprocity claimed by this Country. It can no
longer be unknown to the most sanguine partizan of the
Colonial Monopoly, that the necessaries of life and of cultivation,
can be furnished to those Islands from no other source
than the United States; that immediate ruin would ensue
if this source were shut up; and that a gradual one would be
the effect of even turning the supplies out of the present direct
channel, into a circuitous one thro' neutral ports in the West
Indies. In this latter alternative, the least unfavorable that
presents, the produce of this Country would be carried to,
probably a Danish Island with the same mercantile profit, and
the same employment of our navigation, as if carried to the
British Island consuming it; and would thence be transported
to the British Island with little advantage to British Ships,
which would necessarily be sent in ballast, and confined
to a sickly climate; whilst the enhanced price of the supplies
would be fatal first to the prosperity and finally to the existence
of those dependencies.
It ought to occur moreover to the British Government
that its marine may become as dependant as its Colonies
on the supplies of the United States. As an auxiliary resource
for naval stores, this Country must be at all times important
to Great Britain. But it will be the sole and therefore an
essential one in case that of the Baltic and even of the black
sea, should fail. And it may be justly remarked that a
prohibition of this branch of our exports would be a less
sacrifice than that of any other important one; inasmuch as
some of the Articles of which it consists, being necessary to
whether the regulation would not in itself accord with our
permanent interests.
Lastly it should not be forgotten that the United States
are one of the Granaries which supply the annual deficit
of the British harvests. The northern part of Europe, the
usual concurrent resource is in a situation that must disable
it, for some time, whatever the course of events may be, to
spare any of its stock of food; nor can any substitute, other
than the redundant harvests of the United States, be relied
on to make up that deficiency. Add to this prospect, the
possibility of an unfavorable season requiring enlarged importations
of bread from the only source that can furnish
it, and the risk of losing this would be an evil which no
provident Counsels would neglect to guard against, by any
measures equitable in themselves, or even by concessions
neither dishonorable nor materially injurious.
On the other hand Great Britain having been led by her
peculiar system to carry her commercial exclusions and restrictions
to the utmost limit permitted by her immediate
wants, would find no countervailing resources to be turned
against the United States. She could not prohibit the importation
of our productions: These are necessaries which
feed her people, which supply her manufactories, which keep
up her navy, and which, by direct and indirect contributions
to her revenue and credit strengthen all her faculties as a
great power. As little could she prohibit the exportation of
her manufactures to the United States: This is the last evil
she would think of inflicting on herself. If it withheld from
us the means of enjoyment, it would take from her own
people the means of existence.
Would War be a better resort? That it would be a calamity
to the United States is so well understood by them that
peace has been cherished in the midst of provocations which
scarcely permitted honor to listen to interest, to reason or to
humanity. War they will continue to avert by every policy
nation owes to itself. But what will be the gain and the
loss to Great Britain by a choice of this resort? The spoils
of our defenceless commerce might enrich her greedy cruizers
and flatter the sentiments of national wealth. A temporary
spasm might, at the same time, be produced in the affairs of
the United States. But these effects weigh little against
the Considerations which belong to the opposite scale. To
say nothing of the hostile use that might be made against
Great Britain of 50,000 seamen, not less hardy or enterprising
than her own, nor of her vulnerable possessions in our neighbourhood,
which tho' little desired by the United States,
are highly prized by her, nor of the general tendency of
adding the United States to the mass of nations already
in arms against her; it is enough to observe, that a war with
the United States involves a complete loss of the principal remaining
market for her manufactures, and of the principal,
perhaps the sole, remaining source of supplies without which
all her faculties must wither. Nor is it an unimportant
circumstance, tho' it seems to have engaged little of her
attention, that in the loss would be included, all the advantages
which she now derives from the neutrality of our flag, and of
our ports, and for which she could find no substitutes in
distributing her manufactures, and even her fish to their
necessary markets, and in obtaining the returns which she
wants. The more these collateral advantages are enquired
into, the more important will the interest appear which
Great Britain has in preserving them.
These are views of the subject, which, tho' not to be presented
to Great Britain with an air of menace or defiance, equally forbidden
by respect to ourselves, and to her, may find a proper
way to her attention. They merit hers as well as ours; and if
they ought to promote on both sides, a spirit of accommodation,
they shew at the same time that Great Britain is not the
party which has the least interest in taking Counsel from them.
The treaty as actually presented by Purviance is as follows:
ARTICLE 1st.
[Provides for peace and friendship between the two powers.]
ARTICLE 2d.
It is agreed that the several Articles of the Treaty of Amity,
Commerce and Navigation between His Majesty and the United States
made at London on the Nineteenth day of November One Thousand
Seven Hundred and Ninety Four which have not expired, nor as yet,
had their full operation and effect, shall be confirmed in their best
form, and in the full tenour; and that the contracting Parties will also
from time to time enter into friendly explanations on the subject of
the said Articles, for the purpose of removing all such doubts as may
arise or have arisen as to the true import of the same, as well as for
the purpose of rendering the said Articles more conformable to their
mutual wishes and convenience.
ARTICLE 3d.
His Majesty agrees, that the Vessels belonging to the United States
of America, and sailing direct from the ports of the said States, shall
be admitted and hospitably received in all the Sea Ports and Harbors
of the British Dominions in the East Indies; and that the citizens
of the said United States may freely carry on a trade between the
said territories and the said United States in all articles of which the
importation or exportation respectively, to or from the said Territories
shall not be entirely prohibited. Provided only that it shall not be
lawful for them in any time of war between the British government
and any other power or State whatever, to export from the said
Territories, without the special permission of the British government
there, any Military Stores or Naval Stores or Rice. The Citizens of
the United States shall pay for their Vessels, when admitted into the
said Ports, no other or higher Tonnage than shall be payable on British
Vessels, when admitted into the Ports of the United States. And
they shall pay no higher or other Duties or Charges on the Importation
or Exportation of the Cargoes of the said Vessels than shall be payable
on the same Articles when imported or exported in British Vessels.
But it is expressly agreed, that the vessels of the United States shall
not carry any of the articles exported by them from the said British
Territories to any Port or Place, except to some Port or Place in
America, where the same shall be unladen and such Regulations shall
be adopted by both Parties as shall, from time to time, be found
necessary to enforce the due and faithful observance of this Stipulation.
It is also understood, that the permission granted by this Article
is not to extend to allow the vessels of the United States to carry on
any part of the Coasting-trade of the said British Territories; but
the vessels going out with their original Cargoes or part thereof;
from one Port of discharge to another, are not to be considered as
carrying on the Coasting trade, neither is this Article to be construed
to allow the Citizens of the said States to settle or reside "within
the said Territories, or to go into the interior parts thereof, without
the permission of the British government established there; And if any
transgressions should be attempted against the regulations of the
British government in this respect, the observance of the same shall
and may be enforced against the Citizens of America in the same manner
as against British Subjects or others transgressing the same Rule.
And the Citizens of the United States, whenever they arrive in any
Port or Harbour in the said Territories, or if they should be permitted
in manner aforesaid to go to any other State therein, shall always
be subject to the Laws, Government and Jurisdiction of whatever
Nature, established in such Harbour, Port or Place according as the
same may be. The Citizens of the United States may also touch
for refreshment at the Island of St. Helena; but subject in all respects
to such Regulations as the British government may, from time to
time, establish there.
ARTICLE 4th.
There shall be between all the Dominions of His Majesty in Europe
and the Territories of the United States a reciprocal and perfect
Liberty of Commerce and Navigation. The People and Inhabitants of
the two Countries respectively shall have Liberty freely and securely,
and without hindrance and molestation, to come with their Ships and
Cargoes to the Lands, Countries, Cities, Ports, Places and Rivers,
within the Dominions and Territories aforesaid, to enter into the
same, to resort there, and to remain and reside there, without any
limitation of time; also to hire and possess houses and warehouses for
the purposes of their Commerce; and generally, the Merchants and
Traders on each side shall enjoy the most compleat protection and
security for their Commerce, but subject always, as to what respects this
Article, to the Laws and Statutes of the two Countries respectively.
ARTICLE 5th.
It is agreed that no other or higher Duties shall be paid by the
Ships or Merchandize of the one Party in the Ports of the other,
than such as are paid by the like Vessels or Merchandize of all other
Nations. Nor shall any other or higher Duty be imposed in one
Country on the Importation of any Articles, the Growth, Produce or
Manufacture of the other, than are or shall be payable on the Importation
of the like Articles, being of the Growth, Produce or Manufacture
of any other foreign Country.
Nor shall any Prohibition be imposed on the Exportation or Importation
of any Articles to or from the Territories of the two Parties
respectively, which shall not equally extend to all other Nations. But
the British Government reserves to itself the Right of imposing on
American vessels entering into the British Ports in Europe a Tonnage-Duty
equal to that which shall at any time be payable by British
vessels in the Ports of America; and the Government of the United
States reserves to itself a Right of imposing on British Vessels, entering
into the Ports of the United States, a Tonnage-Duty equal to that
which shall at any time be payable by American Vessels in the British
Ports in Europe.
It is agreed that in the Trade of the two Countries with each other,
the same Duties of Exportation and Importation on all Goods and
Merchandize; and also the same Drawbacks and Bounties shall be paid
and allowed in either Country, whether such Importation or Exportation
shall be made in British or American Vessels.
ARTICLE 6th.
The High contracting Parties not having been able to arrange at present
by Treaty any Commercial Intercourse between the Territories of
the United States and His Majesty's Islands and Ports in the West-Indies,
Agree that until that subject shall be regulated in a satisfactory
manner, each of the Parties shall remain in the complete possession of
its Rights in respect to such an Intercourse.
ARTICLE 7th.
It shall be free for the two contracting Parties respectively to
appoint Consuls for the protection of Trade, to reside in the Dominions
and Territories aforesaid; And the said Consuls shall enjoy those
Liberties and Rights which belong to them by reason of their function.
But, before any Consul shall act as such, he shall be in the usual manner
approved and admitted by the Party to whom he is sent; And it is
hereby declared to be lawful and proper, that in case of illegal or
improper conduct towards the Laws or Government, a Consul may
either be punished according to Law, if the Laws will reach the Case,
or be dismissed, or even sent back, the offended Government assigning
to the other the reasons for the same.
Either of the Parties may except from the residence of Consuls, such
particular Places as such Party shall judge proper to be excepted.
ARTICLE 8th.
It is agreed, that in all Cases where vessels shall be captured or
detained on just suspicion of having on board Enemy's property, or
of carrying to the Enemy any of the Articles which are Contraband
of War, or for other lawful cause, the said Vessel shall be brought to
the nearest or most convenient Port; And if any Property of an Enemy
should be found on board such Vessel, that part only, which belongs to
the Enemy, or is otherwise confiscable, shall be made Prize and the
Vessel, unless by Law subject to condemnation, shall be at liberty
to proceed with the remainder of the Cargo, without any impediment.
And it is agreed, that all proper measures shall be taken to prevent
delay, in deciding the cases of Ships or Cargoes so brought in for
adjudication; and in the payment or recovery of any indemnification,
adjudged or agreed to be paid to the Masters or Owners of such Ships.
It is also agreed, that in all cases of unfounded detention, or other
contravention of the Regulations stipulated by the present Treaty,
the Owners of the Vessel and Cargo so detained shall be allowed
damages proportioned to the loss occasioned thereby, together with
the Costs and Charges of the Trial.
ARTICLE 9th.
In order to regulate what is in future to be esteemed contraband
of War, it is agreed that under the said denomination shall be comprised
all arms and Implements serving for the purposes of War, by Land
or by Sea, such as Cannon, Muskets, Mortars, Petards, Bombs, Grenadoes,
Carcasses, Saucisses, Carriages for Cannon, Musket-rests,
Bandoliers, Gunpowder, Match, Salt-petre, Baus, Pikes, Swords, Headpieces,
Cuirasses, Halberts, Lances, Javelins, Horse-furniture, Holsters,
Belts, and generally all other Implements of War; As also Timber
for Ship-building, Copper in Sheets, Sail Cloth, Hemp, and Cordage,
and in general [with the exception of unwrought iron and Fir-planks;
and also with the exception of Tar and Pitch, when not going to a
Port of Naval Equipment, in which case they shall be entitled to
pre-emption] whatever may serve directly to the equipment of Vessels;
and all the above Articles are hereby declared to be just objects of
confiscation, whenever they are to be attempted to be carried to an
Enemy. But no Vessel shall be detained on pretence of carrying
Contraband of War, unless some of the above mentioned articles, not
excepted, are found on board of the said vessel at the time it is searched.
ARTICLE 10th.
Whereas in consideration of the distance, and of other circumstances
incident to the situation of the High contracting Parties, it may
frequently happen that Vessels may sail for a Port or Place belonging
to an Enemy, without knowing that the same is either besieged,
blockaded or invested, it is agreed, that every vessel so circumstanced
may be turned away from such Port or Place; but she shall not be
detained, nor her Cargo, if not Contraband, be confiscated, unless
after such notice she shall again attempt to enter: But she shall be
permitted to go into any Port or Place she may think proper: Nor
shall any vessel or goods of either Party, that may have entered into
such Port or Place before the same was besieged, blockaded or invested
by the other, and be found therein after the reduction or
surrender of such Place, be liable to Confiscation, but shall be restored
to the Owners or Proprietors thereof.
Neither of the Parties, when at War, shall, during the continuance
of the Treaty, take from on board the Vessels of the other, the subjects
of the opposite Belligerent, unless they be in the actual employment
of such Belligerent.
ARTICLE 11th.
Whereas differences have arisen concerning the trading with the
Colonies of His Majesty's Enemies, and the Instructions given by His
Majesty to His Cruizers in regard thereto, it is agreed that during the
present Hostilities all Articles of the Growth, Produce and Manufacture
of Europe, not being Contraband of War, may be freely carried from
the United States to the Port of any Colony, not blockaded, belonging
to His Majesty's Enemies, provided such Goods shall previously have
been entered and landed in the United States, and shall have paid the
ordinary Duties on such Articles so imported for Home consumption,
and on re-exportation shall after the drawbacks remain subject to
a Duty equivalent to not less than one per cent ad valorem, and that
the said Goods and the vessels conveying the same shall, from the
time of their clearance from the American Port, be bonâ fide the
property of Citizens and Inhabitants of the United States: And in
like manner that all Articles, not being Contraband of War, and being
the growth and produce of the Enemy's Colonies, may be brought to
the United States, and after having been there landed, may be freely
carried from thence to any Port of Europe, not blockaded, provided
such Goods shall previously have been entered and landed in the
said United States, and shall have paid the ordinary Duties on Colonial
articles so imported for Home consumption, and on re-exportation
shall, after the drawback, remain subject to a Duty equivalent to
not less than Two per Cent ad valorem; And provided that the said
Goods and the vessel conveying the same, be bonâ fide the property
of Citizens and Inhabitants of the United States.
Provided always, that this Article, or anything therein contained,
shall not operate to the prejudice of any Right belonging to either
Party; but that after the expiration of the time limited for the Article,
the Rights on both sides shall revive and be in full force.
ARTICLE 12th.
And whereas it is expedient to make special provisions respecting
the maritime Jurisdiction of the High contracting Parties on the
Coasts of their respective possessions in North America on account
of peculiar circumstances belonging to those Coasts, it is agreed, that
in all Cases where one of the said High contracting Parties shall be
engaged in War, and the other shall be at peace, the Belligerent Power
shall not stop, except for the purpose hereafter mentioned, the vessels
of the Neutral Power, or the unarmed Vessels of other Nations within
Five Marine Miles from the shore belonging to the said Neutral
Power on the American Seas.
Provided that the said Stipulations shall not take effect in favour
of the Ships of any Nation or Nations, which shall not have agreed to
respect the Limit aforesaid as the Line of Maritime Jurisdiction of the
said Neutral State; and it is further stipulated that if either of the
High contracting Parties shall be at War with any Nation or Nations
which shall not have agreed to respect the said special Limit or Line
of Maritime Jurisdiction herein agreed upon, such contracting Party
shall have the Right to stop or search beyond the Limit of a Cannon
Shot or Three Marine Miles from the said Coasts of the Neutral Power,
for the purpose of ascertaining the Nation to which such vessel shall
belong: And with respect to Ships and Property of the Nation or
Nations not having agreed to respect the aforesaid Line of Jurisdiction,
the Belligerent Power shall exercise the same Rights as if this Article
did not exist; and the several provisions stipulated by this article
shall have full force and effect only during the continuance of the
present Treaty.
ARTICLE 13th.
With respect to the searching of Merchant Ships, the Commanders
of Ships of War and Privateers shall conduct themselves as favourably
as the course of the War then existing may possibly permit towards
the most friendly Power that may remain neuter, observing as much
as possible the acknowledged Principles and Rules of the Law of
Nations: And for the better security of the respective Subjects and
Citizens of the contracting Parties, and to prevent their suffering Injuries
by the Men of War or Privateers of either Party, all Commanders
of Ships of War and Privateers and all others the said Subjects
and Citizens shall forbear doing any damage to those of the other
Party, or committing any outrage against them; And if they act
to the contrary, they shall be punished and shall also be bound in the
Persons and Estates to make satisfaction and reparation for all
damages, and the Interest thereof, of whatever nature the said damages
may be.
For this cause all Commanders of Privateers, before they receive
their Commissions, shall hereafter be compelled to give before a
competent Judge, sufficient security by at least two responsible
Sureties, who have no Interest in the said Privateer, each of whom,
together with the said Commander, shall be jointly and severally
bound in the Sum of Two Thousand Pounds Sterling; or, if such Ship
be provided with above One Hundred and Fifty Seamen, or Soldiers,
in the sum of Four Thousand Pounds Sterling, to satisfy all damages
and injuries, which the said Privateer, or Officers, or Men, or any of
them, may do or commit, during their Cruize, contrary to the tenor
of this Treaty, or to the Laws and Instructions for regulating their
conduct; and further, that in all cases of aggressions, the said Commissions
shall be revoked and annulled.
It is also agreed, that whenever a Judge of a Court of Admiralty
of either of the Parties shall pronounce sentence against any Vessel or
Goods or Property belonging to the Subjects or Citizens of the other
Party, a formal and duly authenticated copy of all the Proceedings
in the Cause, and of the said sentence, shall, if required, be delivered
to the Commander of the said Vessel, without the smallest delay,
he paying all legal Fees and demands for the same.
ARTICLE 14th.
It is further agreed that both the said contracting Parties shall
not only refuse to receive any Pirates into any of their Ports, Havens or
Towns, or permit any of their Inhabitants to receive, protect, harbour,
conceal or assist them in any manner, but will bring to condign punishment
all such Inhabitants as shall be guilty of such Acts or offences.
And all their Ships, with the Goods and Merchandize taken by
them and brought into the Port of either of the said Parties, shall be
seized as far as they can be discovered, and shall be restored to the
owners or the Factors or Agents duly deputed, and authorized in
writing by them [proper evidence being shewn in the Court of Admiralty
for proving the property] even in case such Effects should
have passed into other hands by Sale, if it be proved that the Buyers
knew, or had good reason to believe, or suspect that they had been
piratically taken.
ARTICLE 15th.
It is likewise agreed, that the Subjects and Citizens of the two
Nations shall not do any Acts of hostility or violence against each
other, nor accept commissions or Instructions so to act from any foreign
Prince or State, Enemies to the other Party, nor shall the Enemies
of one of the Parties be permitted to invite, or endeavour to enlist
in the military Service any of the Subjects or Citizens of the other
Party: And the Laws against all such Offences and Aggressions shall
be punctually executed; and if any Subject or Citizen of the said
Parties respectively shall accept any foreign Commission, or Letters
of Marque for arming any Vessel to act as a Privateer against the
other Party, it is hereby declared to be lawful for the said Party
to treat and punish the said Subject or Citizen, having such Commission
or Letters of Marque, as a Pirate.
ARTICLE 16th.
It is expressly stipulated that neither of the said contracting Parties
will order or authorize any Acts of reprisal against the other on complaints
of injuries and damages until the said Party shall first have
presented to the other a statement thereof, verified by competent
proof and evidence; and demanded justice and satisfaction, and the
same shall either have been refused or unreasonably delayed.
ARTICLE 17th.
The Ships of War of each of the Contracting Parties shall at all
times be hospitably received in the Ports of the others, their Officers and
Crews paying due respect to the Laws and Government of the Country.
The Officers shall be treated with that respect which is due to the
Commissions which they bear; and if any Insult should be offered
to them by any of the Inhabitants, all Offenders in this respect shall
be punished as disturbers of the Peace and Amity between the two
Countries. And both contracting Parties agree that in case any
Vessel of the one should, by stress of Weather, danger from Enemies
or other misfortunes, be reduced to the necessity of seeking shelter
in any of the Ports of the other; into which such Vessel could not
in ordinary Cases claim to be admitted, she shall, on manifesting
that necessity to the satisfaction of the other Government of the
Place, be hospitably received and permitted to refit, and to purchase
at the market price such necessaries as she may stand in need of,
conformably to such Orders and Regulations as the Government of
the Place having respect to the circumstances of each Case, shall
prescribe. She shall not be allowed to break bulk or unload her
Cargo unless the same shall be bonâfide necessary to her being refitted;
nor shall she be obliged to pay any Duties whatever, except
only on such Articles as she may be permitted to sell for the purpose
aforesaid.
ARTICLE 18th.
It shall not be lawful for any foreign Privateers (not being Subjects
or Citizens of either of the said Parties) who have Commissions from
any Power or State in enmity with either Nation, to arm their ships
in the Ports of either of the said Parties, nor to sell what they have
taken, nor in any manner to exchange the same, nor shall they be
allowed to purchase more Provisions than shall be necessary for their
going to the nearest Port of that Prince or State from which they
obtained their Commissions.
ARTICLE 19th.
It shall be lawful for the Ships of War and Privateers, belonging
to the said Parties respectively to carry whither soever they please
the Ships and Goods taken from their Enemies, without being obliged
to pay any Fees to the Offices of the Admiralty or to any Judges whatever,
nor shall the said Prizes when they arrive at and enter the Ports
of the said Parties be detained or seized, nor shall the Searchers or
other officers of those Places visit such Prizes [except for the purpose
of preventing the carrying of any part of the Cargo thereof on shore
in any manner contrary to the established Laws of Revenue Navigation
or Commerce] nor shall such officers take cognizance of the
validity of such Prizes; but they shall be at liberty to hoist sail, and
depart as speedily as may be, and carry their said Prizes to the Places
mentioned in their Commissions or Patents, which the Commanders of
the said Ships of War or Privateers shall be obliged to shew.
No shelter or refuge shall be given in their Ports to such as have
made a Prize upon the subjects or Citizens of either of the said Parties;
But if forced by stress of weather or the dangers of the Sea to enter
them, particular care shall be taken to hasten their departure, and
to cause them to retire as soon as possible: Nothing in this Treaty
contained, shall however be construed to operate contrary to the
former and existing public Treaties with other Sovereigns or States;
But the two Parties agree, that while they continue in amity, neither
of them will in future make any Treaty that shall be inconsistent with
this or the preceding Article.
Neither of the said Parties shall permit the ships or Goods belonging
to the Subjects or Citizens of the other to be taken within Cannon
shot of the Coast, nor within the Jurisdiction described in Article 12,
so long as the Provisions of the said Article shall be in force, by Ships
of War or others having Commissions from any Prince, Republic or
State whatever: But in case it should so happen, the Party, whose
territorial Rights shall thus have been violated, shall use his utmost
endeavours to obtain from the offending Party full and ample satisfaction
for the Vessel or Vessels so taken, whether the same be Vessels
of War or Merchant Vessels.
ARTICLE 20th.
If at any time a rupture should take place (which God forbid)
between His Majesty and the United States, the Merchants and others
of each of the two Nations, residing in the Dominions of the other,
shall have the privilege of remaining and continuing their Trade,
so long as they do it peaceably, and commit no offence against the
Laws; and in case their conduct should render them suspected, and the
respective Governments should think proper to order them to remove,
the term of Twelve Months, from the publication of the order, shall
be allowed them for the purpose, to remove with their families, effects
and property; But this favour shall not be extended to those who
shall act contrary to the established laws; and for greater certainty,
it is declared that such rupture shall not be deemed to exist, while
negotiations for accommodating differences shall be depending, nor
until the respective Ambassadors or Ministers if such there shall be,
shall be recalled, or sent home on account of such differences, and
not on account of personal misconduct, according to the nature and
degree of which, both Parties retain their Rights, either to request
the recall, or immediately to send home the Ambassador or Minister
of the other; and that without prejudice to their mutual friendship and
good understanding.
ARTICLE 21th.
It is further agreed that His Majesty and the United States, on
mutual requisitions by them respectively, or by their respective
Ministers, or Officers, authorized to make the same, will deliver up
to Justice all Persons, who being charged with murder or forgery, committed
within the 'Jurisdiction of either, shall seek an asylum within
any of the countries of the other, provided that this shall only be done
on such evidence of criminality, as, according to the Laws of the Place,
where the Fugitive or Person so charged shall be found, would justify
his apprehension and commitment for trial, if the offence had there
been committed. The expense of such apprehension and delivery
shall be borne and defrayed by those who make the requisition and
receive the Fugitive.
ARTICLE 22d.
In the event of a Shipwreck happening in a Place belonging to one
or other of the High contracting Parties, not only every assistance
shall be given to the unfortunate Persons, and no violence done to
them, but also the effects which they shall have thrown out of the
Ship into Sea, shall not be concealed or detained, nor damaged under
any pretext whatever; on the contrary the above mentioned effects
and Merchandize shall be preserved, and restored to them upon a
suitable recompense being given to those who shall have assisted in
saving their Persons, Vessels and Effects.
ARTICLE 23d.
And it being the intention of the High contracting Parties, that the
People of their respective Dominions shall continue to be on the
footing of the most favoured Nation, it is agreed, that in case either
Party shall hereafter, grant any additional advantages, in Navigation,
or Trade, to any other Nation, the Subjects or Citizens of the other
Party shall fully participate therein.
ARTICLE 24th.
The High Contracting Parties engage to communicate to each
other, without delay, all such Laws as have been or shall be hereafter
enacted by their respective Legislatures, as also all Measures which
shall have been taken for the abolition or limitation of the African
Slave Trade; and they further agree to use their best endeavours to
procure the co-operation of other Powers for the final and complete
abolition of a Trade so repugnant to the principles of Justice and
Humanity.
ARTICLE 25th.
And it is further agreed that nothing herein contained shall contravene
or effect the due execution of any Treaty or Treaties now
actually subsisting between either of the High Contracting Parties
and any other Power or Powers.
ARTICLE 26th.
This Treaty when the same shall have been ratified by His Majesty
and by the President of the United States, with the advice of their
Senate, and the respective Ratifications mutually exchanged, shall
be binding and obligatory on His Majesty and on the said States for
Ten Years, from the date of the exchange of the said Ratification and
shall be reciprocally executed and observed with punctuality and the
most sincere regard to good faith.
| The writings of James Madison, | |