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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.
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Page 79

TO JAMES MONROE.

D. OF S. MSS. INSTR.
Sir,

The information and observations which you have as yet
received from me since your arrival in London, on the impressment
of our seamen, and other violations of our rights,
have been in private letters only. The delay in making these
injuries the subject of official communications, proceeded,
first, from an expectation that the British Government would
have notified formally to the United States as a neutral
power, the state of War between Great Britain and France;
which would have been an apt occasion, for combining with
assurances of the fairness with which our neutral obligations
would be fulfilled, our just claims on a correspondent respect
for our neutral rights, and particularly of those which had
been least respected during the last war: secondly, from the
expected arrival of Mr. Merry, which, if he should not be
charged with such a notification, might be a favorable opportunity
for commencing the explanations and discussions which
must precede a thorough correction of the wrongs which we
experience.


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Since the arrival of Mr. Merry, accordingly, no time has
been lost in calling his attention to the subject; and in preparing
both it and him, for the negotiation which is now to
be committed to you. If appearances are to be trusted, his
impressions and representations will be friendly to it. In
my conversations with him, which have been free and full,
he has expressed the best dispositions, has listened with
candor to the appeals made as well to the considerations of
justice, as of the solid interest of his nation; and altho' he
suggests serious difficulties on certain points, he will, I believe,
sincerely co-operate in lessening them, and in bringing
about an arrangement which will be acceptable to this country.
The only topic on which any thing has passed in writing
between the Department of State and him, is that of the
pretended blockade of St. Domingo. Copies of my letter to
him and of his answer, are herewith inclosed; as also of the
letter written to Mr. Thornton some time before, and referred
to in that to Mr. Merry, in relation to a like blockade of
Martinique and Guadaloupe.

Altho' there are many important objects which may be
thought to invite conventional regulations between the
United States and Great Britain, it is evidently proper to
leave for subsequent consideration, such as are less urgent
in their nature or more difficult in their adjustment; and
thereby to render the way plainer and shorter to an agreement
with respect to objects which cannot be much longer
delayed without danger to the good understanding of the
two nations. With this view the plan of a Convention
contemplated by the President, is limited to the cases of
impressments of our seamen, of blockades, of visiting and
searching our vessels, of contraband of War, and of the trade
of hostile Colonies, with a few other cases affecting our maritime
rights; embracing however, as inducements to Great
Britain to do us justice therein, a provision for the surrender
of deserting seamen and soldiers, and for the prevention of
contraband supplies to her enemies.


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The plan digested for your use is subjoined. The first
column contains the articles which are to be proposed in the
first instance, and which are considered as within our just
expectations: The second modifies the articles into the concessions
which the British Government may possibly require,
and which it may be expedient for us ultimately to admit.

A Convention between the United States and Great Britain.

   

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First Proposal.
Article I. 
Second and Ultimatum.
Article I. 
No person whatever shall,
upon the high seas and without
the jurisdiction of either
party be demanded or taken
out of any ship or vessel belonging
to citizens or subjects
of one of the other
parties, by the public or
private armed ships belonging
to or in the service of the
other, unless such person be
at the time in the Military
service of an enemy of such
other party. 
No seaman, seafaring or
other person shall upon the
high seas and without the
jurisdiction of either party
be demanded or taken out of
any ship or vessel belonging
to the citizens or subjects of
one of the parties by the public
or private armed ships
belonging to or in the service
of the other party and strict
and effectual orders shall be
given for the due observance
of this engagement: but it is
to be understood that this
article shall not exempt any
person on board the ships of
either of the parties from
being taken therefrom by the
other party in cases where
they may be liable to be so
taken according to the laws
of nations, which liability
however shall not be construed
to extend in any case 
to seamen or seafaring persons,
being actually part of
the crew of the vessel in
which they may be, nor to
persons of any description
passing from one port to
another port of either of the
parties. 
Article II.  Article II. 
The same.  No person being a subject
or citizen of one of the parties
and resorting to or residing in
the dominions of the other,
shall in any case be compelled
to serve on board any vessel
whether public or private
belonging to such other party:
and all citizens or subjects
whatever of the respective
parties at this time compulsively
serving on board the
vessels of the other shall be
forthwith liberated, and enabled
by an adequate recompence
to return to their own
country. 
Article III.  Article III. 
The same.  If the ships of either of the
parties shall be met with sailing
either along the coasts or
on the high seas by any ship
of war or other public or
private armed ships of the
other party, such ships of war 
or other armed vessels shall
for avoiding all disorder in
visiting and examining the
same, remain out of cannon
shot, unless the state of the
sea or the place of meeting
render a nearer approach
necessary, and shall in no
case compel or require such
vessel to send her boat, her
papers or any person from on
board to the belligerent vessel,
but the belligerent vessel
may send her own boat to the
other and may enter her to
the number of two or three
men only who may in an
orderly manner make the
necessary inquiries concerning
the vessel and her cargo;
and it is agreed that effectual
provision shall be made for
punishing violations of any
part of this article. 
Article IV.  Article IV. 
The same.  Contraband of war shall
consist of the following articles
only: Salt petre, sulphur,
cuirasses, pikes, swords,
sword belts, knapsacks, saddles
and bridles, cannons,
mortars, fire arms, pistols,
bombs, grenades, bullets, fire 
locks, flints, matches and gun
powder; excepting however
the quantity of the said articles
which may be necessary
for the defence or use of the
ship and those who compose
the crew, and no other articles
whatever not here enumerated
shall be reputed
contraband or liable to confiscation,
but shall pass freely
without being subjected to the
smallest difficulty unless they
be enemy's property, and it is
to be particularly understood
that under the denomination
of enemy's property, is not
to be comprized the merchandise
of the growth, produce
or manufactures of the
countries or dominions at war
which shall have been acquired
by the citizens or subjects
of the neutral power,
and shall be transported for
their account, which merchandise
cannot in any case
or on any pretext be excepted
from the freedom of the neutral
flag. 
Article V.  Article V. 
The same.  In all cases where the prize
courts of either party shall
pronounce judgment against
any vessel or property claimed 
by citizens or subjects of the
other, the sentence or decree
shall mention the reasons or
motives in which the same
shall have been founded and
an authenticated copy of the
sentence or decree and of all
the proceedings in the case,
shall, if demanded be delivered
to the commander or
Agent of the said vessel, without
any delay, he paying the
legal fees for the same. 
Article VI.  Article VI. 
The same.  In order to determine what
characterizes a blockaded
port, that denomination is
given only to a port where
there is by the disposition of
the power which attacks it
with ships stationary or sufficiently
near an evident danger
of entering. 
Article VII.  Article VII. 
Omit the preamble.  (In consideration of the
distance of the ports likely to
be blockaded by either party
from the ports of the other
party and of other circumstances
incident to their relative
situations), it is agreed
that no vessel sailing from
the ports of either shall, altho'
cleared or bound to a blockaded
 
port be considered as
violating in any manner the
blockade, unless on her approach
towards such port she
shall have been previously
warned against entering the
same. 
Article VIII.  Article VIII. 
Omit, "captains, officers."  It is agreed that no refuge
or protection shall be afforded
by either party to the "captains,
officers," mariners, sailors
or other persons not found
to be its own citizens or subjects
who shall desert from a
vessel of the other party, of
the crew whereof the deserter
made a part, but on the contrary
all such deserters shall
be delivered up on demand to
the commanders of the vessels
from which they shall
have deserted, or to the commanding
officers of the ships
of war of the respective nations,
or to such other persons
as may be duly authorized to
make requisition in that behalf;
provided that proof be
made within two years from
the time of desertion by an
exhibition of the ships papers
or authenticated copies thereof,
and by satisfactory evidence
of the identity of the
person, that the deserters so 
demanded were actually part
of the crew of the vessels in
question. 
And for the more effectual
execution of this article adequate
provision shall be made
for causing to be arrested on
the application of the respective
consuls or vice consuls to
the competent authorities all
deserters as aforesaid, duly
proved to be such in order
that they may be sent back to
the commanders of the vessels
to which they belonged or
removed out of the country
and all due aid and assistance
shall be given in searching for
as well as in seizing and arresting
the said deserters who
shall even be detained and
kept in the prisons of the
country at the request and
expence of the said consuls
or vice consuls until they
shall have found an opportunity
of sending them back
or removing them as aforesaid.
But if they be not so
sent back or removed within
three months from the day of
their arrest they shall be set
at liberty and shall not again
be arrested for the same cause. 
Article IX.  Article IX. 
Omit "officers or."  It is further agreed that no
refuge or protection shall be
afforded by either of the
parties to any officers or soldiers
not found to be its own
citizens or subjects who shall
desert from the military service
of the other; but that on the
contrary effectual measures
shall be taken in like manner
and under like regulations
and conditions as with respect
to sailors, for apprehending
any such deserting
soldiers and delivering them
to the commanding officers
of the military posts, forts or
garrisons from which they
shall have deserted, or to the
consuls or vice consuls on
either side or to such persons
as may be duly authorized to
demand their restitution. 
Article X.  Article X. 
Omitted.  It is however understood
that no stipulation herein
made shall be construed to
empower the civil or military
officers of either of the parties
to enter forcibly into any of
the forts, garrisons posts or
other places or to use violence
of any sort within the jurisdiction
 
of the other party or
be construed in any manner
to contravene or derogate
from the stipulation contained
in the first of the above
articles against demanding or
taking any persons out of
vessels on the high seas and
without the jurisdiction of
either of the parties. 
Article XI.  Article XI. 
The same.  Each party will prohibit its
citizens or subjects from clandestinely
carrying away from
the territories or dominions
of the other, any seamen or
soldiers belonging to such
other party. 
Article XII.  Article XII. 
The same.  Neither party shall permit
any of the articles above
enumerated as contraband of
War to be cleared out from
its ports to any place within
the jurisdiction of an enemy
of the other party and in
order to enforce this regulation
due proof and security
shall be given that all such
articles of contraband as may
be exported from the ports
of either of the parties have
been actually destined elsewhere
 
than within the jurisdiction
of an enemy of the
other party. 
Article XIII.  Article XIII. 
The same.  This Convention shall be in
force for the term of five
years from the date of the
exchange of ratifications. It
shall be ratified on both sides
within months from the
day of its signiture or sooner
if possible, and the ratifications
exchanged without delay
in the United States at the
City of Washington. 

Observations on the preceding plan.

The first article relates to impressments from American
vessels on the high seas. The Commanders of British armed
vessels, have as is well known, been long in this practice.
They have indeed not only continued it, under the sanction of
their superiors, on the high seas; but have, with impunity,
extended it to our own coasts, to neutral ports, 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.


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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


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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


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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


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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

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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


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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.

On Article II.

The reasonableness of this article is manifest. Citizens
or subjects of one country residing in another, tho' bound by
their temporary allegiance to many common duties, can never
be rightfully forced into military service, particularly external
service, nor be restrained from leaving their residence when
they please. The law of nations protects them against both;
and the violation of this law, by the avowed impressment of
American citizens residing in Great Britain, may be pressed
with the greater force on the British Government as it is in
direct inconsistency with her impressment of her own subjects
bound by much stronger ties to the United States, as above
explained, as well as with the spirit of her commercial laws and


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policy, by which foreigners are invited to a residence. The
liberation of the persons comprehended by this article therefore,
cannot be justly or honorably refused, and the provision
for their recompence and their return home, is equally due to
the service rendered by, and the wrong done to them.

On Article III.

This regulation is comformable to the law of nations, and
to the tenor of all treaties which define the belligerent claim of
visiting and searching neutral vessels. No treaty can be
cited in which the practice of compelling the neutral vessel to
send its boat, its officers, its people or its papers to the
belligerent vessel, is authorized. British treaties, as well as
those to which she is not a party, in every instance where a
regulation of the claim is undertaken, coincide with the article
here proposed. The article is in fact almost a transcript of
the article of the Treaty of 1786 between Great Britain
and France.

The regulation is founded in the best reasons—1st. It
is sufficient for the neutral, that he acquiesces in the interruption
of his voyage, and the trouble of the examination,
imposed by the belligerent Commander. To require a positive
and active co-operation on his part in behalf of the latter, is
more than can be justified on any principle. 2d. The
belligerent party can always send more conveniently to the
neutral vessel, than this can send to the belligerent vessel;
having neither such fit boats for the purpose, especially in a
rough sea, nor being so abundantly manned. 3d. This last
consideration is enforced by the numerous and cruel abuses
committed in the practice of requiring the neutral vessel to
send to the belligerent. As an example you will find in the
documents now transmitted a case where neither the smallness
and leakiness of the boat, nor the boisterous state of the
weather, nor the pathetic remonstrances of the neutral commander
had any effect on the imperious injunctions of the
belligerent, and where the task was performed at the manifest


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peril of the boat, the papers, and the lives of the people.
The limitation of the number to be sent on board the neutral
vessel is a reasonable and usual precaution against the danger
of insults and pillage.

On Article IV.

This enumeration of contraband articles is copied from the
Treaty of 1781 between Great Britain and Russia. It is
sufficiently limited, and that treaty is an authority more
likely than any other, to be respected by the British Government.
The sequel of the article, which protects the productions
of an hostile colony converted into neutral property,
is taken from the same model, with the addition of the terms
"in any case or on any pretext." This addition is meant to
embrace more explicitly, our right to trade freely with the
colonies at war with Great Britain, and between them and all
parts of the world in colonial productions, being at the time
not enemy's but neutral property; a trade equally legitimate
in itself with that between neutral countries directly and in
their respective vessels, and such colonies, which their regulations
do not contest.

In support of this right, in opposition to the British doctrine,
that a trade not allowed by a nation in time of peace, cannot
be opened to neutrals in time of war, it may be urged, that
all nations are in the practice of varying more or less in time of
war their commercial laws, from the state of these laws in time
of peace, a practice agreeable to reason as well as favorable to
neutral nations; that the change may be made in time of war,
on considerations not incident to a state of war, but on
such as are known to have the same effect in time of peace;
that Great Britain herself is in the regular practice of changing
her navigation and commercial laws, in time of war, particularly
in relation to a neutral intercourse with her colonies;
that at this time she admits a trade between neutral countries
and the colonies of her enemies, when carried on directly
between, or between the former and herself, interrupting only


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a direct trade between such colonies and their parent state,
and between them and countries in Europe, other than those
to which the neutral trade may respectively belong; that as
she does not contest the right of neutrals to trade with hostile
colonies, within these limitations the trade can be and actually
is carried on indirectly between such colonies and all countries,
even those to which the colonies belong; and consequently that
the effect of her doctrine and her practice, is not to deprive
her enemy of their colonial trade but merely to lessen the value
of it in proportion to the charges incident to the circuitous
course into which it is forced; an advantage to her which if
just in itself, would not be sufficiently so to balance the impolitic
vexations accruing to neutral and friendly nations.

These views of the subject have entered into my conversations
with Mr. Merry. He expresses, notwithstanding, a
belief that Great Britain will turn an unfavorable ear to any
proposition calculated to give her enemies the resources of
their colonial trade, beyond the degree in which her present
regulations permit. This is doubtless to be apprehended;
but considering the proposition as an article which may find a
balance in the general bargain, it may not be inadmissible; or
if inadmissible in the extent proposed, a middle ground may
perhaps be accepted. The colonial trade in question consists
of four branches; first between the colonies and Great Britain
herself; secondly, between the colonies and the neutral
countries carrying on the trade; thirdly between the colonies
and neutral countries not themselves carrying on the trade;
fourthly, between the colonies and the countries to which
they belong or which are parties to the war with Great
Britain.

The first and second branches are those with which her own
regulations accord. The last is that to which her aversion
will of course be the strongest. Should this aversion be unconquerable,
let it be tried then, and then only, whether
on our yielding or rather omitting that point, she will not
yield to us in return the direct trade between hostile colonies


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and neutral colonies generally. You will be careful, however,
so to modify the compromise as will mark as little as may be,
a positive relinquishment of the direct trade between the
belligerent nations and their colonies.

Should such a compromise be altogether rejected, you will
limit the article to the simple enumeration of contraband, it
being desirable that without a very valuable consideration,
no precedent should be given by the United States of a
stipulated acknowledgment that free ships do not make free
goods. And you will omit the article altogether, if a proper
list of contraband cannot be agreed on, particularly one that
excludes money, provisions and naval stores.

On Article V.

This article taken from the Convention of 1800 between
the United States and France, is conformable to the general
practice of the prize Courts in the latter, and is the more
worthy of adoption every where as it would contribute so much
to the consistency and stability of the rules of Admiralty
proceedings. Without a single objection justly lying against
it, it will have the important advantages, of being a check on
the inferior tribunals, of enabling the superior tribunal
where a faulty reason appears on the face of the sentence, to
correct the wrong without delay or expense, and of being a
check moreover on the decision of the superior tribunal itself.
As prize causes also are tried by courts not of a third party,
but of one of the parties interested, it is but reasonable that
the ground should be known to the other on which judgment
has passed against its citizens or subjects; in order, if deemed
proper, that negotiations may be employed for redressing
past or guarding against future injustice.

On Article VI.

The fictitious blockade proclaimed by Great Britain and
made the pretext for violating the commerce of neutral
nations, has been one of the greatest abuses ever committed


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on the high seas. During the late war they were carried to an
extravagance which would have been ridiculous, if in their
effects they had not inflicted such serious and extensive
injuries on neutral nations. Ports were proclaimed in a
state of blockade, previous to the arrival of any force at them,
were considered in that state without regard to intermissions
in the presence of the blockading force, and the proclamations
left in operation after its final departure; the British cruizers
during the whole time seizing every vessel bound to such
ports, at whatever distance from them, and the British prize
courts pronouncing condemnations wherever a knowledge of
the proclamation at the time of sailing could be presumed,
altho' it might afterwards be known that no real blockade
existed. The whole scene was a perfect mockery, in which
fact was sacrificed to form, and right to power and plunder.
The United States were among the greatest sufferers; and
would have been still more so, if redress for some of the spoliations
proceeding from this source, had not fallen within the
provisions of an article in the Treaty of 1794.

From the effect of this and other arbitrary practices of
Great Britain, on the temper and policy of neutral nations
towards her; from the spirit of her Treaty made near the close
of the late war with Russia; from the general disposition
manifested at the beginning of the present, towards the United
States, and the comparative moderation observed in Europe
with respect to blockades (if indeed the two cases of the Weser
and Elbe are not to be excepted) it was hoped that the mockeries
and mischiefs practised under the name of blockades,
would no where be repeated. It is found however that the
West Indies are again the Theatre of them. The three entire
and extensive Islands of Martinique, Guadaloupe and St.
Domingo have been published as in a state of blockade,
altho' the whole naval force applied to the purpose is inconsiderable,
altho' it appears that a part of this inconsiderable
force is occasionally seen at the distance of many leagues at
sea; altho' it does not appear that more than one or two


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ports at most, have at any time been actually blockaded;
and although complaints are heard that the British ships of
war do not protect their own trade, against the numerous
cruizers from the Islands under this pretended blockade.

Inclosed herewith are three letters on this subject, two
from me, the first to Mr. Thornton, the second to Mr. Merry,
and the third from Mr. Merry to me. You will observe that
he does not pretend to justify the measures pursued in the
West Indies; but on the contrary wishes them to be regarded
as proceeding from an officer who does not pursue the intentions
of his Government. Still such measures prove that no
general regulations or orders have been yet issued by that
Government against the evil, as might reasonably have
been expected; and that a stipulated security against it, is
an object as important as it is just.

In the two letters to Mr. Thornton and Mr. Merry, the
ground is marked out on which you will be able to combat
the false blockades, and to maintain the definition of a real
one, contained in the proposed article which is a literal copy
from the 4th article of the Russian Treaty above cited. In
addition to these letters, you will find enclosed a letter of the
of to Mr. Pinckney, in which some views are taken
of the subject, which may also be of use in your discussions
with the British Government.

On Article VII.

This article is due, if not to all neutrals, at least to the
United States, who are distinguished by the distance of their
situation. Decisions of the British Court of Admiralty,
have so far respected this peculiarity as to admit a want of
information as a plea for going to a blockaded port, where such
a plea would be refused to less remote countries. But more
than this may fairly be claimed. A vessel, knowing that a
particular blockade existed two months before, may well
conjecture that before her arrival at the port, which will
require two months more, the blockade will have ceased;


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and may accordingly clear and steer for such a port with an
honest intention, in case of finding on her approach, the fact
otherwise, not to attempt an unlawful entrance. To condemn
vessels under such circumstances would be manifestly unjust;
and to restrain them from a distant voyage to a port once in
a state of blockade until information of a change shall have
travelled a like distance, must produce a delay and uncertainty
little short of an absolute prohibition of the commerce.
To require them even to go out of their course, to seek at
other ports information on the subject would be an unreasonable
imposition. The British Government can have
little objection to this article, after defining blockades as
is agreed with Russia and as is here proposed; since our
distance is of itself, a security against any concert with the
blockaded, for surreptitious entries, which might be attempted
by nearer adventurers; and since in the case of blockades by
a force actually present, a preliminary notice may be required
without impairing their efficacy as might be the case with
blockades, such as the preceding article guards against.

The only difference between the articles as standing in
the different columns, consists in the preamble to that which
is to be admitted, if the proposition of the other should not
succeed. The article is preferable without the recital of any
reason particular to the United States, because as a naked
stipulation, it strengthens instead of weakening a general
principle friendly to neutral and pacific nations.

On Article VIII, IX, and X.

These are articles which are known to have been long
wished and contemplated on the part of Great Britain, and
together with the justice and in many views the expediency to
Great Britain herself of the articles desired on our part, may
induce her to accede to the whole. The articles are in substance
the same with a project offered to the American administration
in the year 1800 by Mr. Liston, who appears to have
borrowed it from corresponding stipulations in the Convention


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between the United States and France in the year—. The
project was at that time dropped, owing perhaps in part to
the change in the head of the Department of State, between
whom and Mr. Liston it had been discussed, and principally,
to the difficulty of combining with it proper stipulations
against British impressments on the high seas. Without
such an equivalent, the project had little to recommend it to
the United States. Considered by itself it was too the less
admissible as one of its articles, under some obscurity of expression,
was thought to favor the British pretension to impress
British seamen from American vessels on the high seas.

A copy of this document is inclosed, as it may be not
without use in shewing the ideas of the British Government at
that time; so far at least as its Minister here was an organ of
them.

The terms in which these articles are to be proposed, differ
but slightly from those in which they may be admitted. In
the former the delivery of deserters is confined to soldiers
and seamen, without requiring a delivery of officers, whose
desertion will not be from the service of their country; but
on account of offences for which it might sometimes be more
agreeable to the United States to be unbound to give them up
for trial and punishment. At the same time this consideration
ought not to be a bar to an arrangement, which in its
general character will be so important to the interests of the
United States.

On Article XI.

This is a stipulation which is not to be yielded but in the
event of its being made an indispensable condition. It
cannot be essential for the object of it, whilst the British
Government is left free to take the precautions allowable
within its own jurisdiction for preventing the clandestine
departure of its seamen or its soldiers in neutral vessels. And
it is very ineligible to the United States, inasmuch as it will
be difficult to enforce the prohibition, whether we regard


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the embarkation of such persons in British ports, or their
landing on the American shores; and inasmuch as the inefficacy
of regulations for such purposes tho' made with due sincerity
and care, may become a source of secret jealousy and dissatisfaction,
if not of controversy and reproach.

The article is copied from that in the arrangement (of
which you have a copy) discussed and brought near to a conclusion
between Mr. King and the British Ministry and you
are authorized to accede to it, on the supposition, that it
may again be insisted on. It is to be recollected however
that the article was then understood to be the only price
given for relinquishing the impressment of American seamen.
The other offers now substituted will justify you in pressing
the omission of the original one.

On Article XII.

The law of nations does not exact of neutral powers the
prohibition specified in this article. On the other hand it
does not restrain them from prohibiting a trade which appears
on the face of the official papers proceeding from the custom
house to be intended to violate the law of nations, and from
which legitimate considerations of prudence may also dissuade
a Government. All that can be reasonably expected by belligerent
from neutral powers, is that their regulations on this
subject be impartial, and that their stipulations relative to
it, when made in time of war at least, should not preclude an
impartiality.

It is not certain what degree of value Great Britain may
put on this article, connected as it essentially is with the
article which limits the list of contraband. It will at
least mitigate her objection to such a limitation. With the
range given to contraband by her construction of the law of
nations, even as acquiesced in by the United States, a stipulation
of this sort would be utterly inadmissible.

The last article, in making this City, the place for exchanging
the ratifications, consults expedition in putting the


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Treaty into operation, since the British ratification can be
forwarded at the same time with the instrument itself. And
it is otherwise reasonable that as the negotiation and formation
of the Treaty will have taken place at the seat of the
British Government, the concluding formality should be at
that of the Government of the United States.

In addition to these articles, which with the observations
thereon, I am charged by the President to communicate to you
as his instructions, he leaves you at liberty to insert any others
which may do no more than place British armed vessels with
their prizes on an equality within our ports and jurisdiction,
with those of France. This would only stipulate what would
probably be done by gratuitous regulations here, and as it
would no doubt be acceptable to Great Britain, it may not
only aid in reconciling her to the principal objects desired by
the United States, but may induce her to concur in the further
insertion of articles, corresponding with those in the Convention
of 1800 with France, which regulate more precisely and
more effectually the treatment of vessels of the neutral party
on the high seas.

The occasion will be proper also, for calling the attention
of the British Government to the reasonableness of permitting
American Consuls to reside in every part of her dominions,
where, and so long as, she permits our citizens to trade. It is
not denied that she has a natural right to refuse such a residence,
and that she is free by her treaty with us, to refuse it in
other than her European dominions. But the exception
authorized with respect to the residence of Consuls elsewhere,
having reference to the refusal of our trade elsewhere, the
refusal of the one ought manifestly to cease with the refusal
of the other. When our vessels and citizens are allowed to
trade to ports in the West Indies, there is the same reason
for a contemporary admission of Consuls to take care of it,
as there is for their admission in ports where the trade is
permanently allowed. There is the juster expectation of your
success on this point, as some official patronage is due to


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the rights of our citizens in the prize courts established in
the West India Islands. Should the British Government be
unwilling to enter into a stipulated provision, you may perhaps
obtain an order to the Governors for the purpose: or
if consuls be objected to altogether, it is desirable that
agents may be admitted, if no where else, at least in the
Islands where the Vice Admiralty Courts are established.

It has been intimated that the articles as standing in the
different columns, are to be considered, the one as the offer
to be made, the other as the ultimatum to be required. This
is however not to be taken too strictly, it being impossible
to forsee the turns and the combinations, which may present
themselves in the course of the negotiation. The essential
objects for the United States are the suppression of impressments
and the definition of blockades. Next to these in importance,
are the reduction of the list of contraband, and
the enlargement of our neutral trade with hostile colonies.
Whilst you keep in view therefore those objects, the two
last as highly important, and the two first as absolutely
indispensable, your discretion, in which the President places
great confidence, must guide you in all that relates to the
inferior ones.

With sentiments of great respect and esteem,

I remain sir, Your most Ob Sert.
 
[10]

Madison wrote to Monroe privately, January 18th.—

I write you by Mr. Baring, who will also take charge of full instructions
on the subject of a Convention with G. B. for putting an end to impressments
&c. It is of great importance to the harmony of the two Countries
that the project should not entirely fail. There is not time to forward
by this opportunity instructions relative to Madrid. They will
probably soon follow. In the mean time, you will collect from a letter
which the President writes his present views with respect to that Mission.
I refer to the same source also for other things of which a repetition is
unnecessary, particularly the arrangement as to Louisiana.  .  .  .

The inclosed paper has an address to Mr. Merry, which shows the
importance to G. Britain of a stipulation to surrender her deserting
seamen. She cannot expect this to be either stipulated or practised,
whilst impressments go on. On the contrary she must expect other
States to follow the example of Va. which will throw the whole trade
between the two Countries in time of war at least into American vessels.
Mad. MSS.