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Relations with Great Britain and France.
this proof of citizenship, when the date and places will verify the remark in its application to the of impressments demonstrated the impossibility of present war. The statement made by his predetheir knowing in time to provide the proof that a cessor during the last war, and which is also an. state of war had rendered it necessary.
nexed, is in the same view still more conclusive. Whether, therefore, we consult the law of na- The statement comprehends not only all the aptions, the tenor of treaties, or the dictates of ! plications made by him in the first instance, for reason and justice, no warrant, no pretext can the liberation of impressed seamen, between the be found for the British practice of making month of June, 1797, and September, 1801, but impressments from American vessels on the many also which had been made previous to this high seas.
agency, by Mr. Pinckney and Mr. King, and Great Britain has the less to say in excuse for which it was necessary for him to renew. These this practice, as it is in direct contradiction to the applications, therefore, may fairly be considered principles on which she proceeds in other cases. as embracing the greater part of the period of the Whilst she claims and seizes, on the high seas, her war; andas applications are known to be pretty inown subjects voluntarily serving in American ves- discriminately made, they may be further considersels, she has constantly given, when she could give, ed as embracing if not the whole, the far greater as a reason for not discharging from her service part of the impressments, those of British subAmerican citizens, that they had voluntarily en-jects as well as others. Yet the result exhibits gaged in it. Nay more, whilst she impresses her two thousand and fifty-nine cases only, and of this own subjects from the American service, although number one hundred and two seamen only, dethey may have been settled and married, and even tained as British subjects, which is less than onenaturalized in the United States, she constantly re twentieth of the number impressed; and one fuses to release from her service American citizens thousand one hundred and forty-two discharged, impressed intoit, whenever she can give for a reason or ordered to be so, as not being British subthat they were either settled or married within her jects, which is more than one-half of the whole dominions. Thus, whenever the voluntary consent number, leaving eight hundred and five for furof the individual favors her pre:ensions, she pleads ther proof, with the strongest presumption that the validity of that consent. When the voluntary the greater part, if not the whole, were Americonsent of the individual stands in the way of her cans or other aliens, whose proof of citizenship pretensions, it goes for nothing. When marriage had been lost or destroyed, or whose situation or residence can be pleaded in her favor, she avails would account for the difficulty and delays in herself of the plea. When marriage and residence, producing it. So that it is certain that, for all and even naturalization, are against her, no re- the British seamen gained by this violent proceedspect whatever is paid to either. She takes by ing, more than an equal number who were not so force her own subjects voluntarily serving in our were the victims; it is highly probable that, for vessels. She keeps by force American citizens every seaman gained, a number of others, less than involuntarily serving in bers. More flagrant in- four to one, must have been the victims, and it is consistencies cannot be imagined.
even probable that this pumber may have exceedNotwithstanding the powerful motives which ed the proportion of twenty to one. ought to be felt by the British Government to re- It cannot, therefore, be doubted that the acquilinquish a practice which exposes it to so many sition of British seamen, by these impressments, reproaches, it is foreseen that objections of differ- whatever may be its advantage, is lost in the ent sorts will be pressed on you. You will be wrong done to Americans ignorantly or wilfully told, first, of the great number of British seamen mistaken for British subjects, in the jealousy and in the American trade, and of the necessity for ill-will excited among all maritime nations by an their services in time of war and danger. Sec- adherence to such a practice, and in the particuondly, of the rights and the prejudice of the Brit. Iar provocation to measures of redress on ibe part ish nation with respect to what are called the of the United States, not less disagreeable to British or Narrow Seas, where its domain would them than embarrassing to Great Britain, and be abandoned by the general stipulation required. which may threaten the good understanding which Thirdly, of the use which would be made of such ought to be faithfully cultivated by both. The a sanctuary as that of American vessels, for de- copy of a bill brought into Congress under the sertions and traitorous communications to her influence of violations committed on our flag, enemies, especially across the channel to France. gives force to this latter consideration. Whether
1st. With respect to the British seamen serv- it will pass into a law, and at the present session, ing in our trade, it may be remarked, first, that the is more than can yet be said. As there is every number, though considerable, is probably less reason to believe that it has been proposed with than may be supposed ; secondly, that what is reluctance, it will probably not be pursued into wrong in itself cannot be made right by consid- effect, if any hope can be supported of a remerations of expediency or advantage;' thirdly, edy by an amicable arrangement between the iwo that it is proved by the fact, that the number of nations. real British gained by the practice in question is There is a further consideration, which ought of considerable importance, even in the scale of to have weight in this question. Although the advantage. The annexed report to Congress on British seamen employed in carrying on Amerithe subject of impressments, with the addition of can commerce be in some respect lost to their such cases as may be in the hands of Mr. Erving, lown nation, yet such is the intimate and exten
Relations with Great Britain and France.
sive connexion of this commerce, direct and cir- which would now be listened to anywhere would cuitous, with the commerce, the manufactures, make a small proportion of the narrowest part of the revenue, and the general resources of the the narrowest seas in question. British nation, that, in other respects, its mari- What are, in fact, the prerogatives claimed and ners, on board of American vessels, may truly exercised by Great Britain over these seas? If be said to be rendering it the most valuable ser- they were really a part of her domain, her authorvices. It would not be extravagant to make it a ity would be the same there as within her other question, whether Great Britain would not suffer domain. Foreign vessels would be subject to all more by withdrawiog her seamen from the mer- the laws and regulations framed for them, as chant vessels of the United States, than her enemies much as if they were within the harbors or rivers would suffer from the addition of them to the of the country. Nothing of this sort is pretended. crews of her ships of war and cruisers.
Nothing of this sort would be tolerated. The only Should any difficulty be started concerning sea- instances in which these seas are distinguished men born within the British dominions, and nat- from other seas, or in which Great Britain enjoys uralized by the United States since the treaty of within them any distinction over other nations 1783, you may remove it by observing, first, that are, first, the compliment paid by other flags to very few if any such naturalizations can take place, hers; secondly, the extension of her territorial the law here requiring a preparatory residence of jurisdiction, in certain cases, to the distance of four five years, with potice of the intention to become leagues from the coast. The first is a relic of ana citizen, entered of record two years before the cient usurpation, which has thus long escaped the Jast necessary formality; besides, a regular proof correction which modern and more enlightened of good moral character-conditions litile likely times have applied to other usurpations. The to be complied with by ordinary seafaring persons; prerogative has been often contested, however, secondly, that a discontinuance of impressments even at the expense of bloody wars, and is still on the high seas will prevent an actual collision borne with ill will and impatience by her neighbetween the interfering claims. Within the juris- bors. diction of each nation, and in their respective ves- At the last Treaty of Peace at Amiens, the sels on the high seas, each will enforce the allegi- abolition of it was repeatedly and strongly pressed ance which it claims.
In other situations, the by France; and it is not improbable, that, at no individuals doubly claimed will be within a juris- remote day, it will follow the fate of the title of diction independent of both nations.
" King of France," so long worn by the British 2d. The British pretensions to domain over the monarchs, and at length so properly sacrificed narrow seas are so absolute, and so indefensible, to the lessons of a magnanimous wisdom. As far that they never would have occurred as a proba- as this homage to the British flag has any foundble objection in this case, if they had not actually ation at present, it rests merely on long usage, and frustrated an arrangement settled by Mr. King long acquiescence, which are construed (as in a few with the British Ministry on the subject of im- other cases of maritime claims) into the effect of pressments from American vessels on the high a general, though tacit convention. The second
At the moment when the articles were ex- instance is the extension of the territorial jurispected to be signed, an exception of the “ narrow diction to four leagues from the shore. This, too, seas” was urged and insisted on by Lord St. Vin- as far as the distance may exceed that which is cent; and being utterly inadmissible on our part, generally allowed, rests on a like foundation, the negotiation was abandoned.
strengthened, perhaps, by the Jocal facility of The objection in itself has certainly not the smuggling, and the peculiar interest which Great slightest foundation. The time has been, indeed, Britain has in preventing a practice affecting so when England not only claimed but exercised deeply her whole system of revenue, commerce, pretensions scarcely inferior to full sovereignty and manufactures; whilst the limitation itself to over the seas surrounding the British isles, and four leagues necessarily implies, that, beyond that even as far as Cape Finisterre to the south, and distance, no territorial jurisdiction is assumed. Van Staten in Norway to the north. It was a But, whatever may be the origin or the value time, however, when reason had little share in de- of these prerogatives over foreign flags in one case, termining the law, and the intercourse of nations, and within a limited portion of these seas in anowhen power alone decided questions ot' right, and ther, it is obvious that neither of them will be viowhen the ignorance and want of concert among lated by the exemption of American vessels from other maritime countries facilitated such an usurp- impressments, which are nowise connected with ation.
either; having never been made on the pretext The progress of civilization and information has either of withholding the wonted homage to the produced a change in all those respects; and no British flag, or of smuggling in defiance of British principle in the code of public law is at present laws. better established than the common freedom of the This extension of the British law to four leagues seas beyond a very limited distance from the ter- from the shore is inferred from an act of Parliaritories washed by them. This distance is not, ment, passed in the year 1736, (9 Geo. 2. c. 35,) iodeed, fixed with absolute precision. It is varied, the terms of which comprehend all vessels foreign in a small degree by written authorities, and per- as well as British; it is possible, however, that the haps it may be reasonably varied in some degree former are constructively excepted. Should your by local peculiarities. But the greatest distance inquiries ascertain this to be the case, you will
Relations with Great Britain and France.
find yourself on better ground than the concession like manner as they are required to be paid, or here made.
secured, on a like cargo. from whatever port, With respect to the compliment paid to the meant for home consumption; that the cargo reBritish flag, it is also possible that more is bere mained on land about three weeks, when it was conceded than you may find to be necessary. Af- reshipped for Barcelona, in Old Spain, and the ter the peace of 1783, this compliment was per- duties drawn back, with a deduction of three and emptorily withheld by_France, in spite of the re- a half per cent., as is permitted to imported articles monstrances of Great Britain ; and it remains for in all cases, at any time within one year, under your inquiry, whether it did not continue to be certain regulations, which were pursued in this refused, notwithstanding the failure at Amiens to case; that the vessel was taken on her voyage by obtain from Great Britain a formal renunciation a British cruiser, and sent for trial to Newfoundof the claim.
land, where the cargo was condemned by the From every view of the subject, it is reasonable to Court of Vice Admiralty; and that the cause was expect, that ihe exception of the narrow seas from carried thence, by appeal, to Great Britain, where the stipulation against impressments, will not bein- it was apprehended i hat the sentence below would flexibly maintained ; should it be so, your negoti- not be reversed. ation will be at an end. The truth is, that so The ground of this sentence was, and that of great a proportion of our trade, direct and circui- its confirmation, if such be the result, must be, that tous, passes through those channels, and such is the trade in which the vessel was engaged was its peculiar exposure in them to the wrong prac- unlawful, and this unlawfulness must rest, first, tised, that, with such an exception, any remedy on the general principle assumed by Great Britwould be very partial. And we can never con- ain, that a trade from a colony to its parent counsent to purchase a partial remedy by confirm- try, being a trade not permitted to other nations ing a general evil, and by subjecting ourselves to in lime of peace, cannot be made lawful to them our own reproaches as well as to those of other in time of war; secondly, on the allegation that nations.
the continuity of the voyage from the Havana to 3d. It appears, as well by a letter from Mr. Barcelona was not broken by landing the cargo Thornton, in answer to one from me, of both in the United States, paying the duties thereon, which copies are enclosed, as from conversations and thus fulfilling the legal prerequisites to a with Mr. Merry, that the facility which would be home consumption ; and, therefore, that the cargo
the immunity claimed for American vessels, to the British regulation of January, 1798, which so far escape of traitors, and the desertion of others relaxes the general principle as to allow a direct whose services in time of war may be particularly trade between a belligerent colony, and a neutral important to an enemy, forms one of the pleas for country carrying on such a trade. the British practice of examining American With respect to the general principle, which crews, and will be one of the objections to a for- disallows to neutral nations, in time of war, a mal relinquishment of it.
trade not allowed to them in time of peace, it may
a be isfactory reply. In the first place
, if it could pre- First, That the principle is of modern date; vail at all against the neutral claim, it would au- that it is maintained, as is believed, by no other thorize the seizure of the persons described only, nation but Great Britain ; and that it was assumand in vessels bound to a hostile country only; ed by her under the auspices of a maritime ascenwhereas, the practice of impressing is applied to dency, which rendered such a principle subservipersons, few or any of whom are alleged to be of ent to her particular interest. The bistory of her either description, and to vessels whithersoever regulations on this subject shows that they have bound, even io Great Britain herself. In the next been constantly modified under the influence of place, it is not only a preference of the smaller that consideration. The course of these modifi. object on one side to a greater object on the other, cations will be seen in an appendix to the fourth but a sacritice of right on one side to expediency volume of Robinson's Admiralty Reports. on the other side.
Secondly, That the principle is manifestly con
trary to the general interest of commercial naOn the subject of the Colonial Trade. tions, as well as to the law of nations settled by
the most approved authorities, which recognises Extract of a letter from the Secretary of State to James
no restraints on the trade of nations not at war, Monroe, Esq.
with nations at war, other than that it shall be DEPARTMENT OF STATE, April 12, 1805. impartial between the latter, that it shall pot ex. The papers herewith enclosed explain particu- tend to certain military articles, nor to the translarly the case of the brig Aurora.
portation of persons in military service, nor to The sum of the case is, that while Spain was places actually blockaded or besieged. at war with Great Britain, this vessel, owned by Thirdiy, That the principle is the more cona citizen of the United States, brought a cargo of trary to reason and to right, inasmuch as the adSpanish produce, purchased at the Havana, from mission of neutrals into a colonial trade shut that place to Charleston, where the cargo was against them in times of peace, may, and often landed, except an insignificant portion of it, and does, result from considerations which open to the duties paid, or secured, according to law, in i neutrals direct channels of trade with the parent
Relations with Great Britain and France.
State, shut to them in times of peace, the legality 1793, condemned the principle, that a trade forof which latter relaxation is not known to have bidden to neutrals in time of peace, could not be been contested ; and inasmuch as a commerce opened to them in time of war; on which precise may be and frequently is opened in time of war, principle these instructions were founded. And between a colony and other countries, from con- as the reversal could be justified by no other ausiderations which are not incident to the war, thority than the law of nations, by which they and which would produce the same effect in a were guided, the law of nations, according to that time of peace; such, for example, as a failure or joint tribunal, condemns the principle here comdiminution of the ordinary sources of necessary bated. Whether the British Commissioners consupplies, or new turns in the course of profitable curred in these reversals does not appear, but interchanges.
whether they did, or did not, the decision was Fourthly, That it is not only contrary to the equally binding; and affords á precedent wbich principles and practice of other pations, but to could not be disrespected by a like succeeding ibe practice of Great Britain herself. It is well tribunal, and ought not to be without great weight known to be her invariable practice in time of with both nations, in like questions recurring bewar, by relaxations in her navigation laws, to ad-tween them. mit neutrals to trade in channels forbidden to On these grounds the United States may justly them in times of peace; and particularly to open regard the British captures and condemnations of her colonial trade both to neutral vessels and neutral trade, with colonies of the enemies of supplies, to which it is shut in times of peace: Great Britain, as violations of right; and if reaand that one at least of her objects, in these re- son, consistency, or that sound policy which canlaxations, is to give to her trade au immunity not be at variance with either, be allowed the from capture, to which in her own hands it would weight which they ought to have, the British be subjected by the war.
Government will feel sufficient motives to repair Fifthly, The practice which has prevailed in the wrongs done in such cases by its cruisers and the British dominions, sanctioned by Orders of courts. Council and an act of Parliament, [39 G. 3. c. 98.] But, apart from this general view of the subauthorizing for British subjects a direct trade with ject, a refusal to indemnify the sufferers, in the the enemy, still further diminishes the force of particular case of the Aurora, is destitute of every her pretensions for depriving us of the colonial pretext, because, in the second place, the contitrade. Thus we see in Robinson's Admiralty nuity of her voyage was clearly and palpably Reports passim, that during the last war a li- broken, and the trade converted into a new charcensed cominercial intercourse prevailed between acter. Great Britain and her enemies, France, Spain, It has been already noted that the British reguand Holland, because it comprehended articles lation of 1798 admits a direct trade, in time of necessary for her manufactures and agriculture; war, between a belligerent colony and neutral notwithstanding the effect it had in opening a vent country carrying on the jtrade; and admits conto the surplus productions of the others. In this sequenily the legality of the importation by the manner she assumes to suspend the war itself as Aurora, from the Havana to Charleston. Nor to particular objects of trade beneficial to berself; has it ever been pretended that a neutral nation while she denies the right of the other belligerents has not a right to re-export to any belligerent to suspend their accustomed commercial restric-country whatever productions, not contraband of tions, in favor of neutrals. But the injustice and war, which may have been duly incorporated and inconsistency of her attempt to press a strict rule naturalized, as a part of the commercial stock of on neutrals, is more forcibly displayed by the na- the country re-exporting it. ture of the trade which is openly carried on be- The question, then, to be decided under the tween the colonies of Great Britain and Spain, in British regulation itself
, is, whether in landing the the West Indies. The mode of it is detailed in cargo, paying the duties, and thus as effectually the enclosed copy of a letter from wherein qualifying the articles for the legal consumption it will be seen that American vessels and cargoes, of the country, as if they had been its native proafter being condemned in British courts, under ductions, they were not, at the same time, equally pretence of illicit commerce, are sent, on British qualified with native productions for exportation account, to the enemies of Great Britain, if not to io a foreign market. That such ought to be the the very port of the destination interrupted when decision results irresistibly from the following they were American property. What respect considerations: can be claimed from others, to a doctrine not only 1. From the respect which is due to the interof so recept an origin, and enforced with so little nal regulations of every country, where they can. uniformity, but which is so conspicuously disre- not be charged with a temporizing partiality togarded in practice by the nation itself, which ward particular belligerent parties, or with fraudstands alone in contending for it?
ulent views toward all of them. The regulations Sixthly, It is particularly worthy of attention of the United States on this subject must be free that the Board on Commissioners, jointly consti- from every possible imputation, being not only tuted by the British and American Governments, fair in their appearance, but just in their princiunder the seventh article of the Treaty of 1794, ples, and having continued the same during the by reversing condempations of the British courts periods of war, as they were in those of peace. founded on the British instructions of November, It may be added that they probably correspond, in
Relations with Great Britain and France.
every essential feature relating to re-exportation, its courts. Should the trial be over, and the with the laws of other commercial countries, and sentence of the Vice Admiralty Court at Saint particularly with those of Great Britain. The John's have been confirmed, you are to lose no annexed outline of them, by the Secretary of the time in presenting to the British Government a Treasury, will at once explain their character, and representation corresponding with the scope of show that, in the case of the Aurora, every legal these observations; and in urging that redress in requisite was duly complied with.
the case, which is equally due to private justice, 2. From the impossibility of substituting any to the reasonable expectations of the United States, other admissible criterion, ihan that of landing and to that confidence and harmony which ought the articles, and otherwise qualifying them for to be cherished between the two nations. the use of the country. If this regular and customary proceeding be not a barrier against further Mr. Monroe to the Secretary of Foreign Affairs of inquiries, where, it may be asked, are the inquiries
Great Britain. to stop ?' By what evidence are particular articles to be identified on the high seas, or before a for
No. 12, GREAT CUMBERLAND PLACE, eign tribunal? If identified, how is it to be as
September 23, 1805. certained whether they were imported with a view MY LORD: I flattered myself, from what passed to the market at home, or to a foreign market, in our last interview, that I should have been hon. or, as ought always to be presumed, to the one or ored before this with an answer from your Lordthe other, as it should happen to invite ? or if to ship to my letters respecting the late seizure of a foreign market, whether to one forbidden or per- American vessels. I understood it to be agreed mitted by the British regulations ? for it is to be that the discussion which then took place should recollected that among the modifications which be considered as unofficial, as explanatory only of her policy has given to the general principle as the ideas which we might respectively entertain serted by her, a direct trade is permitied to a neu- on the subject, and that your Lordship would aftral carrier from a belligerent colony, to her ports, terwards give me such a reply to my letters as well as to those of his owo country. If, again, respecting that measure as His Majesty's Governthe landing of the goods and the payment of the ment might desire to have communicated to the duties be not sufficient to break the continuity of Government of the United States. In consethe voyage, what, it may be asked, is the degree of quence, I have since waited with anxiety such a internal change or alienation which will have communication, in the daily expectation of rethat effect? May not a claim be set up to trace ceiving it. It is far from being my desire to give the articles from hand to hand, from ship to ship, your Lordship any trouble in this business, which in the same port, and even from one port to ano- i can avoid, as the time which has since elapsed ther port, as long as they remain in the country? sufficiently shows; but the great importance of In a word, in departing from the simple criterion the subject, which has, indeed, become more so. provided by the country itself, for its own legiti- by the continuance of the same policy, and the mate and permanent objects, it is obvious, that, frequency of seizures which are still made of besides the defalcations which might be commit- | American vessels, place me in a situation of peted on our carrying trade, pretexts will be given culiar responsibility. My Government will ex. to.cruisers for endless vexations on our commerce pect of me correci information on this point, in at large, and that a latitude and delays will accrue all its views, and I am very desirous of comply. in the distant proceedings of Admiralty courts, ing with its just expectation. I must, therefore, still more ruinous and intolerable.
again request that your Lordship will be so good 3. From the decision in the British High Court as to enable me to make such a representation to of Admiralty itself, given in the case of the Polly, my Government of that measure as His Majesty's Lasky, master, by a judge deservedly celebrated Government may think proper to give. for a profound judgment, which cannot be sus- I am sorry to add, that the longer I have reflectpected of leaning toward 'doctrines unjust or ined on the subject, the more confirmed I have been jurious to the rights of his own country. On that in the objections to the measure. If we examine occasion he expressly declares : It is not my bu- it in reference to the law of nations, it appears to siness to say what is universally the test of a bona me to be repugnant to every principle of that law; fide importation : it is argued that it would be if by the understanding, or, as it may be more sufficient that the duties should be paid, and that properly called, the agreement of our Governments the cargo should be landed. If these criteria are respecting the commerce in question, I consider not to be resorted to, I should be at a loss to know it equally repugnant to the principles of that what should be the test ; and I am strongly dis- agreement. In both these views your Lordship posed to hold, that it would be sufficient that the will permit me to make some additional remarks goods should be landed and the duties paid."-2 on this subject. Rob. Reports, p. 368-9.
By the law of nations, as settled by the most The President has thought it proper that you approved writers, no other restraint is acknowlshould be furnished with such a view of the sub-edged on the trade of neutral nations with those ject as is here sketched; that you may make the at war than that it be impartial between the latuse of it best suited to the occasion. If the trial ter; that it shall not extend to articles which are of the Aurora should not be over, it is questiona- deemed contraband of war, nor to the transportable whether the Government will interfere with I tion of persons in military service,
nor to places