Front Page Titles (by Subject) TO JAMES MONROE AND WILLIAM PINKNEY. d. of s. mss. instr. - The Writings, vol. 7 (1803-1807)
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TO JAMES MONROE AND WILLIAM PINKNEY. d. of s. mss. instr. - James Madison, The Writings, vol. 7 (1803-1807) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 7.
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TO JAMES MONROE AND WILLIAM PINKNEY.d. of s. mss. instr.
Department of State May 17—1806.
I herewith enclose a Commission and letters of credence authorizing you to treat with the British Government concerning the maritime wrongs which have been committed, and the regulation of commerce and navigation, between the parties. Your authority is made several as well as joint, as a provision for any contingency depriving either of the co-operation of the other.
The importance of the trust is evinced by its being made the occasion of an Extraordinary Mission, as well as by the subjects which it embraces. And I have great pleasure in expressing the confidence which the President feels in the prudence and talents to which the business is committed.
It is his particular wish that the British Government should be made fully to understand that the United States are sincerely and anxiously disposed to cherish good will and liberal intercourse between the two nations, that an unwillingness alone to take measures not congenial with that disposition has made them so long patient under violations of their rights and of the rules of a friendly reciprocity; and when forced at length by accumulating wrongs to depart from an absolute forbearance, they have not only selected a mode strictly pacific, but in demonstration of their friendly policy, have connected with the measure, an extraordinary mission, with powers to remove every source of difference, and even to enlarge the foundations of future harmony and mutual interest.
There can be the less ground of umbrage to the British Government, in the Act prohibiting the importation of certain Articles of British manufacture 1st because there is nothing on the face of the Act beyond a mere commercial regulation, tending to foster manufactures in the United States, to lessen our dependence on a single nation by the distribution of our trade, and to substitute for woolens and linens, manufactures made from one of our principal agricultural staples. 2nd because it is far short of a reciprocity with British exclusions of American Articles of export. 3d because as a commercial measure discriminating in time of war, between British and other nations, it has examples in British practice. It deserves attention also that a discrimination was made, and under another name still exists, in the amount of convoy duty imposed on the trade between Great Britain with Europe, and with America. 4th because the measure cannot be ascribed to a partiality towards the enemies of Great Britain, or to a view of favoring them in the war; having for its sole object the interest of the United States, whch it pursues in a mode strictly conformable to the rights and the practice of all nations.
To observations of this kind it may be useful to add that the measure was undertaken before the late change in the British Ministry, and does not therefore imply any particular distrust of the views of the new one, but merely a belief that it was most consistent with self respect not to be diverted, by an occurrence of that nature, from a ground which had been deliberately and publickly assumed; not to mention that no assurances sufficiently decisive had been received that a disposition to correct the evil in question predominated in the present Cabinet; whilst it was known that some of its most distinguished members have heretofore been among the warmest champions of the maritime doctrines in which those evils have their origin.
In one respect the act may even be favorable to the objects of the present Cabinet, if it should be disposed to make unpopular concessions refused by their predecessors; since concessions alone can now regain a lost market for certain important and popular classes of British manufactures.
In fine the Act may truly be represented as so far from derogating from the amicable dispositions of the United States towards Great Britain, that it has resulted solely from the inefficacy of their protracted and reiterated endeavors otherwise to obtain a just redress, and from a hope that an appeal in this peaceable form to the reflections and interests of an enlightened nation, would be more successful in removing every obstacle to a perfect and permanent cordiality between the two nations.
The instructions given to Mr. Monroe Jan’y 5- 1804, having taken into view, and being still applicable to a great proportion of the matter now committed to your joint negotiations, it will be most convenient to refer you to those instructions as your general guide, and to confine the present, to the alterations and additions, which a change of circumstances, or a contemplation of new objects may require.
The first article of the project comprized in the instructions of 1804, relates to the impressment of seamen. The importance of an effectual remedy for this practice, derives urgency from the licenciousness with which it is still pursued, and from the growing impatience of this Country under it. So indispensable is some adequate provision for the case, that the President makes it a necessary preliminary to any stipulation requiring a repeal of the Act shutting the Market of the U. States against certain British manufactures. At the same time he authorizes you in case the ultimatum as stated in the Article above referred to, should not be acceptable to the British Government, to substitute one in the terms following—“No seaman nor sea faring 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 or men of war belonging to or in the service of the other party; and strict orders shall be given for the observance of this engagement.”
An article in these terms was, with the acquiescence of Lord Hawkesbury and Mr. Addington, concerted between Mr. King and lord St Vincent on the approaching renewal of the late war. It was frustrated by an exception of the “narrow seas”, inserted by Lord St Vincent; an exception so evidently inadmissible both in principle and in practice, that it must have been intended as a pretext for evading the stipulation at that time. Perhaps the present Ministry may neither be disposed to resort to such a pretext, nor unwilling to avail themselves of the precise sanction as far as it was given by their predecessors.
With respect to contraband which is the subject of the 4th art, it may be observed that as it excludes naval stores from the list, and is otherwise limited to articles strictly military, it must be admissible to Great Britain, [and] leave but feeble objections to an abolition of contraband altogether. In the present state of the arts in Europe, with the intercourse by land, no nation at war with Great Britain can be much embarrassed by leaving those particular articles subject to maritime capture. Whilst belligerent nations therefore have little interest in the limited right against contraband, it imposes on neutrals all the evils resulting from suspicious and vexatious searches, and from questions incident to the terms used in the actual enumeration. It is not an unreasonable hope therefore, that in place of this article, an entire abolition of contraband may be substituted. Should this be found unattainable, it may be an improvement of the Article, as it stands, to subjoin for the sake of greater caution, to the positive enumeration, a negative specification of certain Articles, such as provisions, money naval stores &c as in no case to be deemed within the meaning of the article with a proviso, that the specification shall not be construed to imply in the least, that any articles not specified in the exception, shall on that account be liable to be drawn into question.
A doctrine has been lately introduced by the British Courts and at length adopted by the instructions of June 1803, to British Cruizers, which regards contraband conveyed in one voyage as affecting a resumed or returning voyage, altho’ contraband shall have been previously deposited at its port of destination. It will be a further improvement of the Article to insert a declaratory clause against the innovation, and the abuses incident to it.
The 4th article, besides the stipulation on the subject of contraband, relates to two other subjects; 1st That of free ships free goods, 2nd that of a trade with enemy’s Colonies.
1st. With respect to the first, the principle that a neutral flag covers the property of an enemy, is relinquished, in pursuance of the example of the Russian Treaty on which the article is modelled; the relinquishment however being connected with and conditioned on, the provision required in favor of the neutral right to the Colonial Trade. The importance of that principle to the security of neutral commerce, and to the freedom of the seas, has at all times been felt by the United States; and altho’ they have not asserted it as the established law of nations, they have ever been anxious to see it made a part of that law. It was with reluctance, of course, that a contrary stipulation was authorized, and merely as a mean of obtaining from Great Britain, the recognition of a principle now become of more importance to neutral nations possessing mercantile Capital, than the principle of “free ships free goods.” It is to be particularly kept in view therefore that such a contrary stipulation is to be avoided if possible, and if unavoidable that the stipulation be so modified as to interfere as little as possible with the spirit and policy of any provisions in favor of the principle which may be likely to be introduced into a Treaty of peace among the present belligerent powers of Europe. Should it be known that Russia as well as France meant to insist on such a provision, and that such a stipulation by the United States however modified, will naturally affect her confidence and good will towards them, the objection to the measure will acquire a force that can yield only to the consideration that without such a sacrifice the provisions for the security of our seamen, and of our neutral commerce, cannot be obtained and that the sacrifice will effectually answer these purposes.
2d. The vast importance of the Colonial trade, with the circumstances and the excitement which have taken place since the date of the Original instructions to Mr. Monroe, will require that the neutral right on this subject, be provided for in an appropriate Article, and in terms more explicit than are used in the Article under review. As the right in this case, turns on the general principle that neutrals may lawfully trade, with the exception of Blockades and contraband, to and between all ports of an enemy and in all Articles, altho’ the trade shall not have been open to them in time of peace, particular care is to be taken that no part of the principle be expressly or virtually abandoned, as being no part of the law of nations. On the contrary it is much to be desired that the general principle in its full extent, be laid down in the stipulation. But as this may not be attainable and as too much ought not to be risked by an inflexible pursuit of abstract right, especially against the example and the sentiments of great powers having concurrent interests with the United States; you are left at liberty if found necessary to abridge the right in practice, as it is done in the supplement of Octr 1801 to the Treaty of June of that year, between Russia and Great Britain; not omitting to provide that in case Great Britain should by her Treaties or instructions leave to any other nation the right in a greater extent than it is stipulated to the United States, they may claim the enjoyment of it in an equal extent.
The abuses which have been committed by Great Britain under the pretext that a neutral trade, from enemy Colonies, through neutral ports, was a direct trade, render it indispensable to guard against such a pretext by some express declaration on that point. The most that can be conceded on the part of the United States, is that the landing of the goods, the securing the duties, and the change of the ship, or preferably the landing of the goods alone, or with the securing the duties, shall be requisite to destroy the identity of the voyage and the directness of the trade, and that the ordinary documents of the Custom House officers, shall be sufficient evidence of the facts or fact.
A satisfactory provision on this subject of a trade with enemy Colonies, is deemed of so much consequence to the rights and interests of the United States, and is so well understood to have been contemplated along with a like provision against the impressment of seamen, in the late Act of Congress prohibiting the importation of certain classes of British Manufactures that, as was enjoined with respect to the provision against impressment, no stipulation is to be entered into not consistent with a continuance of that Act, unless the provision with respect to the Colonial trade be also obtained.
In remodelling the provision with respect to the Colonial trade, you may with great propriety urge a distinction between the West India Colonies, and the very distant ones in the East Indies and elsewhere; and the reasonableness of limiting to the former, the exception of the direct trade with their present Countries, out of the general neutral right. The distinction is supported by several considerations, particularly by the greater difficulty, in the case of the more distant Colonies, of previously knowing, and eventually proving the regulations as they may have actually stood in time of peace; and by the ruinous delays and expences attending the judicial investigations. The British Courts have in fact admitted the distinction so far as to presume the lawfulness of the neutral trade with the East India Colonies, as being generally open in peace as well as war; whilst they reverse the presumption with respect to the West Indies.
In addition to what is proposed on the subject of blockades in VI & VII articles, the perseverance of Great Britain in considering a notification of a blockade, and even of an intended blockade, to a foreign Government, or its Ministers at London, as a notice to its Citizens, and as rendering a vessel wherever found in a destination to the notified port, as liable to capture, calls for a special remedy. The palpable injustice of the practice, is aggravated by the auxiliary rule prevailing in the British Courts, that the blockade is to be held in legal force, until the Governmental notification be expressly rescinded; however certain the fact may be that the blockade was never formed or had ceased. You will be at no loss for topics to enforce the inconsistency of these innovations with the law of nations, with the nature of blockades, with the safety of neutral commerce; and particularly with the communication made to this Government by order of the British Government in the year 1804; according to which the British Commanders and Vice Admiralty Courts, were instructed “not to consider any blockade of the Islands of Martinique and Guadaloupe as existing unless in respect of particular ports which may be actually invested, and then not to capture vessels bound to such ports unless they shall previously have been warned not to enter them.”
The absurdity of substituting such diplomatic notifications in place of a special warning from the blockading ships, cannot be better illustrated than by the fact, that before the notification of a proposed blockade of Cadiz in the year 1805 was received here from our Minister at London, official information was received from Cadiz, that the blockade had actually been raised, by an enemy’s fleet.
It may be worth your attention that a distinction has been admitted by the British Courts, in consideration of the distance of the United States from the European Blockades, between their Citizens and those of States less distant; the notice required for the former being more positive than is made necessary for the latter. You will be able to avail yourselves in the discussion, and perhaps in the modification of the Article, of the reasons on which such a distinction rests.
The instructions in the hands of Mr. Monroe are silent with respect to Convoys. If the footing on which the neutral right on that subject is placed by the Russian and British Treaty of 1801, can be turned to advantage in your negotiations, and should be understood to coincide with the present way of thinking of Russia and other maritime powers, an article corresponding with the regulations in that Treaty, may be admitted. But as the United States are not in the practice of Convoying their trade, nor likely to be so within the period of any stipulation now to be made, and as the progress of opinion is rather favorable than discouraging to the enlargement of neutral rights, it is in a general view desirable that any stipulation, such as Great Britain will probably admit, should at this time be entered into. In whatever arrangement on the subject limiting the protecting right of public ships of war, may be deemed expedient, you will be careful so to express the limitation, that it may be applied to the exercise of the right without affecting the abstract right itself.
There remains as an object of great importance, some adequate provision against the insults and injuries committed by British cruizers in the vicinity of our shores and harbors. These have been heretofore a topic of remonstrance, and have in a late instance, been repeated with circumstances peculiarly provoking, as they include the murder of an American seaman within the jurisdictional limits of the United States. Mr. Monroe is in full possession of the documents explaining a former instance. Herewith will be received those relating to the late one. They not only support a just demand of an exemplary punishment of the offenders and of indemnity for the spoliations, but call for some stipulations guarding against such outrages in future. With this view it is proper that all armed belligerent ships should be expressly and effectually restrained from making seizures or searches within a certain distance from our Coasts, or taking stations near our harbours, commodious for those purposes.
In defining the distance protected against belligerent proceedings, it would not perhaps be unreasonable, considering the extent of the United States, the shoalness of their coast and the natural indication furnished by the well defined path of the Gulph stream, to expect an immunity for the space between that limit and the american shore. But at least it may be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain, around her own territory. Without any particular enquiry into the extent of these, it may be observed 1 That the British Act of Parliament in the year 1730—9 G. 2 C. 35 supposed to be that called the Hovering Act assumes for certain purposes of trade, the distance of four leagues from the shores. 2 That it appears that both in the Reign of James I and of Charles II1 the security of the commerce with British ports was provided for, by express prohibitions against the roving or hovering of belligerent ships so near the neutral harbours and coasts of Great Britain as to disturb or threaten vessels homeward or outward bound; as well as against belligerent proceedings generally within an inconvenient approach towards British territory.
With this example, and with a view to what is suggested by our own experience, it may be expected that the British Government will not refuse to concur in an Article to the following effect.
“It is agreed that all armed vessels belonging to either of the parties engaged in war shall be effectually restrained by positive orders and penal provisions from seizing, searching or otherwise interrupting or disturbing vessels to whomsoever belonging, and whether outward or inward bound within the harbours, or the Chambers formed by headlands, or anywhere at sea within the distance of four leagues from the shore, or from a right line from one head-land to another; it is further agreed that by like orders and provisions all armed vessels shall be effectually restrained by the party to which they respectively belong, from stationing themselves, or from roving or hovering, so near the entry of any of the harbours or coasts of the other, as that Merchantmen shall apprehend their passage to be unsafe, or a danger of being set upon and surprised; and that in all cases where death shall be occasioned by any proceeding contrary to these stipulations, and the offender cannot, conveniently be brought to trial and punishment under the laws of the party offended he shall on demand made within NA months be delivered up for that purpose.”
If the distance of four leagues cannot be obtained, any distance not less than one sea league may be substituted in the Article. It will occur to you that the stipulation against the roving and hovering of armed ships on our coasts so as to endanger or alarm trading vessels, will acquire importance as the space entitled to immunity shall be narrowed.
Another object not comprehended in the instructions of 1804 to Mr. Monroe, is rendered important by the number of illegal captures and injuries, which have been committed by British Cruizers since that date. An indemnity for them is due on every consideration of justice and friendship and is enforced by the example heretofore given by Great Britain herself, as well as by other nations which have provided by Treaty for repairing the spoliations practised under colour of their authority. You will press this as an object too reasonable not to be confidently expected by the United States. Many of the claims indeed for indemnification are so obviously just that a refusal to satisfy them, cannot be decently made, and ought not therefore to be presumed.
The two modes most readily presenting themselves for a comprehensive provision for the claims, are first the establishment of a Board analogous to that provided for in the 7th Art of the Treaty of 1794; secondly, the substitution of a gross sum to be distributed among the claimants according to a liquidation to be made under the authority of the United States.
The second is the most eligible, if the gross sum to be allowed, be thought to approach the amount of losses to be indemnified. To assist you in estimating these, the statements addressed to this Department by the underwriter and others, are herewith transmitted. These statements with those furnished by Mr Lyman to Novr 1st will be [have?] to be reduced according to the redress which shall have been judicially afforded, and on the other hand to be augmented by the addition of cases not reported here, and to be collected from the sources of information within your own reach.
If the first mode should be adopted, great care will be requisite, in describing the cases, to employ such general terms as will comprehend all that are fairly entitled to redress. It will be well at the same time to secure, by specifying, such of the cases as can be specified and as are least susceptible of objection. Under this head may be classed 1 cases in which the official communication made by Lord Hawkesbury to Mr. King of the 11th day of April 1801 has been violated 2d Cases in which the rules of blockade stated in Mr. Merry’s communication to the Department of State on the 12th day of April 1804 have been violated. 3d Cases where the territorial jurisdiction of the United States has been violated.
The list of neutral rights asserted in the Report of the Secretary of State to the President on the 25th day of Jany 1806, will suggest other specifications which may be attempted. It may be worth recollecting that the British order of Council bearing date 24th June 1803, and subjecting to capture vessels on a return voyage, which had carried contraband in the outward voyage, was never promulgated, nor was it known that such a rule was to be enforced until the summer of 1805. Could the rule be regarded otherwise than as it certainly is, an innovation on the law of nations, all captures before it was made known, and contrary to antecedent practice, would be marked by an unjust surprise, fairly entitling them to redress.
The business to come before such a board may be much diminished by the reference of cases, particularly of costs and damages and such others whose description by common consent entitles them to redress, to the Kings Advocate and an Advocate to be named on your part (Dr. Laurence for Example) who may be authorized to report the sums due, subject to the approbation in each case of Mr. Lyman our Agent. As far as the cases fall within the observation here made, a liquidation of them may be carried on during the period of negotiation.
Altho’ the subject of indemnifications for past wrongs is to be pressed as of great magnitude in a satisfactory adjustment of our differences with Great Britain; yet as the British Government may be inflexible in refusing an arrangement implying that her maritime principles of capture were contrary to the law of nations, whilst she would not be inflexible in stipulating a future practice conformable to our wishes, it is not thought proper that a provision for indemnities should be an absolute condition of the repeal of the Act of Congress concerning British manufactures, provided satisfactory arrangements shall be made relative to impressments, and the trade with enemy’s Colonies. Still however it is to be kept in view that there are claims founded on Acts of British cruizers violating the law of nations as recognized by Great Britain herself, and others founded on unexpected departures, without notice from rules of practice deliberately settled and formally announced. Of these, examples have been referred to in the communication of Lord Hawkesbury to Mr. King and of Mr. Merry to the Department of State.
With respect to claims of these several kinds, it is evident that provision is clearly due for them, and that it may be made without implication which can alarm the pride or the caution which may be professed. You will not fail therefore, to bring if necessary, these claims into view, as distinguished from others founded on controverted principles, and to let it be understood that a refusal of them will be a painful ingredient in the negotiations for extinguishing discontents on both sides, and consolidating and perpetuating the friendship between them. In case this distinction should operate in the adjustment, it will furnish an additional reason for preferring a gross sum, to the liquidations of a joint Board, first because it will admit of a liberal sum, if the British Government should be liberally disposed, on presumptions not affecting her maritime principles. Secondly, because it will leave the United States free to apply the gross sum, in redressing claims, according to our maritime principles. A precedent for such an expedient may be found in the Convention of Jany 1756 between Great Britain and Persia; whereby a gross sum of £20,000 sterling was paid to the latter as an extinguishment of claims on account of illegal captures, without reference to the precise rules by which it was to be applied. The treaty of Pardo in Jany 1739 between Great Britain and Spain, is another precedent. In that Treaty the sum of £95,000 sterling was stipulated in the like general manner, to be paid to Great Britain by Spain, as a compromise for all reparation of maritime injuries.
If the United States succeed in making satisfactory arrangements on the principal points of impressment of seamen, Colonial trade, and still more if provision be also made for indemnity for spoliations, it may be naturally expected that Great Britain will require, not only the repeal of the prohibitory act of last Session, but also some security that the United States will not by subsequent acts of the same nature place her on a worse footing than other nations. She may reasonably urge that demand on the double plea, of having yielded on those points which were the subjects of complaint on the part of the United States, and of her being now for want of a Commercial Treaty placed in that respect at the discretion of the United States; whilst they are precluded by their Treaties with the enemies of Great Britain (Holland, France and Spain) from the power of laying prohibitions or restrictions particularly affecting those nations.
The most natural arrangement in that respect will be simply to agree that the two parties shall enjoy in the ports of each other in regard to commerce and Navigation, the privileges of the most favored nation. But the Article should be framed so as to embrace 1st every privilege and particularly the exemption from higher duties of every description either on imports or exports and including Convoy duties, that are paid by the most favored nation; 2dly all the possessions of Great Britain in every port of the world; which will secure admission at all times in both East and West Indies, on the same terms as are now or may in future be enjoyed by the most favored nation, whether it be a friend or an enemy.
The same clause of the footing of the most favored nation may be extended not only to navigation and Commercial intercourse between the two nations, but to points which relate to the rights and duties of belligerents and neutrals: an arrangement which would secure to Great Britain the same rights in relation to the admission of her armed vessels in our ports and to the exclusion of her enemies privateers and of their prizes, which are now enjoyed by Holland, Spain and other most favored nations: whilst it would place the rights of the United States as neutrals on the same footing with Russia or the most favored nation in respect to search, Convoys, blockades and contraband.
If, it shall be thought eligible to place the reciprocal commercial privileges of the two nations on a more definite basis than they would be placed by the general expression of the most favored nation (a stipulation which is liable to the difficulty of ascertaining the equivalent to be given in cases where a privilege is granted by one of the contracting parties to another nation in exchange for some favor which the other contracting party cannot specifically give) it may be done, either by abolishing all alien duties either on vessel or cargo, or both, and reciprocally placing the vessels of the other nation on the same footing with national vessels; conformably to a provision in which Great Britain concurred by an Act of Parliament in the year 1802 or by fixing the maximum of alien duty which each nation shall have the right to impose on the vessel or Cargoes of the other nation. But should the last plan be adopted, care must be taken 1st that in fixing the maximum of the alien duty to be levied on vessels, all charges whatever and under whatever name known, whether tonnage Light House money, port charges &c. shall be included. 2dly That the maximum of the alien duty to be levied on merchandize imported in the vessels of the other nation (beyond the duties levied on similar Articles imported in the national vessels) shall be a per centage on the value of the merchandize itself and not on the original duty 3dly that the right of imposing such maximum duties either on the vessels or merchandize shall never be exercised so as to contravene the other stipulation of enjoying the privileges of the most favored nation. 4thly That the stipulation shall not embrace vessels and cargoes coming from or going to ports from which the vessels or cargoes of the United States are excluded.
Should the expedient of a Maximum be adopted, it must not be overlooked that the productions of the United States exported to Great Britain employ a far greater tonnage than the exports from Great Britain to the United States; that the higher the maximum therefore the more favorable to Great Britain, who may avail herself according to the degree of it to secure to her vessels the carriage of our bulky productions, of which her duty on Tobacco imported in American vessels is an example; leaving to the United States the opportunity only of securing to their vessels the carriage of her unbulky exports; and that consequently no maximum ought to be admitted more unfavorable to the United States, than the regulations likely to prevail, if uncontrouled by Treaty. A mutual abolition of alien duties would probably be favorable to the Navigation of the United States, which would then have to contend on equal terms with British Navigation, for which it may be expected to be at least a match at all times, and more than a match when Great Britain is at War, which is not less than half the time.
The only great branch of Commercial intercourse which would remain unprovided for, is that of intercourse with the British Colonies and dependencies: and if nothing can be obtained on that ground, care also must be taken in framing the Article for reciprocally enjoying the privileges of the most favored nation, not to deprive the United States of the right of making such regulations as they may think proper in relation to vessels coming from ports from which their own vessels are excluded, or in relation generally to the intercourse with such ports.
As the United States confer no particular benefit on the British possessions in the East Indies by their intercourse with that Country, it can hardly be expected that Great Britain will grant anything more than the general stipulation to be placed on the footing of the most favored Nation; or possibly a stipulation to the United States of the privileges heretofore granted to foreigners, which in relation to the coasting trade, and the trade from India ports to all foreign Countries as well as that owning the vessel exceeded the privileges stipulated in the Treaty of 1794.
But as relates to the West Indies and North American Colonies it must be a permanent object of the United States, to have the intercourse with them made as free as that with Europe. The relative situation of the United States and those Colonies, and particularly those wants which we can alone supply, must necessarily produce that effect at some no very distant period. And it should not be voluntarily retarded either by abandoning by Treaty the strong hold which our right of stopping the intercourse gives us; or by accepting any temporary or trifling privilege, the exercise of which would diminish the probability of soon obtaining a perfectly free trade.
It is not probable that Great Britain will be disposed to open the intercourse to our vessels with her North American Colonies; nor does it appear that any limitation or restriction can be offered by the United States, calculated to quiet the apprehensions of Great Britain that to open that trade to our vessels would destroy their own. It is not perceived that any thing else can be proposed but perfect reciprocity as is contemplated in relation to the Intercourse between the United States and the British dominions in Europe, such reciprocity to consist either of a total abolition of alien duties or of a fixed Maximum as above stated; and the intercourse to be also either general or confined to Articles of the growth, produce or manufacture of the United States and of the said Colonies respectively. It must not be fogotten, as relates to our commerce with Nova Scotia and New Brunswick that however advantageous to both parties, it is more beneficial to the United States than to those Colonies. The importation of not less than 30, perhaps 50 thousand tons of Plaister to our agriculture needs no comment; and notwithstanding our exclusion from their ports, we have in fact, as the trade has hitherto been carried on, a greater share of it than themselves. This however is the result of a connivance in practice which may possibly be withdrawn. The produce of their fisheries is brought by them from Halifax to Boston, and by us from Boston carried to the West Indies. Their plaister is brought by them from Fundy Bay to Maine, and by us from Maine to New York, Philada and the Chesapeake. A strong jealousy seems to exist between the shipping interest of Massachusetts and that of those Colonies. Hence the wish of their legislative assemblies to prohibit the exportation of plaister in their own vessels to our Eastern ports; and hence the law which laid the light House money tax and a high duty on their fish, taking away at the same time the drawback of the re-exportation of such fish. An enlightened policy and a mutual wish to promote the real interest and welfare of the inhabitants on both sides, should induce both Governments to throw the trade perfectly open. But it cannot be denied that it will give us a very great share of their carrying trade.
The minimum which should be accepted in relation to the intercourse with the West Indies, will be the admission of our vessels laden solely with Articles of our growth, produce or manufacture, the importation of which [in] British vessels is not prohibited, on the same terms as British vessels solely laden with the Colonial Articles shall be admitted in our ports, that is to say, either without alien duties or with a fixed maximum of such alien duties with the two following restrictions. 1st. That Great Britain may prohibit our vessels from exporting from the British West India Islands in Sugar and Coffee, more than one half of the proceeds of their inward Cargoes. 2dly That such Sugar and Coffee shall be exported only to the United States, or that the vessels thus admitted in the West Indies shall be obliged to return and land their Cargoes in the United States, provided they may however, on their return touch at any other West India Island or the Bahamas to complete their cargo. For it is usual to carry the specie which proceeds from the sale of a cargo in the West Indies to Turks Island or the Bahamas and there load with Salt for the United States. Altho’ those restrictions and particularly the first be inconvenient, yet they may be acquiesced in. As respects the first restriction the value of our average exportation, to the British West India Islands, being Six Millions of dollars and our exportations from thence in every article (Sugar & Coffee excepted) being three Millions of dollars the privilege of bringing in return in Sugar & Coffee one half of the value of our exportations will just complete the return cargoes. But it would be desirable that the restriction should be altogether dispensed with or that Great Britain should allow the exportation in those two Articles to the amount of ⅔ or ¾ of the value of our Cargoes. As relates to Great Britain, if she once yields the point of admission, the restrictions which are proposed seem to be amply sufficient to remove her minor objections. We now import notwithstanding the nominal prohibitions to some amount in American vessels: about one million and a half dollars being the whole amount imported from the British islands, in both American and British vessels. The value of our average importations from all the world is in sugar, 7,800,000 in coffee 8,400,000, or more than 16 Millions of dollars. The value of our annual consumption exclusively of the New Orleans Sugar, is in sugar 4,000,000 in coffee 1,500,000 or 5½ Millions of dollars.
To permit us therefore to import for 3 millions cannot enable us to re-export. And three millions of dollars compared with the value of the Sugar and Coffee exported annually from the British West Indies which amounts to less than NA millions cannot in any degree affect their own commerce or navigation.
The second restriction is intended still more effectually to remove any apprehension that our vessels might become carriers of British West India produce to any other Country than the United States. And it may even if insisted on, be farther agreed that no drawback shall be allowable on the re-exportation of those Articles imported from the British West Indies in American vessels, provided, however, that on that condition the first mentioned restriction limiting the quantity which may be thus imported from the British West Indies in Amercan vessels, shall be dispensed with. The utmost care is to be taken in framing the restriction on re-exporting from the United States, the produce of the British West Indies, imported in American vessels, so to express it as to leave no possible pretext for applying the restriction to any similar Articles, whether produced within the United States, or imported from any other than English possessions.
It will be a reasonable Stipulation on the part of Great Britain, that at all times and places at which the trade of the United States is admitted generally or partially the residence of Consuls and factors shall also be admitted.
The duration of the Commercial part of the Treaty and of any other parts which do not establish in their full extent, the rights of neutral nations, ought not to succeed the term of Eight years; and an abridgment even of that term may perhaps be rendered expedient by the tenor of Articles not inconsistent with those instructions.
I have the honor to be, Gentlemen &c
TO JAMES MONROE AND WILLIAM PINKNEY.d. of s. mss. instr.
Department of State, February 3d 1807.
The triplicate of your communications of Nov. 11th has just been received. Those of Sept. 12th had been previously received in due time.
The turn which the negotiation has taken, was not expected, and excites as much of regret as of disappointment. The conciliatory spirit manifested on both sides, with the apparent consistency of the interest of Great Britain, with the right of the American flag, touching impressment, seemed to promise as much success to your efforts on the subject as on the others, and, notwithstanding the perseverance of the British Cabinet in resisting your reasonable propositions, the hope is not abandoned that a more enlightened and enlarged policy will finally overcome scruples which doubtless proceed more from habits of opinion and official caution, than from an unbiased regard to all the considerations which enter into the true merits of the question.
In the meantime the President has with all those friendly and conciliatory dispositions which produced your mission, and pervade your instructions, weighed the arrangement held out in your last letter which contemplates a formal adjustment of the other topics under discussion, and an informal understanding only, on that of impressment. The result of his deliberations, which I am now to state to you, is, that it does not comport with his views of the national Sentiment or the Legislative policy, that any Treaty should be entered into with the British Government which, whilst on every other point it is either limited to, or short of strict right, would include no article providing for a case which both in principle and in practice is so feelingly connected with the honor and sovereignty of the Nation, as well as with its fair interests; and indeed with the peace of both nations. The President thinks it more eligible under all circumstances that if no satisfactory or formal stipulation on the subject of impressment be attainable the negotiation should be made to terminate without any formal compact whatever, but with a mutual understanding, founded on friendly and liberal discussions and explanations, that in practice each party will entirely conform to what may be thus informally settled. And you are authorized, in case an arrangement of this kind shall be satisfactory in its substance, to give assurances that as long as it shall be duly respected in practice by the other party more particularly on the subjects of neutral trade and impressment, it will be earnestly, and probably, successfully recommended to Congress by the President not to permit the non-importation act to go into operation. You are also authorized to inform the British Government that the President, adhering to the sentiments which led him to recommend to Congress at the commencement of the Session, a suspension of the act, and trusting to the influence of mutual dispositions and interests in giving an amicable issue to the negotiations, will, if no intervening intelligence forbid, exercise the authority vested in him by the Act, of continuing its suspension from the 1st day of July to the time limited by the Act, and which will afford to Congress who will then be in Session, the opportunity of making due provision for the case.
You will perceive that this explanation of the views of the President, requires, that if previous to the receipt of it, a Treaty not including an article relating to impressments should have been concluded and be on the way, the British Commissioners should be candidly apprized of the reason for not expecting ratification, and that on this ground they be invited to enter anew on the business, with an eye to such a result as has just been explained and authorized.
Having thus communicated the outline assigned by the President as your guide in the important and delicate task on your hands, I proceed to make a few observations which are suggested by the contents of your last dispatch, and which may be of use in your further discussions and your final arrangements.
The British Government is under an egregious mistake in supposing that “no recent causes of complaint have occurred,” on this subject. How far the language of Mr. Lyman’s books may countenance this error I cannot say, but I think it probable that even there the means of correcting it may be found. In the American Seas, including the West Indies, the impressments have perhaps at no time been more numerous or vexatious. It is equally a mistake therefore to suppose “that no probable inconvenience can result from the postponement of an Article” for this case.
The remedy proposed in the Note from the British Commissioners, however well intended, does not inspire the confidence here which gave it so much value in their judgment. They see the favorable side only, of the character of their naval Commanders. The spirit which vexes neutrals in their maritime rights, is fully understood by neutrals only. The habits generated by naval command, and the interest which is felt in the abuse of it, both as respects captures and impressments, render inadequate every provision which does not put an end to all discretionary power in the commanders. As long as the British navy has so complete an ascendency on the high seas, its commanders have not only an interest in violating the rights of neutrals within the limits of neutral patience, especially of those whose commerce and mariners are unguarded by fleets: they feel moreover the strongest temptation, as is well known from the occasional language of some of them, to covet the full range for spoliation opened by a state of War. The rich harvest promised by the commerce of the United States, gives to this cupidity all its force. Whatever general injuries might accrue to their nation, or whatever surplus of reprisals might result to American Cruizers, the fortunes of British Cruizers would not be the less certain in the event of hostilities between the two nations.
Whilst all these considerations require in our behalf the most precise and peremptory security against the propensities of British naval commanders, and, on the tender subject of impressments more than any other, it is impossible to find equivalent or even important motives on the British side for declining a security. The proposition which you have made, aided by the internal regulations which the British Government is always free to make, closes all the considerable avenues through which its seamen can find their way into our service. The only loss consequently which could remain, would be in the number at present in this service; with a deduction of those who might from time to time voluntarily leave it, or be found within the limits of Great Britain or of her possessions; and in the proportion of this reduced number who might otherwise be gained by impressment. The smallness of this loss appears from the annual amount of impressments, which has not exceeded a few hundred British seamen, the great mass consisting of real Americans and of subjects of other neutral powers. And even from the few British seamen ought to be deducted those impressed within neutral ports, where it is agreed that the proceeding is clearly unlawful.
Under this view of the subject the sacrifice which Great Britain would make dwindles to the merest trifle; or rather, there is just reason to believe that instead of a loss, she would find an actual gain, in the excess of the deserters who would be surrendered by the United States, over the number actually recoverable by impressment.
In practice, therefore Great Britain would make no sacrifice by acceding to our terms; and her principle, if not expressly saved by a recital as it easily might be, would in effect be so by the tenor of the arrangement; inasmuch as she would obtain for her forbearance to exercise what she deems a right, a right to measures on our part which we have a right to refuse. She would consequently merely exchange one right for another. She would also, by such forbearance, violate no personal right of individuals under her protection. The United States on the other hand in yielding to the claims of Great Britain, on this subject, would necessarily surrender what they deem an essential right of their flag and of their Sovereignty, without even acquiring any new right; would violate the right of the individuals under the protection of both; and expose their native Citizens to all the calamitous mistakes voluntary and involuntary, of which experience gives such forcible warning.
I take for granted that you have not failed to make due use of the arrangement concerted by Mr. King with Lord Hawksbury in the year 1802 for settling the question of impressments. On that occasion, and under that administration, the British principle was fairly renounced in favor of the right of our flag; Lord Hawksbury having agreed to prohibit impressments altogether on the High seas; and Lord St. Vincent requiring nothing more than an exception of the narrow seas, an exception resting on the obsolete claim of Great Britain to some peculiar dominion over them. I have thought it not amiss to inclose another extract from Mr. King’s letter giving an account of that transaction.
In the Note of Novr 8th from the British Commissioners, the Security held out to the crews of our vessels is that instructions have been given, and will be repeated, for enforcing the greatest caution &c. If the future instructions are to be repetitions of the past, we well know the inefficacy of them. Any instructions which are to answer the purpose, must differ essentially from the past, both in their tenor and their sanctions. In case an informal arrangement should be substituted for a regular stipulation, it may reasonably be expected from the candor of the British Government, that the instructions on which we are to rely, should be communicated to you.
It may reasonably be expected that on this subject the British Government will not persist in attempting to place the United States on a worse footing than Russia. In agreeing to consider the storing for a month, and changing the ship, as a naturalization of the property, the concession would be on our side, not on theirs; and in making this a condition on which alone we could trade with enemy Colonies even directly to and from our own ports, beyond the amount of our own consumption, we should make every sacrifice short of a complete abandonment of our principle, while they would retain as much of their pretension as is compatible with any sacrifice whatever, a pretension too, which they have in so many ways fairly precluded themselves from now maintaining. In addition to the many authorities for this remark, already known to you, you will find one of the highest grade in 5th vol. of Tomlin’s edition of Brown’s cases in Parliament, p. 328—Hendricks and others against Cunningham & others, where it was expressly admitted by the House of Lords, in a war case before them, “it is now established by repeated determinations, that neither ships nor cargoes, the property of subjects of neutral powers, either going to trade at or coming from the French West India Islands, with cargoes purchased there, are liable to capture: and therefore when a ship and cargo so circumstanced are seized and condemned, the seizure and condemnation shall be reversed and the value of the ship and cargo accounted for and paid to the owners by the captors.”
As it has generally happened that the British instructions issued to the Vice Admiralty Courts, and naval Commanders have not come first to light in British prints, I inclose one of Novr 14, which has just made its appearance in ours. As it relates to the present subject, it claims attention as a proof that all questions as to the legality of the voyage, in a Russian Trade with the enemies of Great Britain is excluded, by limiting the right of capture to cases where innocence or ownership of the Articles, are questioned. The instruction may at least be considered as coextensive in its favorable import with the Article in the Russian Treaty, which you have been authorized to admit into your arrangements; and in that view, as well as on account of its date, the instruction may furnish a convenient topic of argument or expostulation.
If the British Government once consent that the United States may make their ports a medium of trade between the Colonies of its enemies and other Countries belligerent as well as neutral, why should there be a wish to clog it with the regulations suggested? Why not in fact consent to a direct trade by our merchants, between those Colonies and all other Countries? Is it that the price may be a little raised on the consumers by the circuit of the voyage, and the charges incident to the port regulations? This cannot be presumed. With respect to the enemies of Great Britain the object would be unimportant. With respect to her neutral friends, it would not be a legitimate object. Must not the answer then be sought in the mere policy of lessening the competition with, and thereby favoring the price of British and other Colonial productions reexported by British Merchants, from British ports; and sought consequently not in a belligerent right, or even in a policy merely belligerent; but in one which has no origin or plea but those of commercial jealousy and monopoly.
On this subject, it is fortunate that Great Britain has already in a formal communication, admitted the principle for which we contend. It will be only necessary therefore, to hold to the true sense of her own act. The words of the communication are “that vessels must be warned not to enter.” The term warn technically imports a distinction between an individual notice to vessels; and a general notice by proclamation or diplomatic communication; and the terms not to enter equally distinguishes a notice at or very near the blockaded port; from a notice directed against the original destination, or the apparent intention of a vessel, nowise approaching such a port.
MARGINAL JURISDICTION ON THE HIGH SEAS.
There could surely be no pretext for allowing less than a marine league from the shore; that being the narrowest allowance found in any authorities on the law of nations. If any nation can fairly claim a greater extent, the United States have pleas which cannot be rejected; and if any nation is more particularly bound by its own example not to contest our claim, Great Britain must be so by the extent of her own claims to jurisdiction on the seas which surround her. It is hoped at least that within the extent of one league you will be able to obtain an effectual prohibition of British ships of War, from repeating the irregularities which have so much vexed our commerce and provoked the public resentment; and against which an Article in your instructions emphatically provides. It cannot be too earnestly pressed on the British Government, that in applying the remedy copied from regulations heretofore enforced against a violation of the neutral rights of British harbours and Coasts, nothing will be done than what is essential to the preservation of harmony between the two Nations. In no case is the temptation or the facility greater to ships of War, for annoying our commerce than in their hovering on our coasts, and about our harbours; nor is the natural sensibility in any case more justly or more highly excited than by such insults. The communications lately made to Mr. Monroe, with respect to the conduct of British Commanders even within our own waters, will strengthen the claim for such an arrangement on this subject, and for such new orders, from the British Government, as will be satisfactory security against future causes of complaint.
EAST AND WEST INDIA TRADES.
If the West India Trade cannot be put on some such footing as is authorized by your instructions, it will be evidently best, to leave it as it is; and of course, with a freedom to either party to make such regulations as may be justified by those of the other.
With respect to the East India Trade, you will find a very useful light thrown on it, in the remarks of Mr. Crowninshield of which several copies were forwarded in October. They will confirm to you the impolicy, as explained in your instructions admitted into the Treaty of 1794. The general footing of other nations in peace with Great Britain, will be clearly more advantageous; and on this footing it will be well to leave or place it, if no peculiar advantages of which there are intimations in Mr. Crowninshield’s remarks, can be obtained.
The justice of these ought to be admitted by Great Britain, whenever the claim is founded on violations of our rights as they may be recognized in any new arrangement or understanding between the parties. But in cases, of which there are many examples, where the claim is supported by principles which she never contested, the British Government ought to have too much respect for its professions and its reputation, to hesitate at concurring in a provision analogous to that heretofore adopted.
It is not satisfactory to allege that in all such cases, redress may be obtained in the ordinary course of judicial proceedings. If this were true, there would be sound policy as well as true equity and economy in transferring the complaints from partial tribunals occupied with a great mass of other cases, to a joint tribunal exclusively charged with this special trust. But it is not true that redress is attainable in the ordinary course of justice, and under the actual constitution and rules of the tribunals which administer it in cases of captures. Of this, the facts within your knowledge and particularly some which have been lately transmitted to Mr. Monroe are ample and striking proofs; and will doubtless derive from the manner of your presenting them, all the force with which they can appeal to the sentiments and principles which ought to guide the policy of an enlightened nation.
I have the honor to be, &c.
[1 ]See L. Jenkins, vol. i. and vol. ii.