Front Page Titles (by Subject) 1807 - TO JAMES MONROE AND WILLIAM PINKNEY. d. of s. mss. instr. - The Writings, vol. 7 (1803-1807)
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1807 - 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, 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.
TO JAMES MONROE.d. of s. mss. instr.
Department of State, March 31st, 1807.
In my last letter of the 26th inst, I inclosed you a copy of one from Mr. Erskine communicating the British order of Jany 7th and of my answer. Occurring circumstances and further reflection on that extraordinary measure produced a return to the subject, and another letter was added to the first answer. A copy is enclosed with the same view which led to the last inclosure.
The more this order is examined, the more unjustifiable it appears in its principle, the more comprehensive in its terms, and the more mischeivous in its operation. In the recitals prefacing the measure, as communicated by Mr. Erskine, in the order itself, and in the Note of Lord Howick to you, there is a medley of motives for which a cause must be sought either in the puzzle to find an adequate one, or in the policy of being able to shift from one to another according to the posture which the case may take. Whatever be the explanation, the order, in relation to the United States at least, must ever remain with the candid and intelligent, a violation of those rules of law and of justice which are binding on all nations, and which the greatest nations ought to pride themselves most in honorably observing. Considered as a retaliation on the United States for permitting the injury done to Great Britain thro’ their commerce, by the French decree, the order, over and above the objections stated to Mr. Erskine subjects the British Government to a charge of the most striking inconsistency, in first admitting that the decree gave a right to retaliate in the event only of a failure of the United States to controul its operation, as well as that such a failure alone would justify a final refusal of the Treaty signed by its Commissions; and then actually proceeding to retaliate before it was possible for the decision of the United States to be known or even made.
If it be said as is stated that captures had commenced under the decree, the fact would be of little avail. Such occurrences could not have escaped anticipation, nor can the amount of them under the present superiority of British power at sea afford the slightest plea for the extensive and premature retaliation comprized in the order. A Government, valuing its honor and its character, ought to have dreaded less the injury to its interests from the pillage committed by a few cruizers, on neutral commerce, than the reproach or even the suspicion, that a pretext was eagerly seized for unloosing a spirit, impatient under the restraint of neutral rights, and panting for the spoils of neutral trade. The British Government does not sufficiently reflect on the advantage which such appearances give to her adversary, and the appeal they are both making to the judgment, the interests and the sympathies of the world. If Great Britain wishes to be regarded as the champion of Law, of right and of order among nations, her example must support her pretensions. It must be a contrast to injustice and to obnoxious innovations. She must not turn the indignation of mankind from the violence of which she complains on one element, to scenes more hostile to established principles on the element on which she bears sway. In a word, she ought to recollect, that the good opinion and good will of other nations, and particularly of the United States, is worth far more to her, than all the wealth which her Navy, covering as it does every sea, can plunder from their innocent commerce.
As to the scope of the order, it is evident that its terms comprehend not only the possessions of France and of her allies in Europe; but in every other quarter; and consequently both in the West and in the East Indies. And as to the injury which, if the order be executed as it will be interpreted, by British Cruizers, in the full extent of its meaning, will be brought on the commerce of the United States, an idea may be collected from the glance at it in the letter to Mr. Erskine. The inclosed statement of the amount of our Exports to Europe and of the proportion of them which, not being destined to England may be food for this predatory order, will reduce the estimate to some precision. To make it still more precise however, it will be necessary, on one hand to transfer from the proportion cleared for Great Britain, as much as may have touched there only on its way to continental ports; and, on the other, to deduct the inconsiderable destinations to Portugal, the Baltic, and the Austrian ports in the Mediterranean.
Having in your hands the material which this communication will complete, you will be able to make whatever representations to the British Government you may deem expedient, in order to produce a proper revision of the order. If it shall have been finally ascertained that the French Decree will not be applied to the commerce of the United States, you will of course insist on an immediate revocation of the order so far as it may have been applied to that commerce; and if, as in that case the order can no longer be maintained on the principle of retaliation, the pretext of a blockade or of illegality in the trade as a coasting one, be substituted, you will be at no loss for the grounds on which the order is to be combated, and its revocation demanded.
Among the papers accompanying my last was a printed copy of the Proclamation, suspending the Non-importation Act, until December next. This measure of the President under any circumstances, ought to be reviewed as the effect of his amicable policy towards Great Britain. But when it is considered as having been taken with the British order of Jany before him, and a measure subject to the strictures which have been made on it, it is the strongest proof that could be given of his solicitude to smooth the path of negotiation and to secure a happy result to it; and in this light you will be pleased on the proper occasions, to present it.
I have the honor to be, etc.
TO JAMES MONROE AND WILLIAM PINKNEYd. of s. mss. instr.
Department of State, May 20th 1807.
My letter of March 18th acknowledged the receipt of your dispatches and of the Treaty signed on the 31 Decr., of which Mr Purviance was the bearer, and signified that the sentiments and views of the President formed on the actual posture of our affairs with Great Britain, would, without any useless delay, be communicated.1 The subject is accordingly resumed in this dispatch, with which Mr. Purviance will be charged. To render his passage the more sure and convenient, he takes it in the sloop of War, Wasp, which will convey him to a British port, on her way to the Mediterranean. She will touch also at a French port, probably L’Orient, with dispatches for Genl Armstrong and Mr Bowdoin, and will afford a good opportunity for any communications you may have occasion to make to those gentlemen.
The President has seen in your exertions to accomplish the great objects of your instructions, ample proofs of that zeal and patriotism in which he confided; and feels deep regret that your success has not corresponded with the reasonableness of your propositions, and the ability with which they were supported. He laments more especially, that the British Government has not yielded to the just and cogent considerations which forbid the practice of its Cruizers in visiting and impressing the Crews of our vessels, covered by an independent flag, and guarded by the laws of the high seas, which ought to be sacred with all nations.
The President continues to regard this subject in the light in which it has been pressed on the justice and friendship of Great Britain. He cannot reconcile it with his duty to our sea faring citizens, or with the sensibility or sovereignty of the nation, to recognize even constructively, a principle that would expose on the high seas, their liberty, their lives, every thing in a word that is dearest to the human heart, to the capricious or interested sentences which may be pronounced against their allegiance, by officers of a foreign Government, whom neither the law of nations, nor even the laws of that Government will allow to decide in the ownership or character of the minutest article of property found in a like situation.
It has a great and necessary weight also with the President, that the views of Congress, as manifested during the Session which passed the non-importation Act, as well as the primary rank held by the object of securing American Crews against British impressment, among the objects which suggested the solemnity of an Extraordinary Mission, are opposed to any Conventional arrangement, which, without effectually providing for that object, would disarm the United States of the means deemed most eligible as an eventual remedy.
It is considered moreover by the President the more reasonable that the necessary concession in this case should be made by Great Britain, rather than by the United States, on the double consideration; first, that a concession on our part would violate both a moral and political duty of the Government to our Citizens; which would not be the case on the other side; secondly that a greater number of American Citizens than of British subjects are, in fact, impressed from our vessels; and that, consequently, more of wrong is done to the United States, than of right to Great Britain; taking even her own claim for the legal criterion.
On these grounds, the President is constrained to decline any arrangement, formal or informal, which does not comprize a provision against impressments from American vessels on the high seas, and which would, notwithstanding be a bar to legislative measures, such as Congress have thought, or may think proper, to adopt for controuling that species of aggression.
Persevering at the same time in his earnest desire to establish the harmony of the two nations on a proper foundation, and calculating on the motives which must be equally felt by Great Britain to secure that important object, it is his intention that your efforts should be revived, with a view to such alterations of the instrument signed on the 31st Decr, as render it acceptable to the United States.
That you may the more fully understand his impressions and purposes, I will explain the alterations which are to be regarded as essential; and proceed then to such observations on the several Articles, as will shew the other alterations which are to be attempted, and the degree of importance respectively attached to them.
1st. Without a provision against impressments, substantially such as is contemplated in your original instructions, no Treaty is to be concluded.
2d. The eleventh Article on the subject of Colonial trade cannot be admitted, unless freed from the conditions which restrict to the market of Europe, the reexportation of Colonial produce, and to European Articles, the supplies to the Colonial market.
3d. The change made by the 3d Article in the provisions of the Treaty of 1794, relative to the trade with the British possessions in India, by limiting the privilege to a direct trade from the United States, as well as to them, is deemed an insuperable objection.
4th. Either an express provision is to be insisted on for indemnifying sufferers from wrongful captures, or at least a saving, in some form or other, of their rights against any implied abandonment.
5th. Article 18 and 19 to be so altered as to leave the United States free as a neutral nation to keep and place other belligerent nations on an equality with Great Britain.
6th. Such an alternative as is presented by the declaratory note on the subject of the French decree of Novr 21-1806 will be admissible.
First. The considerations which render a provision on the subject of impressments indispensable, have been already sufficiently explained.
Second. The essential importance of the amendment required in the 11th article, results from the extensive effect which the article, if unamended, would have on the system of our commerce as hitherto carried on, with the sanction or acquiescence of Great Britain herself.
It was hoped that the British Government in regulating the subject of this article, would at least have yielded to the example of its Treaty with Russia. It could not have been supposed, that a modification would be insisted on, which shuts to our neutral commerce important channels, left open by the adjudications of British Courts, and particularly by the principle officially communicated by that Government to this, thro’ Mr King in the year 1801.
According to that principle and those adjudications, the indirect trade thro’ our neutral ports was as free from enemy Colonies to every other part of the world, as to Europe; and as free to such Colonies, in the Articles of all other Countries, as in European Articles.
According to the tenor of the Article, and the general prohibitory principle assumed by Great Britain, to which it has an implied reference, the productions both of the Continental and of the insular Colonies in America, can no longer be re-exported as heretofore to any part of Asia or Africa, or even of America; and consequently can no longer enter into the trades carried on, from the United States, to the Asiatic and African shores of the Mediterranean; nor to any of the places, beyond the cape of Good Hope offering a market for them; nor finally to any other enemy or neutral Colonies in this quarter, to which in reason, as well as according to practice, they ought to be as re-exportable, as to the Countries in Europe to which such Colonies belong.
In like manner the importations from beyond the Cape of Good Hope, more especially the cotton fabrics of China and India, can no longer be sent, as heretofore, to the West Indies, or the Spanish Main, where they not only now yield a great profit to our merchants, but being mixed in cargoes with the produce of this Country, facilitate and encourage the trade in the latter. Besides the effect of the Article in abridging so materially our valuable commerce, the distinction which it introduces between the manufactures of Europe and those of China and India, is charged with evils of another sort. In many cases it might not be easy to pronounce on the real origin of the Articles. It is not improbable that supposititious attempts also might be occasionally made, by the least scrupulous traders. With such pretexts as these, arguing from the abuse made of less plausible ones, the interruptions and vexations of our trade, by the greedy cruizers which swarm on the ocean, could not fail to be augmented in a degree, not a little enforcing the objection to the article in its present form.
As the prohibitory principle of Great Britain does not extend to the case of a Colonial Trade usually open, and no judicial decision has professedly applied the principle to such a trade, it is a reasonable inference, that the Article will be so construed as to interfere with the trade of that description, between enemy Colonies beyond the Cape of Good Hope, and other Countries and ports, in that quarter. But on the other hand, it may not be amiss to guard against a construction of the Article that would abolish the rule observed in the prize Courts of Great Britain, which, in the case of the Eastern Colonies, presumes that these ports were always open, and thereby throws on the captors, instead of the claimants, the disadvantage of proving the fact in question.
It is observable that the duration of this article is limited to the period of the present hostilities, whilst the others are to be in force for ten years; so that if there should be a peace and a renewal of the war, as is very possible, within the latter period, the onerous parts of the bargain would survive a part, in consideration of which, they were assumed. Justice and reciprocity evidently require that the more important articles of the Treaty should be regarded as conditions of each other, and therefore that they should be co-durable. In this point of view, you will bring the subject under reconsideration; and without making this particular amendment an ultimatum, press it with all the force which it merits. This amendment ought to be the less resisted on the British side, as it would still leave to that side, an advantage resulting from the nature of the two great objects to be attained by the United States, namely, the immunity of our crews, and of our neutral commerce, which are connected with a state of war only; whereas the stipulations, valued by Great Britain, will operate constantly throughout the period of the Treaty, as well in a state of peace, as in a state of war.
Whatever term may finally be settled for the continuance of the regulation, it will be proper to retain the clause which saves the right involved in the article, from any constructive abandonment or abridgement. Even the temporary modification of the right, as it will stand without the inadmissible restrictions now in the article, is considered as an important sacrifice on the part of the United States to their desire of friendly adjustment with Great Britain. To an admission of the Article with those restrictions, the President prefers the footing promised to the Colonial trade, by the deference of Great Britain for the maritime powers, and by an unfettered right of the United States to adapt their regulations to the course which her policy may take.
That the operations of the Article in its present form, might be more fully understood, it was thought proper to avail the public of the ideas of a citizen of great intelligence and experience with respect to a valuable elucidation of the subject. They will suggest, at the same time, some explanatory precautions worthy of attention; particularly in the case of Articles, which paying no duty on importation into the United States, do not fall under the regulation of drawbacks; and in the case of securing by bond, instead of actually paying, the duties allowed to be drawn back. It appears by the observations in your letter of Jany 3d that the bond was understood, as it surely ought to be, equivalent to actual payment. But this is a point so material, that it cannot be too explicitly guarded against the misinterpretation of interested Cruizers, and the ignorance or perverseness of inferior Courts.
3. The necessity of the change required in the third article, in order to secure an indirect, as well as a direct trade to the British East Indies, will be fully explained by the observations which have been obtained from several of our best informed Citizens on that subject, and which are herewith inclosed.
As the latitude of intercourse was stipulated by the 13th Art of the Treaty of 1794, as judicially expounded by British superior Courts; as it was enjoyed by the United States prior to that epoch, and has been always enjoyed, both before and since by other friendly nations; and as there is reason to believe that the British Government has been at all times ready since the Article expired, to renew it in its original form; it may justly be expected that the inserted innovation will not be insisted on. Should the expectation fail, the course preferred is to drop the article altogether, leaving the trade on the general footing of the most favored nation, or even trusting to the interest of Great Britain for such regulation as may correspond with that of the United States.
Should the negotiation take up the East India Article of the Treaty of 1794, you will find several amendments suggested in the extracts above referred to, some of which may be attempted with the greater chance of success, as they are harmless, if not favorable, to the British system. To these suggestions may be added a privilege to American vessels, of touching at the Cape of Good Hope. The objection to such a stipulation, under the present defeasible title of Great Britain to the Cape, may be obviated by a descriptive provision, not necessarily applicable to it, in the event of its restitution by a Treaty of peace, but embracing it, in case the British title should be established by that event: It may be agreed “that vessels of the United States may touch for refreshment at all the ports and places in the possession of Great Britain on or in the African or Asiatic seas.”
4. Without a provision, or a reservation, as to the claims of indemnity, an abandonment of them may be inferred from a Treaty as being a final settlement of existing controversies. It cannot be presumed that a precaution against such an inference, in any mode that may be most effectual, can be opposed or complained of. On the contrary it excites just surprise that so much resistance should be made to indemnifications supported by the clearest rules of right, and by a precedent in a former Treaty between the two Countries, from which so many other Articles have been copied. The only colorable plea for refusing the desired provision, flows from a presumption not only that the British Courts are disposed, but that they are competent, to the purpose of complete redress. Not to repeat observations heretofore made on this subject, an unanswerable one is suggested by the clause in the NA Article of the Treaty annulling the principle, or rather the pretence, that vessels without contraband of war on board, returning from a port to which they had carried articles of that sort, were subject to capture and condemnation. Previous even to this recognition, it had been settled as the law of Nations by the British High Court of Admiralty, that vessels so circumstanced were exempt from interruption. Yet a British order of August 1803 expressly declares them to be lawful prize; and it is well known that a number of American vessels have been seized and condemned under that order. Here then is a class of wrongs, undeniably entitled to redress, and which neither can nor ever could possibly be redressed, in the ordinary course; it being an avowed rule with the prize Courts to follows such orders of the Government, as either expounding or superseding the law of nations. Even cases not finally decided, would probably be considered as falling under the rule existing at the time of the capture, and consequently be added to this catalogue of acknowledged, but unredressed injuries.
5. Articles 18 & 19—An effect of these Articles is to secure to British Cruizers and their prizes, a treatment in American ports, more favorable, than will be permitted to those of an enemy, with a saving of contrary stipulations already made, and a prohibition of any such in future. As none of our Treaties with the belligerent Nations (France excepted) stipulate to the Cruizers an equality in this respect, and as there are parties to the War, with whom we have no Treaties, it follows that a discrimination is made in the midst of war between the belligerent nations, which it will not be in the power of the United States to redress.
Weighty considerations would disuade from such a deviation from a strict equality towards belligerent nations, if stipulated at a time least liable to objection. But it would be difficult to justify a stipulation, in the midst of war, substituting for an existing equality, an advantage to one of the belligerent parties over its adversaries; and that too, without any compensation to the neutrals, shielding its motive from the appearance of mere partiality. Hitherto the United States have avoided as much as possible such embarrassments; and with this view have gratuitously extended to all belligerents the privileges stipulated to any of them. Great Britain has had the benefit of this scrupulous policy. She can therefore with less reason expect it to be relinquished for her benefit.
The last paragraph of the 19th Art, establishes a just principle as to the responsibility of a neutral nation whose territory has been violated by captures within the limits; but by extending the principle to the two miles added to our jurisdiction by the 12th art, qualified as that addition is, it is made peculiarly important that an amendment should take place.
Passing by the failure of a reciprocity, either in the terms or the probable operation of the responsibility, the United States seem to be bound to claim from the enemies of Great Britain, redress for a hostile act, which such enemies may not have renounced their right to commit within the given space; making thus the United States liable to the one party, without a correspondent liability to them in the other party; and at the same time entitling Great Britain to redress for acts committed by her enemies, which she has reserved to herself a right to commit against them.
Should all the other belligerent nations contrary to probability, concur, in the addition of two miles to our jurisdiction this construction would still be applicable to their armed ships; those unarmed alone being within the additional immunity against British Cruizers; and the armed as well as the unarmed ships of Great Britain, being expressly within the additional responsibility of the United States.
6. No Treaty can be sanctioned by the United States, under the alternative presented by the declaratory note on the subject of the French decree of Novr 21st. It is hoped that the occasion which produced it will have vanished, and that it will not be renewed in connection with a future signature on the part of Great Britain. The utmost allowable in such a case would be a candid declaration that in signing or ratifying the Treaty, it was understood on the part of Great Britain, that nothing therein contained would be a bar to any measures, which if no such Treaty existed, would be lawful as a retaliation against the measures of an enemy. And with such a declaration, it would be proper, on the part of the United States, to combine an equivalent protest against its being understood, that either the Treaty or the British declaration would derogate from any rights or immunities, against the effect of such retaliating measures, which would lawfully appertain to them, as a neutral nation, in case no such Treaty or declaration existed.
Having given this view of the alterations which are to be held essential, I proceed to notice such others as, tho’ not included in the ultimatum, are to be regarded as more or less deserving your best exertions. This will be most conveniently done, by a review of the several Articles in their numerical order.
The 2, 4 & 5 all relate to the trade and navigation between the two Countries. The two first make no change in the stipulations of the Treaty of 1794. The last has changed, and much for the better, the provisions of that Treaty, on the subject of tonnage and navigation.
Two important questions however, enter into an estimate of these articles.
The first is whether they are to be understood as a bar to any regulations, such as navigation Acts, which would merely establish a reciprocity with British regulations. From the construction which seems to have always [been] put on the same stipulations in the Treaty of 1794, it is concluded that no such bar could be created, and consequently that the Articles are in that respect unexceptionable. It may be well, nevertheless, to ascertain that the subject is viewed in this light by the British Government.
The second question is, whether the parties be, or be not, mutually restrained from laying duties, as well as prohibitions, unfavorably discriminating between Articles exported to them, and like articles exported, to other nations.
According to the construction put by the United States on the same clauses in the Treaty of 1794, the mutual restraint was applicable to discriminations of both kinds. The British discriminating duties on exports, introduced under the name of Convoy duties and since continued and augmented under other names, were accordingly combated, during the existence of the Treaty, as infractions of its text. The British Government however, never yielded to our construction either in discussion or in practice. And it appears from what passed in your negotiations on this subject, that the construction which is to prevail, admits discriminating duties on exports.
In this point of view, the stipulation merits very serious attention. It cannot be regarded as either reciprocal or fair in principle, or, as just and friendly in practice.
In the case of prohibitions, where both Governments are on an equal footing, because it is understood that both have the authority to impose them, neither is left at liberty to exercise the authority.
In the case of duties, where the British Government possesses the authority to impose them, but where it is well known that the authority is withheld from the Government of the United States by their Constitution, the Articles are silent; and of course the British Government is left free to impose discriminating duties on their exports, whilst no such duties can be imposed by that of the United States. How will it be in practice? Stating the exports of Great Britain to the United States at 6 millions sterling only, the present duty of 4 pCt levies a tax on the United States amounting to 240 thousand pounds, or One million, Sixty five thousand Six hundred dollars; and there is nothing, whilst the War in Europe checks competition there, and whilst obvious causes must for a long time enfeeble it here, that can secure us against further augmentations of the tribute.
Even under a regulation placing the United States on the footing of the most favored nation, it appears that the British Government would draw into its Treasury from our consumption 3/8 of the revenue now paid by the United States. Such a footing, however, would be material, as giving the United States the benefits of the Check accruing from the more manufacturing State of the European Nations. But to be deprived of that check by the Want of an Article, putting us on the footing of the Nations most favored by Great Britain, and at the same time deprived of our own checks, by clauses putting Great Britain on the Commercial footing of the nations most favored by the United States, would, in effect, confirm a foreign authority to tax the people of the United States, without the chance of reciprocity or redress.
The British duty on exports to the United States has another effect, not entirely to be disregarded. It proportionally augments the price of British manufactures, reexported from the United States to other markets, and so far promotes a direct supply from Great Britain, by her own merchants and ships. Should this not be the effect of her regulations as now framed, there is nothing that would forbid a change of them, having that for its object.
On these considerations it is enjoined upon you by the President to press in the strongest terms, such an explanation or amendment of this part of the Treaty, as will, if possible restrain Great Britain altogether from taxing exports to the United States, or at least place them on the footing of the most favored nation; or if neither be attainable, such a change in the instrument in other respects, as will reserve to the United States the right to discriminate between Great Britain and other nations in their prohibition of exports, the only discrimination in the case of exports, permitted by the Constitution. The unwillingness of the President to risk an entire failure of the projected accommodation with Great Britain restrains him from making an Amendment of this part of the Treaty a sine qua non; but he considers it so reasonable, and so much called for by the opinions and feelings of this Country, that he is equally anxious and confident with respect to a compliance on the part of the British Government.
This article as taking the case of the West India trade out of any general stipulation of privileges granted to other nations, may prove convenient, by disincumbering measures which may be taken against the British monopoly, from questions of which that stipulation might otherwise be susceptible.
Art. 7, tho’ to remain if desired, would be more reasonable without the last paragraph, or with a right only to except places and periods, at which the trade of the other party may not be permitted.
This article is framed with more accuracy than the 17th on the same subject in the Treaty of 1794, and is improved by the additional paragraph at the close of it. But as such general stipulations have not been found of much avail in practice, and as it continued to be the wish of the President to avoid, especially at the present juncture, unnecessary confirmations of the principle that a neutral flag does not protect enemies property, an omission of the Article is much preferred, unless it be so varied as to be free from the objection. This may be easily done, by substituting a general stipulation, “that in all cases where vessels shall be captured or detained for any lawful cause, they shall be brought to the nearest or most convenient port; and such part only of the Articles on board as are confiscable by the law of nations shall be made prize; and the vessel, unless by that law subject also to confiscation, shall be at liberty to proceed &c.”
There ought to be the less hesitation on the British side in making this change, as the Article in its present form departs from that of 1794; and there is the more reason on our side for requiring the change, as the addition of “for other lawful cause” after specifying the two cases of the enemy’s property and contraband of War, is probably valued by Great Britain as supporting her doctrine, and impairing ours, with respect to Colonial trade. The only case other than those specified, to which the right of capture is applicable, is that of blockades, which might have been as easily specified, as provided for by such a residuary phrase; and the pretext for appropriating this phrase to the case of the Colonial trade would be strengthened by the specific provision, in a subsequent article for the case of blockades.
It cannot be alleged that the specifications of the two cases, of enemy’s property and contraband of war, are necessary to prevent uncertainty and controversy; the United States having sufficiently manifested their acquiescence in these causes of capture. If there be a source of uncertainty and controversy, it is in the expressions “other lawful cause” and “otherwise confiscable” and this source could not be increased by the change here proposed.
This article is an improvement of that on the same subject in the Treaty of 1794; inasmuch as it excepts from the list of contraband, tar and pitch, when not bound to a port of naval equipment, and when so bound, substitutes preemption for forfeiture. It has an advantage also, in the clause renouncing the principle of the British order of Augt 1803 against vessels returning from the places, to which they had carried contraband of War.
On the other hand, it would not have been unreasonable to expect that the British Government would, in a Treaty with the United States, have insisted on no stipulation less favorable, than her stipulation on the same subject, with Russia, especially as the Naval stores exported from the United States, are equally the growth and produce of the Country.
Consistency again, as well as reason evidently required, that the exception in favor of tar and pitch should have been extended to every species of naval stores, equally applicable to other uses than those of War, and destined to places other than those of naval equipment.
Lastly it is observable, that even turpentine and rosin are not included with Tar and pitch in the favorable exceptions, tho’ of a character so kindred as to leave no pretext for the distinction.
Neither has the British Government the slightest ground for regarding as a concession, the stipulated immunity of a vessel, which, on her outward voyage, had carried contraband to a hostile port. The principle asserted by her order on that subject is an innovation against the clearest right of neutrals as recognized and enforced even by British Courts. The very language of the Article implies that this is a pretence for the innovation.
These considerations urge a remodification of the Article, and they are strengthened by the great dislike of the President to formal regulations at this particular moment, of principles combated by some, and unfavorable to all neutral nations. So ineligible indeed, in his view, is any step tending in the least to retard the progress of these principles, that naval stores are to be left on a stipulated list of contraband, in the event only of an inflexible refusal of the British Government to omit them; nor are they to be retained in any event, without an addition or explanation that will except turpentine and Rosin, as well as tar and pitch, there being no plausible motive for the distinction; and the quantity and value of the two former exported from the United States, being found, on enquiry, to make them of equal importance with the two latter. It can scarcely be supposed that the British Government will insist on this unwarrantable distinction. It is not indeed improbable, that it has been a mere inadvertence. Such an inference is favored by the circumstance of your speaking, in your comment on this article, of Tar and Turpentine, as being the two exceptions. Whatever the true state of the case may be, it is thought better to omit a list of contraband altogether, than not to include in the exception from it Turpentine and Rosin, as well as tar and pitch.
The abuse of Blockades has been so extravagant and has produced so much vexation and injury to the fair commerce of the United States, that, as on one hand it is of great importance to find a remedy; so, on the other, it is the more necessary, that the remedy should be such as not itself, to admit of abuse. The considerations which reconciled you to the tenor of the Article, as at least a constructive approach to a solid provision for the case, are allowed the weight which they justly merit; whilst the course which your discussions took, are a proof of the exertions which were used to give the Article a more satisfactory form.
The failure however of the British Commissioners to substantiate a favorable construction of the Article, by a proper explanatory letter addressed to you, with their reasons for refusing to insert in the Treaty a definition of blockade, justify apprehensions that the vague terms, which alone were permitted to compose the Article, would be more likely to be turned against our object, by Courts and Cruizers, and perhaps by a less liberal Cabinet, than to receive in practice the more favorable construction which candor anticipated.
The British doctrine of blockades exemplified by practice, is different from that of all other nations, as well as from the reason and nature of that operation of War. The mode of notifying a blockade by proclamations and diplomatic communications, of what too is to be done, is more particularly the evil which is to be corrected. Against these nominal blockades, the Article does not sufficiently close the door. The preamble itself, which refers to distance of situation, as a frequent cause of not knowing that a blockade exists, tho’ in one view giving the United States the advantage of a favorable presumption, in another view, carries an admission unfavorable to our principle, which rests not on the distance of situation, but on the nature of the case, and which consequently rejects, in all cases the legal sufficiency of notifications in the British mode. The preamble is liable to the remark also that it separates our cause from the common one of neutral nations in a less distant situation, and that the principle of it, may even be pleaded against us in the case of blockades in the West Indies. These considerations would have been outweighed by the advantage of establishing a satisfactory rule on the subject, in favor of our trade; but without such a provision in the article, it is thought less advisable to retain it, than to trust to the law of blockades as laid down by all writers of authority, as supported by all treaties which define it, and more especially as recognized and communicated to the United States by the British Government thro’ its Minister here in NA last; not to mention the influence, which the course of events, and the sentiments of the Maritime Nations in friendship with Great Britain may have in producing a reform on this subject.
The last paragraph tho’ subjecting persons in Civil as well as military service of an enemy, to capture, in our vessels, may prove a valuable safeguard to ordinary passengers and Mariners, against the wrongs which they now frequently experience, and which affect the vessels as well as themselves.
It is much regretted that a provision could not be obtained against the practice of British Cruizers, in hovering and taking Stations for the purpose of surprizing the trade going in and out of our harbours; a practice which the British Government felt to be so injurious to the dignity and rights of that nation at periods when it was neutral. An addition of two miles nevertheless, to our maritime jurisdiction, so far as to protect neutral and other unarmed vessels, notwithstanding its want of anything like a due reciprocity, is not without its value. This value will at the same time be very materially impaired if the stipulation cannot be liberated from the clause requiring the consent of the other belligerent Nations, as necessary to exempt their vessels from search and seizure. None of the other belligerent nations have in fact unarmed vessels engaged in our trade, nor are they likely to have any during the war; and these alone could derive advantage from their consent; their armed vessels being expressly excepted. There can be no motive with them therefore, to agree to the regulation. They would rather be tempted to embarrass it, with a view to continue as much as possible vexations which lessen the mutual good will of the parties. And as by their not agreeing to the regulations, the right is reserved to British Cruizers to examine all vessels for the purpose of ascertaining whether they may not belong to a belligerent, the disturbance of our trade might be little diminished within the additional two Miles. Besides the mere interruption of a search concerning the vessel, it is hardly to be expected from the general spirit of Cruizers, that the search will not be extended to the Cargo, and if the latter should be thus or otherwise found or suspected to be of a confiscable sort that the temptation to capture would be resisted; the less so perhaps, as the increased distance from the shore, and the increased difficulty of proof would favor the chance of condemnation, or at least countenance Courts in their propensity to refuse damages and Costs to the claimants.
To secure the advantage promised by this Article, the right of search ought to be suppressed altogether; the additional space enjoying in this respect the same immunity as is allowed to the marine league. To this object the President wishes your endeavours to be directed.
I reserve for the 19th Art. another view of the subject which will claim your attention.
The general provision here copied from the Treaty of 1794, tho’ not hitherto found of much effect, in controuling the licenciousness of Cruizers, and very different from the special rules in favor of neutrals contained in most treaties which touch the subject of search, enters very properly into a comprehensive arrangement between two friendly nations. The introductory sentence alone, which consists of new matter invites particular notice. The expressions “as the course of the war may possibly permit” and “observing as much as possible the acknowledged principles and rules of the law of nations” however favorably intended by the British Negotiators, will not improbably be construed into a relaxation of the neutral right in favor of belligerent pleas, drawn from circumstances of which belligerent Agents will be the Judges. The expressions may easily be so varied as to refer simply to the law of nations for the rule, and to the friendship of the parties, for the spirit, according to which the search is to be conducted. If such an Amendment should be deliberately rejected by the British Government, it will be a proof of lurking danger, that will recommend an omission of what relates to the subject of search in preference to retaining it.
Arts. 14, 15 & 16 call for no particular observation.
So much of the Article as relates to the admission of ships of war, would be advantageously exchanged for a general stipulation, allowing on this subject the privilege granted to the most favored nation. It would then be in the power of the United States to limit the number admissible at one time; whereas such an indefinite admission of British ships imposes on our neutrality a like indulgence to the fleets of other nations. Such an alteration of the article is the more reasonable and important, as there will be little reciprocity in its operation, the United States having but few ships; and the inconveniences from British ships in our ports being much greater than those from our ships in British ports.
The engagement to treat officers of the Navy with respect, is not only too indefinite to be enforced by penal regulations, but implies a reproachful defect of hospitality and civility. In this light it was viewed during the discussions of the Treaty of 1794. The clause probably grew then out of recent complaints, well or ill founded, of disrespectful conduct on some occasion towards British officers. If latter occurrences were to be consulted, it would be a more apt provision now, to stipulate for the punishment of naval commanders making insulting and ungrateful returns for the kindness and respect shown them in our ports and towns. The President makes almost a point of excluding this part of the Article.
Arts. 18 & 19 already noticed.
Considering the great number of British merchants residing in the United States, with the great means of influence possessed by them, and the very few American Merchants who reside in Great Britain, the inconvenience which may be incident to such a protracted right to remain during a state of war, is evidently much greater on our side than on the other. In this view the stipulation is very unequal. The liberal spirit of it is, at the same time, highly commendable. It were only to be wished that the readiness of one side to make sacrifices of this sort, to a spirit which ought to pervade every part of a Treaty between the parties, had been less met by an apparent disposition on the other side, rather to extort from than to emulate it.
Art: 21. Not agreeable, but not to be an insuperable obstacle.
Art: 22 is altogether proper.
This Article granting the privileges of the most favored nation, seems to require explanation if not alteration. The terms “shall continue to be on the footing of the most favored nation,” implies that the parties are now on that footing. To look no further, the discrimination between Export from Great Britain to Europe and to the United States is a proof that the fact is otherwise.
But may not the expression be construed into a barrier against the laws on the part of the United States, establishing a reciprocity with the British navigation Act and West India regulations. It might be impolitic to extend such laws to all other nations, as it would be just to extend them to such as had not adopted the restrictive system of Great Britain. And yet a discrimination might be arraigned as not continuing Great Britain in the same footing with other Nations.
The object of this Article, so far as it is a legitimate one, would be sufficiently provided for by a mutual stipulation of the privileges in trade and navigation enjoyed by the most favored nation; and such stipulations moreover ought in justice to import or imply, that where privileges are granted to a third Nation in consideration of privileges received, the privileges cannot be claimed under the stipulation, without a return of the same or of equivalent privileges. The condition is certainly not without difficulties in the execution, but it avoids a greater evil. Should Spain or France open her Colonies to our ships and productions, on our granting certain privileges to her trade, these could not be claimed or expected by the most friendly nation who would not pay the price of them.
Arts: 24 & 25 are entirely proper.
It is particularly desirable that the duration of the Treaty should be abridged, to the term limited in the instructions of the 5th Jany 1804.
Having taken this view of the subject with reference to a formal Treaty under new modifications, it is necessary to recollect that you were authorized by my letter of Feby 3d, to enter into informal arrangements and that before the receipt of my letter of March 18th a plan of that sort may have been definitively settled. In such a state of things, it is impossible to do better than to leave your own judgments, aided by a knowledge of circumstances unknown here, and by the sentiments of the President now communicated, to decide how far it may be eligible, or otherwise, to attempt to supersede that informal arrangement, by opening the negotiation herein contemplated.
Should, on another hand, the negotiation be found in the state authorized by my letter of March 18th, that is to say, matured provisionally only, and consequently leaving the door open for the experiment now provided for, it must equally remain with your own judgments, guided by a comparison of the terms of the provisional arrangement, with the present instructions, to decide how far it may be best to close the former, or to pursue the objects of the latter with a view in case of failure, to return to and close the former.
Whatever may be the course recommended by the actual state of things, you will feel the propriety of smoothing the way for it, by the explanations which will best satisfy the British Government that the several steps taken on the part of the United States have proceeded from their solicitude to find some ground on which the difficulties and differences existing between the two Countries, might be amicably and permanently terminated. You will be equally aware of the importance of transmitting hither as early and as circumstantial information of your proceedings and prospects, as opportunities will permit; and will particularly keep in mind the earnest desire of the President to possess, in due time, every material preparatory to the Communications relating to our affairs with Great Britain, which will be so anxiously expected on the meeting of Congress the first Monday in December.
Since the contents of this Dispatch were determined on, and mostly prepared, advices have been received of the change which is taking place in the British administration. Composed as the new one is likely to be, or rather is said to be the event will subject our British affairs to new calculations. The difference in the general complexion ascribed to the politics of the rival parties towards the United States and the language held by some individuals of the one now entering the Cabinet, augur, on one hand, fresh obstacles to a favorable negotiation. On the other hand, however, a less degree of confidence in their own strength than was felt by their predecessors, and a dread of furnishing these with such a topic as might be found in a real or impending collision with this Country, may be a powerful controul on illiberal dispositions towards it. Another favorable consideration is, that an important member of the New Ministry, Lord Hawksbury, was formerly as the head of the foreign Department, the person who negotiated with Mr. King a relinquishment of impressments on the high seas, who made to the same public minister, the Communications assuring to neutrals a re-exportation of Colonial produce unfettered in any respect other than by the condition of its having been landed and paid the ordinary duties, and finally who communicated to this Government thro’ Mr. Merry, the instructions given to the British Commanders and Courts in the West Indies, in which blockades, and the mode of giving notice of them were defined in terms liable to no objection. His concurrence therefore in an admissible provision, on these cardinal points, is due to that consistency which all men value more or less; and to which you will of course appeal, as far as circumstances may invite and delicacy permit. The inducement to touch that string is the greater as it has not appeared that in any of the late Parliamentary discussions, this nobleman has joined in the unfriendly language held in relation to the neutral and commercial rights of this Country. It is to be recollected also that Lord Sidmouth, was at the Head of the administration at the period alluded to, and consequently ought to be induced by a like regard for his character to promote the adjustment we claim, in case he should be excepted, as is said to be not improbable, out of the dismission of his colleagues.
There are considerations moreover which cannot be without weight with a prudent Cabinet, however composed. They must know that apart from the obstacles which may be opposed here to the use of British manufactures, the United States, by a mere reciprocation of the British navigation and Colonial laws, may give a very serious blow to a favorite system, a blow that would be felt perhaps as much too in its example, as in its immediate operation. Should this policy be adopted by the United States, as it respects the British West Indies, the value of those possessions would be either speedily lost, or be no otherwise than by a compliance with the fair reciprocity claimed by this Country. It can no longer be unknown to the most sanguine partizan of the Colonial Monopoly, that the necessaries of life and of cultivation, can be furnished to those Islands from no other source than the United States; that immediate ruin would ensue if this source were shut up; and that a gradual one would be the effect of even turning the supplies out of the present direct channel, into a circuitous one thro’ neutral ports in the West Indies. In this latter alternative, the least unfavorable that presents, the produce of this Country would be carried to, probably a Danish Island with the same mercantile profit, and the same employment of our navigation, as if carried to the British Island consuming it; and would thence be transported to the British Island with little advantage to British Ships, which would necessarily be sent in ballast, and confined to a sickly climate; whilst the enhanced price of the supplies would be fatal first to the prosperity and finally to the existence of those dependencies.
It ought to occur moreover to the British Government that its marine may become as dependant as its Colonies on the supplies of the United States. As an auxiliary resource for naval stores, this Country must be at all times important to Great Britain. But it will be the sole and therefore an essential one in case that of the Baltic and even of the black sea, should fail. And it may be justly remarked that a prohibition of this branch of our exports would be a less sacrifice than that of any other important one; inasmuch as some of the Articles of which it consists, being necessary to ourselves, and of an exhaustible nature, make it a problem whether the regulation would not in itself accord with our permanent interests.
Lastly it should not be forgotten that the United States are one of the Granaries which supply the annual deficit of the British harvests. The northern part of Europe, the usual concurrent resource is in a situation that must disable it, for some time, whatever the course of events may be, to spare any of its stock of food; nor can any substitute, other than the redundant harvests of the United States, be relied on to make up that deficiency. Add to this prospect, the possibility of an unfavorable season requiring enlarged importations of bread from the only source that can furnish it, and the risk of losing this would be an evil which no provident Counsels would neglect to guard against, by any measures equitable in themselves, or even by concessions neither dishonorable nor materially injurious.
On the other hand Great Britain having been led by her peculiar system to carry her commercial exclusions and restrictions to the utmost limit permitted by her immediate wants, would find no countervailing resources to be turned against the United States. She could not prohibit the importation of our productions: These are necessaries which feed her people, which supply her manufactories, which keep up her navy, and which, by direct and indirect contributions to her revenue and credit strengthen all her faculties as a great power. As little could she prohibit the exportation of her manufactures to the United States: This is the last evil she would think of inflicting on herself. If it withheld from us the means of enjoyment, it would take from her own people the means of existence.
Would War be a better resort? That it would be a calamity to the United States is so well understood by them that peace has been cherished in the midst of provocations which scarcely permitted honor to listen to interest, to reason or to humanity. War they will continue to avert by every policy which can be reconciled with the essential duties which a nation owes to itself. But what will be the gain and the loss to Great Britain by a choice of this resort? The spoils of our defenceless commerce might enrich her greedy cruizers and flatter the sentiments of national wealth. A temporary spasm might, at the same time, be produced in the affairs of the United States. But these effects weigh little against the Considerations which belong to the opposite scale. To say nothing of the hostile use that might be made against Great Britain of 50,000 seamen, not less hardy or enterprising than her own, nor of her vulnerable possessions in our neighbourhood, which tho’ little desired by the United States, are highly prized by her, nor of the general tendency of adding the United States to the mass of nations already in arms against her; it is enough to observe, that a war with the United States involves a complete loss of the principal remaining market for her manufactures, and of the principal, perhaps the sole, remaining source of supplies without which all her faculties must wither. Nor is it an unimportant circumstance, tho’ it seems to have engaged little of her attention, that in the loss would be included, all the advantages which she now derives from the neutrality of our flag, and of our ports, and for which she could find no substitutes in distributing her manufactures, and even her fish to their necessary markets, and in obtaining the returns which she wants. The more these collateral advantages are enquired into, the more important will the interest appear which Great Britain has in preserving them.
These are views of the subject, which, tho’ not to be presented to Great Britain with an air of menace or defiance, equally forbidden by respect to ourselves, and to her, may find a proper way to her attention. They merit hers as well as ours; and if they ought to promote on both sides, a spirit of accommodation, they shew at the same time that Great Britain is not the party which has the least interest in taking Counsel from them.
I have the honor to be, Gentlemen, &c.
TO JOHN ARMSTRONG.d. of s. mss. instr.
Department of State, May 22d, 1807.
The two last letters received from you were of Dec. 24 and Jany. 16.
The decree of Nov. 21st communicated in the first had previously reached us, and had excited apprehensions which were repressed only by the inarticulate import of its Articles, and the presumption that it would be executed in a sense not inconsistent with the respect due the Treaty between France and the United States. The explanations given you by the Minister of Marine, were seen by the President with much pleasure, and it only remains to learn that they have been confirmed by the express authority of the Emperor. We are the more anxious for this information as it will fortify the remonstrances which have been presented at London against the British order of Jany. 7. Should it, contrary to expectation, turn out that the French decree was meant, and is to operate according to the latitude of its terms, you will of course have made the proper representations, grounded as well on the principles of public law, as on the express stipulations of the Convention of 1800. Nothing, besides, could be more preposterous than to blend with an appeal to neutral rights and neutral Nations, a gross infraction of the former, and outrage on the sentiments of the latter; unless it be to invite a species of contest on the high seas, in which the adversary has every possible advantage. But on the more probable supposition that the decree will not be unfavorably expounded, it will be still necessary to press on the French Government a dispatch of such orders to their Cruizers in every quarter, as will prevent a construction of the decree favorable to their licencious cupidity. The moment your letter was received, the answer of the French Minister of Marine to your note, was communicated to Genl. Turreau, with a call on him to transmit it immediately to the French Governors in the West Indies. This he readily engaged to do. But notwithstanding this precaution, there are proofs that the West India Privateers have, under colour of the Edict, committed depredations which will constitute just claims of redress from their Government.
Mr. Erving has forwarded a Spanish decree also avowedly pursuing the example, and the views of the French Emperor. The terms of this decree are even more vague, or rather more broad than those of the prototype; and if not speedily recalled or corrected, will doubtless extend the scene of spoliations already begun in that quarter; and of course thicken the cloud that hangs over the amity of the two Nations.
Your other letter (of Jany. 16) intimates a hope that the return of the French Court to Paris, would soon afford an opportunity of renewing your communications with the Minister of Foreign Relations. The course of events appear to have prevented this opportunity, and to have prolonged the suspense in which our affairs have been kept, unless, indeed, other channels and modes should have been found for bringing them to an issue. The delays, and the pretexts for them, have put the patience of the United States to a severe trial. It ought not to be supposed by Spain, or her ally, that a crisis can be much longer procrastinated. The impending collision on the Western side of the Mississippi has indeed been obviated; but the adjustment suspends only the danger which threatened the peace in that quarter; whilst, on the Eastern side of the Mississippi, the obstinacy of the Spanish authorities in vexing and obstructing the use of the Mobille by our Citizens living on its Waters, and having no other channel of communication with the sea, is kindling a flame which has been with difficulty kept under, and must in a short time acquire a force not to be resisted. This state of things without adverting to other topics, demands the instant and most serious attention of all who are friendly to peace between Spain and the United States. It cannot, and ought not to be disguised, that the time is approaching when the latter may have no other choice, than between a foreign and an internal conflict.
The Treaty signed at London in Dec last not having obtained the objects of the United States, and being moreover otherwise objectionable in some of its Articles, has not received the approbation of the President, nor been submitted to the consideration of the Senate. The Wasp sloop of War which conveys this to a French port, carries back to England Mr. Purviance, with instructions for our Commissioners to attempt a remodification of the instrument; and, particularly, to insist on a remedy for the case of British impressments from American vessels on the high seas, which forms no Article in the instrument signed on the 31st Decr, and without which no Treaty will be concluded.
I enclose a printed statement of what passed on the examination of Col. Burr before the Chief Justice. His trial commences this day. A profusion of affidavits had charged him with a complication of crimes, and a number of witnesses will attend to support the charges. The great distance of others will prevent their attendance, unless the trial should be adjourned. The pains which have been taken to investigate, suppress, and punish the hostile enterprize, understood to be principally aimed against the Spanish possessions, present a conspicuous contrast to the perfidious conduct of Spain through a series of years towards the United States. The occurrence demands the attention of Spain as a proof also, that she owes the safety of her possessions, to the controul of the very Government which she has been so scandalously endeavouring to dismember and overturn.
There is strong ground for believing that Yrujo plotted with Burr on the idea that a dismemberment of the Union was the object. The silence and manner of Turreau leave no doubt that he did not regard Mexico as the object. Merry was in the secret of the plot as directed against the Spanish possessions, and relished it; but without committing his Government.
It merits your attention to ascertain the Agents and intrigues of Burr at Paris.
I send you herewith a series of newspapers, and a statistical publication giving some interesting views of this Country.
May 24.—I have just received your letter of Feby. 15 continued March 20: Both of them are silent as to the decree of Novr. 21 from which I infer that it does not operate against our Commercial rights. I regret that even at the latter date, you were unable to make any favorable communications with respect to our affairs with Spain.
I have the honor to be, &c.
TO JAMES MONROE.d. of s. mss. instr.
Department of State, May 22d, 1807.
In my letter of March 18th to the joint Commissioners, it was signified that in a Conventional arrangement on the subject of Boundaries, it would be inconsistent with the views of the President, to open any part of Louisiana, to a British trade with the Indians. From the evident solicitude of the British Government on this point, it is highly probable that the determination of the President will be a bar to any adjustment of that part of the differences between the two Countries; nor is it very probable, considering the jealousy and want of information on the British side, that independently of that obstacle the adjustment would at this time be concluded. That you may not however be without any information which might contribute to its accuracy, or put you on your guard against propositions militating against any of our just pretensions, I transmit herewith copies of a communication from the Governor of New York, and of another from the Governor of Vermont. With respect to the last it may be sufficient merely to save the right of correcting the alleged error at a future day. With respect to the subject of the former, it may be proper either to leave that also open to future discussion, or rather to provide for a joint examination and report relative to the Islands and channels in the St. Laurence, &c. The most obvious and convenient demarkation would seem to be the channel best fitted for navigation. But as a more equal division of the Islands might possibly be made without losing sight of a sufficient channel for common use, and as military positions may be involved in the case, it may be most safe and satisfactory to both parties, to proceed on more thorough and impartial information than is now possessed by either. I address these communications to our Ordinary Minister at London, merely because the subject has not been formally transferred to the joint Commissioners. They will of course be for the use of the latter, if this branch of the negotiations should remain in their hands.
I have already had frequent occasion to transmit accounts of British outrages in the American seas, and particularly on our coasts and within our harbours. I am now under the necessity of communicating a recent insult from the Commanding officer of the Driver sloop of War, lying at the time, in violation of law, in the harbour of Charleston, which is too gross to be otherwise explained than by the letter containing it, the original of which is herewith inclosed, and will be legal proof of the offence.
You will lay the case before the British Government without comment, because that cannot be necessary, and without any special requisition, because a silent appeal to its own sensibility, ought to be the most effectual, as it will be the most respectful course for obtaining the satisfaction due to the United States. It will remain to be seen in this case, as in that of Capt. Whitby, how far it is the disposition of the British Government to reform, by proper examples, the outrages and arrogance which their naval Commanders have too long practised with impunity.
In addition to this enormity of the Capt. of the Driver, it is proper to inclose an instance of another stamp, which involves the Court of Vice Admiralty at Bermuda, as well as Capt. Berresford who commands the Cambrian, another of the interdicted ships. You will find by the inclosed letter from Mr. NA at Bermuda that a dispatch from the Charge des Affaires of the United States at Madrid, found on board an American vessel, sent by Berresford for trial at Bermuda, was, after having the seals broken, and of course been read, thrown into the Registrars office, left there for several Months, and finally permitted only to be forwarded to its address; the letter continuing throughout without being even sealed. To place this disgraceful proceeding in its just light, it is to be noted that the dispatch was under the official seal, and endorsed in the hand writing, and with the name of Mr. Erving, as from the Legation of the United States at Madrid; and that an inclosed letter from him to me, endorsed in his hand private, was treated in the same manner. This occurrence, and it is far from being the only one of the sort, will afford another test of the degree of respect entertained by that Government, as well for its own honor, as for the most sacred of all rightly belonging to others.
As a further evidence of the aggressions and provocations experienced by our National rights from the Licenciousness of British Officers and Agents, I inclose a statement from our late Commercial Agent at Curracoa, of the proceedings at that Island at, and subsequent to its capture by the British arms. I inclose also copies of Affidavits of a Pilot and of the Master of the Brig Mercury, relating to the Conduct of the Frigate Melampus. These wrongs contribute to swell the just claims of indemnity, of which the amount is in other respects so considerable.
In my letter of NA I explained the violation of our territory by the British ships of war which destroyed the French 74 near the shore of North Carolina, and inclosed the copy of a letter from the French Plenipotentiary here on that subject. In another of late date he redoubles his remonstrances, and presses in the strongest manner, the reparation due to his Government for the wrong done to it.
That the British Government understands and feels what is due from others to her own territorial jurisdiction is sufficiently manifested by the Complaint lately delivered by its Minister here in consequence of special instructions against an irregularity committed in the harbour of Malta, by the Commander of a public vessel of the United States. An explanation of the incident, with the Note of Mr. Erskine will be found in the documents which make a part of the present inclosures. Mr. Erskine was immediately told that the United States were as ready to do as to demand justice; that in the case stated the punishment of a British subject, by a foreign Officer, within British jurisdiction, instead of a resort to the local Magistracy, was an assumption of power not to be justified, however it might be mitigated by the frequency of examples given by British Commanders; and that the respect of the United States for the principle which had been violated would be proved by the measures which would be pursued. The President being now returned to the Seat of Government, a more formal answer to the same effect, will be given as soon as the pressing and weighty business on hand will permit.
The coincidence of this incident with the remonstrances proceeding from the United States may be made to bear advantageously on the reasonableness and necessity of regulations which will put an end to all such occasions of irritation and ill will between the two Countries. It cannot be too strongly repeated that without some effectual provision against the wanton spoliations and insults committed by British Cruizers on our Coasts and even within our harbours, no other arrangements whatever can have the desired effect, of maintaining and confirming the harmony of the two Nations. And it deserves the serious consideration of the British Government whether any provision will be effectual which does not suppress the practice of British Cruizers in watching and waylaying our commerce in the vicinity of our ports. The British Nation prides itself on a respect for the authority of the law of Nations. Let it then consult the rules laid down on this point by all jurists who treat of it. Let the learned and respectable Azuni be consulted, or even Vattell so often appealed to in support of British principles. Great Britain professes a particular regard to system and consistency in all her political and legal principles, let her then trace in her own principles and claims, when she was a neutral nation, the illegality of the proceedings of which we complain. Certain it is that if these proceedings continue to find no adequate remedy elsewhere, they must present a dilemma here which may compel the United States to seek one either in the extension of measures already exemplified, or in such others as may be deemed more efficacious.
You will have received a statement of the case of Yrujo of which two copies have been inclosed to you. He has not yet been subjected to any further consequence of his misbehaviour, than a degradation from the exercise of his functions. The suspicions are very strong that he intrigued and co-operated with the projects of Burr as being levelled against the Unity of the Empire. The intercepted letters from him to his Court, which were communicated by the British Ministers, tho’ as you observe less important than had been presumed, convict him of the libellous and mischievous spirit of his communications. You will take occasion to express to the British Government the sense entertained by the President of the cordial manner in which it furnished the contents of those letters.
Col. Burr’s trial commences at Richmond to day. There is a profusion of affidavits charging him with a complication of crimes. What the force of the Oral testimony, or the event of the Trial, may be, cannot be foretold. Much of the strongest testimony will necessarily be absent, unless a postponement should take place. I send you a printed copy of what passed on his examination before the Chief Justice.
I send you also, a series of news-papers, with a late statistical publication containing some interesting views of our National faculties and resources.
I have the honor to be, &c.
TO JAMES MONROE.d. of s. mss. instr.
Department of State, July 6th, 1807.
The documents herewith inclosed from No. 1 to No. 9 inclusive, explain the hostile attack, with the insulting pretext for it, lately committed near the Capes of Virginia, by the British ship of War the Leopard, on the American frigate the Chesapeake. No. 10 is a copy of the Proclamation issued by the President, interdicting, in consequence of that outrage, the use of our waters and every other accommodation, to all British Armed ships.
1st. This enormity is not a subject for discussion.1 The immunity of a national ship of War from every species and purpose of search on the high seas, has never been contested by any nation. Great Britain would be second to none, in resenting such a violation of her rights, and such an insult to her flag. She may bring the case to the test of her own feelings, by supposing that, instead of the customary demand of our marines serving compulsively even, on board her ships of war, opportunities had been seized for rescuing them, in like manner, whenever the superiority of force, or the chance of surprize, might be possessed by our ships of War.
But the present case is marked by circumstances which give it a peculiar die. The seamen taken from the Chesapeake had been ascertained to be native Citizens of the United States; and this fact was made known to the bearer of the demand, and doubtless communicated by him to his commander, previous to the commencement of the attack. It is a fact also, affirmed by two of the men, with every appearance of truth, that they had been impressed from American vessels into the British frigate from which they escaped, and by the third, that having been impressed from a British merchant ship, he had accepted the recruiting bounty under that duress, and with a view to alleviate his situation, till he could escape to his own country: and that the attack was made during a period of negotiation, and in the midst of friendly assurances from the British Government.
The printed papers, herewith sent, will enable you to judge of the spirit which has been roused by the occasion. It pervades the whole community, is abolishing the distinctions of party; and, regarding only the indignity offered to the Sovereignty and flag of the Nation, and the blood of Citizens so wantonly and wickedly shed, demands, in the loudest tone, an honorable reparation.
With this demand you are charged by the President. The tenor of his proclamation will be your guide, in reminding the British Government of the uniform proofs given by the United States of their disposition to maintain, faithfully, every friendly relation; of the multiplied infractions of their rights by British Naval Commanders on our coasts and in our harbours; of the inefficacy of reiterated appeals to the justice and friendship of that Government; and of the moderation on the part of the United States, which reiterated disappointments had not extinguished; till at length no alternative is left, but a voluntary satisfaction on the part of Great Britain, or a resort to means depending on the United States alone.
The nature and extent of the satisfaction ought to be suggested to the British Government, not less by a sense of its own honor, than by justice to that of the United States.
1A formal disavowal of the deed, and restoration of the four seamen to the ship from which they were taken, are things of course and indispensable. As a security for the future, an entire abolition of impressments from vessels under the flagof the United States, if not already arranged, is also to make an indispensable part of the satisfaction. The abolition must be on terms compatible with the instructions to yourself and Mr. Pinkney on this subject; and if possible without the authorized rejection from the service of the United States of British seamen who have not been two years in it. Should it be impossible to avoid this concession on the part of the United States, it ought of itself, as being more than a reasonable price for future security, to extend the reparation due for the past.
But, beyond these indispensable conditions the United States have a right to expect every solemnity of form and every other ingredient of retribution and respect, which, according to usage and the sentiments of mankind, are proper in the strongest cases of insult, to the rights and sovereignty of a nation. And the British Government is to be apprized of the importance of a full compliance with this expectation, to the thorough healing of the wound which has been made in the feelings of the American Nation.
Should it be alleged as a ground for declining or diminishing the satisfaction in this case, that the United States have themselves taken it, by the interdict contained in the proclamation, the answer will be obvious. The interdict is a measure not of reparation, but of precaution; and would besides be amply justified by occurrences prior to the extraordinary outrage in question.
The exclusion of all armed ships whatever from our waters is, in fact, so much required by the vexations and dangers to our peace experienced from their visits, that the President makes it a special part of the charge to you, to avoid laying the United States under any species of restraint from adopting that remedy. Being extended to all belligerent nations, none of them could of right complain; and with the less reason, as the policy of most nations has limited the admission of foreign ships of war, into their ports, to such number as, being inferior to the naval force of the Country, could be readily made to respect its authority and laws.
As it may be useful in enforcing the justice of the present demands, to bring into view applicable cases, especially where Great Britain has been the complaining party, I refer you to the ground taken, and the language held by her, in those of the Faulkland Islands, and Nootka Sound; notwithstanding the assertion by Spain, in both cases, that the real right was in her, and the possession only in Great Britain. These cases will be found in the Annual Registers for 1771 and 79, and in the parliamentary debates for those years. In the latter you will find also two cases referred to, in one of which the French King sent an Ambassador Extraordinary to the King of Sardinia, in the most public and solemn manner, with an apology for an infringement of his territorial rights in the pursuit of a smuggler and murderer. In the other case, an Ambassador Exty was sent by the British Government to the Court of Portugal, with an apology for the pursuit and destruction by Admiral Boscawen, of certain French ships on the coasts of this last Kingdom. Many other cases more or less analogous may doubtless be found, see particularly the reparation by France to Great Britain for the attack on Turks Island in 1764, as related in the Annual Register and in Smollets continuation of Hume vol. 10; the proceedings in the case of an English merchantman, which suffered much in her crew and otherwise from the fire of certain Spanish Zebecs cruizing in the Mediterranean, and the execution. of the Lieutenant of a privateer for firing a gun into a venetian Merchantman, which killed the Capt. as stated in the Annual Register for 1781 page 94. The case of an affront to a Russian Ambassador in the Reign of Queen Ann, tho’ less analogous shews, in a general view, the solemnity with which reparation is made for insults having immediate relation to the Sovereignty of a nation.
Altho’ the principle which was outraged in the proceedings against the American Frigate, is independent of the question concerning the allegiance of the seamen taken from her, the fact that they were citizens of the United States, and not British subjects may have such an influence on the feelings of all, and perhaps on the feelings of some unacquainted with the laws and usages of nations, that it has been thought proper to seek more regular proofs of their National character than were deemed sufficient in the first instance. These proofs will be added by this conveyance, if obtained in time for it; if not, by the first that succeeds.
The President has an evident right to expect from the British Government, not only an ample reparation to the United States in this case, but that it will be decided without difficulty or delay.1Should this expectation fail, and above all, should reparation be refused, it will be incumbent on you to take the proper measures for hastening home, according to the degree of urgency, all American vessels remaining in British ports; using for the purpose the mode least likely to awaken the attention of the British Government. Where there may be no ground to distrust the prudence or fidelity of Consuls, they will probably be found the fittest vehicles for your intimations. It will be particularly requisite to communicate to our public ships in the Mediterranean the state of appearances, if it be such as ought to influence their movements.
All negotiation with the British Government on other subjects will of course be suspended until satisfaction on this be so pledged and arranged as to render negotiation honorable.
Whatever may be the result or the prospect, you will please to forward to us the earliest information.
The scope of the proclamation will signify to you, that the President has yielded to the presumption, that the hostile act of the British Commander did not pursue the intentions of his Government. It is not indeed easy to suppose, that so rash and critical a step, should have originated with the admiral; but it is still more difficult to believe, that such orders were prescribed by any Government, under circumstances, such as existed between Great Britain and the United States.
Calculations founded on dates, are also strongly opposed to the supposition, that the orders in question could have been transmitted from England. In the same scale are to be put the apparent and declared persuasion of the British representative Mr. Erskine, that no orders of a hostile spirit could have been issued or authorized by his Government, and the coincidence of this assurance with the amicable professions of Mr. Canning, the organ of the new administration, as stated in the dispatch of the 22d April from yourself and Mr. Pinkney.
Proceeding on these considerations, the President has inferred, that the justice and honor of the British Government will readily make the atonement required; and in that expectation, he has forborne an immediate call of Congress, notwithstanding the strong wish which has been manifested by many, that measures depending on their authority, should without delay be adopted. The motives to this forbearance have, at the same time, been strengthened by the policy of avoiding a course, which might stimulate the British cruizers in this quarter to arrest our ships and seamen now arriving and shortly expected in great numbers, from all quarters. It is probable, however, that the Legislature will be convened in time to receive the answer of the British Government on the subject of this dispatch; or even sooner if the conduct of the British squadron here, or other occurrences, should require immediate measures beyond the authority of the Executive.
You are not unaware of the good will and respect for the United States, and personally even for the President, which have been manifested by the Emperor of Russia, nor of the inducements to cultivate the friendship of so great a power, entertaining principles and having interests, according in some important views, with those of the United States. This consideration combined with the subsisting relations between Russia and Great Britain, make it proper in the opinion of the President, that in case of an express or probable refusal of the satisfaction demanded of the British Government, you should take an early occasion, if there be no special objections unknown here, of communicating to the Russian Minister at London, the hostile insult which has been offered, as well as the resort which may become necessary on our part, to measures constituting or leading to war, and of making him sensible of the regret which will be felt, at a rupture with a power, to which the Emperor is allied by so many close and important interests.
In order to give you the more expedition and security to the present dispatch, a public armed vessel, the Revenge, is especially employed, and Dr. Bullus is made the bearer, who was on board the Chesapeake on his way to a Consulate in the Mediterranean, and will be able to detail and explain circumstances, which may possibly become interesting in the course of your communications with the British Government.
The vessel after depositing Dr. Bullus at a British port will proceed with dispatches to a French port, but will return to England with a view to bring the result of your transactions with the British Government. The trip to France will afford you and Mr. Pinkney a favorable opportunity for communicating with our ministers at Paris, who being instructed to regulate their conduct on the present occasion, by the advices they may receive from you will need every explanation that can throw light on the probable turn and issue of things with Great Britain.
I have, &c.
TO JOHN ARMSTRONG AND JAMES BOWDOIN.d. of s. mss. instr.
Department of State, July 15th, 1807.
The inclosed copy of a proclamation by the President will inform you of a late extraordinary hostility and insult committed by a British ship of War on a frigate of the United States near the Capes of Virginia, and of the measures taken by the President in consequence of the outrage. The subsequent proceedings of the British Squadron in our waters, have borne a like stamp of hostility; and altho’ it may be found that these provocations have not issued from or may be disavowed and expiated by the British Government it may also be found that the United States must take on themselves the reparation that is due to them. For this event it is necessary to be prepared; as well with a view to our finances, as to other resources and arrangements.
In this state of things, the President, taking into consideration the objections to an application of the public funds to objects not immediately connected with the public safety, instructs you to suspend the negotiation for the purchase of the Floridas, unless it shall be agreed by Spain that payment for them, shall in case of a rupture between Great Britain and the U. States, be postponed till the end of one year after they shall have settled their differences; and that in the mean time no interest shall be paid on the debt. You will of course understand it to be inconsistent with this instruction either to draw on the Treasury, or to obtain a credit in Europe, for any part of the sum allotted for the purchase of the Floridas.
Should a bargain have been made for the Floridas and payments stipulated, as contemplated by former instructions, you will press in the most serious and emphatic manner, a remodification of the terms which will adjust them to the instruction here given. Such a compliance may justly be expected in return for the advantages which Spain and her allies will derive, in various respects from a contest between this country and their enemy. It may further be expected that, in consideration of these advantages to them, and of the general effect of a War, or even a cessation of commerce with Great Britain on the pecuniary faculties of the United States, the price demanded for the Floridas, will be at least greatly reduced. To this consideration, it may be added, that whilst the pecuniary faculties of the United States will be so materially benumbed in the event of a rupture with Great Britain, those of Spain may be essentially aided, by the facility which that event will give to the command of her South American Treasure through the United States. Finally it is not unworthy of consideration, that the introduction of hostile relations between the United States and Great Britain, may remove objections hitherto felt by the latter, to enterprizes against the Floridas, and lead to a military occupancy of them with views very adverse to the policy of Spain.
Should Spain still obstinately persist in rejecting or retarding an arrangement concerning the Floridas, she must at least see the necessity of hastening a satisfactory one on other subjects, particularly in the case of the Mobille for the free use of which by the United States, orders ought to be sent without a moments delay.
The President leaves to your own discretion the use to be made of observations of this kind, and entertains an entire confidence, that your management of the whole business will be such as will best comport with the circumstances of the crisis, and conduce most to the object entrusted to you.
This dispatch goes by the Revenge, a public armed vessel charged with instructions to our Ministers in London, to require from the British Government the satisfaction due for the insult to the U. States. She will touch at a French port from which one of her officers will proceed to Paris. She will also return from England to France, and convey to you from Mr. Monroe and Mr. Pinkney, the communications rendered proper by the conduct and countenance of the British Government in relation to the United States. The influence which those communications ought to have on your proceedings, will depend on the tenor of them, and must be left to your own discernment and sound judgment.
I have the pleasure to assure you that the spirit excited throughout our nation, by the gross attack on its sovereignty, is that of the most ardent and determined patriotism. You will find sufficient specimens of it in the papers herewith inclosed.
I have the honor to be &c.
TO JAMES MONROE.d. of s. mss. instr.
Department of State, July 17, 1807.
Since the event which led to the Proclamation of the 2 inst, the British squadron has conducted itself in a continued spirit of insolence and hostility. Merchant vessels arriving and departing have been challenged, fired at, examined and detained within our jurisdiction, with as little scruple as if they were at open sea. Even a Revenue Cutter conveying the Vice President and his sick daughter from Washington to New York and wearing her distinctive and well known colours did not escape insult. Not satisfied with these outrages, the British Commodore Douglass advanced into Hampton Roads with his whole squadron consisting of two 74’s one ship of 50 guns and a frigate; threatened by his soundings and other indications, a hostile approach to Norfolk; and actually blockaded the town by forcibly obstructing all water communication with it. In a word, the course of proceeding amounted as much to an invasion and a siege as if an Army had embarked and invested it on the land side. It is now said that the whole squadron has left Hampton roads, in consequence of a formal notice of the Presidents proclamation; and has fallen down to their former position at a small distance from the Capes; awaiting probably the further orders of the commanding Admiral at Halifax.
These enormities superadded to all that have gone before, particularly in the case of Bradley, Whitby, Love, the destruction of the French Ship on the sea board of North Carolina, the refusals of Douglass whilst within our waters to give up American seamen not denied to be such; to say nothing of British violences against our vessels in foreign ports, as in Lisbon and Canton, form a mass of injuries and provocations which have justly excited the indignant feelings of the nation and severely tried the patience of the Government. On the present occasion, it will be proper to bring these collective outrages into view; and to give them all the force they ought to have not only in augmenting retribution for the past, but in producing securities for the future. Among these the enlargement of our Marginal jurisdiction, and the prohibition of cruizers to hover about our harbours and way-lay our trade, merit every exertion that can properly be made, and if not obtained, will place in a stronger view, the necessity of leaving unfettered the right of the United States to exclude all foreign armed ships from our ports and waters. In the adjustment between Great Britain and Spain, of the Affair of Nootka Sound, there is an Article which acknowledges and stipulates to the latter a margin of ten leagues. Every consideration which could suggest such a latitude in favor of the Spanish Territory equally at least supports the claim of the United States. In addition to the remarks heretofore made on the subject of infesting our commerce near the mouths of our harbours, I beg leave to refer to what is contained in Azuni in relation to it.
I have the honor to be, &c.
TO JAMES BOWDOIN.d. of s. mss. instr.
Department of State, July 17th, 1807.
Since the event which led to the late Proclamation of the President, inclosed in the letter to Genl. Armstrong and yourself, the British squadron in the Waters of Virginia, has conducted itself in the same insolent and hostile spirit. Merchant vessels arriving and departing have been challenged, fired at, examined and detained, within our jurisdiction, with as little scruple as if they were at open sea. Not satisfied with these outrages, the British Commodore Douglass advanced into Hampton Roads with his whole squadron, consisting of two 74’s, a ship of 50 guns, and a frigate; threatened by his soundings and other preparations an hostile approach to Norfolk; and actually blockaded the Town by forcibly obstructing all water communication with it. In a word, the course of proceeding has amounted as much to an invasion and a siege, as if an Army had debarked and invested the town on the land side. It is now said that the whole squadron has left Hampton Roads, in consequence of a formal notice of the President’s proclamation, and fallen down to their former position at a small distance within the Capes, probably awaiting the further orders of the Commanding Admiral at Halifax.
The spirit and exertions called forth by the Crisis, have been truly gratifying. Volunteers turned out by thousands. The situations most exposed to predatory debarkations were guarded; and Norfolk was soon made safe by a judicious disposition of the Chesapeake, refitted for the occasion, a French frigate which happened to be in the harbour, and a few gun Boats, and by availing the whole of the support of the fortifications in the vicinity.
The Grand Jury, during the late Session of the Circuit Court at Richmond, found Bills of Treason and Misdemeanor against Aaron Burr, Jonathan Dayton, John Smith (Senator from Ohio) Blannerhasset and several others. Their trials will take place on the 3d of next month.
I have the honor to inclose a private letter from the President, which renders it unnecessary for me to say more in reference to the considerations which personally interest you, than that he acquiesces in your proposed return to the United States, but with a wish to avail the public of your services at Madrid if not disagreeable to you, and if there be no objection to this arrangement, presented by circumstances in our affairs with Spain, better known to you than to us. The way for the arrangement seems to be fairly opened by the late substitution of the Chevalier de Foronda as Charge d’ Affaires, in place of the Marquis d’ Yrujo, and by the understood purpose of transferring hither the present Minister Plenipotentiary of Spain at Milan.
In the present posture of our relations to Great Britain it is prudent to turn them, as much as can be honorably done, to account in our other foreign relations. In the joint letter to you and Genl. Armstrong, this policy has been explained as it applied to the objects embraced by the joint Commission. But there are other cases in which Spain is counselled by her own interest to promote that of the United States; particularly by giving greater latitude and security to our commerce with her American possessions, above all with the important and Convenient Island of Cuba. I offer this idea for your attention and improvement; and I pray you to communicate it to Mr. Erving, with such of the other matters contained in the dispatches now forwarded, as it may be useful for him to possess.
I have the honor to be &c.
TO JAMES MONROE.d. of s. mss. instr.
Department of State, October 21, 1807.
I inclose for your information copies of the letters which have passed on several subjects between Mr. Erskine and the Department of State; and which it may be useful for you to possess. The proceedings at Halifax with respect to one of the men taken from the Chesapeake, and whose restoration was included in the demand of reparation for that outrage, are calculated to inspire great distrust of the temper and intentions of the British Government towards this Country. Is it conceivable that at so late a day Berkley could be unapprized of the light in which his original offence was viewed by his superiors, or that if apprized of their displeasure at it, he would brave the consequences of an additional temerity of so irreparable a character. Before the receipt of this communication you will probably have been enabled to interpret the phenomenon, and this communication suggests the light in which it is to be presented to the British Government. If the responsibility rests on Berkley or any other Officer, and that Government means to give the satisfaction due to the honor of the United States, there can be no pretext for refusing to make the severest example of the Offender or Offenders. Among the papers accompanying this will be found British evidence that the seaman sentenced to death was not a deserter from a British ship of war as alleged on his trial, but a merchantman only. You will find also that, according to information received here thro’ the Collector of Baltimore the Court martial at Halifax, disregarding still further every restraint of law, of decency and of common prudence, proceeded to the trial of the three other men taken from the Chesapeake, without even pretending that they were British subjects, that a partial execution of the sentence on one of them was fatal to his life, and that the two others were forced into the service of a British Ship of War, by making that the alternative of the doom to which they were sentenced. Should this information be confirmed, and it has not yet been impaired by any circumstance whatever, the measure of atrocity will be filled up, and every motive supplied for requiring on our part and for affording on that of Great Britain the full measure of punishment due to it.
The last letter received from Mr. Erskine respecting the detention of a letter to him from Vice Admiral Berkley will not be answered, unless the subject should be resumed after receiving mine which had not reached him at the date of his. If a further answer should be required, it may be necessary to remind him that if the ground for a prosecution were as legal as he supposes, the measure however it might be dictated by the respect which the United States owe to themselves, could not be demanded of right by a Government which has left unpunished the repeated violations committed by its officers on the most solemn dispatches of the United States. Instances of these have from time to time been transmitted to you. In that of the letter from the President to the King of Holland with the great seal internally impressed, the offence was of the most flagrant kind, and rendered the more conspicuous by its publication in the British Newspapers. This circumstance, whilst it necessarily brought the aggravated insult to the notice of the Government might the rather have been expected to be followed by the punishment of the guilty officer, as this course alone could guard the Government itself to which the copy of the President’s letter must be presumed to have been sent by the officer who violated it, against appearances and conjectures of the most unfavorable sort.
I have the honor to be &c.
TO WILLIAM PINKNEY.d. of s. mss. instr.
Department of State, Dec. 23, 1807.
Mr. Erskine having been so good as to let me know that the Mail of this evening will carry his dispatches for a British packet, which will sail from New York immediately on their arrival there, and other conveyances now failing, I avail myself of the opportunity to inclose you a copy of a message from the President to Congress, and their Act in pursuance of it, laying an immediate embargo on war vessels and exports. The policy and the causes of the measure are explained in the message itself. But it may be proper to authorize you to assure the British Government, as has just been expressed to its Minister here, that the Act is a measure of precaution only called for by the occasion; that it is to be considered as neither hostile in its character, nor as justifying or inviting or leading to hostility with any Nation whatever; and particularly as opposing no obstacle whatever to amicable negotiations and satisfactory adjustments with Great Britain, on the subjects of difference between the two Countries.
Mr. Monroe arrived at Norfolk on the 12th inst, and at this place last night. Mr. Rose has not been heard of, since his reported departure from England on the 9th of Nov.
The suddenness of the present opportunity does not allow me time to add more than a newspaper containing a part of the proceedings of Congress in relation to the Embargo, and assurances of the Esteem & Consideration with which
I remain Sir &c.
END OF VOL. VII.
[1 ]The treaty as actually presented by Purviance is as follows:
It is also agreed, that whenever a Judge of a Court of Admiralty of either of the Parties shall pronounce sentence against any Vessel or Goods or Property belonging to the Subjects or Citizens of the other Party, a formal and duly authenticated copy of all the Proceedings in the Cause, and of the said sentence, shall, if required, be delivered to the Commander of the said Vessel, without the smallest delay, he paying all legal Fees and demands for the same.
[1 ]Italics for cypher.
[1 ]Italics for cypher.
[1 ]Italics for cypher.