shall not be detained, nor her Cargo, if not Contraband, be confiscated, unless after such notice she shall again attempt to enter: But she shall be permitted to go into any Port or Place she may think proper: Nor shall any Vessel or Goods of either Party that may have entered into such Port or Place before the same was besieged, blockaded or invested by the other, and be found therein after the reduction or surrender of such Place, be liable to Confiscation, but shall be restored to the Owners or Proprietors thereof.

Neither of the Parties, when at war, shall, during the continuance of the Treaty, take from on board the Vessels of the other, the Subjects of the opposite Belligerent, unless they be in the actual employment of such Belligerent.

ARTICLE 11th

Whereas differences have arisen concerning the trading with the Colonies of His Majesty's Enemies, and the Instructions given by His Majesty to His Cruizers in regard thereto, it is agreed that during the present Hostilities all articles of the Growth, Produce and Manufacture of Europe, not being Contraband of War, may be freely carried from the United States to the Port of any Colony not blockaded, belonging to His Majesty's Enemies, provided such Goods shall previously have been entered and landed in the United States, and shall have paid the ordinary Duties on such Articles so imported for Home consumption, and on re-exportation shall after the drawbacks remain subject to a Duty equivalent to not less than One per Cent ad valorem, and that the said Goods and the Vessels conveying the same shall, from the time of their clearance from the American Port, be bona fide the property of Citizens and Inhabitants of the United States; And in like manner that all Articles, not being Contraband of War, and being the growth and produce of the Enemy's Colonies, may be brought to the United States, and after having been there landed, may be freely carried from thence to any port of Europe, not blockaded, provided such Goods shall previously have been entered and landed in the said United States, and shall have paid the ordinary duties on Colonial articles so imported for Home consumption, and on re-exportation shall, after the drawback, remain Subject to a Duty equivalent to not less than Two per Cent ad valorem; And provided that the said Goods and the Vessel conveying the same, be bonâ fide the property of Citizens and Inhabitants of the United States.

Provided always, that this Article, or any thing therein contained, shall not operate to the prejudice of any Right belonging to either Party; but that after the expiration of the time limited for the Article, the Rights on both sides shall revive and be in full force.

51

The Secretary of State (Madison) to the British Minister (Erskine)1

WASHINGTON, March 20th-1807

SIR: I have laid before the President your letter the 12th inst, communicating the views of His Britannic Majesty in relation to the French decree of Nov 21-1806 and to the principle of retaliation, through the commerce of Neutrals, who may submit to the operation of that decree; as also the measure actually taken of prohibiting all neutral commerce from port to port of his enemies, not only the ports of France, but those of such other nations, as, either in alliance with France, or subject to her dominion, have by measures of active offence, or by the exclusion of British ships, taken a part in the present war.

The President cannot be insensible, Sir, to the friendship and confidence towards the United States which are signified by His Britannic Majesty in this communication. In making this acknowledgment, however, the President considers it not less incumbent on him, to reserve for a state of things which it is hoped may never occur, the right of discussing the legality of any particular measures to which resort may be had, on a ground of retaliation. At this time, it would suffice to observe that it remains to be more fully ascertained, in what sense the decree in question will be explained, and to what extent it will be carried into execution; and consequently whether in any case the U States can be involved in questions concerning measures of retaliation supposed to accrue to one belligerent from such a proceeding by another. But it is worthy the justice and liberality of the British Government to recollect, that within the period of those great events which continue to agitate Europe, instances have occurred in which the commerce of neutral nations, more especially of the U States, has experienced the severest distresses from its own orders and measures manifestly unauthorized by the law of nations. The respect which the United States owe to their neutral rights, and the interest they have in maintaining them, will always be sufficient pledges, that no culpable acquiescence on their part will render them accessary to the proceedings of one belligerent nation through their rights of neutrality, against the commerce of its adversary.

With regard to the particular order issued against the trade of neutrals from one port to another, of the enemies of Great Britain, no fair objection can lie against it, provided it be founded on and

'MS., Notes from Missing Volume I [of Notes to Foreign Legations], p. 151; printed in American State Papers, Foreign Relations, vol. I, pp. 158–159.

enforced by actual blockades as authorized by the law of nations. If, on the other hand, the order has reference not to such a blockade, but to a supposed illegality of the neutral trade from one to another of the described ports, the remark is obvious, that on that supposition, the order is superfluous; the trade being, as interdicted by the law of nations, liable at all times without any such order, to the capture of British Cruizers and the condemnation of British Courts; and if not interdicted as such by the law of nations, it can no otherwise be made illegal, than by a legal blockade of the Ports comprehended in the order. This inference is applicable even to the case of a neutral trade between the ports of France herself; since it is not a principle of the acknowledged law of nations that neutrals may not trade from one to another port of the same belligerent nation. And it would be an innovation on that law, not before attempted, to extend the principle to a neutral trade between ports of different countries confessedly open in times of peace as well as of war.

If the British order refers, for its basis, to the principle of retaliation against the French decree it falls under the observations already made on that subject, and which need not be repeated. I have [etc.]

JAMES MADISON

52

The Secretary of State (Madison) to the Ministers on Special Mission to Great Britain (Monroe, W. Pinkney)1

WASHINGTON, May 20, 1807.

GENTLEMEN: My letter of March 18th acknowledged the receipt of your dispatches and of the Treaty signed on the 31 Dec, 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. 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 Gen1 Armstrong and Mr Bowdoin, and will afford a good opportunity for any communications you may have occasion to make to those gentlemen.

1 MS., Instructions to United States Ministers, vol. VI, pp. 388-410; printed in American State Papers, Foreign Relations, vol. III, pp. 166–173.

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 on 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 renewed, with a view to such alterations of the instrument signed on the 31st Dec", as may 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.

2a 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.

34 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 Articles 18 & 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 [No] such an alternative as is presented by the declaratory note on the subject of the French decree of Nov-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.