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ON ARTICLE XI.
This is a stipulation which is not to be yielded but in the event of its being made an indispensable condition. It cannot be essential for the object of it, whilst the British government is left free to take the precautions allowable within its own jurisdiction for preventing the clandestine departure of its seamen or its soldiers in neutral vessels. And it is very ineligible to the United States, inasmuch as it will be difficult to enforce the prohibition, whether we regard the embarkation of such persons in British ports, or their landing on the American shores; and inasmuch as the inefficacy of regulations for such purposes, though made with due sincerity and care, may become a source of secret jealousy and dissatisfaction, it not of controversy and reproach.
The article is copied from that in the arrangement (of which you have a copy) discussed and brought near to a conclusion between Mr. King and the British ministry, and you are authorized to accede to it, on the supposition that it may again be insisted on. It is to be recollected, however, that the article was then understood to be the only price given for relinquishing the impressment of American seamen. The other offers now substituted will justify you in pressing the omission of the original
ON ARTICLE XII.
The law of nations does not exact of neutral powers the prohibition specified in this article. On the other hand, it does not restrain them from prohibiting a trade which appears on the face of the official papers proceeding from the custom house to be intended to violate the law of nations, and from which legitimate considerations of prudence may also dissuade a government. All that can be reasonably expected by belligerent from neutral powers, is that their regulations on this subject be impartial, and that their stipulations relative to it, when made in time of war at least, should not preclude an impartiality.
It is not certain what degree of value Great Britain may put on this article, connected, as it essentially is, with the
article which limits the list of contraband. It will at least mitigate her objection to such a limitation. With the range given to contraband by her construction of the law of nations, even as acquiesced in by the United States, a stipulation of this sort would be utterly inadmissible.
The last article, in making this city the place for exchanging the ratifications, consults expedition in putting the treaty into operation, since the British ratification can be forwarded at the same time with the instrument itself. And it is otherwise reasonable, that, as the negotiation and formation of the treaty will have taken place at the seat of the British government, the concluding formality should be at that of the government of the United States.
In addition to these articles, which, with the observations thereon, I am charged by the President to communicate to you as his instructions, he leaves you at liberty to insert any others which may do no more than place British armed vessels, with their prizes, on an equality within our ports and jurisdiction with those of France. This would only stipulate what would probably be done by gratuitous regulations here, and as it would no doubt be acceptable to Great Britain, it may not only aid in reconciling her to the principal objects desired by the United States, but may induce her to concur in the further insertion of articles, corresponding with those in the convention of 1800 with France, which regulate more precisely and more effectually the treatment of vessels of the neutral party on the high seas.
The occasion will be proper also for calling the attention of the British government to the reasonableness of permitting American consuls to reside in every part of her dominions, where and so long as she permits our citizens to trade. It is not denied that she has a natural right to refuse such a residence, and that she is free by her treaty with us to refuse it in other than her European dominions. But the exception authorized with respect to the residence of consuls elsewhere, having reference to the refusal of our trade elsewhere, the refusal of the one ought manifestly to cease with the refusal of the other. When our vessels and citizens are allowed to trade to ports in the West Indies, there is the same reason for a temporary admission of consuls to take care of it, as there is for their admission
in ports where the trade is permanently allowed. There is the juster expectation of your success on this point, as some official patronage is due to the rights of our citizens in the prize courts established in the West India islands. Should the British government be unwilling to enter into a stipulated provision, you may, perhaps, obtain an order to the governours for the purpose. Or if consuls be objected to altogether, it is desirable that agents may be admitted, if no where else, at least in the islands where the vice-admiralty courts are established.
It has been intimated that the articles, as standing in the different columns, are to be considered, the one as the offer to be made, the other as the ultimatum to be required. This is, however, not to be taken too strictly; it being impossible to foresee the turns and the combinations which may present themselves in the course of the negotiation. The essential objects for the United States are the suppression of impressments, and the definition of blockades. Next to these in importance are the reduction of the list of contraband, and the enlargement of our neutral trade. with hostile colonies. Whilst you keep in view, therefore, those objects, the two last as highly important, and the two first as absolutely indispensable, your discretion, in which the President places great confidence, must guide you in all that relates to the inferior ones.
With sentiments of great respect and esteem, I remain, sir, your most obedient servant,
Mr. Madison to Mr. Monroe. Department of State, Feb. 14, 1804.
SIR, You will herewith receive the ratification, by the President and Senate, of the convention with the British government signed on the 12th of May, 1803, with an exception of the 5th article. Should the British government accede to this change in the instrument, you will proceed to an exchange of ratifications, and transmit the one received without delay, in order that the proper steps may be taken for carrying the convention into effect.
same considerations, which led to the arrangements settled by it, urge a prompt execution of them, it may be expected that the steps depending on that government will be hastened. As far as your exhortations may be requisite, you will of course apply them.
The objection to the fifth article appears to have arisen from the posteriority of the signature and ratification of this convention to those of the last convention with France, ceding Louisiana to the United States, and from a presumption that the line to be run in pursuance of the fifth article might thence be found or alleged to abridge the northern extent of that acquisition.
It may reasonably be expected, that the British government will make no difficulty in concurring in this alteration, because,
First. It would be unreasonable that any advantage against the United States should be constructively authorized by the posteriority of the dates in question, the instructions given to enter into the convention, and the understanding of the parties at the time of signing it, having no reference whatever to any territorial rights of the United States acquired by the previous convention with France, but referring merely to the territorial rights as understood at the date of the instructions for and signature of the British convention. The copy of a letter from Mr. King, hereto annexed, is precise and conclusive on this subject.
Secondly. If the fifth article be expunged, the north boundary of Louisiana will, as is reasonable, remain the same in the hands of the United States as it was in the hands of France, and may be adjusted and established according to the principles and authorities, which would in that case have been applicable.
Thirdly. There is reason to believe that the boundary between Louisiana and the British territories north of it were actually fixed by commissioners appointed under the treaty of Utrecht, and that this boundary was to run from the Lake of the Woods westwardly in lat. 49, in which case the fifth article would be nugatory, as the line from the Lake of the Woods to the nearest source of the Mississippi, would run through territory which on both sides of the line would belong to the United States. Annexed is
a paper stating the authority on which the decision of the commissioners under the treaty of Utrecht rests, and the reasoning opposed to the construction making the 49th deg. of latitude the northern boundary of Louisiana, with marginal notes in support of that construction. This paper will put you more readily into possession of the subject, as it may enter into your discussions with the British government. But you will perceive the necessity of recurring to the proceedings of the commissioners, as the source of authentick information. These are not within our reach here, and it must consequently be left to your own researches and judgment to determine the proper use to be made of them.
Fourthly. Laying aside, however, all the objections to the fifth article, the proper extension of a dividing line in that quarter will be equally open for friendly negotiation after, as without, agreeing to the other parts of the convention; and considering the remoteness of the time at which such a line will become actually necessary, the postponement of it is of little or no consequence. The truth is that the British government seemed at one time to favour this delay, and the instructions given by the United States readily acquiesced in it. The annexed extracts from Mr. King's and Mr. Gore's letters will, with that from the department of state, explain this observation.
The fourth article of the convention provides, that the commissioners shall be respectively paid in such manner as shall be agreed between the two parties, such agreement to be settled at the time of the exchange of ratifications. It has been supposed that the compensation allowed to the commissioners under the treaty of amity, commerce, and navigation, who settled the St. Croix boundary, would be satisfactory to the British government; and upon this idea the estimate, of which a copy is enclosed, was framed as the basis of an appropriation to be asked from Congress. The President authorizes you, therefore, to agree to the sum mentioned therein, viz. 4,444 dollars and 44 cents, to be paid by each government to the commissioner appointed by itself, the same sum being allowed the third commissioner, to be paid to him in equal portions by the two governments. Should, however, the British government insist upon a variation of the compensation from the sum