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