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ON ARTICLE VII. This article is due, if not to all neutrals, at least to the United States, who are distinguished by the distance of their situation. Decisions of the British court of admiralty have so far respected this peculiarity as to admit a want of information as a plea for going to a blockaded port, where such a plea would be refused to less remote countries. But more than this may fairly be claimed. A vessel, knowing that a particular blockade existed two months before, may well conjecture that before her arrival at the port, which will require two months more, the blockade will have ceased; and may accordingly clear and steer for such a port with an honest intention, in case of finding on her approach the fact otherwise, not to attempt an unlawful entrance. To condemn vessels under such circumstances, would be manifestly unjust; and to restrain them from a distant voyage to a port once in a state of blockade, until information of a change shall have travelled a like distance, must produce a delay and uncertainty little short of an absolute prohibition of the commerce. To require them even to go out of their course, to seek at other ports information on the subject, would be an unreasonable imposition. The British government can have little objection to this article, after defining blockades as is agreed with Russia, and as is here proposed; since our distance is of itself a security against any concert with the blockaded for surreptitious entries, which might be attempted by nearer adventurers; and since, in the case of blockades by a force actually present, a preliminary notice may be required without impairing their efficacy, as might be the case with blockades, such as the preceding article guards against.
The only difference between the articles, as standing in the different columns, consists in the preamble to that which is to be admitted, if the proposition of the other should not succeed. The article is preferable without the recital of any reason particular to the United States, because, as a naked stipulation, it strengthens instead of weakening a general principle friendly to neutral and pacifick nations.
ON ARTICLES VIII, .IX AND X. These are articles which are known to have been long wished and contemplated on the part of Great Britain, and together with the justice, and in many views the expedieney to Great Britain herself of the articles desired on our part, may induce her to accede to the whole. The articles are in substance the same with a project offered to the American administration in the year 1800 by Mr. Liston, who appears to have borrowed it from corresponding stipulations in the convention between the United States and France in ihe ycar
The project was at that time dropped, owing perhaps, in part, to the change in the head of the department of state, between whom and Mr. Liston it had been discussed, and, principally, to the difficulty of combining with it proper stipulations against British impressments on the high scas. Without such an equivalent, the project had little to recominend it to the United States. Considered by itself, it was too the less admissible, as one of its articles, under some obscurity of expression, was thought to favour the British pretension to impress British seamen from American vessels on the high seas.
A copy of this document is enclosed, as it may be not without use in showing the ideas of the British government at that time, so far at least as its minister here was an organ of them.
The terms, in which these articles are to be proposed, difler but slightly from those in which they may be admitted. In the former, the delivery of deserters is contined to soldiers and seamen, without requiring a delivery of officers, whose desertion will not be from the service of their country, but on account of offences for which it might sometimes be more agreeable to the United States to be unbound to give them up for trial and punishment. At the same time this consideration ought not to be a bar to an arrangement, which, in its general character, will be so important to the interests of the United States.
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 one.
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 bf 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 here with receive the ratification, by thę 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 re
be taken for carrying the convention into effect. As the VOL. VI.