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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; vould violate the rights of the individuals under the protection of both; and expose their native citizens to ali 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 Hawkesbury, in the year 1802, for settling the question of impressments. On that occasion, and under that adminis. tration, the British principle was fairly renounced in favour of the right of our flag : lord Hawkesbury 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 enclose another extract from Mr. King's letter, giving an account of that transaction.
In the note of November 8, 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 tenour and their sanctions. In case an informal arrangement should be substituted for a reguJar stipulation, it may reasonably be expected from the candour of the British government, that the instructions on which we are to rely, should be communicated to you.
Colonial Trade. 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 colo
nies, 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 ; à 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 cdition of Brown's cases in Parliament, p. 328, Hendricks and others against Cunningham and others, where it was expressly admitted by the house of lords, in a war case before them, that“ 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 enclose one of November 14, which has just made its appearance in ours. As it relates to the present subject, it claims attention as a proof that all question 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 the innocence or ownership of the articles are questioned. The instruction may at least be considered as co-extensive in its favourable 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 topick 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 favouring the price of British and other colonial productions re-exported 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.
Blockades. 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 her 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 ves. sels, 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 effcctual prohi
bition of British ships of war from repeating the irregularities which have so much vexed our commerce, and provoked the publick resentment; and against which an article in your instructions emphatically provides. It can. not be too carnestly 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 more 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 national 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 a 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
of which several copies were forwarded in October. They will confirm to you the impolicy, as explained in your instructions, of putting the trade under the regulations 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
remarks, can be obtained.
Indemnifications. 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 recognised 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 attained 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 honour to be, &c.
From Mr. Madison 10 Messrs. Monroe and Pinkney. De
partment of State, March 18, 1807. GentleMEN,—Your despatch of January 3, with the treaty, signed December 31, with the British commissioners, were safely delivered on the 15th inst. Your letter of December 27, notifying the approach of that cvent, had been previously received in time to be included in a communication of the President lo Congress, then in session. A copy of the insirument in its actual form, with the declaration of the British commissioners on sign