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 comprise 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 controlling 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 December, 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 show 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.

2d. 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 re-exportation. of colonial produce, and to European articles, the supplies to the colonial market.

3d. The change made by the third 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 and 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 alternative as is presented by the declaratory note on the subject of the French decree of November 21st, 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, through Mr. King, in the year 1801.

According to that principle and those adjudications, the indirect trade through our neutral ports was as free from enemy colonies to every other part of the world as to Europe; and as free to such colonies in the articles of all other countries, as in European articles.

According to the tenour of the article, and the general prohibitory principle assumed by Great Britain, to which it has an implied reference, the productions both of the continental and of the insular colonies in America can no longer be re-exported as heretofore to any part of Asia or Africa, or even of America, and consequently can no longer enter into the trades carried on from the United States to the Asiatic or African shores of the Mediterranean, nor

to any of the places beyond the Cape of Good Hope, offering a market for them; nor finally to any other enemy or neutral colonies in this quarter, to which in reason, as well as according to practice, they ought to be as re-exportable as to the countries in Europe to which such colonies belong..

In like manner the importations from beyond the Cape of Good Hope, more especially the cotton fabricks of China. and India, can no longer be sent as heretofore to the West Indies or the Spanish Main, where they not only now yield a great profit to our merchants, but being mixed in cargoes with the produce of this country, facilitate and encourage the trade in the latter. Besides the effect of the article in abridging so materially our valuable commerce, the distinction which it introduces between the manufactures of Europe, and those of China and India, is chargeable with evils of another sort. In many cases it might not be easy to pronounce on the real origin of the articles. It is not improbable, that supposititious attempts also, might be occasionally made by the least scrupulous traders. With such pretexts as these, arguing from the abuse made of less plausible ones, the interruptions and vexations of our trade by the greedy cruisers which swarm on the ocean could not fail to be augmented in a degree not a little enforcing the objection to the article in its pre

sent form.

As the prohibitory principle of Great Britain does not extend to the case of a colonial trade usually open, and no judicial decision has professedly applied the principle to such a trade, it is a reasonable inference, that the article will not be so construed as to interfere with the trade of that description between enemy colonies beyond the Cape of Good Hope and other countries and ports in that quar

ter.

But on the other hand, it may not be amiss to guard against a construction of the article that would abolish the rule observed in the prize courts of Great Britain, which, in the case of the eastern colonies, presumes that these ports were always open, and thereby throws on the captors, instead of the claimants, the disadvantage of proving the fact in question.

It is observable, that the duration of this article is limited to the period of the present hostilities, whilst the others are to be in force for ten years; so that if there

should be a peace and a renewal of the war, as is very possible, within the latter period, the onerous parts of the bargain would survive a part, in consideration of which they were assumed. Justice and reciprocity evidently require that the more important articles of the treaty should be regarded as conditions of each other, and therefore that they should be co-durable. In this point of view, you will bring the subject under reconsideration; and without making this particular amendment an ultimatum, press it with all the force which it merits. This amendment ought to be the less resisted on the British side, as it would still leave to that side an advantage resulting from the nature of the two great objects to be attained by the United States, namely, the immunity of cur crews, and of our neutral commerce, which are connected with a state of war only; whereas the stipulations valued by Great Britain will operate constantly throughout the period of the treaty, as well in a state of peace as in a state of war.

Whatever term may finally be settled for the continuance of this regulation, it will be proper to retain the clause which saves the right involved in the article from any constructive abandonment or abridgment. Even the temporary modification of the right, as it will stand without the inadmissible restrictions now in the article, is considered as an important sacrifice on the part of the United States to their desire of friendly adjustment with Great Britain. To an admission of the article with those restrictions, the President prefers the footing promised to the colonial trade by the deference of Great Britain for the maritime powers, and by an unfettered right of the United States to adapt their regulations to the course which her policy may take.

That the operation of the article in its present form might be more fully understood, it was thought proper to avail the publick of the ideas of a citizen of great intelligence and experience with respect to our commerce. His remarks, contained in a paper here with enclosed, afford a valuable elucidation of the subject. They will suggest at the same time, some explanatory precautions worthy of attention, particularly in the case of articles, which, paying no duty on importation into the United States, do not fall under the regulation of drawbacks; and in the case of securing by bond, instead of actually paying the duties

allowed to be drawn back. It appears by the observations in your letter of January 3d, that the bond was understood, as it surely ought to be, equivalent to actual payment. But this is a point so material, that it cannot be too explicitly guarded against the misinterpretation of interested cruisers, and the ignorance or perverseness of inferior courts.

Third. The necessity of the change required in the third article, in order to secure an indirect, as well as a direct trade to the British East Indies, will be fully explained by the observations which have been obtained from several of our best informed citizens on that subject, and which are herewith enclosed.

As this latitude of intercourse was stipulated by the 13th article of the treaty of 1794, as judicially expounded by British superior courts; as it was enjoyed by the United States prior to that epoch, and has been always enjoyed, both before and since, by other friendly nations; and as there is reason to believe that the British government has been at all times ready, since the article expired, to renew it in its original form, it may justly be expected that the inserted innovation will not be insisted on. Should the expectation fail, the course preferred is to drop the article. altogether, leaving the trade on the general footing of the most favoured nation, or even trusting to the interest of Great Britain for such regulations as may correspond with that of the United States.

Should the negotiation take up the East India article of the treaty of 1794, you will find several amendments suggested in the extracts above referred to, some of which may be attempted with the greater chance of success, as they are harmless, if not favourable to the British system. To these suggestions may be added, a privilege to American vessels of touching at the Cape of Good Hope. The objection to such a stipulation, under the present defeasible title of Great Britain to the Cape, may be obviated by a descriptive provision, not necessarily applicable to it, in the event of its restitution by a treaty of peace, but embracing it, in case the British title should be established by that event. It may be agreed that vessels of the United States may touch for refreshment at all the ports and places in the possession of Great Britain on or in the African or Asiatick seas."

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