The convention defined this; and, in reality, obtained all the United States at the time sought. Provisions were exempted from the list of contraband. This was a great improve

ment on the treaty of '94. On the right of search and impressment, no stipulations, at all effectual, were made. Our. government, in their instructions, consented to the right of search, but with such modifications as exist in conventions with other states; that is, that the neutral should never be. compelled to send his boat on board an armed vessel, nor be required to assist the belligerent in the very detention, from which he is suffering. It is sufficient, that he should be detained, and it is more convenient for the belligerent to send, as he is supposed to be prepared for these purposes. It is, also, in many cases exceedingly dangerous for the neutral to undertake that business; the crew being often small, and the boats bad. The papers of the vessel, and the lives of the men, are, in this way, put in jeopardy.

The President, without consulting the Senate, refused to ratify this treaty, principally because the instrument did not contain a provision against impressments on the high seas. It is certainly now a subject of great doubt whether this proceeding was judicious. The treaty gave a permanent, and, in most respects, a satisfactory character to American commerce, for ten years at least, in Europe, and in the East and West Indies; and, compared with previous and subsequent treaties, is probably the most favourable arrangement ever made with Great Britain. It was concluded with lords Holland and Auckland, under the Grenville administration, of which Mr. Fox was a principal member till his death. This country could not have, expected to obtain such advantageous terms from any other ministry. The parties had laboured with great zeal upon the points in dispute; and they brought to the consideration of the subject uncommon talents and an unusual portion of experience. It cannot be questioned but that they entered into the undertaking with a sincere desire to conduct a long, irritating, and unprofitable discussion to an honourable conclusion.

This treaty is another of the illustrations furnished by

the diplomatic history of the country, of the impracticability of obtaining from England an acknowledgment of the general laws of nations, touching the right of search and impressment, as well as the difficulty of making any satisfactory arrangement concerning the West India trade. It is quite evident, that England would not have peaceably renounced her construction of maritime law, and if this country had insisted on it as indispensable, a war would have proved inevitable. But this, America never has done; the war of 1812 was not declared on these grounds. One administration refused to sign a convention, in which there was no stipulation on the subject of impressment; but we are not aware that the denial of this right, on the part of England, was ever made by America a condition of peace or war; it has always been considered matter of negotiation. If the country was not prepared to proceed to hostilities for the most just protection of the rights of her own seamen, it is not easy to understand the policy that should dictate the rejection of a treaty, in other respects advantageous, which was simply silent on this topic. The government could have seen nothing in the situation of England, that promised a ' relaxation of the principle; and Messrs. Monroe and Pinkney were convinced, it was impossible to make any satisfactory arrangement on this head.

England has ever insisted, with remarkable zeal, on the abstract right of impressment, not so much, perhaps, on account of the number of her seamen in foreign service, as to prevent them from leaving her own. She has appeared to think there was a great demand for her men in the United States, and that American commerce offered uncommon temptations. On the other hand, the undoubted truth is, that the population of America has, generally speaking, produced sailors fully equal to the demand. Foreign seamen have never been preferred in any of her ports; and if any preference was shown, it was certainly rather for men from the Baltic than for British seamen. A large supply of foreign sailors could not have found employment either in the public or private service of this country. The American

navy, in times of peace, comparatively absorbing few sailors, the demand was altogether for the merchant service. That demand was uniform, and the increase regular, for great numbers of men are never unexpectedly wanted on sudden emergencies, as in England. The native population of the country, therefore, not only supplied the demand, but easily kept pace with the increase, a remark, which, we believe, admits of but few exceptions till the peace of 1814, 15.

This is one of the earliest species of employment, in which the Americans made themselves known. While under the crown, American seamen were subject to all the liabilities of native born subjects, and many were impressed, particularly during Lord Chatham's wars with France. It was well known to the American colonial or provincial governments, that the practice of granting powers to the admiralty to issue press warrants was considered legal and constitutional in the British courts. This power, it is true, has been constantly disputed; and, till the time of the celebrated argument of Sir Michael Foster, in 1743, was submitted to with very great reluctance. Mr. Justice Foster considers the practice to be of ancient date, to have been "uniformly continued to the present time, and, on that ground, to have now become a part of the common law. No statute has, however, expressely declared this power to be in the crown. But it is implied in a great number." This circumstance formerly gave rise to much embarrassment and difficulty. But the legality of press warrants is now established; and as a number of decisions have been made concerning them, it is not likely that any doubt, as to their legality, could exist in a court of justice. Indeed, we have the following words of lord Mansfield on this point:-"The power of pressing is founded upon immemorial usage allowed for ages. If not, it can have no ground to stand upon, nor can it be vindicated or justified by any reason but the safety of the state. The practice is deduced from that trite maxim of the constitutional law of England, that private mischief had better be submitted to, than that public detriment and inconvenience should ensue. Though it be a legal power, it may,

like many others, be abused in the exercise of it." As an authority of a character entirely different from that of lord Mansfield, we shall quote the words of lord Chatham. This is an extract from a remarkable speech he made on the subject of the Faulkland Islands, in November '70. Lord Chatham was at the time in the opposition:

"My Lords, the subject on which I am speaking, seems to call upon me, and I willingly take this occasion to declare my opinion upon a question, on which much wicked pains have been employed to disturb the minds of the people, and to distress government. My opinion may not be very popular, neither am I running the race of popularity. I am, myself, clearly convinced, and I believe every man, who knows any thing of the English navy, will acknowledge that, without impressing, it is impossible to equip a respectable fleet within the time in which such armaments are usually wanted. If this fact be admitted, and if the necessity of arming upon a sudden emergency should appear incontrovertible, what shall we think of those men, who, in the moment of danger, would stop the great defence of their country. Upon whatever principle they may act, the act itself is more than faction-it is labouring to cut off the right hand of the community. I wholly condemn their conduct, and am ready to support any motion that may be made for bringing those aldermen, who have endeavoured to stop the execution of the admiralty warrants, to the bar of this house. My Lords, I do not rest my opinion upon necessity. I am satisfied, that the power of impressing is founded upon uninterrupted usage. It is the Consuetudo Regni, and part of the common law prerogative of the crown."*

By the laws of nations and the tenor of treaties, a belligerent has a right, only, to take out of a neutral vessel enemies engaged in military service; no where has he a right to take out his own subjects. The municipal law, that is the law of allegiance of a country, cannot extend to the high seas-if so, it would apply in peace as well as in war, and

* See, also, a passage in Junius (vol. ii. p. 351. Woodfall's edition) written about the same time, together with the opinions of Messrs. Wedderburn, Glyn and Dunning.

to property as well as to persons.

If a sovereign has once

a right to the persons of his subjects on the high seas, he always has that right. He may want their services as well against an internal as an external enemy, and for other purposes than those of war. If he has a right to take, he has, also, a right to search. But on the occasion of every war, in which England has been engaged, American seamen have been visited with the arbitrary and pernicious effects of this system.* It is true it is a municipal regulation of a foreign nation; but in practice it affects the neutral more deeply than the subjects of a government, from which the law emanates. A great many projects to remedy the evil have been conceived; but none have been satisfactory to both parties, as America would not consent to any arrangement, that should not secure her citizens from impressment on the high seas. Mr. King in 1803, was on the eve of concluding an advantageous convention with lord St. Vincent, the first lord of the admiralty. It was in these words:" No seaman or seafaring person shall upon the high seas, and without the jurisdiction of either party, be demanded, or taken out of any ship or vessel belonging to the citizens, or subjects of one of the parties, by the public or private armed ships, or men of war belonging to or in the service of the other party; and strict orders shall be given for the due observance of this engagement."+ As the United States did not object that their vessels should be visited in port under the protection of the consul, this article afforded all necessary security. Lord St. Vincent ultimately refused to sign, on the pretext,

* We are aware that the evil is one of long standing between the governments. Seamen were impressed as early as 1792 on the coast of Africa, and in British ports in the first year of the war between England and France.

† June 1797 to 1801-2059 applications for seamen impressed including many made previous to those years by Mr. King and Mr. Pinkney-102 only British subjects-less than 1-20th of the whole impressed-1142 discharged as not being British subjects-more than one half-805 for further proof-with a strong presumption that the whole, or a greater part, at least, were aliens.