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Additional observations on the
American Treaty,
London, 1808.

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193 1

ADDITIONAL OBSERVATIONS
ON THE
•dMERI-C+£'JV TREATY,
WITH
SOME REMARKS OK
MR. BARING'S PAMPHLET;
BEING
A /CONTINUATION OF THE LETTERS OF
DECIUS.
to Which is added
AN APPENDIX OF STATE PAPERS,
INCLUDING THE TREATY.

By THOMAS PEREGRINE COURTENAY> , Es«.

LONDON:
Sold by J. £upd, No. \00, Pall-Mall, and M««i.
RicHARDSoar, Cornhiil.
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Printed b> Cox, Son, andBaylb,
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ADVERTISEMENT.

Many persons who read the former Letters
of Decius, expressed a wish that the Treaty,
which was the subject of them, should be added
to the pamphlet.
A complete Copy of that document, ac
companied with the correspondence respecting
it, having been laid before Parliament, it has
been thought right to publish the whole at
length. Neither the Treaty, nor the correspon
dence, have hitherto been printed, except for
the use of the Members of Parliament.
In publishing these papers, it was the in
tention of the author to prefix a few additional
observations on the subjects referred to therein ;
but this intention would probably have been
dropped had he foreseen, before it was too late tb
a 2

IV

retract, that his second pamphlet, intended only
as a supplement to the first, would have ex*
ceeded it ^ in bulk. Should this apology be
deemed insufficient, he fears that he cannot
offer one which will be more satisfactory.
The former observations having been ori
ginally published in the form of Letters, to
the Editor of the Sun, the same form has beenT
here preserved,
Lincoln' s-Inn Fields^
1th April, 1808.

CONTENTS.

ADDITIONAL LETTERS.
Letter Page;
Xll. Motives.— Examination of Mr. Baring's comments
upon the rule of 1756, and the eleventh article  1
XIII. Discussions relative to the impressment of seamen con
sidered $_"-Mr. Jefferson's proposed.alterations. ...... 51
XIV. The Note of 31st December, 1806, and Order in
Council of Jrth January, 180/, further considered ;—
Concluding remarks. . . ._  66

APPENDIX (A.)
Order in Council, dated 7th January, 1807. ....... i
APPENDIX (B.)
Papers presented to Parliament in February, 1808.
No. 1. Dispatch from Lord Viscount Howick to the
Honourable David Ekskine, dated Downing
Street, 8th January, 1807.  •  , • ii
No- 2. Note from Lords Holland arid Auckland to
Messrs. Monroe and Pinckney  ,  iv

VI Page
No. 3. Extract bf a Dispatch from the Honourable, David
Erskine to Lord Viscount HowicK, dated
. Washington, March 30th, 1807..  '. .  vi
inclosing,
Letter from the Secretary of State of the United
States, dated 20th March, 1807  '.  ib.
No. 4. Dispatch from the Honourable David Erskine to
Lord Viscount Howick, dated Washington, 31st
March, 1807  •  •  viii
inclosing, ;.
Letter from Mr. Madison, dated 29th March,
1 807  ik
APPENDIX (C.)
Further Papers presented to Parliament in February
1808.
Note from Messrs Monroe and Pinckney to Mr.
-Secretary Canning, dated London 24th July,
1807.;  :..  , x
inclosing,
1 . Copy of the Treaty of Amity, Commerce and Navi
gation between his Majesty and the United States'
of America, concluded and signed on the 31st
December, 1806, distinguishing the alterations
proposed by the President of the United States,
, and the variations from. the Treaty of 1794  xiv
2. NotefrgmMessrs.MoNRoE and Pinckney to Lords
Holland and Auckland, dated London, August
20tb, 1808  x]t
Letter, from Anthony Merry Esq. to the Secretary
' of State of the United States, dated Washington,
April 12th,. 1804, referred to in the preceding
note-  •_'•¦.  xlvi

vu Page
Letter from Evan Nepean,Esq. to George Hammond,
Esq. dated Admiralty Office, 5 th January, 1804,
referred to in the preceding note and letter  xlvi
3. Note from Lords Holland and Auckland to
Messrs. Monroe and Pinckney, dated Holland
House, November 8 th, 1 805   *.'.  xlvii
4. Letter from Messrs. Monroe and Pinckney to
Lord Viscount Howick, dated London, 14th
March, 1807  xlviii
No. 2. Letter from Mr. Secretary Canning to Lords Hol-
land and Auckland, dated 25th July, I.807.. . . ib.
No. 3. Letter from Lords Holland and Auckland to Mr.
Secretary Canning, dated July 27th, I807.... xlix
No. 4. Letter from Mr. Secretary Canning to Lords Hol
land and Auckland, dated August -6th, I8O7. . I
No. 5. Letter from Lords Holland and Auckland to Mr.
Secretary Canning, dated August 10th, I807. .. Ii
No. 6. Letter from Mesers. Monroe and Pinckney to
— Mr. Secretary Canning, dated October 18th,
, 1807..  K»
No. 7. Letter from Mr. Secretary Canning to, Messrs.
Monroe and Pinckney, dated October 22d,
1807  ••   li'i
•No. 8. Note from Mi . Secretary Canning to Messrs. Mon
roe and Pinckney, dated October 22d, 1807. . liv
APPENDIX (D.)
Extract from the.Message from the' President ofthe
Senate and House of Representatives of the Uni- /
ted States, dated 27th October, 1807  • M-

rin Page
APPENDIX (E.)
DENMARK.
No. 1 . Translation of a Notefrom Mr. Rist to Lord Viscount
Howick, dated 9th March, 1807  'h*.
No. 2., Note from Lord Viscount Howie*, to Mr.Rist, dated
March 17th, 1807 . v  ,  Ixiv

OBSERVATIONS, SCc. £{c.

LETTER XII.

SIR,
The Treaty, which was the subject of discus
sion in my former Letters, has now been laid;
before Parliament, accompanied with docu
ments illustrating the late negociation with
America. It will be found," upon a reference to 'the
Treaty which I subjoin,* that the statement of
its provisions, upon which I founded my ob
servations, was in every point of the smallest
importance perfectly correct.
Being enabled, however, to accompany
the Treaty with the alterations propose^ by

Appendix, p. xiv.

2
Mr. Jefferson,* I have thought k useful to
point out, likewise, the instances in which the
projected Treaty differed from that concluded in
1794. In publishing these papers, I lake the op
portunity of illustrating, from documents which
have since been published, the ^conduct of the
late ministers on several points connected with
our former discussion, and of observing upon
some statements which have been made in a very
popular pamphlet,^- in relation to the same to
pics. I have no intention of answering Mr. Ba
ring : I am, on the contrary, extremely anxious
to separate the discusssion which he has, un
dertaken from that which is immediately be
fore us. His Inquiry occupies a very wide field,-—-
the conduct of Great Britain towards Ame-

"* A doubt bas been started,, whether these alterations were
actually proposed by the~ President, or inserted by the American
ministers in London ; but the note of the latter, dated 24th July,
1807 (Appendix, p. x.) expressly speaks ot the alterations as
those " which the instrument is deemed by the President to re
quire."' ,
, t "Ah Inquiry into the Causes and Consequences of the
Orders in Council, and an Examination of the Conduct of Great
BritatnTowards the Neutral Commerce of America : by Alexan-
er Baring, Esq. M. P."

2ht objects of negociation, I endeavoured to
prove, that they " pursued a course of mea
sures precisely calculated neithei' to benefit
Great Britain nor to conciliate America*:"
That u their measure Was radically vicious,
and inadequate to any purpose that could be in-"
tended-f- ;" — " Vexations enough to conti
nue the complaints of America, but too weak
to secure the interest of Britain^."
Of liberality in our commercial policy,
I maintained the general . principle, and ap
proved of its application to America. || For
what reason did I object so strongly as I did to
thecontinual postponements and procrastinations,
and references to future discussions, and care
less renewals of former articles without examn
ning their application or* effect? Was it only
that I conceived that we had omitted stipulations
advantageous to Britain ?-*-Certainly not ; the
postponement was generally in our favour. I
objected to the indecisive conduct of our minis
ters, because, I thought, with Mr. Monroe, that
" with a view to perpetuate the friendship of
the two nations, no unnecessary cause of collision
should be left open ;"§ because I was
convinced that in this conduct, we were quiets.
ing the/sea with oil, and merely forcing nature
into'a temporary and deceitful calm.
I repeat these observations, perhaps a little
out of place, in order to introduce my remarks
* P. 4a. . f P. 69. i P. 69. || P. 67. , § P. 72.

Rica, from 1793 to 1807. Our discussion,, it
must be recollected, embraces only the merits
of the Treaty of 1806, and the note which
accompanied its signature; in which latter
topic is involved, a consideration, of the order
Of the 7th of January, 1807*, being the only
measure which the late ministers adopted in
consequence of the proceeding alluded to in
the note. In pursuing the inquiry into these to
pics, 1 am willing to reckon, among the ob
jects of the utmost importance, the obtaining
the goodwill or friendship of America, or what
is commonly called conciliation.
Attempts have been made, to reduce the
whole subject of our disputes with America to
this simple point — whether or not the concilia
tion* of the United States is, abstractedly,
a desirable object ? Now, I am not only willing
to concede that point, but very anxious strongly
to urge it : I do not charge the ministers with
imprudence because they made concessions to
America, but because they made useless' con
cessions ; because, in conceding too much for
-Britain, .they conceded too little for America ;
because they so managed their concessions as to
destroy their effect; — -because, their avowed ob
ject being to conciliate, they produced nothing
but irritation and disgust.
In one, particularly, of the most import-
* See Appendix A.

upon Mr. Baring's pamphlet. Ift that work the
importance of cultivating a good understanding
with America, and of encouraging^ her torn-.
merce "with oUr enemies is enforced with great
ability ; perhaps its facts and reasonings may
have a just weight in directing opinions as to
the policy of pur markiraie t restrictions, as well
ancient as of recent adajjuon ; bM if I have
shewn satisfactorily, as I conceive myself i6
have done, that -the late, ministers did not suc
cessfully cultivate that. good understanding ; 'and
if I have shewn that those ministers retained
enough of restriction, to prove that the opinion
upon which they acted, 'was directly contrary to
that of Mjf. Baring ; swoiliay adopt every ar
gument in his book, and still 'retain an unfa-
voui^able'sense of the comkiietiof his-Wiefldsi
r,, ¦:¦'...::* -. :<: /';^-^^
I apply these observations morfe^artidiiM-'
ly to the eleventh article. , It is true that Mr.
Baring mentioning!, , npcMerikally, this1 provision,
speaks of it, in terms ;of approbation, ^'but his
approbation is so qualified as to do! away the
favourable effect, of his opinion ; he 'states as a
reason for retaining so iriuch <®f the reslrictiori
as is retained, the (necessity of ¦ " n9Aih'taining
the conduct of 'one jaflrninbwatfon even by 'their
opponents,""}- Gn. the', fallacy of this defence
{if, indeed, it be not sufficiently obvious) I shall

* P. |)8, t Ib!l3-'

s
observe hereafter. Meanwhile it will not be
difficult to collect, from Mr. Baring's work,
the declaration of opinions decidedly hos
tile to the eleventh article.
His remarks, indeed, upon the nature and
application of the rule of 1756, are so inti
mately connected with; the observations which
I made upon it, that I think it right to exa
mine them in detail, before I proceed to apply
to the subject as elucidated by Mr. Baring, the
essential rules of investigation.
As, in pursuing this detail, I must un
avoidably consider the subject in various points
of view, I must beg you carefully to separate
those which arise incidentally, ftom such as'
bear immediately upon the main question-?r-the
merits of the Treaty.
Mr. Baring allows, that, " on principles
of general reason, mucji may be said in favour
of this limitation of neutral trade, especially
where operating materially on the result of the
war."* — " It is not," he says, " to the justice
of the principles of the rule of 1756* that I
object."-j- And, " we still held the direct trade
between the colonies and the mother country
of the enemy prohibited ; this prohibition is

* Inquiry, p. 32. -j- P. J?.

indeed so consonant with common seyise, that it
has seldom been disputed. Such a trade, were
it once established for neutral account, would
have a natural tendency to degenerate into
fraud, "f
Such are Mr. Baring's opinions upon the
general principle of the restriction ; but he ob
jects to the conduct of government in the ap
plication, on the ground, principally, that we
have % " uniformly yielded it, and, indeed,
forborne to claim it." And that " it is extremely
unjust to bring it forward now, merely because
the only remaining neutral has a defenceless
commerce." The expression " now " cannot
relate to the present time, or td the Treaty, be
cause Mr. Baring occupies much time in en
deavouring to prove, that what he conceives to
have been the new and rigorous assertion of the
rule, took place in 1 805 ; this argument can
therefore have no force, unless we put quite
out of the questibn as neutrals, Denmark*.
Prussia, the trading towns of the north of Ger*
many, "and others, who, in 1805, were not
engaged in war. But, waiving this considera
tion, it is surely obvious, that at no time would
the strict adherence to the rule "operate" so

-f P. 80.
r P. 77. Haw justly this is said will be seen hereafter,

8
'* materially on the result of the war," and
therefore! deserve "so- much to be said in its
favour," as when, England being. at war with
all. the possessors of West India colonies, a strict
prohibition of the export of their produce to
Europe would deprive her enemies altogether of
colonial produce.
It is not necessary- to follow Mr. Baring
through his statement ofthe progress' of the
restriction ; because he seems to be satisfied, with.
.the conduct of our prize courts towards the
conclusion of the late war, and till 1805 in
the present ; * in which year, as he con
tends, a change was effected, most unfavoura
ble to neutrals, by the decision of the Lords of
Appeal in the case of the Essex, to which I
alluded in a former letter, f
I -have there sufficiently explained the
circumstance of the report of Sir John Ni-
choll in 1801, which appears tp have misled
both the government and the merchants of
America as to the practice of our Prize Courts.
That the government, and merchants were
in point of fact so misled, as to believe that the
payment of duties in America was, in all cases,
to legalise a voyage from an hostile colony, I
am not, after what has been urged by Mr.

* P. 81. f Letter VI.

Baring and by the'American ministers, at all dis
posed to denyi At the same time, I can hard
ly demonstrate more clearly the absurdity of
this mistake than by taking Mr. Baring's own
lucid exposition of the principles, which pre
viously and subsequently to the transmission of
that Report, governed the decisions of our
Courts of Prize.
" It was not always easy to determine
whether a cargo was imported into America
with a bond-fide intention of making the most
of it there, or with a predetermination to re
export it; numerous instances of both kinds
must have occurred ; and we accordingly find
that when brought before our courts some were
condemned and some acquitted, accordingly
as the penetration of oiir judges enabled them
to discern the truth ; nor were these decisions
subjects of complaint or alarm."*
• Again, " in determining zvhether the se
cond voyage was a continuation of the first, an
Opinion could only be formed from the general
complexion of the case ; but the principal cir
cumstance which was relied upon, was the
landing of the cargo in America, and the pay
ment of the duties there. This was the princi-

* Inquiry, page 81.
C

io
pal presumptive ground, that the importer had
no predetermination to export ; but other minor
circumstances had also considerable weight.--
The goods being shipped by a purchaser in
America, and not by the original importer —
•their having remained some time in America,
or having been advertised for sale— the expor
tation not being by the same vessel in which
they Were imported — nor to the mother coun
try of the colony of which they were the pror
duce. These several considerations very properly
contributed towards forming a correct opinion
of the various cases ; and although no one in
particular was absolutely conclusive, yet that,
first mentioned, of the landing and payment of
the duties in America was generally considered
so, if not invalidated by any collateral circum
stances of suspicion."
Mr. Baring then quotes the following
judgement of Sir William Scott, in the case of
the Polly, Lasky. " There remains only the
" question of law which has been raised, whe-
" flier this is not such a trade as will fall under
" the principle that has been applied to the
*' interposition of neutrals in the colonial trade
" of the enemy? on which, it is said, that if

* Inquiry, page S3,

11
" an American is not allowed to carry "on this
" trade directly, neither can he be allowed to
" do it circuitously. An American has un-
" doubtedly a right to import the produce of
*' the Spanish colonies for his own use; and
" after it is imported bond-fide into his own
" country, he would be at liberty to carry
** them on to the general commerce of Europe.
" Ver-y different would such a case be 'from the
*' Dutch cases, in which there was an original
" contract from the beginning, and under a
** special Dutch licence, to go from Holland
" to Surinam, and to return again to Holland
" with a cargo of colonial produce. It is not
*' my business to say what is universally the
'•*' test of a bond-fide importation : it is argued*
" that it would not be sufficient that the duties
" should be paid, and that the cargo should be
** landed. If these criteria are not to be re.-
" sorted to, I should be at a loss to know what
" should be the best ; and I am strongly dis-
" posed to hold, that it would be sufficient that
the goods should be landed and the duties
paid. -". If it appears" to have been landed
and warehoused for a considerable time, it
does, I think, raise a forcible presumption
on that side ; and it throws it on the other
party to shew,„bow this could be merely in
sidious and -colourable. There is, I think*
Q2.

a

12
^ reason to believe that the sugar was a part and
" parcel of a cargo, said to have been brought
" from a Spanish colony in this vessel ; and if
" so, the very distribution of the remainder is,
t* some proof that they were not brought with
*' an intention only of t sending them on. Bui
«' I have, besides, positive proof in the affida->
*' vit of Mr. Asa Hooper, who swears that the
*' duties had been paid for them. Then the
" only difficulty that remains as to the cocoa ;
" and it is said by one of the witnesses, arid by
" one only, that it was transhipped from an-
" other vessel, and that it had been brought
" into America only ten days before. But
" although there is something of a difficulty
*'' arising on this small part of the cargo, yet,
" upon the whole, I cannot think- it weighty
" enough to induce me to send the case across
" the Atlantic for still farther proof as to the
" facts of this recent importation and trapship-
" ment, or of its having been transferred to
• e the present proprietors, or of its having been
" exported without a previous payment of im-
" port duties. If it had composed a larger part
'¦' of the cargo, I might have deemed it rea-
" sonable to have had somewhat more of satis-
" faction on some of these points, which do
" not appear with sufficient certainty to found
" any legal conclusion against it. It appears,
<' by the collector's certificate, that it had been
'? entered and imported, and I think th^

13
** these words are sufficient to answer the fair
" demands * of the Court." i
In reading these passages, it is really diffi
cult to distinguish between Mr. Baring, Sir
William Scott, and Sir William Grant;
whose demonstration ofthe fallacy of the idea as
to the supposed effect of the payment of duties,
I extracted in my sixth letter. — It is quite clear
that Mr. Baring's feeling as to the common sense
ofthe rule is entirely conformable to that which
dictated the judgments of the Lords, and ofthe
Judge pf the Admiralty. They all agree in
jtaking the payment of duties as a strong " pre-*

* It appears from every sentence of this judgment, that
these fair demands were, that the goods should have been bona-
"fide, imported into America for her own use, and not with an
intention of sending them in to any other market. The proof
pf this in the present case rested upon the collector's certificate
that the goods had been landed and the duties paid, which Sir
William Scott considered^s sufficient to raise a forcible presump
tion ir. favour, of the* genuineness of the importation, and to,
thro\y it upon the other party to shew that this was insidious
and colourable. It is clearly implied that if this could be shewn,
the effect of the payment of duties would be entirely done
?way- In the case of ,the Immanuel (November 7th, 1 799. 2 Ro-
binson, 203) Sic William speaks of the goods as being made by
importation " a part of the national stock of the country.''
Js it consistent with common sense, to apply "this expres
sion to the case of goods, which it has been at,no time intended
to dispose of in that country, and which have been merely
parried (hither for the purpose of -evading the restriction ?

1*
sumptive ground that the second voyage was not
a continuation of the first," and are equally
consistent in considering that circumstance as
" not absolutely conclusive, if invalidated hy any
collateral circumstances of suspicion" They
all agree in stating the question to be consider
ed as being, whether the goods .were to " be
come part of the national, stock of the country ;"
or " whether there wos a pre-determination to
export" — " whether there was a bond fide im
portation," — or* whether the goods " were nof
bought with an intention only of sending them
on ;" — whether goods Were " imported into
America for her own use," or whether there
may not have been, " a view of giving to the
voyage which it was resolved to continue, the
appearance of being broken by an importation
whicb it was resolved never to make,"
r I quote indifferently from the three ex
pounders of Admiralty law whom I have named
and if any man (not recollecting the words) will
tell me which mode of expression he conceives
to have been used by the advocates of the Ame
rican supposition, I am content to abandon the
argument, I am anxious to shew the coincidence, not
only between Mr. Baring and the Judges of the
Prize Courts, but between the Lords of Appeal,
and the Judge of the Admiralty, because Mr*
Baring has adopted and countenanced ideas

IS
upon this point most injurious to Sir WillIAM-
Scott. From my former letters, as well as from the
present quotations from Mr. Baring, it has suffi
ciently appeared that in all cases of vessels de
tained, under the circumstances of being des
tined to a port of Europe, with hostile colonial
produce, the inquiry in the Prize Courts uni
formly was, whether the goods had been ac
tually and bond fide imported into America,
without any intention of re-exportation. If it
appeared that the goods had been merely
carried round by an American port, in order
to evade the law which forbad the direct trade
with Europe, condemnation followed ; but if
it was shown that the goods had actually be
come " part of the stock of the country," that
the whole transaction which was in contempla
tion at the time of the shipment in the West
Indies, was finally detprmined at the American
port; and the subsequent shipment of the
same goods, for Europe was the effect of a new
resolution in the mind of the shipper, although
from change of circumstances, the vessel, the
cargo, and the shipper might be the same as
in the original voyage,— in such cases restitution
ensued. The reason of the whole of this course of
proceeding arises naturally out of the motives
which induced the relaxation, by which neu-

id
trals Were permitted to import the Colonial pro*
duce into their own country.* This permission
was granted, because we were Unwilling that the
pressure of our maritime force upon our ene
mies should preclude neutrals from purchasing
in the hostile market such portions of colonial
produce as might be necessary for their own con-*
sumption. We did not permit a Dane to import
such produce into Sweden, nor an American
into Prussia ; but we allowed each neutral to
import into his own country as mtich as it re
quired. It might sometimes happen, that, from
too general a speculation in this import trade in
any neutral country, the market of that coun->
try might be suddenly aud unexpectedly over
stocked. In this case, it might have been con*
sidered too harsh to prohibit the exportation of
the goods to another- market.
To ascertain exactly in what cases the re
exportation was thus occasioned, and in what
cases it was a part of the original motive of ship-,
ment in the colonies, or in Mr. Baring's words,
" whether a cargo was imported into America
with a bond fide intention of making the most
pf it there, or with a pre-determination to re-ex
port it," became, unavoidably, the object of in
quiry ; and we accordingly find that " when>

* See the instructions issued at the commencement of the pre*
seat war, in Letter VI., p. 29.

17

brought before our courts, some were con
demned, and soijie acquitted, accordingly
as the penetration of our judge enabled him to
discern the truth."

This truth was to be discovered by " the
general complexion of the case " — " no one
circumstance in particular was absolutely con
clusive,"— although "the payment of duties
was the principal presumptive ground that
the importer had no predetermination to ex
port,"

Such were the principles upon which Sir
William Scott proceeded in his administra-?
tion of the law. Mr. Baring seems to have a
very clear and just idea of the principles, and
to be quite aware of the true object of the in
vestigation. Throughout his -work he never mentions
the payment of duties as, in truth, and bona-
fide^ a sufficient "proof of the genuine importa
tion ; he says nothing to alter our opinion, that
jf the Prize Courts had adopted that circum
stance as decisive of the legality of the voyage,
according to the principles which he has so
clearly defined, they would have adopted a
fallacious test ;— yet lie designates the first case
jn which a condemnation took place, although
O

18
the duties appeared to have been paid,* as involv
ing , new principles, — a most material change,
and even a piece of *' cowardly injustice ! " f
Mr. Baring, Sir, still continuing to forget
that what he calls the " new principles " intro
duced in the case of the Essex, was merely the
application, to the circumstances of that case,
of the principles of which he had himself up
held the necessity and the justice ;— proceeds to
misrepresent the mode in which {he supposed
change took place,
" The new principles," it is said,! "were
introduced! by higher authority, to which the
inferior court conformed*". — As I trust I have
abundantly proved that the principles which
guided the judgment in the' case alluded to, had
been uniformly acted upon by Sir William
Scott, one circumstance only need be added,
in order to repel the insinuation here' conveyed.
The' case of the Essex was pot an appeal from
the High Court of Admiraltjr, of which Sir
William Scott is the judge, but' from a
Vice- Admiralty Court abroad ; the judge ofthe
Admiralty, I may undertake to say, entirely
concurred in the judgment of the Court of Ap-

* Or rather,' secured to be paid,-*—-* distinction which, \
shall notice presently. , '• *
t ?• 77. J P. 87,

19

peal, of which, except in cases of appeal froni
his own decrees, he is one of the most constant
and active members. Mr. Baring may possibly
have been led to his present mis-represeptation
by the report of Sir John Nicholl. I should
therefore add, that Sir William Scott knew
nothing of this paper, or of its communication
to Mr. King, till some years after the transac
tion had passed. Whatever weight, therefore,
may be attributed to this communication in a
political discussion, (and its effect shall be duly
appreciated hereafter)— in examining the consis
tency of the learned judge, the whole circum
stance is to be taken as absolutely nothing.
But, Mr. Baring's misrepresentations pro
ceed still farther ; and that which follows, I
apprehend, gives us an insight into the true cause
of all his errors,- — the want of distinction between
the political, the commercial, and the judicial
character. Not content with alledging a variation
of conduct in an eminent judge, he assigns
a cause for it, most injurious to the cha
racter of a distinguished statesman. "The
Comprehensive mind of Mr. Pitt, however,
was not to be deceived, he heard the com
plaints of the West India merchants ; he
read their great champion " War in Disguise,"
but his conduct remained unaltered, with the
exception of some increased vexations tn the
d2

20
American trade, which will be noticed in their
proper place."* When we come to this pro
per place we find, that "early in 1805, Mr.
Pitt determined to give an indirect relief by
throwing difficulties, in the way of the neutral,
whicb should satisfy the West India planters by
exercising the neutral freight and insurance." —
" These vexations Were to be produced by
starting some new principle of conduct towards
neutrals, and as remonstrances were naturally
expected, tlie public mind was prepared for the
discussion of them by inflammatory publica
tions. At this time, October 1805, the pamph
let *' War in Disguise " made its appearance,"
&c. &c. : however, " Mr. Pitt proceeded cau
tiously," — but he went so far with his supposed
object that « the rates of freight and insurance -f-
on American vessels, as reported by the West
India Committee, continued no longer than to
the alteration of our1 conduct towards America
in 1805." Mr. Baring then pioceeds to com
municate the nature of these alterations, and
refers us to the decision' of the case of the Essex,
May 1805. £
Now, in this statement there are two mis
takes ; the one, very gross but very trifling ;

* Page 7. t Page 79.
X Dr. Robinson dates it the 22d of June. Vol. V. p, 399.

21

the other, more plausible but exceedingly se
rious. It will be seen, that the famous pamphlet
of " War in Disguise " is brought forward in
page 7, as the cause of Mr. Pitt's determination
to encrease the vexations of America, and in
page 73, as one of the means employed to
prepare the public for them. The whole form
ation of the purpose in Mr. Pitt's mind being
quite imaginary, it is very unimportant to en
quire, whether Mr. Stephen's pamphlet was
its cause or its effect. The shortest answer,
however, tb these ingenious speculations upon
the origin and tendency ofthis celebrated pamph
let, rests upon the fact — that " War in Disguise"
"was published in the October of the same year,
in the June of which the Essex had been con-
denined on appeal.
But this is unimportant; not so, is the
charge against Mr. Pitt, of having, for com
mercial purposes, interfered witli the adminis
tration of justice in the Court of Prize,
Mr. Baring, is, in this instance, and indeed
throughout die whole of his pamphlet, inclined
to give much more importance to the com
plaints and the clamours of mercantile bodies,
than either belonged to them of right or was
' possessed in fact..

22
That any commercial consideration in
fluenced, even indirectly, the decisions of the
Court of Prize, Mr. Baring will find it much
easier to assert than to prove ; but that Mr. Pitt
interposed his influence as a minister, over the
judges of a court of law,* is an imputation
which ought by no means to have been ha
zarded. When Mr. Baring speaks ofthe " com
prehensive mind of Mr. Pitt" he carries with
him the sentiments of every reader of his work ;
— but few indeed are those, who would not
estimate higher even than his comprehensive
mind, the inflexible integrity of Mr. Pitt, — his
utter abhorrence of injustice, or iniquity, and
that loftiness of character which prompted him
always to vindicate his actions, uf on the mo
tives which actually produced them. He was
accustomed to bold- measures, he inherited the
principle of doing what he thought right, in
spite of opposition or of clamour. Had he de
termined therefore to recal the indulgences af
forded to the neutrals he would have followed,
his course in the preceding war; he would

* As a Privy Councillor, Mr. Pitt was undoubtedly a
member of the Court of Appeal, and occasionally sat in the
Court, though never, I believe, during his last administration j
he certainly had as little to do with the judgment in question as
Lord Spencer, Lord Grenville, General Fitzpatrick, or any other
person named in the Commission. — The original reference of the
Essex for further 'proof, which was to apply generally to the
nature of the importation, and not merely to the payment of
duties, took place in 1803, while Lord Sidraouth was First Lord
of the Treasury. ,

23
have varied the instructions to cruisers ; he
\youid have boldly altered the law, not wrested
it to his purpose, and he would have justified his
measures ip the face of his country and the
world. Had Mr. Baring sat in parliament with
Mr. Pitt, I feel convinced that he would
never have thus aspersed his character. Sir
Francis Baring was, always I believe, a po
litical opponent of Mr. Pitt ; to him, however,
I would appeal confidently on the improbability
of his son's charge. Sir Francis differed from
Mr. Pitt upon most essential points; and
ithought him, perhaps, in many, fundamentally
wrong, but never, I venture to assert, did he
trace ip his measures the species of failing,
which Mr. Baring has now discovered i
Let Mr. Baring imagine to himself, his
respected father accused of unfairness in his
dealings, and he may form an idea of the vir
tuous indignation with-, which Mr. Pitt, if
happily surviving, would have repelled his in
jurious aspersions.
Another class of misrepresentations still re
mains. They relate to the former practice in
regard to the rule of 1756. " When the prin
ciple of J756* was established, the language of
Lord Chatham was as bold as the measure it*
pelf; and Sir Joseph Yorke instead of search-

2,i
ipg for- a justification of the writers on the Law"
of Nations, frankly told the Dutch, " that his
Majesty could not otherwise get out of the war
with safety." * Had Mr. Baring proceeded a
little further in his examination of the menio?
rial to which he alludes, he would have found
a direct appeal not only to the justice of the
British claims, but to the former practice qf the
Dutch themselves, -j-
Equally incorrect is Mr.-, Baring's state?
nient of the proceedings respecting this rule, in
the last war; and here he is again inconsistent
with himself. "First," $ he says, *' it was vo
luntarily abandoned. ^Secondly, compensation

* Inquiry, page 105.
T " His Majesty is at war with the most Christian King,
lie cannot hope to get out of it with safety or obtain a speedy
and lasting peace, which is his Majesty's sole aim, if the Princes
who have declared themselves neuter, instead of -contenting
themselves with trading as usual, without any risk, assume a
right of carrying on that trade of the King's enemies,
which is not allowed them in time of peace. " T?he injus
tice of this proceeding is too apparent fo require more tq
be said on it; one may venture to appeal to your High Mighti^
nesses' own conduct in the like case. A trade of this
nature was never suffered by- you, and it hath been opposed by
the salus populi m all countries in like circumstances." Major
General Yorke's Memorial to the Deputies of the States General,
22d December 1758. In Annual Register for J 759, Stajs
Papers, page 205.

*

Inquiry, page 42.

25
was afterwards made for the consequences of
its temporary execution, by an act which stig
matizes that execution as illegal," Now, what
was voluntarily abandoned | For what was com
pensation made ? For the capture under the rule
of 1756* If Not so, if we are fo believe Mr. Ba
ring, who tells us that the Commissioners ap
pointed for this purpose * " awarded large sums
-to the claimants for losses sustained principally,
if not wholly, from the execution of the in
struction of ffih Novembei; 1793," which in
struction he has told us just before, -j- in some
respects, '* exceeded the rigour of the rule of
1756". There was no- attempt to determine to
what extent the neutral had a trade with the
enemy's colonies before ihe war, but the whole
was devoted to condemnation." %

* Inquiry, page 38. f P' 3&
% This is not entirely correct ; Mr. B. uses "lawful adju
dication " and *' cokdeyhnalion," as synonimous, whereas the
instruction only directed fhe cruisers to bring in all vessels .cir
cumstanced as is stated, for the determination of the Court of
Prize as to the liability to condemnation. The Courts of Vice
Admiralty were at this period very ill constituted .and were said
to have made many illegal condemnations j some of them per-
hapsfrom not, attending to this plain distinction^ but others from
more general causes. I take for granted thatMr. RARmG-lias ascer
tained that'the 'awards weremostly on account of captures under the
orderof.6thNovember, hut it no where appears that thpse .captures
were particularly referred to, either in the complaints of Ame
rica or in the 7th Article of the Treaty of },7-9^- No mention is
made of that order in Mr. lay's note to Lord Grenville, of 30th
July, J794, nor' in his Lordship's answer of 1st August, al-
< ' E

2$
Even, therefore," if we throw aside, as
Mr. Baring does, the consideration that the
majority of the Commissioners were Americans,
we shall be, satisfied, notwithstanding,, that it
was not for the execution, of the rule of 1756
that compensation was awarded by the treaty
of 1794-. Neither, then, if we attend to Mr. Ba
ring, was it the rule,of 1756 that we "volun
tarily abandoned" in January 1794, when so
much of the -instructions of the preceding year
was revoked, as prevented the importation of
colonial produce into the United States;— "an
indulgence, granted," according to Lord Gren
ville who was Secretary of State at the time,

-though these papers appear to have led to the insertion of the ar
ticle. [Debrett's State Papers, Vol. II. page 404.] The addi
tional instructions of 8th June, 1793, ordered the detention of
" all vessels loaded wholly or in part with corn, flour; or meal,
bound to any port in France, or any port occupied by the armies
of France," had been the subject of repeated remonstrance.
Having mentioned the irregular proceedings ofthe Courts of
Vice -Admiralty, I think it right to notice Mr. Taring's allusion
(p, 6g) to "the assertion of Lord Hawkesbuky in the House
of Commons, the 29th April, 1801, that of 318 appeals from
those Courts only 35 of the condemnations were confirmed at
japme," It would have tieen fair to have added, that great pains
were soon after taken (I believ6 effectually) to remedy these
abuses by the Act 41 Geo. III. cap. '96, and the consequent ap
pointment of eminent civilians as judges of those Courts.

27
" on account of the peculiarity of their local
situation." *

Should, therefore, the opinion of Mr.
Baring be rejected, and the order of 1793
allowed to be consistent with the rule of 1756,
we have Lord Grenville's authority for styl
ing the order of 1794, not an abandonment of
that rule, but a mere temporary relaxation of
its exercise.

The third allegation upon which Mr. Baring
founds his assertion ofthe uniform abandonment
ofthe rule of 1756, relates to the convention with
Russia, negociated by Lord St. Helen's in
1801. "In this Treaty," says Mr, Baring,
not only the rule of the war of 1756 is not re
cognized, but the right of the neutrals to trade
with the colonies of our enemies, and from his

* Lord Grenville's speech, 15th November, 1801, quoted
hereafter more at length. The two instructions were as follows.
6th November, 1793. "That they. shall stop and detain all
ships loaden with goods, the produce, of any colony belonging to
France, or carrying provisions or other supplies for the use of any
such colony, and shall bring the; same with their cargoes to legal
adjudication in our Courts of Admiralty."
8th January, 1794. "That they shall bring in for lawful
adjudication all vessels with their cargoes, that are loaden with
goods, the produce of the French West India islands, and pomr
ing directly from, any, port of ,the said islands to any port ia
Europe."
£2

28
own country in the produce of. .those colonies
to the mother country is expressly stipulated." *
And again, " a formal' Treaty with a friendly
power established principles directly opposed tq
if." f Now let, us examine the correctness of
these representations. What is the stipula
tion between us and Russia ? Is there indeed an
express recognition of the right; even of Rus
sian subjects, 'to trade with the colonies pf our
enemy ?
It is hardly necessary to observe that the
convention of 1801 was occasioned by the se
cond of those Treaties which are commonly
known by the name of the armed neutralities.
Its object was to adjust, between Russia and
Great Britain, the . points of difference ex
pressed in those Treaties. The rule of 175*6
had not been adverted to by the northern pow
ers, either in 1780 or in 1800. The question
probably had never arisen between preat Britain
and Russia. It was not, therefore, among the
subjects of discussion at St. Petersburgh. The
leading principle of the armed neutralities, (fa
miliarly known by the expression " free ships,
free goods ") implied that the property of an

* Page 34. t Page 42.

29
enemy iu the ship of afriend, was not liable to
confiscation. In the Convention of 1801 there
is an express renunciation of .this principle, and
to the paragraph asserting the contrary, a clause
is added which declares, — that hostile, produce
acquired by a neutral, and transported on his
account, is not to be considered as enemy's.
property.'* Without being acquainted with the history
of this clause, it is not easy to ascertain precise
ly the purpose wbichitwas intended to answer.
I apprehend that, independently of this stipu
lation, the goods described in it would not have
been considered as belonging to an enemy.
But as questions of property are among
the most frequent and' difficult which arise
in prize causes, and colourable transfers of
hostile property to neutrals are notoriously fre
quent, cases may possibjy have occurred in
which, the proof of the transfer being defi
cient, really neutral cargoes have be^en con
demned. And thei new clause may have been

* The following is the article at, length. Art: 2. Sect. 3.
f That the effects embarked on board neutral ships shall be free,
with the exception of contraband of war, and of enemy's pro
perty ; and it is agreed not to comprise under the denomination of
the latter, the merchandize of the produce, growth, or manu
facture of the countries at war, which should Mve been acquired
by the subjects of the neutral power, and should be transported
for their account, which merchandize cannot be excepted in any
case from the freedom granted to the flag ofthe said power."

30
conceived by the Russians, to afford some secu
rity against such condemnations. In this view,
the clause appears to have been nugatory.
But whatever else might have been the oc
casion or intent of the clause, no recognition
ofthe colonial trade, nor indeed any allusion
to it whatever, was in the contemplation of those
"who framed it. * That such recognition, how-

* *' The colony trade he considered to be in no way
affected by these regulations. It never entered into the conside
ration of the Armed Neutrality, and this Treaty merely settled
the disputes occasioned by their unwarrantable claims. However,
as some doubts had arisen in the minds "of sensible men^ and as
it was most desirable that every ground of future disagreement
should be obviated, an explanation upon this point had been
requested from the Court of Russia, &c. &c." [Lord Hawkes-
bury's Speech in the House of Commons, 13th Nov. 1801 .]
" I am thoroughly persuaded, this effect " (the allowance
of the colonial trade) " was not in the 'contemplation of th«
framers of this Treaty." [Lord Grenville's Speech in the House.
of Lords, on the same day.]
The explanatory declaration was as follows, 20th Oct: 1801 :
" In order to prevent any doubt or misunderstanding with regard
to the contents of the second section of the third article , of the
Convention, concluded the 5 — 17th of June, 1801, between His;
Britannic Majesty and His Majesty the Emperor of all the Riis-
sias, the said high contracting parties have agreed and declare,
that the freedom of commerce and navigation, granted by the
said article te the subjects of a neutral power, does not autho-,,
rize them to carry, in time of war, the produce and merchan
dize of the colonies of the Belligerent power direct to the conti
nental possessions, nor vice versa, from the mother.country to
the enemies colonies ; but that the said subjects are, however,
to enjoy the same advantages and facilities in this commerce as
are enjoyed by the most favoured, riations, and especially by the
United States of Amerisa.f

-Si
-ever, would be its effect, was apprehended in
this country soon after the arrival of the Treaty,
and a separate article was therefore added, in
plain terms forbidding the direct trade with the
colonies of an enemy.
, I have thought it necessary to give this
History of the transaction, because I am unable
to discover whether it is in the original clause,
or in the explanation, that Mr. Baring finds
his " principles directly opposed to the rule of
1756," or his " express stipulation" of the
freedom of the neutral trade "with an hostile
colony." Some of Mr. Baring's expressions would
incline me to think, that he refers to the ori
ginal clause, and is unacquainted * with the ex*
planatory declaration. But this can hardly be,
because if he had any right at all to rely upon
the general expressions of that clause, he would
have rejected the distinction between the direct
and the circuitous trade. If the clause referred
at all to the colonial trade (which it certainly

* I shoflld not presume to imagine the possibility of Mr.
Baring's being ignorant of this public document, ,if I were not
acquainted with the fact, that in the best modern collection of
Treaties, (and that generally referred to by American writers)
the declaration of- 20th October, 1801, is entirely omitted. [See
Martens' Recueil des Traites, &c. Vol. IX.]

did not) it absolutely legalized it in all its
branches. *

* In Lord .Grenville's speech on this convention, (l3tb
November, 1801) he endeavoured to prove that the whole co
lonial trade was inadvertently legalized by the 3d article. But he
made no distinction between the . direct trade between a hostile
colony and mother country, and the trade from the Colony to a
neutral port. The whole, as he contended, was opeaed by this
article,. But, the declaration calculated; to meet this objection had
actually been issued some weeks before this speech. was delivered;
and was intended to assert the rule of 1 756, giving to the con
tracting pirties the benefit ofthe relaxations which had taken place
in the then war. Mr. Baring may possibly have taken his view of
the subject from Lord Grenville's speech, (which was published
and is in every body's hands) and not have attended either to the
positive denial of Lord Eldon that such would be the construction
bf the Treaty in the Court of Appeal, or to the subsequent pub-
licdeclaratioh. On the other hand, I can hardly belieye that '
Mr. Baring can have read the fallowing passages of this cele
brated speech, which 1 recommend to his attention..
" The instructions issued by His Majesty at the commence-
" ment of the late war, for the conduct of his navy, were, there-
" fore, founded on this long established principle, and the oiily
" relaxation of it which had taken place until the signature of
" this Treaty, was, by an indulgence granted to the United
"" States of America, an account of. the peculiarity qf their local
" situation. That government complained -that these instruc-
" tions had given the Americans to the necessity of purchasing
" in Europe, by a circuitous voyage, the articles of colonial pro-
" duce necessary for their own consumption. If the other Eu-
" ropean colonies had at that time been open to the trade of
" America, while those oOrance were closed by us, the grounds
•' of this complaint would have been considerably weaker than'
" it appeared to be, under the circumstances which actually sub-
" sisted. Or, if the complaint itself, however well founded,.
" could not have been attended to by this country, without prac-
" tically conceding t'o our enemies the means of bringing their
" colonial produce to Europe, tlie paramount claim of our own?

33
Is it then upon the two papers together
that Mr. Baring relies ? The declaration pro
vides that nothing in the former article contain
ed, shall authorise the direct trade between the
hostile colony and mother country: Now, from
this prohibition of the direct trade, an allowance
of the indirect traffic might without extrava
gance be implied ; but it is surely not only, inac-

" defence would justly have superseded every other consideration.'
" But this was by no means the case ; it was evident that na
" vessel laden with French coloniah produce, and met with by
" our cruizers on its passage -to Europe, could allege a destina-
" tion to New York or Boston, which the mere fact of the
" course she was pursuing Would sufficiently disprove j whereas,
" if a voyage to Hamburgh or Copenhagen had been equally
" permitted, the same ship might proceed under this pretence to
" the very mouths of the French ports, waiting the first oppor-
" tunity to enter safely, if not into Bourdeaux or Marseilles, at
" least into Cherbourg, Havre, or Dunkirk. Nor was it likely
" thai the direct trade from the Islands to America could, under
" the, peculiar circumstances qf a war which had placed in our
" hands almost the whole ofthe West-Indian possessions qf France,
" be made the channel of any considerable circuitous supply of
" French colonial produce to Europe. On these grounds a relax-
" atiori of our principle was admitted in favour of a friendly
" power : but this was not done by any Treaty, permanent or
*'' even temporary, it was a spontaneous act of His Majesty's
" government, resting on the King's authority alone, and subject
" to his discretion, and depending, therefore, for its duration, or
" its renewal, on the continuance or recurrence of the same cir-
" cumstances which then led to its adoption."
" I think it just to add, in this instance as in the former,
" that I am thoroughly persuaded this effect was not in the con-
•' templation ofthe framers of this Treaty."
" Very great advantage would certainly result to other neu-
" tral powers from this particular concession j and if* value, to
" France might be almost beyond calculation."
F

curate but unfair to designate these words as art
express stipulation in favour of the circuitous
commerce. •
But, the sequel of the declaration puts the
matter out of doubt.
Russia shall " enjoy the same advantages
and facilities," and of course be subject to the
same restrictions " in this commerce, as are en
joyed by the most favoured nations, and espe
cially by the U?iited Stales of America"

(<

The effect then of this Treaty, so far 'from
establishing principles directly opposed to the
rule of 1756,"— is/ merely to put the question
as it regards Russia precisely on the same footing
on whfch it stands with America ; * and we come
back exactly to the point from which we de
parted, namely, — " What is a direct trade?"
I should here observe, Sir, that Mr. Baring
also endeavours to bring forward the Treaty'of

* Mr. Monroe in his letter to Lord Mulgrave, Sept. 23,
1805, argiles from the Convention with Russia in a much fairer
manner than Mr. Baring. Coupling the declaration of 20th Oct.
1S01 with Sir John Nicholl's report in the same year, he says,
tliat " it was obviously intended to place alNhe (neutral) parties
upon the same footing." This is not denied. The only question
is, what is that footing ? — Mr. M. does not attempt to explain
Sir J. Nicholl's report by the Convention ; he< merely points out
the similarity between them, in order to give additional weight
to the report.

35

1794, in aid of his assertion of the abandon
ment of the rule of 1756, though hejudicious-
ly omits it in summing* up his proofs. "In
November, 1794, an attempt was made by
Treaty to introduce a modification of the rule
in question, by stipulating in the J 2th article,
that America should not export to Europe, ar
ticles the produce of the West Indies, by which
her trade with all the European colonies would
have been confined to the extent of her own
consumption. This article was rejected on the
other side, and that rejection assented fo by the
ratification of Great Britain." -f»
A general prohibition of the exportation
of colonial produce would certainly have had
the effect of enforcing, in all its rigour, the
principle of the war of 1756, but an inspection
of the article and of that by which it was sus
pended, J will shew the object intended to have
been wholly unconnected with that principle.

* In pp. 41, 42. t Page 37-
t Treaty 17g4.— Ar icle XII. — His Majesty consents, that
it shall and may be lawful, during the time hereinafter lirnited,
for the citizens of the United States to carry to any of His Ma
jesty's islands and ports in the West Indies from the United States,
in their own vessels, not being above the burthen of seventy
tons, any , goods or merchandizes, being of the growth, manu
facture, or produce of the said States, which it is or may be law-
F 2

36

It was to the intercourse between the
United States and our West India colonies, that

ful to carry to the said islands or ports from the said States in
British vessels ; and that the said American vessels shall be sub
ject there to no other or higher tonnage duties or charges than
shall be payable by British vessels in the ports' of the United
States ; and tliat the cargoes of the said American vessels shallbe
subject there to no other or higher duties or charge's than shall be
payable 'on the like articles, if imported there ' from the said
States in British vessels.

And His Majesty also consents, that it shall be lawful for
the said American citizens to purchase, load, 'arid carry away, in
their said Vessels, to the United States, fro«ri the said islands and;
ports, all such articles, being of the growth, manufacture, or
produce of tlie said islahds, as may now by law be Carried from
thence to the said States in British vessels, and subject only to
tlhe same duties and charges on exportation to which British ves
sels and their-cargoes are or shall be subject' in similar circum
stances.

Provided always, that the said American vessels do carry and
land their cargoes in the United States only, it being expressly
agreed and declared, that during the' continuance of this article;
the United" States will prohibit and restrain the carrying any mo
lasses, sugar, coffee, cocoa, or cotton^ in American vessels,
either from His Majesty's islands or from the United States, to
any part of the world, except the United States, reasonable sea
stores excepted.
Provided also, that it shall and may be lawful, during the
same period, for British vessels to import from the said islands
into the United States, and to export from the United States to
ihesdid islands, all articles whatever, being- of the growth, pro
duce or manufacture of the said islands, or ofthe United States
respectively; which now may, by tlie laws of the said States, be
so imported and exported. And ' that the cargoes of the said
British vessels shall be- subject to no other c-r higher duties or

37
the 12th article referred ; — a subject, totally
distinct from the question of the enemy's colo
nial trade, though frequently confounded with
it. To the permission given to American ves
sels to carry away the produce of His Majes-

charges than shall be payable on the same articles, if so imported
or exported in American vessels.
It is agreed, that this article, and every matter and thinj
therein contained, shall continue to be in force during the conti
nuance of the war in which His Majesty is now engaged ; and
also for two, years from and after the signature of the pre
liminary or other articles of peace by which the same may be
terminated.

And it is further agreed, that, at the expiration of the said
term, the two contracting parties will endeavour further to re
gulate their commerce in this., respect; according to the situa
tion in which His Majesty may then find himself with re
spect to the West Indies, and with a view to such arrange
ments as may best conduce to the mutual advantage and extension
bf commerce." And the said parties will then also renew their discussions,
and endeavour to agree, whether in any or what cases neutral
vessels shall protect enemy's property; and in what cases, pro
visions and other articles, not generally contraband, may become
such. But, in the mean time, their conduct towards each other,
in these respects, shall be regulated by the articles hereinafter in
serted on those subjects.
Additional article.  It is further agreed between the said
contracting parties, that the operation of so much of the twelfth
article of the said Treaty as respects the trade, which His said
Majesty thereby consents may be carried on between the United
States and his islands in the West Indies, in the manner and on
£he terms and conditions therein specified, shall -be suspended.

3S
ty's islands and ports in the West Indies, a
condition is added, that " the said vessels shall
land their cargoes in the United States only, it
being expressly agreed and declared that during
the continuance of this article the United States
will prohibit and restrain the carrying any mo
lasses, sugar, coffee, cocoa, or cotton, either
from His Majesty's islands or from the United
States to any part of the world, except the
United States."
We gave to America, what We considered
as an indulgence, the liberty to provide them
selves with our colonial produce, and we an
nexed a condition that they should only provide
themselves. Not a syllable is said, either in
this or in any other article of the Treaty, about
the enemy's colonial trade. Whether we in
tended to include the produce of hostile colonies
in the prohibition, is at least extremely doubt
ful.* It is more probable that the words relied

* It will surely be allowed, that the main object was our
colonial produce, and that if French produce was included, it only
came in by the bye. But, Mr. Baking might have found a
precedent for almost any misrepresentation of this article in ques
tion. " In point of historical statement, it only remains to a9d,
that in the Treaty negociated with America through Mr. Jay, it
was originally stipulated that the French colonial produce, im
ported into that country should not be re-exported to Europe
during the war j but the Treaty was ratified by the American
government with the special exception of that article, and our
administration thought proper to acquiesce in its rejection." The
facts here stated may be true, bnt so many circumstances are

39
upon were inserted without any reference or
allusion to such a traffic, which was considered
as remaining upon the general principle.
But, the result is in either case the same.
Grant that the Americans rejected our indul
gence, accompanied as it was, on account of
the general terms of this prohibition ;— what is
thereby proved ? — That America Would not ad
mit the principle. — It has not been contended
that she ever did. — Great Britain would not
grant the indulgence, without the conditions,
and so the matter rested, the effect upon the
rule of 1756 being absolutely none.
Having now, Sir, concluded my investiga
tion of the instances in which Mr. Baring con
ceives the rule, of 1756 to have been abandoned,
I may proceed to apply the observations which

omitted as totally to misrepresent the truth of -the whole trans
action. It would appear from this statement (which is td be
found in the Edinburgh' Review, No. 15. p. 3.) that the Fretch,
colonial produce was a Specific object of the prohibition; that it
was the only, or at least, a principal object ; and with respect to
our acquiescence in the rejection, that it applied simply to this pro
hibitory' clause ; whereas the facts are, 1. that not a syllable is
specified. as to the French colonial produce; 2. that the words
construed, to relate to it, form part of a sentence relating to a
perfectly different matter; and, 3. that in tlie rejection of this
article, in which we acquiesced, was included that indulgence to
America of which the prohibition was one of the conditions. If
all "historical statements" are like this one, the uncertainty of
history has not been over- rated.

40
arise out of our preceding discussion* to th«*
question immediately before us.
I conceive that I have established these
points :
1. That the decisions of Sir- WilLiaM
Scott, and of the Lords of Appeal, have uni
formly been guided b'y the same principle.
2. That the principle was— to prohibit
the direct trade between the hostile colonies and
mother country, and to consider as cases of di
rect trade all those in which the goods were im
ported into America, with an intention to re
export. 3. That neither the payment of duties,
nor any other circumstance whatever, has been
adopted as decisive evidence of a legal trade.
4. That the case of the Essex formed no
exception to the general rule ; and of course
that all Mr. Baring's speculations about Mr.
Pitt, and the pamphlet of " War in Disguise,"
are void of foundation.
5. That not only the principle of the rule
of 1756 has never been abandoned, (as Mr.
B. admits) but that no acknowledgement or sti
pulation contrary to it has been made by Great
Britain.

41

6. And lastly, I contend that every one
of these positions are either laid down by Mr.
Baring himself, or are to be directly inferred
from his own statements.
But, J have hitherto excluded the conside
ration of Sir John Nicholl's report. I trust
that I have proved in my former letters * that
nothing was either intended by that report or
could reasonably be collected from it, derogat
ing in the least from the principles which I have
here repeated, and which I have Mr. Baring's
authority for ascribing to the Courts of Prize ;
but a few circumstances relating to this paper
remain to be mentioned. In my former dis
cussion, I was particularly led to consider that
report in reference to the embarrassment which,
as had been alledged, it occasioned in the nego-
ciation of the Treaty. The allegation was in
deed absurd; allowing even, the promise to
have been made, it nevef could have been con
clusive in a negociation, arising out of a subse
quent war, > and proceeding upon the basis of
reciprocal advantages and concessions. If Lord
Hawkesbury's letter was final, why did we treat
at all I What right had we to add to its gene
ral stipulation, * as to payment of duties, the

* Letters V. and VI.
G

42
rate of duty which alone sliould legalize the
trade ?
Had I been disposed to doubt of the cor
rectness , of my opinion as to this point, , the
pamphlet of Mrl Baring, and the correspond:*
ence. of the American Plenipotentiaries would
have completely satisfied my mind. In the
" Inquiry " the conduct of a former adminis
tration * is adduced in justification, not, as ber
fofe, of the laxity «f- of the eleventh article, but
of its rigour. — The Americans, it seems to have
been supposed, -were so attached to Sir John
, Nicholl's report, that they would neither suffer
more than its degree of restriction, nor less !
Lord Holland thought the rule of 1756 unjust
and impolitic ; hut Mr j Monroe quoted Lord
Hawkesbury and would not hear of a relaxa?
tion ! But, a document presented to parliament

* Page .08.
( + Mr. Baring is here rather inconsistent with the writer in
the Morning Chronicle, who is, in his estimation, the pnly jour-?
nalist who writes judiciously upon American subjects. [P. 26.]
It was by a defence of trie concessions of the eleventh article irj
that paper, founded upon the conduct .'of former ministers, that
I was first led to discuss the subject ; and I am now called upon
by Mr. Baling to consider the embarrassment occasioned by the
»ame conduct, in palliation of the severity of restriction still re
tained. Of the two, the former speculation, is rather mpre plau*
sible.

43
has put this question out of dispute; we need
ho longer argue from probability. ^ In their
note of the 20th August,. 1806,* the Plenipo
tentiaries of .the United States refer particularly
to the report of. Sir tGhn Nicholl. They
point out circumstances giving to that document
additional importance and weight in the dis
cussion. But it is not as influencing the Treaty ; it
is not as founding a claim to this or that stipu
lation for the future, that the circumstance is
brought forward ; — but as justifying their claim
of compeiisatiop for the past. They urge,
that the government and merchants of America
Were led by this report and the .. attendant cir
cumstances, to confide in the. efficacy of the
payment of duties, and that they are entitled to
compensation for the losses occasioned by cap
tures made in violation of the supposed rule.;
Not a syllable is said of the consistency of
that rule with the law of nations, or with com
mon sense ; not a word in contradiction of the
judicious opinion of Mr. BAring that the
payment of ^duties was " not absolutely eonclu-
* ii

sive."

It is only upon the question of compensa-

* See Appendix, page xii.

u

tion that the report is brought to bear — a ques
tion which, as would appear from the papers.
Lord Holland referred to that future and ami
cable discussion, in which so many important
points were to be adjusted !*

* On the justice of this claim to compensation, I only make
one. observation. Giving the greatest possible weight to Sir John
NicbolPs report, and to its communication in the manner stated
by Mr. Monroe,it can have no force which is not strictly warranted
by its actual expressions, and this leads to what has been said as
to the difference between paying the duties, and securing them by
bond. If Sir J. Nicholl's report is fo be construed strictly (and
if not, the merchants have no claim at all) securing the duties is
good for nothing. But Mr. Baring represents as a piece of great
ignorance as well in the Lords of appeal as in the author of " War
in Disguise," the making any distinction between the two cases,
because, he says, the custom duties in America, are in all cases
secured by bond, and a debenture given to the importer for the
amount of the drawback in case of re-exportation. Mr. B. is,
indignant at the idea of any part of this arrangement having beea
made with a particularview to the evasion of our rule : I give the
fullest credit to Mr. Baring's explanation of the American
revenue regulations ; biat I bwp that I cannot easily read the
following section of the act of 25th Feb.- 1805, without suspecting
that the French colonial trade was particularly in view. " That
it shall be lawful- for any ship or vessel to proceed with any goods,.
wares, or merchandize brought in her and shall in the manifest
delivered vto the collector of the customs be reported as destined or
intended for any port or place wit/tout paying or secuiung the
payment of any duties upon such goods, wares, and merchandize-
as shall be actually re-exported in the said ship or vessel." 1 have
taken this extract from the letters of Phbcion (said tobe written
by the hon. W. L. Smith, of South Carolina,) in which a great
deal is said, certainly not by a person ignorant of the American
fiscal, in support of the principles of " War in Disguise;" and
the report of the king's advocate is said to have been *' wilfully
misapplied," by the American merchants. If any of my readers
have not seen this publication, I recommend it as very useful in
the discussion.

45
I have now considered in detail, those
parts of Mr. Baring's pamphlet which have
reference to the eleventh article of the projected
Treaty ; I may now ask - confidently not only
whether the censures which I passed upon that
stipulation were not fully justified, but whether
equally strong censures- are not the natural
result of Mr. Baring's statements. •
The object was, to prevent all trade be
tween the mother country and her colony;
between France, for instance, and Martinique.
Now, why is this prohibition politic ?* Is

* It has been no part of my object to exaggerate the impor
tance of the restriction; my objections to the treaty being, that
by it the1 restriction is neither enforced, nor abandoned. But
some little confusion has, I think, arisen jn various discussions
of the subject,, from not sufficiently rnarking the distinction be
tween the prohibition of the carriage of the colonial pro
duce being bonafide neutral property, and the covering of ene-
rny's property under neutral papers. The two causes are, no
doubt, closely connected ; but the reasonings and facts by which
Mr. Baring proves, that the property is in most cases really
neutral, though they may be a very good answer \o some parts of
" War in Disguise," rather tend to encrease than diminish this
importance of the rule of 1756. Without that rule, enemy's
property would be confiscable ; if; therefore, as- Mr. ' B. says,
the colony trade be mostly neutral, the prohibition of the neutral
trade is more effectual against our energies, in proportion as that
statement is correct.
But Mr. Baring gives us an account, calculated to shew,
that the foreign produce exported from America is less in value,
'than her domestic produce.
, He

46*
it that We have any particular objection to trie*
navigation of American ships over those waters
of the ocean wbich flow between Martinique
and France? Is it, that sugar, conveyed di
rectly to France, is sweeter than if it has been
carried into Charleston in its way ? Is there,
I ask, seriously, any one --legitimate object to
be obtained by the restriction of the direct
trade, which does not' call for the prohibition
of the circuitous traffic ? .
Mr. Baring thinks it unjust to enforce
the rigorous prohibition ; he thinks it, too,
impolitic. Let us allow it to be both ; and then
ask Mr.- Baring whether the modified prohibi-

He takes the average of 1802, 1803, and 1804, and state*
the exports thus : \
Domestic produce  ^9,000,000
Foreign produce re- exported ..... 6,400,000
• The whole scale of imports and exports,, he says, have increased,
but there is no reason to suppose the proportions have varied.'
Now ft is to be observed, that of the period of his average nearly
one half was a period of peace between England, France, and
Holland; and the whole a period of peace with Spain. Had Mr.
Baring? referred to an account for 1806 (which is to be found in
Appendix to the Report of the West India Committee, else
where quoted by him), he would have perceived, that the pro
portions have so materially varied, that nearly the whole increase
cf export is in foreign produce, viz.
1806. Domestic produce  a£9,280,000
Foreign produce re-exported 13,550,000
Savannah  i1. 500,000
This account shews clearly the great extent of the trade in the
colonial produce of our enemies carried on by the United States
iK-time of war.

47
tion is either politic or just ? If we listen to Mr.
Stephen, we ought in no way to allow a pound
of coffee to reach France ; if we attend to Mr.
Baring, we ought to let her have as much as
America will bring her. Both of these posi
tions have been forcibly urged, but for Lord
Holland's ease, they. must be neither of them
true. Whether Mr. Baring's be the correct
view, or Mr. Stephen's, the eleventh article
effects nothing-but vexation to America, and a
mostjrifling tax upon French coffee.
Mr. Baring allows that the prohibition of
the direct trade is " consonantto common sense"
«*-will he seriously urge, that the common sense
is altered by the payment of duties in America ?
It must be ^observed, that neither Mr.
Monroe, nor Mr. Baring, nor any one ofthe
writers whose works have reached England, have
pretended to assert -that in the cases of which
they complain there was, in fact, and good
faith, a genuine importation; that sort of im
portation which Mr. Baring describes as
the legitimate object of inquiry* Neither
directly nor by implication does Mr. Baring
assert, that the test provided by. the eleventh
article would be effectual for this purpose. Let
us hear him ;—

48
" Shortly after the passing of this law,* a
treaty was negociated between the two countries,
which as far as it went, was a fair and equitable
adjustment of our differences, which indeed a
cessation of the unfriendly disposition of this
Government, by the change of administration,
would of itself have produced.f But, as in our
foreign negociations the, conduct of one admi
nistration is to be maintained even by their
opponents, the only commercial § point requiring
adjustment was to break in such a manner the
continuity of the neutral voyage^ from the
colonies to the country of our enemies in

* The non-importation act.
¦f Indeed ! What then does Mr. Baring think of the case
of the William ?
§ It ought not to have been a commercial point. The
rule of 1756 was not adopted for commercial purposes,
b for political ends. But it must be allowed that Mr. Bar
ing's ' expression is warranted by the conduct of the Pleni
potentiaries, and the following remark of Mr. Morris are but
too well justified by the eleventh article. " Go to the bottom
" of the business, and we find a mercantile struggle for money,
" in which the government assists by its power, its influence,
*' and its negotiations. Mere counting-house politics. Not the
,f most remote idea of injuring France or Spain, by inhibiting an
" intercourse with their colonies, but a scheme to engross that
" trade to themselves. Accordingly, when they negotiate with
*' us, the single object is to burthen and trammel our trade with
" such charges and regulations as may give their merchants a
" preference. Our, negotiators h^ve kindly gone along with,
" theirs, and, in the excess of their complaisance, have ceded
" not only the interests of trade, but the attributes of indeperw
" dence." — British Treaty, p. 69,

49 JS
Europe, as to leave no room for future misunder
standing. This was effectually done by the
condition that a small duty should be imposed in
America, which should not be drawn back,
and which had the * additional advantage of
increasing tb& charge of conveyance of colonial
produce to the continent of Europe."-|-
Mr. Baring in thus describing the stipu
lation says not one, syllable of jts efficacy in the
original purpose of the restriction ; he does not
tell us that the continuity of the voyage, is by
the payment of the duty, so broken as to leave
no" doubt of a bond fide importation; but that
the test 'was such "as to leave no room for
future misunderstanding"
He might have said,—" as to mark out
clearly td the American merchants, a mode in
which they might evade the whole restriction !"
It is evident that Mr. Baring looks upon
this stipulation, as in fact a. total abandonment
of the principle of 1756, and as such,, it has
his commendation. But he must, see, that it
such was the intention of the plenipotentiaries,

* I contend; the only advantage ; but the expression is an
additional proof that Mr. B. does not consider tlie stipulation as
at all carrying into effect the rule of 1756;
f Inquiry, page 97-8.
H

50
they have taken great pains to accomplish it in
a manner totally destructive of any possible
good effect.
My great anxiety to pass over no part of
Mr. Baring's work which related to the sub
ject before us, has brought out this discussion to
an unreasonable length. The result is simple,
and exactly such as I have before sfated.
If Mr. Baring be of opinion, that the
eleventh article would be more' grateful to
America than a frank suspension of the rule of
1756, he mayrank himself among the admirers
of the Treaty ; for, as it is the clear result of his
inquiry, that the effect upon British interest
would be precisely similar in the two cases, the
only question is, which would most effectually
conciliate. But, if he entertain a contrary opinion,
exactly proportioned to his sense of the advan
tage of conciliation, and connection with Ame
rica, will be his indignation at the con
trivers of a measure, by which she is wantonly
subjected to restrictions and vexations, which
have been the unfailing source of irritation and
dispute ! DECIUS.

LETTER XIII.

SIR,
I am not aware of any thing that has been said
in pamphlets, or of any document that has
been produced, throwing additional light upon
the remaining articles ofthe Treaty, as con
cluded by the Plenipotentiaries.
But much information has been laid before
Parliament, connected with the, subsequent his
tory of the Treaty, to which, therefore, I now
proceed. I have already animadverted upon the
extraordinary omission of any provision on the
subject of impressment. It was understood to be
one of the principal objects of discussion, and
was one certainly which called for the most
Iprompt adjustment. The evil complained of
by America was an evil of constant occur
rence, and it was1 impossible to expect that a
really good understanding should subsist between
the two countries, while the principles to be
acted upon in respect to this interesting point
were left in doubt. h 2

52
In the correspondence ofthe American
ministers, the importance which 'the government
. of the United States attached td the subject of
impressment is strongly pictured. " It v/as one
of the primary objects of the mission " of the
plenipotentiaries, because " it had excited in a
very great degree the sensibility ofthe American
people, and claimed the anxious attention of
their government." * The ministers indeed were
instructed " to make no treaty which should not
provide for that object. "-f-
The documents before us afford no light as
to the pature of the language held by our mi
nisters ,in relation to the point; but ,it appears
that they rejected an article proposed by the
Americans " which," according to the statement
of these Commissioners, " without touching
the question of right, offered on the part ofthe
United States an" effectual equivalent for the
mere "forbearance of the practice." In this -
stage of the negotiation, the ministers of the
United States communicated to our comniis-.
sioners, the limitation of their instructions
to which I have alluded, stating " that they
had no power to conclude a Treaty upon the
Other points which had been discussed between

* Note of Messrs. Monroe and Pinckney to Mr. Canning,
dated 24th July 1807, App. C. p. xi.
t lb. p. xii.

53

them, so as to bind the government of the
United -States."
After this frank explanation it was in vain
to expect a favourable result of the negociation ;
it might have been foreseen, that no treaty
which could be concluded, — even though it
could be expected to be ratified by 'the Presi
dent, in contradiction to his former instructions,
— could possibly place the two countries in a
state of amity and good understanding.
It might almost be stated as a general princi
ple that the omission, in a Treaty, "of an adjust
ment of any important matter, is an evil far more
dangerous in itsconsequences than any possible de-^
lay. , But in the case before us, the point sus
pended had peculiar claims to an instant
settlement. Other points might affect more
generally or more permanently the interests of
either State, but there was none* which had
excited so much sensibility; there was none,
the establishment of which upon solid princi
ples, was so essential to the great purpose of
conciliation. We might have made a Treaty
which should stipulate from beginning to end

* Or, at most, but one ; vand Whether Mm has been so
adjusted as to prevent'disputes, the preceding discussions respecy-
in°- the eleventh article have enabled the"reader to judge.

54
nothing but peace and amity and good under
standing, and tlie burial of all differences in
oblivion, for all ages to come ; but while it
should remain a matter of doubt, whether an
American merchantman was or was hot justified
in retaining seamen who had been previously in
the British service, these fine words would not
have prevented the daily occurrence of misun
derstanding, discontent* and- hatred.
But what actually happened, although the
Treaty never took effect, confirms strongly these
observations. It seems, that, as might have
been expected, the declaration ofthe American
niinisters brought the Treaty to a stand. " It
was soon afterwards, however, suggested by his
Majesty's commissioners, that if this topic
should be expressly reserved for future conven
tional arrangements, and a pledge given to the
United States for resuming the consideration of
it at a convenient season with that view, and if,
jn the mean time, such an informal understanding
should be substituted as in its practical effect should
remove the vexation complained of , it might per
haps be yet possible to conduct the negociation
to a result which would not be unacceptable to
the respective governments."*

* Note a.boye cited, App. p. xiii.

' 55
The American ministers consented to
renew the discussions (to which however they
again declared, they could not give effect), and
the* informal understanding was conveyed in the
terms 'following i " That his Majesty's govern
ment, actuated by an, earnest desire to remove
every cause of dissatisfaction, has directed his
Majesty's commissioners to give to Mr. Monroe
and Mr. Pinckney the most positive assurances, ,
that instructions have been given, and shall be
repeated and enforced, for the observance of the
greatest caution in the impressing of seamen,
and that the strictest care shall be taken to pre
serve citizens of the United States from any mo
lestation or injury, and that immediate and
prompt redress shall be afforded, upon any ,re-A
presentation of injury sustained by them."*
' ' i
The discussions which subsequently arose
out of these proceedings, afford strong evidence
of the insufficiency of any thing' short of a
positive and unequivocal stipulation, in the-
settlement of a weighty matter. They shew,
that had the Treaty concluded in London, beep
ratified in America, a negociatlon must have
commenced, not only upon the main point
itself, which had been deferred, but upon the
construction to be put upon the temporary and

* Note from Lords Holland and Auckland to Messrs. Monroe
and' Firickney, dated 8th November 1806. App. C. p. xlvii.

66*.
informal understanding respecting it: This,
the Americans Understood; to be, that the
British cruisers should forbear from the prac
tice of impressment ; " Lord Holland, however,
and his colleague affirm, that they under
took for nothing, but, the observance of mo
deration in. the exercise of the practice.* That
such was their intention it is' impossible to
doubt ; such too is the simple construction
of their note. At the same time we cannot
be surprised, that the Americans either attributed
to the words'-f- a more extended signification, or
gathered it from the tenor of their verbal com
munications. The American ministers had distinctly 'stat-»
ed, that they Could sign no Treaty which should
not contain a stipulation on the subject of im
pressment; that which they proposed was reject
ed, and the negociation was consequently at an
end. Under these circumstances Lords Holland

* See the correspondence between Lords Holland and
Auckland, and Mr. Canning, on the nature of the informal un
derstanding, in the Appendix, pp. xlviii to Iii.
f The engagement, that citizens of the United States should
not be molested is very ambiguous, ^fine of the points In dispute
is, whether a British subject can renounce his allegiance to the
King, a renunciation necessary to his becoming a citizen of the
United States. The American ministers probably understood the
protection of citizens to extend to all those whom the la\*s of
America regarded as such. Lord Holland and Lord Auckland,
as they expressly disclaim the intention of derogating in' any
degree from the right as at present practised, must have intended
to exclude from this protection all who had 'formerly been Brv
tish subjects.

.57 ~
and Auckland propose an expedient for renew
ing the discussions, which Messrs Monroe and
Pinckney think sufficiently, important to be
transmitted to their government, in the hope
that it may induce the President to retract his
order, " not to sign without astipulation respect-
ing-the seamen."
Can it be supposed that these gentlemen
conceived it even possible that. Mr. Jefferson
would be contented with a mere promise of
moderation? a promise which His Majesty's go
vernment unquestionably would at any time have
given gratuitously, to any neutral who had
made complaints of the conduct of our crui
sers. It is indeed impossible to collect from the
documents before Us, tlie principles upon which
the plenipotentiaries acted, or the line of con
duct which they' really intended to pursue.
" His Majesty's , government has pot felt
itself prepared to disclaim or derogate from
a right which has been uniformly and ge
nerally maintained, and' in the exercise of
which the security of tlie British Navy may
be essentially involved; more especially in
a conjuncture when his Majesty is "en
gaged in.^wars which enforce tlie necessity of
the most vigilant attention to the preservation
and supply of the naval force of his kingdom."
— If would appear from these expressions
i

58
which precede the assurances given in the note
of 8th November 1806, that it had been
resolved to admit of no relaxation, at 'least
during the present war. Now, " if this was
the determination of the Cabinet, it was as in
consistent with good faith as with sound policy,
to proceed in the negotiation ; by following up
the general declaration which I have just cited,
with the informal understanding mentioned
above, we only deceived the ministers of Ame
rica. They took it as an expedient,' which
sliould reconcile them to the renewal of the
discussion, they considered it probably as a
compromise, as something between the total
rejection and the unqualified admission of their
dema'nds4 If we only intended to renew the
rejection we ought at once to have declared,
that the search would be continued. Mr.
Monroe would have gone back in November
1S06, instead of loitering dll November 1807. If
Mr. Jefferson intended to adhere to his sine
qua non, the matter would have reached, a
twelvemonth ago, the point at which it now
rests. Had he relaxed, the Treaty would have
been delayed a few months, but it would have
been a complete Treaty.'
The unequivocal declaration of Lords Hol
land and Auckland relieves me from the
task of arguing upon the 'supposition, that at
the time of delivering their note, they intended
any thing of relaxation, But the difficulty of

59
attaining an idea of their real opinions is found
ed upon their, proposal of postponing the discus
sion. There are but two lights ip which this
proposal can be viewed ; and of those, indeed,
. one might, perhaps, be discarded at once. It
can hardly be imagined that our ministers look
ed to any future period of the war, in which
the right should become less essential than at
pVesent. Any such, conjuncture, must be con
nected with such a total change in the eircum-
stancesof the world, as to render all discussion
upon-it merely speculative and useless, fam
compelled then, to mention as another alterna
tive, — that it was conceived that a relaxation of
the exercise might be purchased by America.-^-
That she might give some advantages to us,
which should be. equivalent to the suspension of
our right of search !
Th is ex ped ient, it appears, had been proposed
by the Americans, and it was its rejection that sus
pended the negotiation. Is it possible that the
difference arose merely on a question oi price?
That there was no objection to selling our
maritime rights, but that their value in the
market was not clearly ascertained ? Had this
been so, _*>ur language, surely, would have been
lower; we should not have talked of rights, " in
the exercise of which the security of the British
navy might be essentially involved."
> After all, therefore, this part of the conduct
of the negpci.ition, still remains in mystery j we
i 2

¦'cy'V:-' ' 60 i
are left to give it whatever explanation happens
to strike us> but none can 1 find, that evinces
wisdom in the negociators.
Here, as in the former case, I put out of
the .question the importance of the point in dis
cussion;* Here, certainly, I am not' objecting
to concession, still Jess to conciliation, I com
plain of a want of openness and sincerity, I
find fault with the indisposition in the ministers
to meet fairly the question before them.
It was a question, perhaps, of difficulty,
but if they could not solve it in a month, they
certainly would not have solved > it in a year.
They might, perhaps, have continued to doubt,
*7-and Lord Holland possibly might have differ
ed from his colleague, — -.upon abstract principles;
but the emergency called for decisive action ;
it was their duty to fix upon the principles upon
which they meant to act; and steadily'to pursue
them. This was their duty to England ; nor
was it less their duty, explicitly to avow their,
principles. Policy, and the interests of their
country required this of .the commissioners,

* The abstract importance of the evil complained of by us,
may possibly have bfcen exaggerated ; but the circumstances of
insult and triumph with which the seduction of our seamen has
been carried in some of the American ports, have generated a
question of national honour, of Which it is almost impossible to
exaggerate the importance. >

61
but, most of all, conciliation required it. A
different conduct would have been weakness in
Machiavel 6r Albc'roni, but in diplomatists pro
fessing openness and liberality, and treating
with the power which, most of all, they wished
to, conciliate, it was nothing short of infatua
tion. And what, in point of fact, was its result ?
By the postponement of the article of the sea
men, they destroyed whatever good effect tbey
might have expected from their other conces
sions. It produced the instant rejection of the
Treaty in America; and thus the conduct which
was occasioned by " the desire of promoting
a right conclusion of the proposed Treaty, and
of drawing closer the ties of connection between
the two countries" — actually annihilated the
Treaty, and left the connection more remote than
ever! But it was not merely upon the article of
search, that the projected Treaty did not satisfy
the President. He returned it, accompanied
not only with a proposed stipulation renouncing
thatpractice altogether,* but with numerous alte
rations in those articles of the Treaty, which the -

* See the proposed article, App. p. xl.

62
two legations had agreed upon, and authentica
ted by their signature. • The particulars of these
alterations will be, found in the appendix. The
principal heads were imperfectly noticed in my
eleventh letter,* but require more particular
consideration. The prohibition ofthe indirect trade with our
East Indian possessions, a trade, which- was
granted, by mistake, as it is said, -j- in 1794-, is
the first object of Mr. Jefferson's alterations, and
that, perhaps, which might most safely be com
plied with.
In the Treaty of/ 1794, as well as in. the
projected Treaty, incidemaf mention is made of
ports or places blockaded, besieged, or invested. I
say, incidental mention, because there was no
intention of either altering or declaring the law
of blockade, but merely to provide, for the
ignorance of a blockade existing, occa
sioned by the great distance of America ; but
Mr. Jefferson here proposes to introduce the
definition of blockade,^: 'which was inserted in
the convention ibf 180], — a definition which
LordGRENViLLEreprebatedwithhisaccustomed

* Page 73.
-f See Letter II. p. 5 — 6. App. xvi.
X App. p. xxiv, xxy.

63
force, and, if I may be allowed to say it, with
his usual exaggeration.* His observations,
however, are quite sufficient, not only to assure
us, that he would never have Consented to the.
extension of that definition to America, but, to
convince us that at least, great inconvenience
wouldr result from such a compliance with Mr.
Jefferson's desire.
Our allowance of the enemy's colonial
trade, -j- Mr. Jefferson required to be still a little
more extensive : our indulgence, it seems,
was so acceptable to America, that he wished it
not to De limited to the present hostilities. The
securing of the duties tpo, was to be finally substi
tuted for the payment, — an alteration justified,
perhaps, by the total departure from the principle
of 1756, evinced in the original article.
These, with die proposed addition respect
ing seamen, and another on the subject of com
pensation^ on account of captures, alledged to

* In his above-mentioned speech of 13th November, Lord
G. said, that the article " must utterly destroy our whole system
of blockade by cruising squadrons." This certainly has not been,
the fact. f App. p. xxv, xxvii.
X .Seethe proposed article, App. xl. They claimed compen
sation (as has already been stated)" for all capturest:ontrary to their
construction of the communication made to. Mr. King in 1801 ;
and for other causes, enumerated in the note of Messrs Monroe
and Pinckney dated 20th August 1S07j— App. xii. &c.

64-
have been irregular, were the principal altera
tions proposed by Mr. Jefferson.*
And now, Sir, having added to my former
discussion of the several articles of fhe Treaty,
such illustrations as have been afforded by sub
sequent publications, I venture to contefid,
that neither Mr.' Baring's pamphlet, nor
the papers which have been laid before the Par
liament, bave proved any thing in favour ofthe
negociators of the last Treaty.
If my former objections to the eleventh ar
ticle have made any impression upon your mind,
they are strengthened, surely, — by the rejection
of the allegation of embarrassment by former
measures, which result from the writings of Mr.
Baring and ofthe American ministers ;and — by
the proofs derived from Mr. Baring, that its
stipulations would be utterly ineffectual. ¦
If I have before convinced you, that we

* It appears from the letter of Lords Holland and Auckland
to Mr. Secretary Canning, dated 28th July 1807, (App. xlix.)
that additional articles relative to some of the deferred points, but
not to that of impressment, had been agreed upon with the Ame
rican commissioners, and would , have been signed, but for the
change of ministry. Ofthe nature of. these articles I am entirely
ignorant,' but I apprehend that neither in these, nor in any other
documents, is any thing new to be found, in favour of the case of
the late ministers/ as the papers produced are all that have been
called for.

65
have thrown away concessions, — -you have addi
tional evidence of the little satisfaction "which
the Treaty produced in America. It produced
no repeal of the non-importation act; our con
cessions on almost every point in agitation,
(upon which any' stipulation was made at all)
produced not one from Mr. Jefferson. Not
one jot would he relax ; but added, on the con
trary, to the derhapds of his plenipotentiaries.
If I have before, with any justice, cen
sured the postponement of important and diffi
cult points ; I have now shewn the practical in
conveniences arising from it; I have shewn, that it
protracted a discussion which it ultimately ren
dered abortive ^
Again, and again, I beg that it may be
remembered, that I am not the eneniy of con
ciliation ; but I ask the plain question, whether
the Tteaty did ip fact conciliate America? If
this question can only be answered in the nega
tive, if the experiment of conciliation, in fact,
completely failed, I ask if one of these two
things be not necessarily true?
Either, such was the disposition of America,
that no concessions would obtain her friendship,
and those who attempted it, were entirely mis*
taken in their politics ; or
America being well disposed to reasonable
terms, the failure was owing to the unwise con
duct of the negociation. DECIUS.
K

ee

LETTER XIV
SIR',

I now .proceed to -the. further consideration of
the note delivered by our ministers previously
to the signature of the Treaty, in consequence
of the French Pecree of the 21st November,
1806. In my former discussion of this subject,
although I highly commended the principles of
the note in general, I stated tvyo objections to
its details,* The first was founded upon the strength of
the reprobation which was applied by our Corji-
missioners to the Belligerent pleasures of France.
Conceiving that the limitations of Belligerent
rights which had" been introduced into the writ
ings of modern publicists were not either supr
ported by just reasonjngs, or so warranted by a
consent of nations as fo 'be established as in
controvertible principles; I considered tlie
countenance thus publicly given to them by the
, British Government, as uncalled for by the par
ticular occasion, and most uiisuited to the ge
neral situation of the countrv.

* Letter X.

67

t .was well aware, that I was publishing
doctrines, by no means conformable, to pre
valent ideas. Being closely connected with.
the subject of discussion, I ventured to state
them as -they occurred to me, but as I neither
considered them as necessary to the justification
of -Great Britain, nor founded upon them any
thing more than an occasional remark, I leave
them here.
In tlie other objection; to which I have re
ferred, I certainly considered myself as brpach-
ipg no new principle. When' I objected to
so much of ihewording of the note, as appeared
to limit the rights of warfare accruing to us from
the Berlin Decree, to the exact extent of that
decree, I considered myself as objecting to
wording only. I'was not aware that the principles
which I stated were different from those pro
fessed by the authors of the measure ; but I
conceived that, a limited retaliation only being
then in their contemplation, it was not thought
necessary, (if the matter was adverted to) to
carry the assertion of the right beyond the point
at which its exercise was intended to stop. And
to this moderation in the assertion of the right
I objected, commending at, the same time the
"dignified and politic forbearance* ", which
marked the commencement of its exercise.

* Letter X, page 64.
, K 2

<J8
But we have of late been told, by those
who sanctioned this note, and advised the order
of 7th January, 1807, that the right of retalia
tion is exactly limited by the measure which
produces it, and that its exercise ought entirely
to depend upon the degree, in which such
measure is acquiesced in by the neutral ; and
that these were the principles of the note and of
the drder, — which is, however, at the same time
said to be further justified by the general prin
ciple of the rule of 1756.
Previously to any examination of these as
sertions, with reference to the persons by whom
they have been made, I must take the liberty of
feaying a few words, in explanation of my own
view of the subject. Not because the. additional
remarks which I shall have to make upon the
conduct of those persons, at all depend upon
the correctness of that view, but because I am
anxious to avoid the imputation of having
heedlessly or captiously offered my former com
ments. I am the more anxious to give this ex
planation, because I am apprehensive of differ
ing in some degree not only from those who
contend for the.principle of measured retaliation,
but from some, at least, of those who contend
for a more extensive right.
The former class assert,-~that it is the duty
of a neutral to be entirely impartial between two
powers at war, to give to neither any assistance

69
in the war which he withholds from the other.
They allow, that the submission to a restriction,
—beyond those allowed by the law of nations, —
imposed by one Belligerent upon the commer
cial intercourse of the neutral with the ether,
is such ap assistance of the one Belligerent, as
gives a right to the other, of enforcing a com
pliance with a corresponding restriction ; but,
they hold that the principle upon which this
right - is . founded, requires that the restriction
thus imposed by way of retaliation .shall cor
respond exactly, with that which gave it rise ;
all restriction beyond this point they consider as
equally objectionable with the original departure
from the, law. /-
Those of the latter class agree with the
others as tO' the general principle upon which
the right of retaliation rests, and allow that the
retaliating power ought, generally, to conform
to the measures of his opponents ;— they say,
that he ought npt to press more hardly upon
the neutral," than is necessary to relieve himself
from' the effects of those measures; but they
add, that from the very nature of things, a re
taliation exactly corresponding as to the things
interdicted or suffered, may frequently be very
far from a retaliation exactly corresponding- in
its degree and effect; and that a Belligerent is
justified in so framing his measures. of retalia
tion as tp restore the relations between his enemy
and himself, as they existed previously to the

70
departure of the former from the established
law of nations.
* Let us illustrate these two doctrines by a
supposed case. Russia and England are at war,
the United States are neutral. ,. Each of the Bel
ligerent powers (we will suppose) have treaties
with the neutral, in which naval f tores are ex
empted from the list of contraband ; and the
three powers, moreover, have by. a uniformity
of practice and declaration established the in
nocence of such articles. Russia publishes, an
edict prohibiting the carriage of naval stores to
England ; she enforces it upon America, in
spite of their Treaty ; America submits.
* i
According to those who hold the first
mentioned doctrine, England may retaliate, by
prohibiting the carriage of naval Mores to Rus
sia. The adherents of the latter principle would
say— No ! America by her acquiescence ii\ this
prohibition assists our enemy in depriving us df
means, very necessary for carrying on the war ;
by such conduct, our condition in the war is
materially altered ; we, therefore must devise a
measure, rigorous beyond the acknowledged
law of nations, which will subject Russia to the
same degree of inconvenience, to which, with
the assistance of America, she has exposed us ;
and if America should suffer by our retaliation
she must take it as the consequence of her sub
mission to our enemy.

71

But, J say, America has become ap ' in
strument in the hands of an enemy, of hostility
against us ; she is no longer. neutral ; she is com
mitting a continued act of hostility against us,
and we have, against her, a legitimate right of
war.* ''If the acquiescence gives us any new
right, it is because that acquiescence is a hostile
act tbvvards us ; and we are not to be circum
scribed in our mode of resenting or punishing
that hostility." f

* Letter X, page 64.
f This opinion, that the acquiescence of the neutrals in the
'unusual restrictions of one Belligerent gives ,to the other a right
of war, is (whether it be thought just or not) to be completely
separated from that which I have" before stated, [Letter xiv.'
p. 50 and x. p. 64) of the Belligerent right to interdict all com
merce with an enemy. I am now. waiving that opinion, which
I allow to be peculiar, and,' proceeding upon the princi
ples of- the law of nations which are to be found in the writings of
Grotius, Puffendorff, BvNKEKsHOEk, Vattel, and even
Martens, f -contend that the acquiescence supposed is a total
departure from neutrality, or, what is the same thing, the com
mencement of hostility ¦ for although in the "practice of nationsy-
(espeeially of the strong towards the weak) there may be occa
sional instances1 of the existence of an' intermediate state between
war and peace; yet, in public law,, there pan, I apprehend, be
ho case in which neutrality is at an end, fin which war, or the
right of war does hot iilstantly commence.
i . ,*? ¦?..¦..' ¦ ¦
In a pamphlet recently published, a distinction is taken
between an acquiescence prompted by favor to one Belligerent,
"and an acquiescence occasioned by the weakness of the neutraL
"4T If the decree interdicting neutrals from trading with tis, or
visiting our ports, is executed upon a neutral, it is an interdiction
which he has ;no right . to submit to, because the moment it is
executed we are injured by the interruption of his. commerce
, with us. If lie 'submits from favor to the unjust' Belligererrt,

72
Such was the view of the subject which
dictated my former observations upon the note
of 31st December, but a great deal has been
subsequently said upon the subject, and that of
the order of the 7th of January, 1807, which
calls for a more particular discussion. A cha
racter has been ascribed to the note and order,
totally different from that which was previously
supposed to belong to them ; and the conduct
of the Jate ministers in respect to this mea
sure is placed, by themselves, in an entirely neyv
iight.

he directly interposes in the war, ' and the neutral character, is at
an end ; retaliation would then not only be strictly applicable,
but just and legal ; and if he submits from weakness or from any
other cause, not hostile or fraudulent, we have an unquestionable
right, without any invasion of neutrality, to insist that what he
suffers from the enemy, he shall consent to suffer from us, other
wise he would keep an open trade with the enemy at our ex-
pence, relieving him from the pressure ofthe war, and becoming
an instrument of its illegal pressure upon us." [The speech of
Lord Erskine in the House of Lords, the 8th of March,, 1808.
p. 20.]' This distinction between the causes of acquiescence,
however applicable, in point of humanity, I cannot think tena
ble inlaw,- the injured Belligerent can look, only to the public
acts of the neutral j if, in point of fact, he interposes in the
war, and becomes an instrument of its pressure upon us,' his
motives can make no difference in the effect. The distinction
no more applies to the species of hostility described in the pamph
let,, than to any other species., The situation of Portugal in the
early part of the present war, ' was that of an assistance given to
one Belligerent through weakness. Although we permitted thjs,
through motives of policy and compassion, I. believe our right to
break with Portugal was never questioned. i
I should observe, that the author whom I have quoted, re
jects,.^ quibbling, the principle ai exact retaliation, [p. 19.]

73
As it is no part of my plan, to discuss the
Orders in Council issued in November last, I
shall make no inquiry as to the motives which
have been imputed to the late administration, in
their apparent change of tone; it is sufficient
for me to state the case, and to assist the.
public in forming a judgment as to the conduct
of the late ministers ; how far it was in itself
prudent, consistent, and conciliatory. For these
purposes a brief relation of the facts is neces
sary. The French decree, issued at Berlin on
the 21st November, 1806, was published in Eng
land about the middle of December ; on the •
3 1st of that month, a note is presented,* spe
cially referring to that decree, censuring its
provisions in the strongest terms, and reserving
to the King, the right of " adopting, in regard
to the commerce of neutral nations with his
enemies, the same measures which those nations
shall have permitted to be enforced, against their
commerce with his subjects." Whether this
case of permitted enforcement will actually
take place, the distance of the American go
vernment, it is said, renders it impossible to as
certain. All this is quite clear and intelligible ;
the acquiescence of America is.stated to be ne^

* App. pageiv.
L,

74
cessary to .establish the rights of retaliation, and
no intention is expressed of exercising that
right * wt any degree, until it should have been
thus rendered complete; But, on the 7th of
January following, without waiting for any ex
planation from America, the facts of enforce
ment and acquiescence remaining of course
^equally doubtful of existence, an order is is
sued,* imposing new and unusual restrictions
upon neutral trade. This order, like the note,
professes itself, in unequivocal language, to be
founded upon the French ,decree ; after cen
suring that means, it declares, that "such at
tempts on the part of the' enemy would give to>
His Majesty an unquestionable right of retaliation,
and would warrant His Majesty in enforcing the
same prohibition of all commerce with France,
which that power vainly hopes to effect against the
commerce of His Majesty's subjects." The
order next states, that His Majesty is unwilling
" to proceed to an extremity so distressing to
all nations not engaged ip the war and carrying
on their accustomed trade, yet -feels himself
bound not to suffer such measures to be taken
by the enemy, without taking some steps on his
paft to restrain this violence and to retort uppn
them the evils of their own injustice." " His
Majesty is thereupon pleased to order ;" — and

* App. page i.

75
so forth. This order is communicated officially
by the Secretary of State to Mr. Monroe, ; in
terms exactly * corresponding with the order
itself. It is impossible to read this order without
noticing its variance from the note. In the
latter, the acquiescence of the neutral is ex
pressly mentioned ; in the former, the right of
retaliation is sa\id to be warranted by the attempts
of the enemy alone; and its promulgation
without any inquiry as to the fact of ac
quiescence, or any distinction between the neu
trals who had and who had not submitted, — ap
pears to mark witb sufficient precision that the
wording and the spirit of the paper were in
perfejct unison ; and I believe that but one con
struction was put upon the measure throughout
the world, and that it was takeP as a partial
exercise of the right of retaliation supposed to
accrue from the Berlin decree. For this being
the Construction in England, I might appeal to
the recollection of all who read the order when
it appeared ; but I have, if possible, less equi
vocal evidence in the reported debates of Par
liament.

* This communication is not among the papers laid before
Parliament, but was annexed to a message from the -President fo
Congress ; it so exactly follows the Order in Council, as, by the
change of person, to be scarcely English.
L 2

16
On the 4th of February; 1807,* Mr, Per
ceval made' this order the subject of a motion
in the House of Commons. He stated in de
cided language the right of retaliation, and' cen
sured the ministers of the day for the mode of
retaliation which they had adopted. He was
answered by the King's Advocate and by
Lord Howick, by both of' whom the measure
was distinctly recognised as a measure of! reta
liation, and the mode and degree in which it
ought to be effected was argued as a question of
political expediency. " It was not denied that
some steps in retaliationxvexe necessary, and the
question was, how 'far the steps that bad been
taken were adequate." 'This was said by* Sir
John Nicholl, whose treatment of the ques
tion was distinctly adopted by Lord Howick,
and the Noble Lord confirmed the declaration
of the King's Advocate, " That if the order-re*
ferred to in the motion should be found not to
answer the end in view, farther measures would
be resorted to, — ind no doubt," said Lord How
ick, " they WOuld."
Down then to the 4th of, February, 1 807,
not one word was said in public, justifying the
order in council upon any other ground than as
an exercise of right of retaliation, modified in-

*f Sae Cobbett's Parliamentary Debates, Vol. VIII. p. 620.

77
deed, but still exceeding the bound's prescribed
in ordinary eases, by the law of nations. The
species • of modification, iis well as its degree,
were justified * upon principles of expediency
and of tenderness to neutral nations ; but both
were constantly stated as having been arbitrarily
chosen, without the most 'distant allusiori.to any
particular degree, of legality *.Jbelonging\to the
mpde adopted, and not .equally attaching to
any other conceivable mode.
i-.' j -.)¦ ,
But although such was the yiew^c which
the public were taught to take a, of the
transaction, and in which' it was communicated
to the -American minister in London ;— yet,
in transmitting the order to our Plenipoten
tiary in America, he is instructed to represent it
in an entirely , different light. Lord How
ick, in his letter written to Mr, Erskine
on the 8th of January, rj — after again explicitly
asserting the right of retaliation, and' expressing
in words nearly corresponding with those of the
order, His Majesty's unwillingness to proceed

*. See particularly, Sir John Nicholl's speech, (p. 63?)
where the importance of the .coasting trade and theiextent of the
pressure occasioned by restraining it is forcibly stated. As to this
importance the opinion of Sir William Scott is cited, but al
though this was certainly the best opportunity of urging »the
legality of the restriction independently, of the measures of
France, there is not a syllable of the sort.
f App. B. page ii.

78
to a distressing extremity, — acquaints the Pleni
potentiary that the King " has determined, for
Ike present, to confine himself to the exercise
of tlie power given him by his decided naval supe
riority in. such manner only as is authorized
by. the Acknowledged principles ofthe law o/na^
rroNS," which are therefore represented >as
authorising " An order for preventing all com*
merce from port to pert of his enemies, compre*
bending in this order, notonly the ports of France,
but those of such nations as, either in alliance
with France or subject to her dominion, have,
by measures of active offence, or by the exclu
sion of British ships, taken apart in the present i
war."- We are here given to understand, that in
the order of January it was not intended to pro
ceed, in any degree upon the new right accruing
fromt the French Decree, but that the Decree
bas. merely induced His Majesty to adopt a rigo
rous though legal measure ; and such is descri
bed to be, the interdiction of all commerce
between any hostile ports, whether appertaining
to the same, or to different ene?nies.
Although this interdiction is allowed to be
unusual, and, if granted to be legal, is certainly
not founded upon any precise dictum of the
law;— Lord Howick leaves Mr. Erskine
entirely in the dark, as to the general principle
uppn which he is to vindicate the measure. He

19
says, " Tell Mr. Madison, our measure is con
formable to the law of nations ; do not trouble
yourself to set about proving this conformity
out of books, or by reference to history or to
general and acknowledged principles, but say
stoutly, legal it is." ' lh;
Mr. Erskine fulfilled his instructions, and it
does > not appear that he endeavoured, by any
addition of his own, to illustrate the measures of
his government. The consequence was natural;
the doubt, and unsteadiness of principle, which
appear even, from the beginning, to have belong
ed to the transaction in England, entered into
the riegoeiation at Washington, and the order
came to Mr. Madison involved in a cloud of
mystery which Mr. Erskine did not attempt to
dispel. Instructed by Lord Howick, Mr. Erskine
had asserted the restriction to be legal, but as
this was the extent of his communication, Mr.
Madison, very naturally1 set about examining,
upon what principle it was legal. Totally unaid
ed by our representative, he began- to guess.
First, he took the order, as a notification of his
Majesty's intention^ actually to blockade all the
ports described in the order, and in this view, he
admitted the legality; but although some ofthe
expressions of the order appeared tb countenance
this idea, Mr. Madison did not upon the whole
seem satisfied that such was the intentioP of our

80
government. He therefore guessedagain ; and then
occurred to him the possibility of that construction,
which, though he carefully concealed it from the
public ear, Lord Howick is very angry with us
for not having instantly discovered. It occur
red to Mr. Madison, that the British government
might possibly mean to contend, not only that
the coasting trade* of an enemy, as not open in
time of peace, was contrary to the law of na
tions, but that " the trade between ports of.
different countries, confessedly open in times of
peace as well as of xvar," was included in the
same prohibition. The first, he therefore
reminded Mr. Erskine, had never been admit
ted by America, -fand the supposed extension he

* The coasting trade of an enemy, has always been held by
Great Britain to be included in the principle pf the war of 1756,
although it has generally been thought unnecessary, in this as in
several other respects, to enforce that principle in all its rigour.
But the trade from a port of one enemy to that of another, has
never been held illegal.
f I ought to have observed in my twelfth letter, that there is
kn incorrectness inMr. Baring's assertion [p. 81.] that the restrict
tions imposed upon the colonial trade, previously tb the case ofthe
Essex in 1805, had been the subject of no complaint. The Ame
ricans, , as I observed in my seventh letter, had never admitted, in
any degree, either during the late, or, present war, the principles
of the rule of 1756. The facility with which' they found means
to evade the rule, made it politic for them to avoid the whole
'discussion, but whenever it occurred, they uniformly protested
against the doctrine. See " An Examination ofthe British doc
trine which subjects to capture a neutral trade not open in
iime of peace," ^said to be written by Mr. Madison. This
pamphlet appears to have been published in America, before the
xase of the Essex was known there.

81

asserted, with perfect truth, to be " an innova
tion on the former, not before attempted."
But, after a week's farther consideration,
Mr. Madison rejected both these constructions,
and rested upon that which was warranted by
the plain language of the order itself, without
gloss or comment ; and, so understood, he con
sidered the order as a ground of " serious com
plaint and remonstrance." Mr. Erskine, with
great prudence abstained from a reply,* con
tenting himself with transmitting Mr. Madi
son's remarks to his employers, who would
have an opportunity of choosing between the
various constructions which might be put upon
their measure.

But Mr. Erskine's Communication never
reached the person to whom it was addressed ; in
the interval which had elapsed, Lord Howick
had ceased to superintend our Foreign Affairs,
and Lord Holland had quitted, with his noble
friend, the councils of their sovereign. It is only,
therefore, from conjecture, and by comparing
together the various documents before us, that
we can form an idea of what would have been
the sense, in which, as ministers, Lord Hol
land and Lord Howick would ultimately have

* See Mr. Erskine's letter, inclosing the second from Mr.
Madison, App. B. viii. M

82
desired us tb understand their conduct. Since,
however, they have returned to the stations more
congenial to their education and habits, thcy
have surprized us with a construction differing
more or less from every one of those which are
to be found among their records or former
speeches; and as I trust 1 shall prove, equally
inconsistent with sound and plain sense and with
that general system of behaviour towards Ame
rica which they have uniformly professed to
follow. The construction now adopted is simply
this.* The right of retaliation, whether found-

* This construction is taken from the pamphlet called
" Orders in Council," attributed to Mr. Brougham. The passage
deserves to be cited at length. ' "The Order in Council, Jan. 7th
1807, is justified by the rule of war of 1756 of which it is scarcely
an extension. The countries under the enemy's dominions, or in
alliance with him, are there considered as enemy's territory, and
the trade frorn one port to another of those different countries, as
a coasting trade. The principle of the rule of 1756 is, that you
have a right to prevent a neutral from interfering with your just
hostility, and slipping in between your naval force and your ene
my's trade for the purpose of screening it. The neutral screens
most effectually the trade carried on between Holland and France,
for example, if he engages his shipping in it, at a time when not
a befligerent vessel can shew itself upon the sea between these
two countries. There may not have been any express law in either
state during Peace, to prevent third parties from carrying on this
commerce; but, in point of fact, it must always have happened
that by far the greater part of the traffic between nations so cir
cumstanced, was carried on by their own vessels antecedent to the
war ; and the spirit ofthe rule of 1756 is to prevent the enemy
from benefitting by a great and sudden change of system which
Shall throw his commerce, while the war lasts, under the covering

83
ed upot* the decrees of France alone, or upon
the acquiescence of neutrals in those decrees,
is entirely rejected as unnecessary, to the case :
the prohibition of the trade from port lo port of
our enemies, is stated to result from the princi
ples of the rule of 1156, and to be equally
consistent with the law of nations :— and the
measures of France are said to have been merely
the inducements for enforcing that rule of law
with unusual rigour.
This construction, I have said, is at va
riance with everyone of the published docu
ments; it is most nearly consonant with that
which was communicated to * Denmark \n March
1807, but even this document has a very differ
ent complexion. It is said, no doubt, that " the
measure might easily have been justified without

of the neutral flag. It may, however, be remarked, that the
rule applies to almost all maritime states, still more closely. There
are very few, if any, commercial countries in Europe, which
have not adopted the principles ofthe English navigation law, and
excluded, as much as possible, > from their carrying trade, the
vessels of all foreign nations. We do not, by any means, contend
for the rule of 1756, but if that rule is to be laid down at all, it
clearly justifies the order of January 7, 180J7. On the principles
of retaliation, indeed, recited in the preamble, it cannot be
justified with respect to America ; for it was issued I fore her
acquiescence in the French decree could be known; but as the
English government had a right, antecedently to that decree, to
issue this order, the intention of retaliation is only stated as tlie
motive which induced the government to exercise a just right for
merly abstained from."
* See Lord Howick's note to M. Rist, App. E. 2.
M 2

84
any reference to the late conduct of France ;" —
the employment of neutrals in the coasting
trade of the several Belligerents is said to result
from the " Success of the British Maritime force
which has almost annihilated the navigation
of the enemy;" and neutrals, it is added,
ought to " restrain their trade to the accustomed
course which it held in time of peace." These
expressions, it is true, appear to have reference
to the principle of 1756, and are so far consis
tent with the new construction, but in the paper
in which they are contained, there is at the
same time a most decided and unequivocal as
sertion of the right of retaliation, of which
the order of January is said to be " a mitigated
measure." The right resulting from the aggres
sions of France, is so confounded with the right
antecedently possessed, that it is impossible to
point out either as the favourite justification of
the measure, still less to admit that it was in
tended to vindicate the order upon the antece
dent right alone. '
There is not therefore any one document
which has been given to the public, nor any
one speech of which a record has been kept, in
which the order of the 7th January has been
placed in the light in which we are now taught
to view it, or vindicated upon the grounds
upon which its authors now claim our approba
tion.

85
What, then, after all, is the character of
the transaction as it now appears to us, upon the
representation of its advocates ? — The late mi
nisters read Bonaparte's decree; — they imme
diately resolve that if acquiesced in by neutrals,
it will give them a right of adopting similar
measures ; — they communicate this resolution
to the American Commissioners, without the
slightest hint of an intention of retaliating, until
the case of acquiescence shall happen.
In a week afterwards they issue an order,
asserting the right of retaliation, as then exist
ing, without reference to the submission of the
neutrals, — declaring that his Majesty must take
some steps in the exercise of this right ; and
thereupon, enacting new restrictions. And it
comes out a twelvemonth * afterwards, that they

* The repeated reference to the right of retaliation, and the
very strong language in' which it is asserted, in all the papers
relative to the order of 7th January, have been stumbling
blocks in the way of those who were desirous of coming to the
assistance ofthe late ministers, in their construction of the order.
The following comment upon the passage quoted from " Orders
in Council," is extracted from the Edinburgh Review [No. 22*
p. 485], and shews the intelligent authors of that work to have-
been almost ashamed of this part of their patrons' case. — " But
we could have wished that the defence of the order issued
by the late administration on January 7, 1807, had been less
broadly stated. The arguments by which it is supported are
many qf them just; and, viewing it as an application only (for it
is in truth scarcely an extension) of the rule of war of 1756, we
must admit, that it rests on the same grounds with this rule.
The preamble too, when it mentions retaliation as the plea for
issuing it, very possibly means only to state the motive for using

86
had no intention whatever of proceeding in any
degree upon the right thus carefully asserted,
that they did not even conceive the right to
exist in perfection, and that they merely adopt
ed a measure which they might have adopted
at any period of the war ! The ministers are
thus anxious to tench us, and angry with us for
being slow in believing, that they deliberately
misrepresented their own innocent arid legal
measure ; that they studiously gave to it a cha
racter, not only which did not belong to it, but
which they now represent as a character of in
justice and iniquity. For the assertion of the
right of retaliation is now stated, not only as
having been mere surplusage in the order, but
as having been, at the time of its publication,
unwarranted and groundless.
This is the transaction upon the face of

a just right, and not to defend the justice of that right. More
over, this order, even as a retaliation, is not without its favorable
eirewmstances ; for there were several neutrals at that time besides
America; and the measure may have been taken with a view to
the majority of cases, leaving to America her exceptions, founded
on time not having been giving her for acquiescing in, or resisting
the French decree ; which exceptions, it may be said, were com
petent before our prize courts."
It is impossible not to observe the excessive doubtfulness of
this opinion, so different from the usual style of the same writers,
especially when speaking of those ministers, upon whom only
(except when the chastity of their taste and the liberality of
their judgment induce them to use it in ridicule) they are in the
habit of bestowing the title of statesmen.

87
the note and order; it is then represented to
America as strictly legal ; but so represented^
as to induce Mr. Madison to seek for the legality
in a principle* totally foreign to that upon which
it was intended to found it ;— while the instruc
tions to our minister at AVashington left him,
too, quite in the dark, and totally unable to
explain, much less to vindicate, the measures of
his government. To Denmark, the order is
at first described as being founded entirely upon
the right of retaliation,-}- and not till it has thus
produced the bitter remonstrances of Denmark,
is it even partly justified upon the principle of
1756. Forgetting, then, even for a moment, the
palpable inconsistencies which have been traced
in the various stages of the transaction, I may
found, upon the acknowledged facts, very se
rious charges of mismanagement in the late ad
ministration. If the late ministers, in issuing the order of
7th January, 1807, did not intend to act at all
upon the right of retaliation, they were guilty

* Namely; That of actual blockade. See p. 79-
f See M. Rist's note, page lxi ; we have not the first note
from Lord Howick to M. Rist, but it is most probably, like that to
the American minister mentioned in page 75, followed exactly
the order itself, and thus justified M. Rist's expression, — " the
right of retaliation, upon which the order in Council of His Bri
tannic Majesty is founded."

88
of very gross imprudence and of great injus
tice to themselves in so expressing the order,
as to convey to the world the idea of an inten
tion entirely opposite; for such idea they cer
tainly did convey, as well to Denmark as lo the
United States.
If, even, although they did not intend
to justify their measure on the ground of reta
liation, it was solely by the decrees of France
that they were induced to adopt it at that parti
cular time ; — they were acting a most illiberal
and insidious part towards America, in with
holding from her ministers this their intention,
until after the Treaty had been signed. They
knew perfectly well, that the measure which
they were about to adopt would not be relished
by America, and that whatever might be their
own opinion of its legality, she would consi
der it as an arbitrary encroachment. The Treaty
which they were about to conclude had a di
rect reference to the rule of 1756; they pro
fessed a desire to conciliate America by a relax
ation of that rule ; but when Lord Holland
put his hand to the promise of relaxation, he
had consented to the adoption of a measure,
carrying the exercise of the rule to an unpre
cedented extent ! If the late ministers abide by
their own explanation of their conduct, it is im
possible for them to rebut this charge of insin
cerity. According to themselves, they spoke
thus to America ; " If France enforces her de-

89
crees and you submit, we may probably be
compelled to retaliate by similar measures."
Had they been actuated by a true spirit of conci
liation, nay, had they been impressed with a
true sense of justice, they would have added ;
" but, without waiting to ascertain either of these
circumstances, we must immediately adopt, not
a measure of retaliation, but an extension of what
we contend, and you deny, to be our belligerent
rights, in a degree heretofore neither practised nor
asserted." >
This was what, if we believe them, they
actually didi this was what at the time of con
cluding the Treaty they intended to do, and
yet not one hint of this intention did they com
municate to the ministers of America !
Sir, this may have been a very clever trick,
it may have been a stroke in finesse exceeding
any of which, in Lord Auckland's long life of
diplomacy, he had been either the performer
or the dupe. But as the commencement of the
ingenuous system of Lord Holland, this ma
noeuvre was selected witP marvellous indiscre
tion. It was indeed a piece of chicanery of
which an attorney's clerk would have been
ashamed, and of which the bare proposal ought
to have disgusted the nephew of Mr/Fox ! .
N

90
Throughout the whole pf this business, one
general observation occurs ; and it applies equal
ly to the Treaty, and to the Order in Council.
The great object of the late ministers in all their
transactions with neutral powers, teas avowedly
conciliation; and this was precisely the object
which they were farthest from attaining. Their
Treaty has been rejected ; their mild, innocent,
and legal measure of restriction has been repro
bated as '' a violation of maritime rights," —
" a new law of the ocean ; " and as " inflicting
upon the commerce of neutrals the most severe
blow, of which the History of Neutrality offers
an example ! " It produced, in short, as well in
Denmark as America, every thing short of actual
hostility. This, indeed, uVy have hardly ventured
to deny; the angry remonstrances of the neutrals
staring them in the face, it was scarcely to be
attempted ; but they offer .is their excuse, that
America and Denmark' both misunderstood
their conduct,* and their successors ought to

* Lord Holland's 5 th resolution proposed to the House of
Lords on 29th March.
I bay nothing of the other resolutions proposed, as they refer
to ihe conduct of the present ministers, which is not a part of
the subject before u3 Mr Canning's note, however, declining
to resume the discussion of a treaty already signed by the pleni
potentiaries on both sides, or to revoke the declaration of 31st
December, 1806, will be found (in the Appendix, p.liv.

91
have explained it in its true light. Now, with
this charge against the present ministers • I have
nothing to do ; possibly, the task of explain
ing the conduct of their predecessors was too
great for their moderate capacities. But, how
happened it, I ask, that the measure was equally
misunderstood by all the neutrals ? Are the
Crown Prince and Mr. Rist,— Mr. Jef
ferson and Mr. Madison, all equally des
titute of common sense ? or was there a con
spiracy between Denmark and America ? It is
surely more consistent with justice and proba
bility to presume, that the fault was with the
framers of the order, and that the misconcep
tion was inherent and natural !
Before I conclude, a few words to Mr.
Baring. He says very little of the order of
7th January. He calls it, however,* a "ju
dicious order." I should wish to ask him, in
what light does he view the order when he be
stows this epithet upon it ? The order undenia
bly produced an effect, the very reverse of his
favourite object of conciliation. If intended to
irritate America, Mr. Baring surely must most
severely reprobate the. order, as injudicious, im
politic, and unjust. And the epithet judicious
is surely inapplicable to a measure which pro-

* Inquiry, page 112.
N 2

92
duced an effect opposite to the intention of its
authors. If, partial to his friends on this side
of the Atlantic, Mr. Baring should contend
that the order was neither calculated nor intend
ed to produce the complaints which we have
heard from America; what becomes of that
moderate and friendly disposition which he has
traced on the other side of the water ? It is im-
possible for Mr. Baring to vindicate his politi
cal friends, without retracting every syllable he
has said in favour of his commercial connec
tions. There are those, I know, who, unable to
controvert the statements which I have made on
the subject of our late conduct towards Ame
rica, are disposed to doubt of their correctness,
by their general sense of the talent and disposi
tion of the ministers employed in the discus
sion. To such persons I have one answer.
The American commission was an epitome of
the cabinet ; in neither was there a combina
tion, but a collision of talents. Every measure
was a compromise; in every part of their con
duct, two opposite principles were 'apparent.
¦ Wlnggism and toryism, war and peace, extra
vagance and economy, sincerity and artifice,
energy and conciliation, were engaged in one
continued struggle for predominance. The re
sult was a total want of principle, and a conse
quent impossibility of discovering, either at

93

home or abroad, the system upon which our
government meant to act.*
I am not disposed to agree with Lord
Holland in his views as to our maritime pre
ponderance. His ideas appear to me to be too
commercial ;f but I feel quite convinced that if
the American negociation had been put entire
ly into his hands, the result would have been
infinitely less disgraceful. He entertains de
cided opinions; his system, good or bad, is
simple and, intelligible ; and his talents are well
fitted to pursue it. Lord Auckland had been
accustomed to a different system,, but that he
was well qualified to assert and to vindicate.
Either might have made a treaty excellent
for it,s purpose, for it then would have had a

* The case, indeed, 'last before us, is open to the suspicion,
that the order being consented to by different ministers upon dif
ferent grounds, they agreed so to promulgate it to the world, as
to justify the construction which either chose to put upon it.
f And this is the great fault of Mr. Baring. He makes
out his case, as a merchant, with, at least, great appearance of
truth ; and, undoubtedly, has thrown much new light upon the
commercial subject. But against those who think that the case
has arisen, in which to produce a conviction in the mind of
France, that an extended commerce is not essential to our exis
tence or power, or, in other words, that we are not "a nation
of shopkeepers," — is the safest as well as the noblest policy, Mr
BARiNas statements and reasonings will be totally destitute of
force.

94f
purpose. But by consenting to act each as a
check upon the other, they paralysed the ef
forts of both,* and each deprived his country of
the services of his colleague. They produced
a in ?ty, effectual only for the purpose of adding
one to tne instances, which have exploded the
fancuui scheme of comprehension ; and have
demonstrate u the futility of expecting, from a
collection of discordant qualifications, any thing
but misunderstanding, misfortune, and dis
grace. DECIUS.

* J beg that my very strong feeling as to the effect produced
by the coming together of opposite, talents and opinions", may be
accepted as an apology for the strength of the language in which I
have reprobated the conduct of persons for whom, individually, I
entertain a very sincere respect. Had I conceived myself to have
been speaking of transactions, the deliberate result of conviction
in the mind of Lord Grenville, Lord Howick, Lord Holland, or
Lord Auckland, my tone would rhave been extremely different.
"But jnst in rhR proportion in which it is presumed that either of
these noble persons, individually, would do right, it is to be pre
sumed that, collectively, they would do wrong.

In p. 74, 1. 13, for means read measures.

APPENDIX.

APPENDIX.

APPENDIX.

APP E,N D I X, (A)
Order in Council ; dated 7th January 1807-
Whereas the French Government has issued certain orders,
which, in violation of the usages of war, puiport to prohibit
the commerce of all neutral nations with his Majesty's domi
nions, and also to prevent such nations from trading with any
other country in any articles the growth, produce, or manufac
ture of his Majesty's dominions : and whereas the said govern
ment has also taken Upon itself to declare all his Majesty's
dominions to be in a state of blockade, at a time when the fleets
of France and her allies are themselves confined within their own
posts by the superior valour and discipline of the British navy :
and whereas such attempts on the part of the enemy would
give to his Majesty an unquestionable right of retaliation, and_
would warrant his Majesty in inforcing the same prohibition ot
all commerce with France, which that power vainly hopes to
effect against the commerce of his Majesty's subjects ; a prohi
bition which the superiority of his Majesty's naval forces might
enable him to support, by actually investing the ports and coasts
of the enemy with numerous squadrons and cruizers, so as to
make the entrance or -approach thereto manifestly dangerous :
and whereas his Majesty,; though unwilling to follow the
example of his enemies, by proceeding to au extremity so dis
tressing to all nations not engaged in the war, and carrying on
their accustomed trade, yet feels himself bound by a due regard
to the just defence of the rights and interests of his' people,
not to suffer such measures to be taken by the enemy, without
taking some steps on his part to restrain this violence, and to
retort upon them the evils of their own injustice; his Majesty
is thereupon pleased, by and with the advice of his Privy
Council, to order, and it is hereby ordered, that no vessel
shall be permitted to trade from one port to another, both which
ports shall belong to or be in possession of France or her allies,
or shall be so far under their contronl as that British vessels may
not freely trade thereat : and the commanders of his Majesty's

11
ships of war and privateers shall be and are hereby instructed"
to warn every neutral vessel coming from any such port, and
destined to another such port, to discontinue her voyage, and
not to proceed to any such port ; and any vessel after being so
warned, or any vessel coming from any such port, after.a reason
able time shall have been afforded for receiving information of
this his Majesty's order, which shall be found proceeding to
another such port, shall be captured and brought in, and, to
gether with her cargo, shall be condemned as lawful prize :
and his Majesty's principal Secretaries of State, the Lords Com
missioners of the Admiralty, and the Judges of the High Court
of Admiralty, and Coutts of Vice Admiralty, are to take the
necessary measures herein as to them shall respectively apper
tain.

APPENDIX, (E)
Papers-, presented to Parliament in February 1808.
No. 1 .
DISPATCH from Lord Viscount Howick to the
Honourable David Erskine, dated Downing
Street, 8th January, 180?.
Sir,
Your Dispatch No. 1. announcing your arrival at Anapolis
on board' the Avon Sloop of War, was received here on the 6th
of December, and, .together with Mr. Merry's dispatches,
which were received at the same time, has been laid before the
King. It is with great satisfaction that I inform you that the Treaty of
Amity, Navigation, and Commerce, between this Country and
the United States, was signed on the 31st ultimo, by Lords
Holland and Auckland on the part of his Majesty, and by Mes
sieurs Monroe and Pinkney on the part of the.ir Government.
Mr. Purviance, Secretary to the American Legation here, who .
leaves London to day, is the bearer of the Treaty for ratification.
I have the honour herewith to transmit a copy of this Treatv for
your information, together with a copy of a Note, delivered
previous to the signature by the Lords Holland and Auckland, re
lative to the complaints of the Canada Merchants, on the subject
of the estimation of the duties on the Inland trade, in certain
parts of the' United States. These complaints, which were
communicated by Mr. Merry in the early part of last year, but

Ill
from various circumstances postponed for consideration, certainly
must not be lost sight of by his Majesty's Government, and
every means will be taken to obtain redress for the removal of the
inconvenience complained of.
I transmit to you also the Copy of another note presented by
their Lordshipsjio the American Commissioners previously to the
Signature of the Treaty, on the subject of the extraordinary
Declarations and Orders of the French Government issued at
Berlin on the l6th November last. This Note I must recom
mend to your particular attention ;- you will state to the Ame
rican Government, that his Majesty relies with confidence on
their good sense and firmness in resisting pretensions, which, if
suffered to take effect, must prove so destructive to the commerce
of all neutral nations." ,,
His Majesty has learrit, that the measures announced in the
decree have already in some instances been carried into execution
by the privateers of the enemy, and there could be no doubt that
his Majesty would have an indisputable right to exercise a just
retaliation. Neutral nations cannot indeed expect that the King
should suffer the commerce of his enemies to be carried on
through them, whilst they submit to the prohibition which
France has decreed against the commerce of his Majesty's sub
jects. But though this right of retaliation would unquestionably
accrue to his Majesty, yet his Majesty is unwilling, except in the
last extremity, to have recourse to measures which must prove so
distressing to all nations not engaged in the war against France.
His Majesty, with that forbearance and moderation which
have at all times distinguished his conduct, has determined for
the present Io confine himself to the exercise of the power given
him by his decided naval superiority, in such manner only as is
authorised by the acknowledged privileges of the law of Nations,
and has issued an order for preventing all commerce from port to
port of his enemies, comprehending in this order, not only the
ports of -France, but those of such nations as, either in alliance
with France or subject to her dominion, have, by measures of
active offence, or by the exclusion of British ships, taken a part
in the present war.
His Majesty feels an entire confidence; that the moderation
and justice bf this conduct will be duly appreciated by the United
States ; and you will express to that Government, in the strong
est terms, the regret his Majesty has experienced in being thus
compelled in his own defence, to act in a manner which must
prove in some degree embarrassing to the commerce of neutral
nations ; and his Majesty's sincere desire to avoid any stronger
a 2

-it
measures, to which, however, if the injustice and aggressiqn of
his enemies should not be resisted by those nations whose rights
and interests are invaded by so flagrant a violation of all public
law, it may be ultimately necessary for the King to have re
course. I am, with great truth and regard,
I Sir, &c.

Honourable David Erskine.

(Signed) HOWICK,

No. 2.
NOTE from Lords Holland and Auckland to Messieur^
Monroe and Pinkney.
The undersigned, Henry Richard Vassal Lord Holland and
William Lord Auckland, Plenipotentiaries of his Britannic Ma-.
jesty, have the honour to inforin James Monroe and William
Pinkney, Commissioners Extraordinary and Plenipotentiaries of
the United States of America, that they are now ready to pro
ceed to the Signature of the Treaty of Amity, Commerce, and
Navigation, on the articles of which they have mutually agreed.
But at the same time they have it in commarid from his Ma
jesty tocall the attention of the Commissioners ofthe United States
to sOrne extraordinary proceedings which have lately taken place.
on the Continent of Europe, and to communicate to them offici
ally the sentiments of his Majesty's Government thereupon.
The proceedings alluded to, are certain declarations and orders
of the French Government, issued at Berlin on the 21st pf No
vember last.
In these orders the French Government seeks to justify or.
palliate its own unjust pretensions, by imputing fo Greaf Britain,
principles which she never professed and practices which never,
existed. His Majesty is accused of a systematic and general disregard of
the law of nations, recognized by civilized States, and more par
ticularly of an unwarrantable extension of the right of blockade ;
whereas his Majesty may confidently appeal to the world on his
uniform respsct for neutral rights, and his general and scrupulous
Adherence to the law of Nations, without condescending to con
trast his conduct in these particulars with that of his enemy ; and
with regard to the only specific charge, it is notorious that he has
never declared any ports to be in a state of blockade without
allotting to that object a force sufficient to make the entrance
info them manifestly dangerous.

V
By such allegations, unfounded as they are, the enemy attempt?
to justify his pretensions of confiscating as lawful prize all pro*
duce of English industry or manufacture, though it be the pro
perty of neutrals : of excluding from his harbours every neutral
vessel which has touched at any port of his Majesty's dominions,
though employed in an innocent commerce ; and of declaring
Great Britain to be in a state of blockade though his own ports
and arsenals are actually blockaded, and he is unable to station
any naval forde whatever before any ports of the United King
dom. Such principles are'in themselves extravagant and repugnant to
the law of nations ; and the pretension founded on them, though
professedly directed solely against Great Britain, tend to alter
^he practice of war among civilized nations, and utterly to subvert
the right and iridependance of neutral powers.
The undersigned cannot, therefore, believe, that the enemy
will ever seriously attempt to enforce suoh a system . If he should,
they lare confident, that the good sense of the American govern
ment will perceive the fatal consequences of such pretensions to
neutral commerce, and that its spirit and regard to national ho
nour will prevent its acquiescence in such palpable violations of its
rights and injurious encroachments' of its interests.
If, however, the enemy should carry these threats into execu
tion, and if neutral nations should, contrary to all expectation,
acquiesce in such usurpations, his Majesty might probably be
compelled, however reluctantly, to retaliate in his just defence,
and to adopt in regard to the commerce of neutral nations with
his enemies, the same measures which those nations shall have
permitted to be enforced against their commerce with his sub
jects. The commissioners of the United States will therefore
feel, that at a moment when his Majesty and all neutral nations
are threatened with such an extension of the belligerent preten
sions of his enemies, he cannot enter into the stipulations ofthe
present treaty without an explanation from the United States of
their intentions, or a reservation on the part of his Majesty in tlie
case above-mentioned, if it should ever occur. -
The undersigned, considering that the distance of the Ame
rican government renders any immediate explanation on this
subject impossible, and animated by a desire of forwarding the
beneficial work in which they are engaged, are authorised by his
Majesty to conclude the treaty without delay. They proceed to
the signature under the full persuasion that, before the treaty
shall be returned from America, with the ratification of the
United States, the enemy will either have formally abandoned or
tacitly relinquished his unjust pretensions, or that the govern-

VI
ment of the United States, by its conduct or -assurances, will
have given security to his Majesty, that it will not submit to such
innovations in the established system of maritime law : and the
undersigned have presented this note from an anxious wish that
?t should be clearly understood on. both sides, that, without such
abandonment of his pretensions on the part of the enemy, or
assurances of such conduct on the part ofthe United States, his
Majesty will not consider himself bound by the present signature
of his commissioners to ratify the treaty, or precluded from
adopting such measures as may seem necessary for counteracting
the designs of the enemy.
The undersigned cannot conclude, without expressing their
satisfaction at the prospect of accompiishingan object so impor
tant to the interests and friendly ponnection of both nations, and
^heir just sense of the conciliatory disposition manifested by the
commissioners of the United States, during the whole course of
the negociation. ' (Signed) VASSAL HOLLAND,
London, December 31, 1806. AUCKLAND.

No. 3.
EXTRACT of a Dispatch from the Honourable
David Erskine to Lord Viscount Howick, dated:
Washington, March '30th, 1807.
In compliance with your Lordship's instructions, I communi
cated to this government his Majesty's views relative to the
French decree of the 21st November 1806, as detailed in
your dispatch to me" of the 8th January last; and received the
answer which I have now the honour to inclose.
(Inclosure referred to in No. 3.)
Sir, Department of State, 20th March 1807.
I have laid before the president your letter of the 12th instant,
communicating the views of his Britannic Majesty in relation to
the French decree of November 21st, 1806, and to the principle -
of retaliation, through the commerce of neutrals who may sub
mit to the operation of that decree ; as also the measure actually
.taken, of prohibiting all neutral commerce from port to port of
his enemies, not only the ports of France, but those of such
other nations, as, either in alliance with France, orvsubject to,
her dominion, have, by measures of active offence, or by the
exclusion of British ships, taken a part in the present war,

Vn
The president cannot be insensible, Sir, to the friendship and
confidence towards the United States which are signified by his
Britannic Majesty in this communication.
In making this acknowledgement, however, the president
considers it not less incumbent on him to reserve for a state of
things which it is hoped will never occur, the right of discussing
the legality of any particular measures, to which resort may be
had, on a ground of retaliation; at this time, .it would suffice
to observe that it remains to be more fully aspertained in what
sense the decree in question will be explained, and to what extent
it will be carried into execution, and consequently whether in any
case the United States can be involved in questions concerning
measures of retaliation, supposed to accrue to one belligerent
from such a proceeding by another.
But it is worthy the justice and liberality of the British govern
ment to recpllect, that, within the period of those great events
which continue to agitate Europe, instances have occurred, in
which the commerce of neutral nations, nfcre especially of the
United States, has experienced the severest distresses from ils
own orders and measures, manifestly unauthorized by the law of
nations. The respect which the United States owe to their neutral
rights and the interests they have in maintaining them, will always
be sufficient pledges, that no culpable acquiescence on their part
will render them accessary to the proceedings of one belligerent
nation through the right of neutrals, against the commerce of
its adversary.
With regard to the particular order issued against the trade of
neutrals from one port to another of the enemies of Great Britain,
no fair objection can lie against it, provided it be founded on and
enforced by the actual blockades, as authorized by the law of
nations. If, on the other hand, the order has reference not to
such a blockade, but to a supposed illegality of the neutral trade
from one to another of the described ports, the remark is obvious,
that, on that supposition, the order is superfluous, the trade being,
as interdicted by the law of nations, liable at all times, without
any such order, to the capture of British cruizers and the con
demnation of British courts; and if not interdicted, as such, by
the law of nations, it can no otherwife bq made illegal, than by
a legal blockade of the ports comprehended in the order. This
inference is applicable even to the case of a neutral trade between
the ports of France herself, since it is not a principle of the
acknowledged law of nations, that neutrals may not trade from
one to another port of the same belligerent nation; and it would
be an innovation on that now not before attempted, to extend the
principle to a neutral trade between ports of different countries, ,
confessedly open ip times of peace as well as of war.

Viii
If the British ordef refers for its basis, to the principle Of*
retaliation against the French decree, it falls under the observations
already*made on that subject and which need not be repeated.
I have, &c.
(Signed) JAMES MADISON.
To the Hon. David Erskine,
&c. &c. &c".

No. 4.
DISPATCH from fhe Honourable David Erskine to Lord
Viscount Howick, dated Washington, 31st March, 1807.
My Lord, 1 ¦
After I had closed the preceding number of my dispatches
which accompany this, I received another letter from Mr Madi
son, in answer to the communications, which, in obedience to
your lordship's orders, I made to this government, of his Majes
ty's views relative to the French decree of blockade of the 21st
of November last, and his Majesty's prohibitory orders against
the neutral trade from port to port of his enemies.
As I conceived it would be most prudent to wait for your lord
ship's instructions, I did not send any reply to the letter, but havfc
now the honor to enclose it to your lordship.
I have the honor to be, &c.
Lord Viscount Howick. D. M. ERSKINE.
(Inclosure referred to in No. 4.)
Sir, Department of State, 29th March, 1807.
Further reflection on the tenor and tendency of the order of
his Britannic Majesty, communicated by your letter of the 16th
instant, which was answered by mine of the 20th, induces me to
resume that important subject.
From the difficulty of supposing that the order can have for its
basis either a legal blockade, impossible to be extended to all the
ports described in the order, .or a supposed illegality of the trade
between those ports, an illegality which has never been applied
by the British government.or its admiralty courts, to use accus
tomed trade even between ports of a belligerent nation, and is
utterly at variance with the conduct of both, in reference to a
trade between a belligerent nation and its allies; a necessity
seems to result Of ascribing the order to the policy of counter
vailing through the commerce of neutrals, the French decree of
the 21st of November last.

In this view of the order, it demands, on the part of the
United States, the most serious attention both to its principle and
to its operation.
With respect to its principle, it will not be contested, that a
retaliatioh by one nation, on itsenemy, which is to operate through
the' interest of a nation not its enemy, essentially requires, not
only that; the injury inflicted should be limited by the measure
of injury sustained, but that every retaliating step m such a case
should be' preceded by an unreasonable failure of ihe neutral party,
in some mode or other to put an end to the inequality wrongfully^
produced. Were it Certain, therefore, that the French decree
is to be enforced in the sense in -which it is taken',' and that; iii
violation1 of the treaty between France and the United States, the
commerce of the latter will not be exempted; the British order
being-peremptory in its import and immediate in its execution,.
might justly be regarded by the United States as a proceeding
equally premature and unfriendly. But in the uncertainty as1 to
the real meaning of that decree, and whilst a presumption offered
itself, that the decree, if avowed and executed in an unlawful
extent, might not embrace the commerce of the United States ;
they are bound by justice to their interests, as Well as by respect
for their rights, to consider the British order as a ground for seri
ous complaint and remonstrance. Should it prove that the decree
had not the meaning ascribed to it, and particularly, should the
respect of France for her treaties with the Uni[ed States, except
their trade from the operation ofthe decree, the order of the;
British government will stand exposed to still severer comments.
It vVill take the character' of an original aggression,, will furnish
to the French, government a like ground with that assumed by
itself, for retaliating measures, and will derive a very unfavoura
ble feature from fhe consideration that it was a palpable infraction
of a treaty first signed on the part ofthe British government, and
expected, at the date of the order, to be speedily ratified on the
part of the United States.
The necessity of presenting , the subject in its true light, is
strengthened by the operation which the British order will have
on a vast proportion of the entire commerce of the United Stales,
not to dwell On the carrying branch of the commerce between
the ports and countries of Europe, and which the immunity ^iven
' by our flag, in consequence of treaties with the enemies of Great
Britain, tb British property, and not enjoyed by the property of
het enemies, has hitherto been advantageous to Great Britain ;
and without inquiring into the effect of an application of the
interdict to'the other quarters of the globe, all of which are evi
dently within the comprehensive terms of the order, it cannot be
b

X
Bverlooked, that the character and course of nearly the whole of
the American'commerce with the ports of Europe, other than of
Great Britain, will fall under the destructive operation of the order/;
it is well known that the cargoes exported from the United' States
frequently require that they may be disposed of partly at one
market and partly at another. The return cargoes are still morp
frequently collected at different ports, and not unfrequently at
ports different from those receiving the outward cargoes.
In this circuitous voyage, generally consisting of several links,
the interest of the undertakers materially requires also, either a
trade or a freightage between the ports visitecfin the circuit. To
restrain the vessels of the United States, therefore, from this le
gitimate and customary m.ode of trading with the continent of
Eurqpp, as is contemplated by the order, and to compel them, on
one hand, to dispose of the whole of their cargoes at a port which,
may want but a part; and on the other hand, to seek die whole;
of their returns at the same port, which may furnish but a part,
or perhaps no part of the articles wanted, would be a proceeding
as ruinous to our commerce as contrary to our essential rights.
These observations, which" are made in conformity wifn the .'
sentiments of the president, cannot fail, Sir, to have all the
weight with an enlightened and friendly government to which
they are entitled, and the president persuades himself, that the
good effect of truths which tljey disclose, will be seen in such
measures as will remove all grounds for dissatisfaction, and de
monstrate on that side, the same sincere disposition to cultivate
harmony and beneficial intercourse^ as is felt and evinced by the/ .
United States of their government.
I have the honour to be, &c.
(Signed) JAMES MADISON,
The hon, David Erskine.

APPENDIX. (C)
Further Papers presented to Parliament in February, 180S.
NOTE from Messrs. Monroe and Pinkney
to Mr. Secretary Canning, dated London,
24th July, 1807.
The undersigned, commissioners extraordinary and plenipo
tentiary of the United States of America, have the honour to
inform Mr. Canning, that they are instructed by the president
of the United 'States to propose to his Majesty's government a

XI
renewal of negociatibn relative to the objects, of the mission of
the undersigned, with a view to a more satisfactory result than
is found in the instrument signed on the 31st of December last,
by his Majesty's plenipotentiaries, and those of the United
States. The undersigned are persuaded that his Majesty's government
will see in this measure, an unquestionable proof ofthe sincere
' desire of the president to place the friendly relations of the two
countries beyond the reach of those misunderstandings which
either the. absence or the inadequacy of precise arrangements
on subjects of the greatest, delicacy and importance might from
time to time occasion.
, .It is under the influence of this solicitude, that the,president has
charged the undersigned to express to his Majesty's government,
hi£ unfeigned regret that the instrument above-mentioned does
not appear to him to be such as he can approve, and at the same
*time to declare his entire confidence that the just and liberal
( sentiments which animate his Majesty's government, correspond
ing with those which belong tb the government of the United
States, cannot fail to lead, without delay or difficulty, to such
an issue of the negotiation which is now proposed, as shall be
suited in all respects to the right and interests of both nations,
and therefore calculated to insure, a long continuance of the
friendship which so happily subsists between them. '
, The undersigned have already had the .honour to present to
Mr. Canninga paper, which, taken in connection with a project
on the subject of impressment, and another on the subject of
certain claims to compensation by American citizens, presented
by the undersigned at the same time, willbe found to exhibit
a complete view of the alterations which the instrument above-
mentioned is deemed by the' president Jo require. They forbear
to trouble Mr. Canning with, a recapitulation of the details
which these papers contain ; but there are some explanations
iipon thei topics of impressment and compensation which they
do not.furnisb, and which it is' therefore incumbent upon the
undersigned to avail themselves of this occasion to give. ,
It was one ofthe primary objects of the mission ofthe under
signed to adjust with his Majesty's government a formal and
explicit arrangement relative to a practice by British ships ot
war, which has excited in a very great degree the sensibility x>£
the American people; and claimed the anxious attention of their
government. The practice alluded to is that of visiting on the
main ocean the merchant vessels of the United States, naviga
ble under the American flag, for the piarpdse of subjecting- their
crews to the hasty and humiliating inquisition,' and impressing
b 2

Xll
as British, seamen such ofthe mariners, as upon that inquisition
the visiting officer declares to be so. The effect of this practice
is, that the flag of an independant power is dishonoured, and one
of the most essential rights of its sovereignty violated ; that
American citizens, either mistaken for British subjects, ©r assu
med to be such without inquiry; are forced from the quiet pursuits
of a lawful commerce into the severe and dangerous service of
a foreign military navy, to expose their lives in fighting against
those with whom their country is at peace ; and that the merchant
vessels of the United States are frequently thus stripped of so
large a portion of their hands, before their voyages have been
performed, as to bring into the most imminent peril, and some
times to produce the actual loss of the vessel, their cargoes, and
their remaining crews. It cannot be thought surprising 'that a
practice like this should act with peculiar force upon the feelings
of those whom it oppresses, and that the sensation should extend
itself to their countrymen and their ^government.
The government of the United States has accordingly made
this pretension the subject of frequent discussion with Great
Britain ; and when an extraordinary mission to his Majesty's
government was last year determined on, it was one of the in
structions to the undersigned, to whom the duties of thac mis
sion was confided, to make nd treaty which should not provide
;for that object In the first stages ofthe negotiation, wfiich
followed that mission, the undersigned were1 led to indulge a
confident expectation that such a provision should be obtained.
At length however the rejection of his Majesty's government
of a project of an article on this point, which, . without touching
the question of right, offered on the part ofthe" United States an
effectual equivalent for the mere forbearance of the ' practice,
having extinguished all hope' of an immediate adjustment of
this subject by treaty, the undersigned felt that they were called
upon by candour as Bellas by their duty to their government,
to inform the British commissioners, that the project relative to
impressment having failed-they had no power to conclude a
treaty upon the other points which had been discussed between
them, so as to bind the government of the United States. The
undersigned /did accordingly give them this information iii the
most explicit terms and the negotiation was in consequence for a
short time suspended. It was soon afterwards, however, sug
gested by his Majesty's commissioners, that, if this topic should.
be expressly reserved for future conventional arrangements,
and a pledge given to the United States for resumingtfhe conside
ration of it at a convenient season with that.view, and if, in the
mean time, snch an informal understanding should be substi-

Xlll
tuted, as in its practical effect would remove the vexation com
plained of, it might perhaps be yet possible to conduct the ne
gotiation to a result which would not be unacceptable' to the
Respective governments; and in pursuance of this suggestion the
British commissioners presented to the undersigned on the 8th
day of November last, the official note, of which a copy is here
with inclosed. The undersigned transmitted to their government, ,'
for its consideration, a copy of this note, together with a state
ment of the circumstances connected with it, and without giving
it their sanction, agreed in the mean time to concur with the
British commissioners, as they were invited to do, in an effort
to adjust the stipulations of a treaty upon the remaining objects
of their mission^ and to leave tha effect of what should, be ad
justed- to their 'government.
It appears that the president of the United States considers
this collateral proceeding upon a 'concern of such paramount
importance, as unsuitable to the nature of it, as well in the
¦ mode as in its terms. In this opinion the president does but
continue' to respe'ct the considerations which heretofore induced
him to believe that an arrangement tpon this point ought to
stipulate with precision against the practice in question, and
that the manner of it would properly be that which should be
chosen for the arrangement of the 'other points of discussion ;
and in the instructions .which, in conformity with that opinion,
he has now given to the undersigned, he does but manifest his
reliance upon the spirit of justice and amity, which he is assur
ed his Majesty's government will bring to the renewed conside
ration of a subject so interesting to the rights and feelings of a
friendly nation, for such an adjustment of this, as well as of
every other question belonging to the relations of the two conri-
tries, as shall confirm > their dispositions to mutual kindness, and
promote the happiness and prosperity of both.
The subject of compensation will perhaps be sufficiently ex
plained by the inclosed copies of two, notes from the undersigned
to lord Holland and lord Auckland, and to lord Howick.
It will appear from the last of these notes, that this subject,
from which the projected treaty did not provide, was hot to be
affected by it; but on the contrary, that the rights ofthe United
States and the claims of "their citizens were understood to-be
reserved for future adjustment, as completely as if no treaty had
been made ; and. it will occur to Mr. Canning, that the project
of an article on this point, which they had the honour to leave
with him at their late interview, is in the spirit of that understand
ing, and is besides so entirely from- objection, that no motive is
likely to exist against the adoption of it. <

XIV
There is another subject, to which the undersigned. have the'
orders of the president to invite the attention of his Majesty's
government, as affecting materially, and giving a new and unex
pected character to the proposed treaty. They allude to the,
written declaration relative to the French decree of the 21sT of
November last, by which his Majesty's plenipotentiaries ac
companied their signature ofthe treaty; a declaration, which, irt
its actual form, creates unnecessary embarrassments in the way
of an acceptance ofthe treaty by the United States.
The undersigned persuade themselves, that as this proceeding,
to which no sanction was given . on their part, imposed on the
United States no new obligation, arid could only be intended to
declare that, in signing or ratifying the treaty, it was understood'
by Great Britain that nothing contained in it would be a bar to
any measure *fhich, if no such treaty had been signed, would'
be lawful as a measureof retaliation against her enemy, and as the
occasion which produced it does not now appear to exist as then
supposed, it will not be thought that any thing is sacrificed by
withdrawing it as unnecessary.
The undersigned request Mr. Canning to accept the assurances
of their distinguished consideration. (Signed) JAMES MONROE,
WILLIAM PINKNEY.
Right hon. George Canning.

COPY ofthe Treaty of Amity, Commerce, and
Navigation, between his Majesty and the
United States of America, concluded and
signed on the 31st December, 1806.
Alterations proposed ly the Pre- TREATY.
sident ofthe United, States. Hjg Britannic Majes^ ^
the United States of America,
¦N. B. The variations between bein.?' equally desirous to pro-
the treaty of 1794 and the present mote and perpetuate the good
treaty are distinguished by brack- understanding and friendship
els- which happily subsist between
subjects of the United Kingdom,
and the citizens of the United
States, and for that purpose to
gulate the commerce and na
vigation between their respec
tive countries, territories, and
people, on the basis of re-

XV

^Iterations proposed by the Pre
sident cf the United Stales.

Art. I.

fExactly conformable to Art.
I. of the treaty of 1794.]

•Art.. II.
[The articles of the old treaty
renewed '" by this article are the
third, relative to the navigation of
the Mississippi, ihe fourth, pro-

TREATY<
cigrocity and mutual con
venience, have respectively
named their plenipotentiaries,
and have given to them full
powers to make and conclude
a treaty" of amity, navigation,
and commerce ; that is to say,
hisBritannic Majesty has named
for his plenipotentiaries Henry'
Richard Vassal Lord Holland,
one of his Majesty's privy coun- •
cil and lord keeper of his Ma
jesty's privy seal ; and William
. lord Auckland, one of his Ma
jesty's privy council, and presi
dent of the committee of coun
cil for all matters of trade and
foreign plantations and, the pre
sident of the United States, by
and with the advice of the se
nate thereof, hath appointed
for their plenipotentiaries James
Monroe andJWilliam Pinkney,
commissioners extraordinary
and plenipotentiaries : who af
ter having exchanged their res-
- pective full powers, have agreed
on the following articles :
Art. I.
There shall be a firm, invio
lable, and universal peace,, and
a true and sincere freindship
between his Britannic Majesty
and the United States of Ame
rica, and between their respec
tive countries, territories, cities,
towns, and people of every
degree, without exceptibn of
persons or places. Art II.
If is agreed, that the seve
ral articles of the treaty of ami
ty, commerce, and navigation.

XVI

Alterations proposed by the pre
sident ofthe Ujiited States.
viding for the ascertainment ,of
the extent of that river ; and the
ffth, for declaring what river was,
in the treaty of peace, intended by
the river St. Croix ;. likewise, the
ninth, for enabling the subjects of
one countrv to hold and dispose
af, lands in the other, and the
tenth, against confiscating debts
in the case of war.1

Art. III.
{Taken from Art. XIII of the
former treaty, with alterations.]
f Omit the words " and sail
ing direct from the ports of the
said states.','

Omit the words '¦ between
the said territories and the said

TREATY.
between "his Majesty and ibe
United States, made at London
on the 19th day of November
1794» which have not expired j
nor as yet had their full opera
tion and effect, shall be con
firmed in their best form, and
in their full tenour ; and that
the contracting parties will al
so from time to time enter in to-
friendly explanations on the
subject of the said articles, for
the purpose of removing all
such doubts as may arise or
have arisen, as to the true re
port of the same, as well as for
the purpose ,of rendering the
said articles more conforma
ble to their mutual wishes and
convenience. *-
Art. III.
His Majesty agrees that the?
vessels belonging to the United
States of America, [and sailing
direct from the ports of the
said State?,] shall be admitted
and hospitably received in all
the seaports and harbours of
the Britisfi' dominions in the..
East Indies ; - and' that the
citizens of the United States
may freely carry on trade be
tween the said territories
and the said United -States.

-¦* To my observations on this renewal (see pp. 4. 5. and 71.) I can
only add that the very wording of this article shews it to have been con
ceived in the same spirit of procrastination which dictated the sixth,
and the omission of a provision concerning the seamen. — The incon
venience and danger of leaving the articles as they stand, is illustrated
in Mr. Morris's pamphlet (published in America) pp. '30. -40.

f See p. 5.

XVli

Alterations proposed by the Pre
sident of the United Stales.,
United States," and insert
" with the said territories.''

After the words " where
the same shall be unladen,"
insert " or to some port or
place, or ports or places in
China, or the Indian or other
seas, beyond the Cape of Good
Hope, from whetice the said
vessels shall proceed as afore-

TREATY,
in all articles of which the im
portation or exportation respec
tively to and from the said
territories shall not be entirely
prohibited : provided only,
that it shall not be lawful for
them, in any time of war be
tween the British government
and any power or state what
ever, to export from the said
territories, without the special
permission of the British go
vernment there, any military
stores, or naval stores, or rice.
The citizens of the United
Statesshall pay for their ves
sels, when admitted into the
said ports, no other or higher
tonnage than shall be payable
of British vessels," when ad
mitted into the ports of the
United States ; and they shall
pay no other or higher duties
or charges, on the importation
of the cargoes of the said ves
sels, than shall be payable oh
the same articles when impor
ted or exported in British ves
sels. But'it is expressly agreed,
that the vessels of the United
States shall not carry any of
the articles exported by them
from the said British territories
to any port or place, except to
some port or place in America
where the same shall be ubla-
den, and such regulations shall
be adopted by both parties as
shall from, time to time be
found necessary to enforce the
due and faithful observance of
this stipulation. <
c

XV111

Alterations proposed by the Pre
sident of the United Stales'.
said to some' port or place in
America, and there unlade
their cargoes."

After the words '.' British
territories," insert " without
the special permission of the
British government."

TREATY.
It is also understood, that the
permission granted by this arti
cle is not to extend to allow
the vessels ofthe United States
to carry on any part of the
coasting trade of the said
British territories, but the ves
sels going out with their origi
nal cargoes or part thereof from
one port of discharge to another,
are not to be considered as car
rying on the coasting trade.
Neither is this article to be con
strued to allow' the citizens of
the' said States to settle or re
side, within the said territories,
or to go into the interior parts .
thereof, without the permission
of the British government esta
blished there; and if any trans
gressions should be attempted
against the regulations of the
British, government in this res
pect, the observance of the same
shall and may be enforced a-
gainst the citizen? of America,
in the same manner as against
British subjects or others trans
gressing the same rule. And
the citizens <?£ the United
States, whenever they arrive
at any port or harbour in the
said territories, or if they should
be permitted, in manner afore
said, to go to any other place
therein, shall always be sub
ject to the laws, government,
and jurisdiction of whatever
nature, established in such bar- "
bour, port, or place, according
as the same may be. The ci
tizens of the United States
may'also touch for refreshment

XIX

Alterations proposed by the Pre
sident of the United States.
After the words " St. Hele
na," insert " or at such other
places as may be in the posses
ion of Great Britain in the
African or Asiatic Seas."

[From
treaty.]'

Art. IV.
XIV of the

former

At. the end of the article add
" And itisfurtheragreed,,that
if any other trade in and with
the said British territories in the
East Indies than is hereby au
thorized, or any other or great
er rights or advantages in re
spect, tnereof shall be granted
or permitted to the citizens or
subjectsof any European nation,
the same shall be common to
the citizens of the United
' States:'" ; Ait. V.
[From XV ofthe former with
alterations.]

TREATY.
at the island of Saint Helena,
but subject in all respects to •
such regulations as the British
government may from time to
time establish there.
. Art. IV.
There shall be between all
the dominions of his Majesty
in Europe and the territories of
the United States, a reciprocal
andperfect liberty of commerce
and navigation'. The people
,and inhabitants ofthe two coun
tries respectively shall have li
berty freely and exclusively, arid
without hindrance and molest
ation, to come \virh their ships
and cargoes to the lands, coun
tries, cities, ports,' places and
rivers within the dominions and
territories aforesaid, to enter
into the same, to resort there,
and to remain and reside there
without any limitation of time ;
also to hire and possess houses
and warehouses for the purpose
of their commerce; and gener
ally, the merchants and traders
on each side shall enjoy , the
most compleat protection and
security for their commerce,
but "subject always, as to what
respects this article, to the laws
and statutes of the two countries
respectively. ArtV.
It is agreed, that no other or
higher duties shall bepaidby-the
ships or merchandize of the
one party in the ports of the
other, than such as are paid by
¦the like vessels or merchandize

c 2

XX

Alterations proposed by the Pre
sident of ihe United States.

At th.e end of the first para
graph insert " nor shall any
higher duties or charges be im
posed in one country, on the
exportation of any articles to
the ports of the other, than
such as are payable on, the ex
portation, of the like articles to-
every other foreign country."

[In treaty 1794 " and als6 such
duty as may he adequate to counr
tervail the difference 6f dqty now"
payable on the importation of Euro
pean and Asiatic goodswhen impor
ted into theUntted Statesin Ameri
can or in British vessels. The two
parties agreeto treat for the more ex
act equalization ofthe duties on the
respective navigation of their sub
jects and the people in such a man
ner as may be most beneficial to
-the two countries. The arrange
ments for this purpose shall be
made at the/same time with those
mentioned at the,conclusion of the
twelfth article of this treaty, and
are to be consideredasa part there
of. In the interval, it is agreed

TREATY.
of all other nations. Nor shall
any other or higher duty be im
posed in one country on the
importation of any articles; the
growth, produce, or manufac
ture of the other, than are or
shall be payable on the importa
tion of the like articles, being
of the growth, produce, or ma
nufacture of any other foreign
country. ,
Nor shall any prohibition be
imposed on the exportation or
importation of any articles to or
from the territories of the two
parties respectively, which shall
not equally extend to all other
nations. But the British go
vernment reserves to itself the
right of imposing on American <
vessels ¦ entering into British
ports in Europe a tonnage duty
equal to that which shall at any '
time be payable by British ves
sels in the; ports of America;
[and the government of the
United States, reserves to itself
a right of imposing on British
vessels entering into the ports
of the Unit,ecl States, a tonnage
duty equal to that which, shall
aj: any time be payable by A-
merican vessels in the British
ports in Europe.
It is agreed, that in the trade
of the two countries with each
other, the same duties of ex
portation and importation on all
goods and merchandize, and
, also the same drawbacks and
bounties shall be paid and al
lowed in either Country, whe
ther such importation or expor-

XXI

Alterations proposed by the Pre
sident ofthe United States.
that the United States will not
impose any new or additional
tbnnage duties on British vessels,
nor increase the now subsisting
difference between duties payable
on the importation of arly articles
in British or in- American vessels."]

Art. VII.
[Copied from Art. XVI of the
old treaty.]

TREATY.
tation shall be made in British
or American vessels.]
Art! VI*
The high contraptjng parties
not having been able to arrapg^
at present, by treaty, any com
mercial intercourse between the
territories of the United States
and his Majesty's islands and
ports in the West Indies, agree
that, until that subject shall be
regulated in a satisfactory man
ner, each of the parties shall
remain in the complete posses
sion of its rights, in respect to-
such an intercourse. Art. VII,
It shall be free for the high
contracting parties respectively
to appoint consuls for the pro*
tection of trade, to reside irt
the dominion and territories a-
foresaid ; and the, said,, consuls
shall enjoy those liberties and
rights which belong to them by
reason of their function ; but
before any consul shall act as
such-, he shall be in the usual
forms approved andadmitted by
the party to whom he is sent :
and it is hereby declared to be
lawful and proper^ that in case
,of illegal or improper conduct
towards the laws or govern
ment, a consul may either be
punished according to law, if
the laws will reachithe case, or
be dismissed, or evensent back,
the oflended.governnient assigp-

* See Letter III.

XXII

Alterations proposed by the Pre
sident ofthe United Slates.

Propose to strike out the last
paragraph.* An. VIII.-,
[From XVII of former treaty,
with alterations.]
Omit the words " on just
suspicion of having on board
enemy's property, or of carry
ing to the enemy any of the
articles which afe contraband of
war." Omit the word " other," and
substitute " any."
, Omit the words " if any
property of an enemy should be
found on board such vessel."
Omit the words " belongs to
the enemy, or."
Omit the word " otherwise."

TREATY.
ing to the other the reasons for
the same.
Either of the parties may ex
cept from the residence of the
consuls, such particular places
as such party shall judge proper
to be excepted. Art. VIII.
It is agreed, that in all cases
where vessels shall be captured
or detained on just suspicion of
haying on board enemy's pro
perty, or of carrying to the
enemy any ofthe articles which-
are contraband of war [or for
other lawful cause,] the said
vessel shall be brought to the^
nearest or most convenient.
port; and if any property of an
enemy should be found on board
such vessel, that pari only which
belongs to the enemy, [or is
otherwise confiscable,] shall be
made prize, and the vessel,
[unless by law subject to con
demnation,] shall be at liberty
to proceed with the remainder
of the cargo, without any im
pediment. And. it is agreed,
that all proper measures shall
be taken to prevent delay in de
ciding the cases of ships and

* It is difficult to conceive the reason of Mr. Jefferson's objection ta
this provision.
f The alterations introduced into the article as it stood in tha treaty of
17°4, appear to be prudent, as providing for other cases of detention
and confiscation, than either enemy's property or contraband goods.
Mr. Jefferson's proposed alterations do not appear to alter the substantial
effect of the stipulation, so amended.

XX1U

Alterations proposed by the Pre
sident of the United States. .

Art. IX.
[Altered from XVIII of 1794.]

[* In old treaty " tar or rosin."]
[t" Sails."]

After the words ". tar- and
pitch," add " turpentine and
rosin."

TREATY.
cargoes so brought in for adju
dication, and in the payment or
recovery of any indemnification '
adjudged or agreed to be paid
to the masters or owners of such
ships. It is also agreed, that in all
cases of unfounded detention,
or other contravention of the
regulationsstipulated by the pre
sent treaty, the owners of the
vessel and cargo so- detained
¦shall be allowed damages pro
portioned to the loss occasioned
thereby together with the costs
and chars s of the trial.
Art. IX.
vIn order to regulate what is
in future to be esteemed con
traband of war, it is agreed,
that under the said denomina
tion shall bexomprized all arms
and implements serving for the
purposes of war by land or
by sea, such as cannon, mus-
quets, mortars, petards, bombs,
grenadoes, carcasses, carriages
for cannon, musquet rests, ban
doliers, gunpowder, " match,
saltpetre, bd\\, pikes, swords,
head pieces, cuirasses, halberts,
lances, javelins, horse -furni
ture, holsters, belts, and ge
nerally all other implements of
war ; as also timber for ship>-
building,*copper in sheets, [sail-r1
cloth,] hemp, and cordage, and
in general with the exception
of un wrought iron and fir planks;
[and also with the exception of
tar and pitch,, when not going
to a port of naval equipment, in
which case they shall be enti-.

XXIV

Alterations pTopbsed by the Pre
sident of the United States.

[* In old treaty " and whereas
the difficulty of agreeing on the
precise cases in which alone provi-
•sions and other articles, not gene
rally contraband, maybe regarded
as such, renders' it expedient to
jprovide against the incOnvenielicies
and misunderstandings which
might thence arise: it is further
Sgfeed,, that whenever any such
articles, so becoming contraband
according to the existing laws of
nations, shall for that reason be
iserzed, the same shall not be con
fiscated, but the owners thereof
6tiall be speedily and completely
indemnified ; and the captors, oi,
in their default, the government
under whose authority they act,
shall pay to the masters or owners
of such vessel the full value of all
articles, with a reasonable mer
cantile profit thereon, together
With the freight, and also the de
murrage incident to such deten-
sion."] Art. X.
[From the latter part of Article
XVIII. of 1794.]

TREATY.
tied to pre-emption] whatever
may serve directly to theequip-
mentof vessels;andall the above
articles are hereby declared to
be just objects of confiscation,
whenever they are attempted
to be carried toi an enemy;*'
[but no vessel shall be detained
on pretence of carrying contra
band of war, unless some of
the above-mentioned articles
not excepted, are, found on
board of the said vessel at. the
time it is searched.]

Art.X,
Whereas [in consideration of
the distance, and other circum
stances incident to the situation
of the, high contracting parties]
it may frequently happen that
vessels may sail for a port or
place belonging to an enemy,
without knowing that the same
is either besieged, blockaded,
or invested, it is agreed, that
every vessel so circumstanced,
may be turned away from such

xxv

Alterations proposed by the Presi- '
dent of the United Stales.

At the end of the first para
graph introduce, a definition of
blockade : " in order to deter
mine what characterizes a
blockade, that denomination is
only given to a port where there
is, by the disposition of the
power which blockades it with
ships stationary, or sufficiently
near, an evident danger in en
tering." [This proposed alteration is ta
ken from a similar article in the
convention of 1801 between Great
Britain and Russia, arid wfiich,
was most strongly objected to by
Lord Grenville in his speech of
the 13th November, 1-801.]
Art. XI.
[A new Article.]

TREATY.

port or place, but she shall pot
be detained, nor her cargo, if
not contraband, be confiscated,
unless after [such] notice she
shall again attempt to enter;
but she shall be permitted to go
to any other port or place she
may think proper; nor shall
any vessel or goods of either .
party, that may have entered
into such port - or place before
the same was beseiged, block
aded, or invested by the other,
and be found therein after the
reduction or surrender of such
place, be liable to confiscation,
but shall be restored to the
owners or proprietors thereof.
[Neither of the parties when
at war, shall, during the conti
nuance of the treaty, take from
on board the vessels ofthe bther,
the subjects of the opposite bel
ligerent, unless they be in the
actual employment of such bel
ligerent.]

Art. XI.
Whereas differences have a-
risen concerning the trading
tvith the colonies of his Majes
ty's enemies, and' the instruc
tions given by his Majesty to
his cruizers in regard thereto ;

XXVI

Alterations proposed by the Presi
dent of the United States.
Omit" during the present
hostilities." Aftetf the word " Europe,"
insert " or elsewhere."

After the xs/ori "Europe,"
insert " or elsewhere."

After the word " paid," in
sert " or secured to be paid."

TREATY.
it is agreed, that, during the
present hostilities, all articles
of the growth, produce, and
manufacture of Europe, not.
being contraband of war, may
be freely carried from the Uni
ted States to the port of any
colony not blockaded, belong
ing to his Majesty's enemies^
Provided such goods shall
previously have been entered
and landed in the United States,
and shall have paid the ordinary
duties on such articles so im
ported for home consumption,
and on re-exportation shall
after the drawback remain sub
ject to a duty equivalent to not
less than one per cent, ad valo
rem, and that the said goods
and the vessel conveying the
same, shall from the time of
their clearance from the Ame
rican port, be bona fide the pro
perty of citizens and inhabitants
of the United States : rAnd in
like manner, that all articles
not being contraband of war,
and being the growth and pro
duce of the enemies colonies,
may be brought to the United
States, and after -having been
there landed, may be fyeely
carried from thence to any port
of Europe not blockaded, pro
vided such goods shall previous
ly have been entered and landed
in the said United States, and
shall have paid the ordinary du
ties on colonial articles so im
ported for home consumption,
and on re-exportation shall*

xxvn

Alterations proposed by the Presi
dent of the United States.

At the end of the paragraph
introduce the following " it is
understood, that no inference is
to be drawn from this article to
affect any question, now or
hereafter to be judicially de
pending, touching the legality
or illegality of a direct trade
from Europe, or, elsewhere, by
citizens of the United States,
with enemies' colonies beyond
the Cape of Good Hope."*

Art. XII,
[A new Article.]

TREATY.
after the drawback, remain sub
ject to a duty equivalent to not
less than two per cent, ad valo
rem ; and provided that the said
goods and the vessel conveying
the same, be bona fide the pro
perty of citizens and inhabi
tants of the United States.

d 2

Provided always, that this ar
ticle, or any thing therein con
tained, shall not operate to the
prejudice of any right belong
ing to either party; but tliat,
after the expiration of the time
limited for the article, the
rights on both sides shall revive
and be in full force.
Art. XII.
And whereas it is expedient
to make special provisions re
specting the maritime jurisdic
tion of the high contracting
parties on the coasts of their
respective possessions in North
America, on account of pecu-

* The proposed alterations tend to render still more loose and unsa
tisfactory the arrangement, on the part of Britain, respecting the enemy's
colonial trade, and. furnish additional proofs that, by it, we did not
i satisfy or conciliate America. Their tendency is too obvious to require
further explanation.

XXV1U

AlterationsprepoSeibty the Presi-
sident qf the United States.

Omit the words "except for
the purpose hereafter mention
ed."

Omit the last paragraph.*

TREATY.
liar circumstances belonging to
those coasts, it is agreed that
in all cases where one of the
said high contracting parties
shall be engaged in war, the
other shall be at peace, the bel
ligerent power shall not stop,
except for the purpose hereafter
mentioned, the vessels of the
neutral power, or the unarmed
vessels of other nations, within
five miles of the shore belonging
to the said neutral power on tha
American seas.
Provided that the said stipu
lation shall not take effect in
favour of the ships of any nation
or nations which shall not have
agreed to respect the limit afore
said as the line of maritiirie
jurisdiction of the said neutral
state : and it is further stipula
ted, that if either of the high
contracting parties shall be at ,
war with any nation or nations
¦which shall have agreed to re
spect the said special limit or
line of maritime jurisdiction
herein agreed upon, such con
tracting party shall have the
right to stop or search any vessel
beyond the limit of a cannon
shot or three marine miles from
the said coasts of the neutral
power, for the purpose of as
certaining the nation to which
such vessel shall belong. And
with respect to the ships and
property of the nation or na
tions not having agreed to re-

Why?

XXIX

Alterations proposed by the Pre
sident ofthe United States.

Art. XIII.
[Altered from XIX. of the old
treaty.] Propose to introduce, as the
first paragraph of the article,
the following, " if the ships
of either ofthe parties shall be
met with, sailing either along
the coasts or on the high .seas,
by any private armed vessel of
the other party, such armed
vessel shall, for avoiding* all
disorder in visiting and examin
ing the same, remain out of
cannon shot, unless the state
ofthe sea or place of meeting
render a nearer approach ne
cessary 5 and shall in no case
compel or require such vessel
to send her boat or her papers
or any person from on board
to Jihe belligerent vessel, but the
belligerent vessel may send her
own boat and may enter her
to the number of two or three
men only, who may in an or
derly manner make the neces
sary enquiries concerning the
vessel and her cargo : and it is
agreed, that effectual provision
shall be made for punishing
violations of any part of this
stipulation. * '

TREATY.
spect the aforesaid line of juris
diction, the belligerent power
shall exercise the same rights
as if this article did not exist ;
and the several provisions sti
pulated by this article shall have
full force and effect only during
the continuance of the present
treaty. Art. XIII.
[With respect to the search
ing of merchant ships, the com
manders of ships of war
and privateers shall conduct
themselves as favourably as the
course of the war then existing
may possibly permit towards
the most friendly power that
may remain neuter, observing
as much as possible the acknow
ledged principles and rules of
the law of nations. And] for
the better security of the res
pective subjects and citizens
of the contracting parties, and
to prevent their suffering inju
ries by the men of war or 'pri
vateers of either party, all com
manders of ships of war and
privateers,, and all others, the
said subjects and citizens shall
forbear doing any damage to
thoseof the other party, or
committing any outrage against
them ; and if they act to the
contrary, they shall be punish
ed, and shall also be bound in
their persons and estate to make
satisfaction and reparation for
all damages, and the interest
thereof, of whatever nature the
said damages may be.

* There does not appear, any objection to the proposed paragraph,-
which is nearly copied from several precedents.

XXX

Alterations proposed by the Pre
sident of the United States.
Omit the words " as favoura
bly as the course of the war
then existing may possibly per
mit towards the most friendly
power that may remain neuter,"
and insert " according to the
acknowledged principles and
rules of the laws of nations,
and as favourably, moreover, as
the course of the war then
existing may possibly permit
towards the most friendly power
that may remain neuter."*
[Old treaty " fifteen hundred"]
[" Three thousand."]

TREATY.
For this cause, all comman
ders of privateers, before they
receive their commissions, shall
hereafter be compelled to give,
before a competent judge, suf
ficient security, by at least two
respectable sureties, who have
no interest in the said privateer,
each of whom, together with
the said commander, shall be
jointly and severally bound in
the sum of [two thousand]
pounds sterling ; or, if such ship
be provided with above one
hundred and fifty- seamen, or
soldiers, in the sum of [four
thousand] pounds sterling, to
satisfy all damages and inju
ries, which the said privateers,
or officers, or men, or any of
them, may do or commit dur
ing their cruize, contrary to the
tenour of ^this treaty, or to the
laws and instructions for regu
lating their conduct ; and fur
ther, that in all cases of aggres
sions, the said commissions shall
be revoked and annulled.
It is also agreed, that when
ever a judge of a court of Ad
miralty of either of the parties
shall pronounce sentence against
any vessel or goods or proper
ty belonging to the subjects or
citizens of the other party, a

* The words newly introduced, and not in the treaty of 1794, do not
appear to have any precise effect. " Ohserving as much as possible the
acknowledged principles and rules of the law of nations" is either a very
slovenly expression, or very important though incidental assertion of
a contingent right to deviate from that law. Jefferson seems to have
suspected the latter and would obviate it by his alteration, but it would
be better to leave out both.

XXXI

Alterations proposed by th&Pre-
sidentofthe United States.

Art. XIV.
[Exactly copied from the former

Art. XV.
[From XXI of the treaty 1794-3

TREATY.
formal and duly authenticated
copy of all the proceedings in.
the cause, and of the said sen
tence, shall, if required, be de
livered to the commander of
the said vessel, without the
smallest delay, he paying all
legal fees and demands for the
same. Art. XIV.
It is further agreed, that both
the said contracting parties shall
not only refuse to receive any
pirates into any of their ports,
havens, or towns, or permit any
of their inhabitants to receive,
protect, harbour, conceal or as
sist them in any manner, but
will bring to condign punish
ment all such inhabitants as
shall be guilty of such acts or
offences. And all their ships with the
goods or merchandizes taken
by them, and brought into the
ports of either of the said par
ties, shall be seized as far as
they can be discovered, and
shall be restored to the owners,
or the factors or agents duly de
puted, and authorised' in writ
ing by them, (proper evidence,
being shewn in the court of
admiralty, for proving the pro
perty) even in case such effects
should have passed into other
hands by sale, if it be proved
that the buyers knew, or had
good reason to believe or sus
pect that .they had been pirati
cally taken. Art. XV.
It is likewise agreed, that
the subjects, and citizens ofthe

XXXII

Alterations proposed by the Pre
sident of the United States.

fin the old, is here added " and be
taken by the other party."]

Art, XVI.
[From XXII. ofthe old treaty.]

Art XVII.
[From Art. XVII. of treaty
179*-]

TREATY.
two nations, shall not do any
acts of hostility or violence
against each other, nor accept
commissions or instructions so
to act from any foreign Prince
or state, enemies to the other
party, nor shall the enemies
of one ofthe parties be permit-
ed to invite or endeavour to
inlistin the military service any
of the subjects or citizens of
the other party ; and the laws
against all such offences apd
aggressions shall be punctually
executed : and if any subject or
citizens of the said parties res-
pectivelyshall accept any foreign
commission, or letters of marque
for arming any vessel to act as
a privateer against the other
party, it is hereby declared to
be lawful for the said party to
treat and punish the said sub
ject or citizen, havingsuch com
mission or letter of marque,
as a pirate. Art. XVI.
It is expressly stipulated that
neither of the said contracting
parties will order or authorize
any acts of reprizal against the
other on complaints of injuries
ahd damages, until the said
party shall first have represent
ed to the other" a statement
thereof, verified by competent
proof and evidence, and 'de
manded justice and satisfac
tion, and the same shall either
have been refused or unreason
ably delayed. Art. XVII.
The ships of war of each of

XXX111

Alterations prtposed by the Pre
sident qf the United, States.
Substitute the following t
" the ships of war and priva
teers of the two nations, as well
as their prizes, shall be treated
in^their respective ports as those
pf the nation most favoured."

[* " His Majesty consents."]
[t" An American."]
[}" His Majesty's ports,"]"

[Hntheold treaty Xrt. XXIII. is

TREATY,
the contracting parties shall at
all times be hospitably received
in the ports of the other, their
officers and crews paying due
respect to the laws and govern-,
ment of the country. The
officers shall be treated with
that respect which is due to '
the commissions which they
bear ; and -if any insult should
be offered to them ,by any of
the inhabitants, all offenders in
this respect shall be punished
as disturbers of the peace and
amity between the two coun
tries. And [* both contracting
parties agree,] that in case
[anyf]v»ssel [ofthe one]shopld#
by stress of weather, danger
from enemies, or other misfor
tunes, be reduced to the neces
sity of seeking shelter in any
of [J the ports ofthe other,] into
which such vessel could not in
ordinary cases claim to be ad
mitted, she shall, on manifesto
ing that necessity to the satis
faction of the government of
the place, be hospitably receiv
ed; and permitted to refit, and
to purchase at the market price
such necessaries as she may
stand in need of, conformably
to such orders and regulations
as the government of the place,
having respect to the circum
stances of each case, shall pre
scribe. She shall riot be allowed to
break bulk or unload her car
go, unless the same shall
be bond fide necessary to her-
being refitted;* nor shall she be

XXXIV

Alterations proposed, by the Pre
sident of the United States.
added here" nor shall she be permit
ted to sell any part of her cargo un
less so much only as may be neces
sary to defray her ' expenses and
then not without 'the express
permission of the government of
the place."] Art. XVIII.
[Similar to XXIV. of the for
mer.]

J Like Art. XXV of the former,
with a slight alteration.]

TREATY. *
obliged to pay any duties what
ever, except on such articles as
she may be permitted to sell
for the purpose aforesaid.

Art.XVIII.
. It shall not be lawful for any
foreign privateers (not being
subjects or citizens of either
of the said parties ) wh'O
have commissions from any
power or state in enmity with
either nation, to arm their ships
, in the ports of either of the
said parties, nor to sell what
they have taken, nor in any
other manner to exchange the
same ; nor shall they be allowed
to purchase more provisions
than shall be necessary for their
going to the nearest port of that
prince or state from whom they
obtained their commissions.
Art. XIX.
It shall be lawful for the ships
of war and privateers, belong
ing to the said parties respec
tively, to carry whithersoever
they please the ships and goods
taken , from their enemies,
Without being obliged to pay
any fees to the officers of the
admiralty, pr to any judges
whatever; nor" shall the said
prizes, when they arrive at
and enter the ports of the said
parties, be detained or seized ;
nor shall the searchers, or other
officers of those places, visit
such prizes (except for the
purpose of preventing the. car
rying of any part of the cargo

XXXV

Alterations 'proposed by the Pre
sident qf the United States.

The two last paragraphs to
be struck out.

[*In the old treaty, Art.JXXV,
" nor in any of the bays^ ports,
or rivers of their territories."]

e 2

TREATY.
thereof on shore, in any man
ner contrary to the established
laws of revenue, navigation, or
commerce) ; nor shall such of
ficers take cognizance of the
validity of such prizes ; but
they shall be at liberty to hoist
sail, and depart as speedily as
may be, and -carry their said
prizes to the place mentioned
in their commissions or patents,
which the cammanders of the
said ships of war or privateers
shall be obliged to shew.
No shelter or refuge shall be
given in their ports, to such as
have made a prize upon the
subjects or citizens of either of
the said parties, but if forced
by stress of weather or the
dangers of the sea to enter
them, particular care shall be
taken to hasten their . depart
ure, and to cause them to retire
as soon as possible. Nothing
in this treaty contained shall,
however be construed to, ope
rate contrary to the former, and
existing public treaties- with
other sovereigns or states : but
the two parties agree, that
while they continue in amity,
neither of them will in future
make any treaty that shall be
inconsistent with this or the
preceding articles.
Neither of the said parties
shall permit the ships or goods
belonging to the subjects. or ci
tizens of the other to be taken
within cannon - shot of the
coast, nor* [within the juris
diction described in Article
XII. so long as the provisions

XXXVI
Alterations proposed by the Pre- TREATY.
sident of the United States. in the said article shall be in
ibrce] by ships of war, orvothers
having commissions from any
prince, republic, or state what
ever. But in case it should so
happen, that the party whose
territorial rights shall thus have
been violated shall use his ut
most endeavours to obtain from
the offending party full and am
ple satisfaction for the vessel or
vessels so taken, whether the
same be vessels of war or mer
chant vessels. <
Art. XX. Art. XX.
[Copied from XXVI. of treaty If at any time a rupture
i?94.'] should take place (which God
forbid) between his Majesty
and the United States, the mer
chants and others of each of
the two nations, residing in the
dominions of the other, shall
have the privilege of remaining
and continuing their trade, so
longfas they do it peaceably, and
commit no offence against the .
laws j and in case their conduct
should render them suspected,
and the respective governments
should order them to remove,
the term of twelve months
from the publication of the or
der shall be allowed them for
the purpose, to remove them
with their families, effects, and
prbperty ; but this favour shall
not be extended to those who
shall act contrary to the estai-
blished laws : and for greater
certainty, it is declared, that
such rupture shall not be deem
ed to exist while negotiations
for accommodating differences
shall be depending, nor until

Xxxvn

Alterations proposed by the' Pre
sident ofthe United] Stales.

Art. XXI.
[From Art. XXVII. of 1794.]

TREATY.
the respective ambassadors of
ministers, if such there shall
be, shall be recalled or sent
home on account of , such dif
ferences, and not on account of
personal misconduct, according
to the nature and degree pf
which both parties retain their
rights, either to request the re
call or immediately to send
home the ambassador or minis
ter of the other, and that with^
out prejudice to their mutual
friendship and good understand
ing. Art. XXI.
It is^further agreed, that his
Majesty and the United States,
on mutual requisitions by them
respectively, or by their respec
tive ministers or officers autho
rised to make the same, will de
liver up to justice all persons,
' who, being charged with mur
der or.forgery, committed with
in the jurisdiction of either,
shall seek an asylum withia
any of the countries of the
other ; provided that this shall
only be done on such evidence
of criminality, as, according
to the laws of the place where
the fugitive or person so charg
ed shall be found, would justi
fy his apprehension and com
mitment for trial- if the offence
had there been committed. The
expense of such apprehension.
and delivery shall be borne and
defrayed by those who make
the requisition, and receive the
fugitive.

XXXV111

Alterations proposed by the Pre
sident of the United States.
Art. XXII.
[A new article.]

Art XXIII.
[A new article.]
- To stand thus : " It is agreed,
that in case either party shall
hereafter grant any additional
advantages in navigation or
trade to any other nation, the
subjects or titizens ofthe other
party shall fully participate
therein freely, where it is free
ly granted to such other nation,
or on yielding the sarne com
pensation when the grant is con
ditional."*

Art. XXIV.
[A new article.]

TREATY.
Art. XXII.
In the event of a shipwreck
happening in a place belonging
to one or other of the high
contracting " parties, not only
every assistance shall be given
to the unfortunate persons, and'
no violence done to them, but
also the effects which they shall
have thrown out of the ship in
to1 the sea shall ,not be con
cealed or detained, nor da
maged, under any pretext-
whatever ; on the contrary,
the abovementioned effects and
merchandize shall be preserved
and restored to them, upon a
suitable recompence being^iven
to those who shall have a'ssisted
in saving their persons, vessels,
and effects. Art. XXIII.
And it being the intention of
the high contracting parties
that the people of their respec
tive dominions shall continue to
be on the footing of the most
favoured nation, it is agreed,
that in case either party shall
hereafter grant any additional'
advantages, in navigation or
trade, to any other nation, the
subjects or citizens of the other
party shall fully participate
herein. Art. XXIV.
'The high contracting parties

A bad article, and not mended by the alteration proposed.

XXXIX
Alterations^proposed by the Pre- TREATY.
sident of the United Stales. engage to communicate to each
other, without delay, air such
laws as li3ve been or shall be
hereafter enacted by their re
spective legislatures, as also aH
measures which shall have been
taken for the abolition or limi
tation of the African slave
trade ; and they further agree,
to use-their best endeavours to
procure the co-operation of
other powers for the final and
complete abolition of a trade
so repugnant.to the principles of
justice and humanity.
Art. XXV| Art. XXV.
[A-^ew article.] And it is further agreed, that
nothing herein contained shall
contravene or affect the due ex
ecution of any treaty or trea
ties now actually subsisting be
tween either of the high con
tracting parties and any other
power or powers.
Art. XXVI.
This treaty, when the same
shall have been ratified by his
Majesty, and by the President
of the United States, with the
advice of their senate, and
their respectiveratifications mu
tually exchanged, shall be bind
ing and obligatory on his Ma
jesty and on the States for
Period; to be five years. ' tenyears from the da]e of}he
exchange of the said ratifica
tion, and shall be reciprocally
executed and observed with
punctuality, and the most sin
cere regard to good faith.

xl
Alterations proposed by the Pre- TREATY.
sident ofthe United State's.
*- Article.
No person whatever shall,
upon the high seas, and with-r
out the jurisdiction of either
party, be .demanded or taken ,
out of any ship or vessel be
longing to citizens or subjects
of one or the other parties, by
the public or private armed
ships belonging to or in the ser
vice of the other, unless such
person be at the time in the mi
litary service of an enemy of
such other party. "
Article;
Complaints haying been
made by divers merchants and
other citizens of the United
States, that during the war in
which his Majesty is engaged
they have sustained loss and da
mage by reason of the irregular
and illegal - captures and~ con
demnations of their vessels and
ether property, under colour or
authority or commissions from
his Majesty, contrary to tha
tenour of a " comrnuriication
from lord Hawkesbury to Mr.
King, of the Uth of April,
1801, of which a copy is also
hereto annexed to this treaty,
or contrary to1 the tenour Of a
letter from Mr. Merry to Mr.
Madison, of the 12th of April,
1801, of which a copy is
annexed, or otherwise con
trary' to the known and esta
blished rules of the law of na
tions ; and the said merchants
and others having farther com
plained, that full and complete

* xii
Alterations proposed by th* Presi- TREATY
dent ofthe United States.
redress for the said losses
and damages has hot been,
and cannot be, for various
causes, had and obtained ' in
the ordinary course of judi
cial proceedings, his Majesty
agrees that he will, without
delay, cause the most effectual
measures to be taken in concert
with the United States, for an
impartial examination' of the,
said complaints, and that he
will cause full and complete re
paration to be made thereupon
to thepirties entitled, 'as justice
and equity, and the nature of
the respective cases, shall ap
pear to require.

(Second Inclosure referred to in No. I .)
London, August 20th, 1 80S.
The undersigned, commissioners extraordinary and plenipoten
tiary of the United States of America, think it necessary to give
to Lord Holland and Lord Auckland, the commissioners extraor
dinary and plenipotentiary of his Majesty, a brief explanation in
writing of the claims, which they have already had the honour to
mention to their lordships in a recent conference, of sundry
American citizens, for suitable compensation for loss and
damages sustained in the course of the present war, by reason of
irregular or illegal captures or condemnations of their vessels and
other property, and at the* same time to ca'l tne attention of
their lordships to the situation of certain prize causes arising out
of some of these captures now depending in the tribunals of this
country. The undersigned are happy in having it in their power to state,
that, according fo the information they have been able to obtain,
such of these claims as relate to captures, which, from causes
peculiar to themselves, have excited in America a more than or
dinary degree of sensibility, are not so considerable in number as
at first was supposed.

xiii ,
The complaints of this description, to which the undersigned
would particularly invite the attention of their lordships, have
been produced by seizures as prize, made in direct violation of
rules of maritime practice previously declared by his Majesty's
government to the, government of the United States, and in
no degree revoked or affected by any arrangement between-
them, or even by any notification, they were about to be aban
doned. Of these seizures, the most important, and in every view the
most interesting, were made in the year 1805, and in the early
part of the yeaf-180S, of the ships and merchandize of Ameri
can citizens, upon the pretension, that the voyages in which
they were engaged were. direct or continuous between the colonies
of his Majesty's enemies and some port in Europe.
Although it is certain that the government of the United States
had never admitted that illegality can be imputed to such a trade,
even when confessedly continuous or direct, and had concluded
that the question had been otherwise formally settled in its fa
vour, the undersigned believe it to be unnecessary to bring that
point into view, with any reference to the cases now under
consideration. It it sufficient to state, that at the date"of these
. seizures the merchants of the United States did explicitly under
stand, and were justified in a confident belief, founded not only
upon antecedent practice, but upon , a formal communication, in
the year 1807,, t0 the American minister in London from his
Majesty's principal secretary of state for the department of foreign
affairs, that the circumstances by which these voyages were ac
companied, had been and were distinctly admitted by the British
government and_by British courts of prize, to break their con-.
tinuity, and render them unquestionably lawful.
The following detail will shew more precisely the nature and
effect of the communication to which the undersigned allude.
The public and private armed ships of this country having
seized American vessels bound from the United States to fhe
Spanish West Indies, on the pretext that their cargoes consisted
of articles ofthe growth of Spain, when at war with „ Great
Britain, and the Vice Admiralty Court of Nassau having con
demned the cargo of one of these vessels upon that pretext,
Mr. King in a note to Lord Hawkesbury of the 13th March,
1801, remonstrated agpinst these acts as palpable abuses.
Thesubject of this remonstrance was immediately referred to
the King's advocate, whose report of the l6th March, 1801,
after declaring that the sentence of the Vice Admiralty Court
was erroneous, concludes with the following exposition of the
law as understood in Great Britain,' relative to the commerce of
neutrals with belligerents and their colonies: " It is now dis«

tinctly understood, and has been repeatedly so decided by the
high court of appeal, that the produce of the colonies of the
enemy may be imported by a neutral into his own country, and
may be re-exported from thence even to the mother country of
such colony ; and in like manner the produce and manufactures
of the mother country may in this circuitous mode legally find
their way to the colonies. The direct trade, however, between
the .mother country and its colonies have not, I apprehend, been
recognised as legal, either by his Majesty's government or by
his tribunals.
" What is a direct trade or what amounts to an intermediate
importation into the neutral country may sometimes be a question
of some difficulty. A general, definition of either, applicable to
all cases, cannot well be laid down. The question must depend
upon the particular circumstances •'of each case. Perhaps the
mere touching in the neutral country to take fresh clearances
may properly be considered as a fraudulent evasion, and is in effect
the direct trade ,¦ but the high court of admiralty has expressly-
decided, (and I, see no reason to expect that the court of appeal
will vary the rule), that landing the goods and paying the. duties
in the neutral country breaks the continuity of the voyage, and is
such an importation as legalises the trade, although thegoods^be re-
shipped in the same vessel, and on account of the same neutral
proprietors, and to be forwarded for sale to the mother country
or the colony."
An extract from this report, containing the foregoing passage,
was transmitted by the Duke of Portland, in a letter of the
30th of March 1801, to .the lords commissioners of , the admiral
ty. His grace's letter concludes thus:
" In order, therefore, to put a stop to the inconveniencies
arising from these erroneous sentences of the vice admiralty
courts, I have the honour to signify to your lordships the King's
pleasure^ that a communication of the doctrine laid down in the
said report should be immediately made- by your lordships to the
several judges presiding in them, setting forth what is held to be
the law upon the subject, by the superior tribunals, for their
guidance and direction." v
On the 11th of April 1801, Lord Hawkesbury communicated
to Mr. King, for. the information ofthe government of the
United States, a copy ofthe above letter of the Duke of Portland,
which is stated by his lordship to have been written by his Ma
jesty's command, in consequence of Mr, King's representation
of the preceding month, togelhef with a copy Of tl.e extract
from the report of the King's advocate, referred to in his grace's
letter, and already above quoted. ' Upon the receipt ' oi tuis
communication Mr. King transmitted it to his government ih e
f 2

xliv
letter (of whjch a copy is annexed) containing the following ob*
servations : " I take the liberty of suggesting the expediency of
publishing these copies in our newspapers, as the most expedi
tious means of communicating the same to the cruizing ships and
privateers in fhe American seas. Having intimated this suggest
ion to Lord Hawskesbury before he prepared and sent me his
answer, there can be no exception here against such a pub
lication." The publication was directed and took place accord
ingly. ' _
The undersigned are persuaded that Lord Holland and Lord
Auckland will at once perceive that the report of the King's
advocate, thus unequivocally adopted by his Majesty's govern
ment, and communicated as an act to be respected and confided
irr, through the American minister, to the government of the
x United States, and finally to their citizens and to Europe through
the medium of a publication expected and authorized,' cannot in
any fair -construction be viewed as any thing short of a formal
declaration on the part of Great Britain ; that the landing of the
cargo and the payment of the duties in the neutral country would
be considered as legalizing the circuitous trade, even between a
belligerent and its own colonies.
The practice during the late and the two first years of fhe pre
sent war was in perfect conformity with this document, and by
conformity encreased its authority, and furnished an additional
justification, if any had been required, for a dependance upon
the doctrine which it announced. - /
In the sunirher of 18Q5, however, when a larger amount of
American property was afloat, undeniably entitled to the protec
tion of the above rule, and committed to the high seas, under an
implicit reliance upon a strict adherence ; to it; the rule was sud
denly abandoned, the British cruizers fell upon this trade, thus
sanctioned by the express admission, as well as by the acquiescence
of their government ; and these captures are understood to have
received the highestjudicial sanction.
The undersigned have no desire to dwell upon this subject.
They are convinced that the liberal and equitable sentiments
which distinguish his Majesty's government render unnecessary
the farther explanation of which it is susceptible. Beferring to
two notes from the undersigned, Mr. Monroe to Lord Mulgrave,
ofthe 23d of September 1805, and to Mr. Fox, of the 25th , of
February 1806, the undersigned have only to declare their sin-
cere^conviction that his Majesty's government will not fail to see
in the facts which they have had the honour to state, an irresist
ible call upon it to "repair -the injurious effects of these seizures.'
As to the few cases of this class now depending before the Lords
commissioners of appeal, or in other prize courts of his Majesty

xiv
the undersigned feel assured that measures will be taken to cause
their, to be favourably -disposed of, and that suitable reparation
will moreover be secured to the parties injured for the loss and
damage they have sustained. The undersigned have the honour
to transmit herewith a list of all the cases of this class, in which
are distinguished such as arc still judicially depending.
The next class of these cases (of which lists and e- timates will
hereafter be furnished) comprehends captures during the existing
war, contrary to the tenor of a letter of the 5th of January,
1804, from S;r Evan Nepean to Mr. Hammond, on the subject
of the blockade of Martinique and Guadaloupe, of which a copy
was enclosed in a letter ofthe l-2thofApr.il 160-1, from Mr.
Merry to Mr. Maddison, of both of which letters copies are
herewith transmitted.
The citizens of the United States complain that they have suf
fered severely by captures, in violation of the rules laid down
with so much fairness and precision in this communication, and
that, where condemnations have not followed, compensation
equivalent to the actual loss have not been and cannot be procured
in theordinary course by any exertions on their part. The pretext
for some of these captures has been the breach of an alledged
blockade of Martinique or Guadaloupe ; for others, the breach of
an imaginary blockade pf Currocoa ; and for others, the-breach-
of an equally imaginary blockade of other ports and places. In
all of "these cases either the actual investment of tlie particular
port was" wanting, or the vessel seized for an imputed criminal
destination to it, had not been warned as required. The just ex
tent of these claims the undersigned are not able to state, but
they presume it cannot be considerable.
; The' only remaining claims which are reducible to apy precise
class, are those which relate to captures within the territorial
jurisdiction of the United States. Of these, as well as of some
bthers-of a miscellaneous nature, which the undersigned have not
at present the means of prescribing distinctly to Lord Holland
and Lord "Auckland, lists shall hereafter 'be prepared-and laid
before their Lordships accompanied by" suitable explanations.
The undersigned request Lord Holland and Lord Auckland to
accept the assurance of their perfect consideration.
(Signed) ' JAMES MONROE
' ' WILLIAM PINCKNEY.
Bight Honourable Lord Holland •;'
and Lord Auckland.

xlvi
(Letter referred td in second inclosure of No. 1.)
Sir, Washington, April 12th, 1804.
Mr. Thornton not having failed to transmit to his Majesty's go-i
vernment an account of the representation which you were pleased to
address to him under date of 27th Octpber last year, respecting the
blockadeof the islands of Martinique and Guadaloupe, it is with great
satisfaction, Sir, that I have just received his Majesty's commands
signified to me by his principal secretary, of state for foreign affairs,
under date of the 6th January last, to communicate to you the instruc
tions which' have in consequence of your representation been sent to
Commodore Hood and to the judges of the vice admiralty courts in the
West Indies.
I have accordingly the honour to transmit to yqu, Sir, the inclosed
copy of a letter from Sir Evan Nepean, secretary to the board of Admi
ralty, to Mr. Hammond his Majesty's undersecretary of state for fo
reign affairs, specifying the nature of the instructions which have been
given. His Majesty's government doubt not that the promptitude which has
been manifested in redressing the grieyance complained of by the go
vernment of the P/nited States, will be considered by the latter as aii ad
ditional evidence of his Majesty's constant and sincere desire to remove
any ground of misunderstanding that could have a tendency to interrupt
the harmony which so happily subsists between his government and
that of the United States. I< have the honour to be, &c.
(Signed) ANT, MERRY,
The secretary of state ofthe United States.
(Letter referred to in second inclosure of No. Land the preceding letter.)
Admiralty Office, 5th January 1804.
Sir,
Having communicated to, the Lords of the Admiralty Lord Hawkes
bury's letter ofthe 23d ultimo, inclosing the copy of a dispatch which
his Lordship had received from Mr. Thornton his Majesty's charge'
d'affaires in America, on the subject of the blockade of the islands of
Martinique and Guadaloupe^ together with the report of the advocate
general thereupon ;_ I have their Lordships' commands to acquaint you,
for his Lordship's information, that they have sent orders to Commo
dore Hood not to consider any blockade of those islands as existing,
unless in respect of particular ports which may be actually invested, and
then not to capture vessels bound to such ports unless thev shall pre
viously have been warned not to enter them, and that they have also
s&\t the necessary directions on the subject to the judges of the vice
admiralty courts in the West.Indies and America. " '
I am, &c.
^ ^ TT , „ : (Signed) EVAN NEPEAN.
lo (jeorge Hammond, Esquire.

xlvii

(Third Inclosure referred to in No. 1 .)
Holland House, November 8th, 1805.
N His Majesty's commissioners and plenipotentiaries have the
honour to represent to the commissioners and plenipotentiaries of
the United States :
That the project of an article on the subject of impressing sea
men, together with the reasonings by which the commissioners of
the United States have urged the expediency of an engagement '
on that subject, has been considered with the same friendly and
conciliatory disposition, which has marked every step of the
negotiation :
That his Majesty's government -has not felt itself prepared to
disclaim or derogate from a right which has been uniformly and
generally maintained, and in the exercise of which the security
of the British navy may be essentially involved ; more especially
in a conjuncture when his Majesty is engaged in wars which en
force the necessity of the most vigilant attention to the preserva
tion and supply of the naval force of his kingdom.
That his Majesty's government, actuated by an earnest desire
to remove every cause of dissatisfaction, has directed his Majesty's
commissioners to give to Mr. Monroe and Mr. Pinckney the most
positive assurances that instructions have been given and shall be
repeated and enforced for the observance of the greatest caution
in fhe impressing of British seamen ; and that the strictest care
shall be taken to preserve^citizens of the- United States from any
molestation or injury; and that immediate and prompt redress
shall be afforded upon any representation of injury sustained by
them. That the commissioners of the United States well know that
no recent cases of complaint have occurred, and that no probable
inconvenience can result from the postponement of an article
subjected to so many difficulties. Still that his Majesty's com
missioners are instructed to entertain the discussion of any plan
that can be devised to secure the interests of both States without
any injury to rights to which they are respectively attached :
That in the mean time the desire of promoting a right con
clusion of the proposed treaty, aiid of drawing closer the ties of
connection between the two countries, induces his Majesty's com
missioners to express their readiness to proceed to the completion
of the other articles, in the confident hope, that the result can
not fail to cultivate and confirm the good understanding happily
subsisting between the high contracting parties; and still further

X I viii . i
to augment the mutual prosperity of his Majesty's subjects, and
of the citizens of _the United States.
(Signed) VASSAL HOLLAND.
AUCKLAND-
James Monroe, Esquire,
and William Pinckney, Esquire.

(Fourth. inclosure referred to in No. I.)
London, 14th March, 1807';
My Lord,
In conformity with the intimation which your lordship was
so good as to make to us at a late interview, relative to certain
claims_and prize causes, which had been brought into discussion
in the cause or the late negotiation, between his Majesty's com
missioners and those of the United States ; we have the honour
to" transmit to your lordship, the copy of a note to Lord H°i'and-
and Lord' Auckland, in which those claims and prize causes are
fully explained. It is proper to add, that at the time of the sig
nature ofthe treaty' it was distinctly understood between the
commissioners on both sides, that this subject Was not to' be af
fected by it, but was to remain completely open for future ad
justment. w .
We have it upon the statement contained in that note, and the
documents t,o which it refers, in perfect* confidence that it will
,be viewed by your lordship with the interest which belongs to
it, and that every thing which ig suitable to the high and honour
able character of his Majesty's Government, and the just claims
of tlie United States will be done, with relation to it as promptly
a9 circumstances will permit.
We have the honour to be-, &c.
(Signed) JAMES MONROE.
Lord Viscount Howick. WILLIAM PINCKNEY.

No. 2.
LETTER from Mr. Secretary Canning to Lords
Holland and Auckland, dated July 25th, 1807.
Foreign Office, July 25th, 1807.
My Lords-
I have the honour to inclose to your lordships, the copies-of a note
-which I have received from Mr. Monroe and Mr. Pinckney, and ofthe
several documents that accompanied it ; I submit these papers to the
consideration of your lordships, for the purpose of calling your atten
tion to that passage of the. note which refers to a suggestion on the part

xlix
of his Majesty's commissioners, on the subject of the impressment of
seamen from on board of American ships. It is extremely desirable
that his Majesty's government should have the fullest information on
this important point ; and I have to request , that your lordships will
be pleased to state to me, whether the representation contained in this
part ofthe note ofthe American commissioners be accurate ; and whether
your lordships signified any such accqaiescenceas is there described in
the implied, " informal understanding, respecting the forbearance to be
observed by the British cruizers, in regard to the practice of impress
ment of seamen on board of American vessels,"
I have the honour to be, &c.
„. , , (Signed) GEORGE CANNING.
Right hon. Lord Holland
2nd Lo-rJ Auckland

No. 3.
LETTER from Lords Holland and Auckland to
Mr. Secretary Canning, dated July 28th, 1S07.
Sir, i • '
We have received the honour of your letter with its several inci
sures and are desirous to give the fullest information in our power re
specting any part of our late negociation with the commissioners of the
United States. We have accordingly applied our attention to that
passage ofthe noted delivered to you by Mr,. Monroe and Mr, Pinkney,
which states that " soon after the suspension of the negotiations, it was
suggested by his Majesty's commissioners,* that if the topick relative to
impressment should be expressly reserved for future conventional ar
rangement, and a pledge given to the United States for resuming the
consideration of it at a convenient season, with that view ; and that, if,
in the meantime, sueh an informal understanding should be substituted,
as in its practical effect would remove the vexation complained of, it
might perhaps be possible to conduct the negotiation to a result which
would not be unacceptable to the respective governments. ^ And in pur
suance of this -suggestion, the British 'commissioners presented their
official note of the 8th day of November last."
It appears to us, that the several parts of this statement taken with
the context, have all the accuracy^and honourable, and right meaning
which experienced in the whole negociation.
When the American commissioners speak of " such an informal
understanding Jo be substituted, as would in its practical effect remove
the vexation complained of," they do Nnot mean, and certainly his Ma- <
jesty's commissioners i^ver meant, that there should be a forbearance
or suspension or discontinuance of the practice and exercise ofthe im
pressment of British seamen. On. the contrary, they proceed to say
that" pursuan t to the suggestion of the British commissioners, the of
ficial note of the 8th of November was presented." To that note
,j»e beg leave to refer.

1
We considered that note, and still consider it as pledging his Ma
jesty's government to give instructions to British cruizers, " to be verv
cautious in the exercise of the right of impressing British seamen, to
take the strictest care io preserve the citizens of the ' United States from
. molestation or injury, and to redress any grievances which might be
sustained by them." .
When tlie negotiation proceeded after our delivery of that note, we
thought and still think, that the treaty which we signed (omitting the
point of impressment, and several o.ther points afterwards included
in the proposed additional articles) was in itself complete and uncon
ditional, and subject to no reservation on either part, except that which
was expressed in our second note of the 30th December, on the signa-
ture-'of the treaty.
If circumstances had not taken place, which made it our duty lo
suspend the signing ofthe additional articles, and which eventually dis
continued the negotiation in our hands, we should have considered our-*
[selves as bound to advert bond Jide to the further pledge contained in
our official note of the 8lh November. We mean that a paragraph
which states, ,f that no recent cases pf complaint have occurred (re
specting the exercise of the right of impressment), and that no
probable inconvenience can result from the postponement of an article,"
subject to so many difficulties ; still, that his majesty's commissioners
are instructed to entertain the discussion of any plan thatcanbe devised
to secure the interests of both states, without any injury to rights to
wheh they are respectively attached." The obvious sense of this para
graph, and the'forms and substance of the completed treaty, and the
proposed additional articles appear to us to leave no doubt relative to
the mutual understanding and views of those who were employed in a
negotiation bf such importance to their respective countries.
We have the honour to be, &e.
, (Signed) VASSAL HOLLAND,
AUCKLAND,
Right hpn. George Canning,

No. 4.
LETTER from Mr. Secretary Canning to Lords
Holland and Auckland, dated August 6th.
1807- ,
My Lords,
In acknowledging the receipt of the letter which your lordships have
done me the honour to address to me, in answer to 'mine of the 2,5th
ultimo, I am sorry to, have occasion to trouble, your lordships with any
further inquiry ; but I am sure that your lordships will feel that the
{joint most immediately in question, respecting the impressment of
British seamen from American ships, ts one of such essential impor
tance at the present moment, as to make it necessary for me to asccr-.
tain, with as much accuracy as possible, what has- really passed between,
your lordship and the American cpmrnissioners upon this subject.

Ii
I understood the American commissioners to say, fhut in addition
to whatever passed in Writing between you, they received from your
lordships an informal assurance of something that " should in its prac
tical effect remove the grievance complained of." By " the grievance
complained of," I understood the commissioners to mean the practice of
impressment itself, not any abuses of that practice. "
Your lordships deny that any forbearance was promised, " in the
sense of any suspension or discontinuance of the practice," and your
lordships refer to your note of the 8lh of November, as containing the
correct statement of what you communicated to the Apierican com
missioners. The note of the 8th of November certainly promises forbearance
in the practice, but not a discontinuance of the practice, of impress
ment. I am therefore under the necessity of requesting your lordships to
hare the goodness to state to me, whether the note of^lhe 8th of
November does, according to your lordships' recollection and belief,
contain the whole of what was promised or held out by your lordships
to the American commissioners upon this point ?
Whether whatever else passed (if any thing else did pas?) in conver
sation, was in strict conformity to that note ; implying no further con
cession or forbearance ovi the part of Great Britain, and authorising no
further expeetatiou on the part of the United States ?
If this be so, it does appear to me that the American commissioners
have misconceived the effect of your lordships communication to them ;
and must have represented it to their government as implying a
much larger concession than was in fact in your lordships' contem
plation. I, have the honour to be, &c.
(Signed) GEORGE CANNING.
Right hon. Lord Holland
and Lord Auckland.

No. 5.
Lettef from Lords Holland and Auckland to Mr. Se
cretary Canning, dated August 10th, 1807.
In answer to your letter-of the 6th instant, we have the honour to
repeat our former assurances that it is our desire asit is our duty, to give
vou every possible information respecting the negotiation with the
American commissioners, which his Majesty was lately pleased to en
trust to us. , . .
As the points in which our answer to vour letter ofthe 25th ultimo
has not appeared to vou suflicierrtlvxlear and satisfactory, we must again
refer you to our official note of the 8th of November last, as containing
£ 2

JII -
a full and authentic statement of what was settled between us and the
American commissioners, with regard to the impressment of British
seamen from on board of American ships. That note was delivered
after many fruitless conferences, held for the,purpose of devising some
expedient that might reconcile the interests and pretensions of both na
tions' on this important point. But finding after much careful consi
deration of the different plans proposed to us, that the difficulties which
stood in the way of any final and permanent adjustment were at that time-
-insurmountable, we were compelled to rest satisfied with the temporary
and imperfect arrangement, which our note of the 8th of November ,
promised to afford. We certainly did not then understand, nor do we
now understand, that by that note we pledged our government to-
abstain in future from the practice of impressing British seamen from
American merchant vessels. We certainly, however, did mean to
pledge the British government to make its cruisers observe the utmost
caution, moderation, and forbearance in the exercise of that practice ;
but we nevet either expressed or implied, that they were to desist from
taking British seamen from American merchant ships. We farther
engaged that our government would be at all times ready to take into its
serious consideration any proposal made to it by the American govern
ment, for the recovery of deserters from the British navy, who take
refuge in the American territory or on board of American ships, without
having recourse to the means whieh are at present resorted to for that
purpose. Whatever passed in conversation was, we eoneeive, in strict con
formity to that note, and implied no farther concession nor forbear
ance on the part .of Great Britain than extreme caution and moderation
in the exererse of the right, which alone, without any discontinuance,
much less renunciation ofthe practice, we expressed our confident hope
would be sufficient to prevent such inconveniences and outrages as the
American commissioners represented and contended had frequently
arisen from iu We have the honour to be, &c.
(Signed) " VASSAL HOLLAND.

Right Honourable George Canning.

AUCKLAND.

No. 6,
LETTER from Messrs. Monroe and Pinckney
to Mr. Secretary Canning, dated October
18th, 1807.
Sir,
In our interview of yesterday, you requested that we would
explain the ground ofthe opinion which is expressed in our letter
of July 24— that the occasion- which induced the British com-

Illi
missionersto present to us the note of the 31st December prece
ding had ceased to exist. We hasten to comply with that request,
as we shall do, to give an explanation of any other passage in
that letter which you may desire. We were of opinion at the
time when the British commissioners presented to us that paper,
that the decree of the government of France, to which it related,
ought not to be considered applicable to the United States, be
cause such a construction was plainly repugnant to the treaty
subsisting between the United States and France'; and likewise,
because the decree might be understood to relate only to France
and the dominions subject to her arms. We alluded however,
in our letter of July the 24th, to circumstances which had occur
red since the date of the decree, as fixing unequivocally an inter
pretation of it, which we at first supposed to be reasonable.
Great anxiety having been excited by a different construction,
¦which many believed the decree to be susceptible of, the minister
of the United States at Paris requested of the minister of marine,
who was charged with its execution, an explanation of the sense
in which it was understood by his government, whoassured him,
that it was not intended that it should in any degree interfere
with the provisions of the treaty of 1800 between the United
States and France.
We relied also, upon the fact, not only that no countenance
had been given by any practice or judicial decision in France to a
different construction, but that , the practice was in precise con
formity with the view above suggested; and that in a cause'in
which the question had been brought into discussion, the court
had sanctioned the conclusion that the treaty between the two
nations was to be exactly fulfilled, and that the decree was to be
sq construed as not to infringe it.
We think it proper to confine ourselves to the explanation
which ybu have desired, of the passage alluded to in our former
letter, and not to enter in this communication in any other re
spect on the subject of the paper with which it is connected.
We have the honour to be, Src.
(Sismed) JAMES MONROE,
WILLIAM PINCKNEY.
Right hon. George Canning.

No. 7.
LETTER from Mr. Secretary Canning to Messrs. Monroe
and Pinckney, dated October 22d, 1807 .
Gentlemen,
The considerations which have hitherto suspended our com-

liv
munication on the subject of the treaty returned from America,
having ceased by the-termination of the discussion between Mr.
Monroe and myself, respecting the encounter between the Leo
pard and the Chesapeake, I have now the honour, to transmit to
you the answer which I have been commanded by his Majesty to
return to your note of the 24 th July. v
I have the honour to be, &c.
(Signed) GEORGE CANNING.
James Monrbe, Esquire,
and William Pinckney, Esquire.

No. 8.
NQTE from Mr. Secretary Canning fo Messrs. Monroe
and Pinckney, dated October 22d, 1807-
The undersigned, his Majesty's principal secretary of state for
foreign affairs, in returning an answer to the official note with
which Messieurs Monroe,and Pinckney have accompanied their
communication of the copy of the treaty which has been sent
back unratified from America, is commanded, in the first place,
to inform the American commissioners, that his Majesty cannot
profess himself to be satisfied that the \merican government has
taken any such effectual steps, with respect to the decree of
France, by which the whole of his Majesty's dominions are de
clared to be in a state of blockade, as to do away the ground of
tliat reservation which was contained in the note delivered by
his Majesty's commissioners at the time of the signature of the
treaty ; but that, reserving to himself the right of taking, in
consequence of that decree, and of the omission of any effectual
interposition, on the partof neutral nations,! to obtain its revocation,
such measures of retaliation as his Majesty might judge expe
dient, it was nevertheless the desire and determination of his
Majesty, if that treaty had been sanctioned'by the ratification of
the President of the United States, to have ratified it, on his
Majesty's part, and to have given the fullest effect to all its
stipulations. Some of the considerations upon which the refusal, of the Pre
sident of the United States to ratify the treaty is founded are
such as can be matter of discussion Only between the American
oovernment and its commissioners ; since it is not for his Ma
jesty to inquire, whether in the conduct of- this negotiation the
commissioners of the United States have failed to conform
themselves in any respect to the instructions of their govern
ment.

Iv
In order to determine the course which his Majesty has to pur
sue in the present stage of the transaction, it is sufficient that the
treaty was considered, by those who signed it, as a complete and
perfect instrument.
No engagements were entered into, on the part of his Majesty,
as connected with the treaty, except such as appear upon the
face of it. Whatever encouragement may have<been given by
his Majesty's commissioners to the hope expressed by the com
missioners of the United States, that discussions might thereaf
ter be entertained with respect to" impressment of British seamen
from merchant vessels, must be understood to have had in
view the renewal of such discussions, not as forming any part
of the treaty then signed, (as the American commissioners
appear to have been instructed to assume) but separately, and
at some subsequent period more favourable to their successful
termination.
. But the alterations proposed by the President of the United
States in the body of the treaty thus formally concluded, appear
to require more particular observation.
The undersigned is commanded distinctly to protest against a
practice altogether unusual in the political transactions of states;
by which the American government assumes to itself the privi
lege of revising and altering agreements concluded, and signed.
on its behalf, by its agents. duly authorized for that purpose ; of
retaining so much of those agreements as may be favourable to its
own views, and of rejecting such stipulations, or such parts
of stipulations, as are conceived to be not sufficiently beneficial
to America.
If the American government has a right to exercise such a
revision, an equal right cannot be denied to others. And it is
obvious, that the adoption of such a practice by both parties to
a treaty, would tend to render negotiation indefinite, and settle
ment hopeless ; or rather to supersede altogether the practice of
negotiation through authorizedjcommissioneis, and to make every
article of a compact between state and state the subject of repeat
ed reference, and of endless discussion.
The alteration of particular articles in a treaty, after the whole
has been carefully adjusted arid arranged, must necessarily open
the whole to renewed deliberation. The demands of one party
are not to be considered as absolute, and the concessions of the
other as unconditional. What may have been given, on the one
hand, in consideration of advantage to be derived, in return,
from accompanying stipulations, might have been j'efused, if
those stipulations had been less favourable ; and must necessarily
be withdrawn, if they are changed.

Ivi
It cannot be admitted, that any government should h6ld those
with whom it treats to all that has been granted by them in its
favour, relaxing at the same time, on its -part, the reciprocal
conditions for which its own faith has been engaged ; or that,
after having obtained by negotiation a knowledge of the utmost
extent of concession to which the other contracting party is pre
pared to consent in the conclusion of a treaty, it should require
yet further concession, without equivalent, as the price of its ra
tification. The undersigned is therefore commanded to apprize the Ame
rican commissioners/ that, although his Majesty will be all times
ready to listen to any suggestions for arranging, in an amicable
and advantageous manner, the respective interests of the two
countries, the proposal of the President ,of tlie United States for
proceeding to negotiate anew, upon the basis of a treaty already
solemnly concluded and signed, is a proposal wholly inadmissible.
And his Majesty has therefore no option, under the present cir,-
cumstances of this transaction, but to acquiesce in the refusal of
the President of the United States to ratify the treaty signed on
the 31st of December 1806.
The undersigned requests Messieurs Monroe and Pinckney to
accept the assurances of his high consideration.
(Signed) GEORGE CANNING.
James Monroe, Esquire,
and William Pinckney, Esquire.

APPENDIX. (D)
EXTRACT from the Message from the
President to the Senate and House of
Representatives of the United States,
dated 27th October I8O7.
Circumstances, fellow-citizens, which seriously threatened
the peace of our country, have made it a duty to convene yon at
an earlier period than usual . ' The love of peace, so much che
rished in the bosom of our citizens, which has so long guided the
proceedings of their publick councils, and induced forbearance
under so many wrongs, may not ensure our continuance in the
quiet pursuits of industry. The many injuries and depredations
committed on our commerce and navigation upon the high seas
for years past, the successive innovations of those principles of

Ivii
public law which have been established by the reason and usage
of nations as the rule of their intercourse, and the umpire and
security of their rights and peace, and all the circumstances
¦which induced the extraordinary mission to London, are already
known to you. The instructions given to our ministers were
framed in the sincerest spirit Of amity and moderation. They
accordingly proceeded, in conformity therewith, to propose ar
rangements which might embrace and' settle all the points in
difference between us ; which might bring us to a mutual under
standing on our neutral and national rights,' and provide for a
commercial intercourse on conditions of some equality. After
long and fruitless endeavours to effect the purposes of their mis
sion, and to obtain arrangements within the limits of their
instructions, they concluded to sign such as could be obtained,
and to send them for consideration ; candidly declaring to the
other negotiators, at the same time, that they were acting against
their instructions, and that their government therefore could not
be pledged for ratification. Some of t}ie articles proposed might
have been admitted on a principle of compromise, but others
were too highly advantageous ; and no sufficient provision was
made against the principal source of the irritations and conditions
which were constantly endangering the peace ofthe two nations.
The question therefore whether a treaty should be accepted in
that form could have admitted but of one decision, even had no
declarations of the other partyimpaired our confidence in it.
Still anxious not to close the door against friendly adjustment,
new modifications were framed, and further concession autho
rised than could before have been supposed necessary ; and our
ministers were instructed to resume their negotiations on these
grounds. On this new reference to amicable discussion we
were reposing in confidence, when on the twenty-secorid day of
June last, by a formal order from a British admiral', the frigate
Chesapeake, leaving her port for a distant service, was attacked
by one of those vessels which had been lying in our harbours
under the indulgencies of hospitality, was disabled from proceed
ing, had several of her crew killed, and four taken away. On
this outrage no commentaries are necessary. Its character has
been pronounced by the indignant voice of our citizens with an
emphasis and unanimity never exceeded. I immediately by pro
clamation interdicted our harbours and waters to all British
armed vessels, forbade intercourse with them, and, uncertain.
how far hostilities were intended, and the town of Norfolk indeed
being threatened with immediate attack, a sufficient force was,
h

Ivlii
"ordered for the protection of that place, and such other prepara
tions commenced and pursued as the prospect rendered proper.
An armed vessel of the United States was dispatched with in
structions to our ministers in London, to call on that government
for the satisfaction and security required by the outrage. A very
short interval ought now to bring the answer which shall be
communicated to you as soon as received ; then also, or as soon
after as the publick interest shall be found to admit, the unra
tified treaty and proceedings relative to it shall be made known to
you. The aggression, thus beguii, has been continued on the part'of.
the British commanders, by remaining within our waters in de
fiance of the authority of the country, by habitual violations of
its jurisdiction, and at length by putting to death one of the per
sons whom they had forcibly taken from onboard the Chesapeake.
These aggravations necessarily lead to the policy either of never
admitting an armed vessel into our harbours, or of maintaining
in every harbour such an armed force as may constrain obediences
to the laws, and protect the lives and property of our citizens
against their armed guests. But the expence of such a standing
force,_and its inconsistence with our principles, dispense with
those courtesies which would necessarily call for- it, and leave us
equally free to exclude the navy, as well as the army of a foreign
power, from entering our limits.
To former violations of maritime rights, another is no\v" added
of very extensive effect. The government of that nation has
issued an order interdicting all trade by neutrals between ports;
not in amity with them. And being now at war with nearly every
nation on the Atlantic and Mediterranean seas, our vessels are
required to sacrifice their cargoes at the first port they touch, or
to return home without the benefit of going to any other market.
Under this new law of the Ocean, our trade on the Mediterra
nean has been swept away by seizures and condemnations, and
^hat in other seas is threatened with the same fate.

liX
APPENDIX (E.)
No. i.
DENMARK.
Translation of a Note from Mr. Rist to
Lord Viscount Howick, dated gth
March, 1807.
The undersigned, charge d'affaires of his Majesty the king
of Denmark, in transmitting in due time to his court the tiote,
by which his excellency Viscount Howick acquainted him, on
the 10th of January, with the order in council issued by his
Britannic Majesty, prohibiting all commerce between the differ
ent ports of the enemy and those subject to the influence of the
French government, foresaw at that time the deep and painful
impression which that order could not fail to produce upon the
court of Denmark.
He has this moment received its orders, to express to the mi
nisters of his Britannic Majesty the surprise and grief which the
court ofthe undersigned has felt in taking notice of a resolution,
which, founded upon a principle in itself inadmissible, attacks
one of the chief sources of the commercial prosperity of Den
mark, and seems to give a blow, as direct as it is unprovoked, to
her most sacred lights, and to the treaties which connect her
with Great Britain. He has received the orders^of his court, to
detail fo his Britannic Majesty's government the fatal consequences
of this measure, and finally to require its suppression.
The undersigned, in acquitting himself of these orders to his
excellency Visconnt Howick, takes the liberty of demanding
from him all the serious attention, which the importance of the
object requires, for this exposition ; which will be dictated by
that frankness and moderation (worthy of an independent govern
ment, and one friendly to Great Britain,) by which the court of
Denmark has been constantly actuated in her proceedings and
discussions with that of London.
Of all courts, whose duty and, interest it is to defend the rights
of -neutrality, that of the undersigned is called upon to do so on
this occasion more particularly, as well by its situation, as by the
nature of the order in council in question : it is against her inte
rests principally that it is directed ; her subjects chiefly will suffer
by its consequences. Almost exclusively in possession of the ad
vantageous coasting trade between the different ports which will
henceforward become inaccessible to thern, they are menaced with
h 2 l

Ix
the deprivation of a branch of their navigation, which has occtr-
pied until the present time hundreds of vessels, thousands of
sailors and industrious workmen, and considerable capitals, hence
forth the Mediterranean will, for the most part, be shut against
their! enterprizss : a voyage from, Holland to France, from Italy'
to Spain, from the Hanse towns to the ports of the Mediterranean,
¦will render their vessels and their cargoes subject to confiscation.
Excluded from the greatest part of the ports of the continent of
Europe, it is wished that they should renounce, not only the con
siderable advantages which the neutrality of their flag insures them
in carrying on the coasting trade, but also the continuance of an
essential part of their direct and legitimate commerce with the
ports above mentioned., After having sold the produce of their
country, planks, fish, or corn, in one of the Northern ports of
Holland, France, or Spain, they will be obliged to return in bal
last, because they will not be allowed to seek, in the Southern
ports of those countries, and of Italy, such merchandize as the.
countries of the North have occasion for, and which can alone
produce returns sufficiently advantageous to reimburse the expen
ces of their voyages. In order to procure salt, wines, brandy,
and oil, it will be necessary for them to sail from Danish ports for
the most part in ballast, in order to fetch them from the ports of
r the Mediterranean ; if they do not prefer, which, according to
all appearance will be the case, to renounce altogether a traffic,
which would henceforward become a ruinous speculation.
And how can the subjects of his Danish Majesty be deprived of
their legitimate traffic, of one of the principal branches of their
industry? By what right can they be stopped in the pursuit of a
peaceable occupation, the exercise of which is guaranteed to
them by the public law of nations, and by the sacred faith of
treaties ; which insure to, Denmark, on the part of Great Britain,
the unlimited liberty of the seas in all cases in which Denmark
has not herself consented, by express stipulations, to renounce
' the exercise of a part of her rights ?
They will be so deprived, according to a principle of retaliation,
not against Denmark, for she has never swerved from the strict
execution of her treaties, or from her duties towards England j
but against a third power, whose example Great, Britain seems
but too ready to follow, in order to tender the stipulations of
treaties, and the pacific relations between states subordinate to a
right of war, indefinite in its principle, unlimited in its extent,
incalculable in its consequences, but completely foreign to and
by no means binding on a neutral power, independent, and pro
tected by solemn and recent treaties.

hi
de 1 Ut?^ersigne^ has received express orders frotn his court, to
wh" K u1" Us name' thflt 'lt reSards the right of retaliation, upon
wnicti the order in council of his Britannic Majesty is founded,
absolutely inadmissible, in its principle and in its consequences.
o establish this right, it would be necessary to begin by destroy
ing the first notions of general and public law. It must be in-
tenoed to lay down as a principle, that every power has a right ar
bitrarily to renounce engagements, and to derogate from solemn
snpu ations with another power, for no other reason, than that
us relations with a third power have changed their character. It
must be intended to insist that the privileges, interests, and pro
perty ora neutral nation, are at the disposition of every other
power, although connected with it by treaties, as soon as the
course of events, or the inclinations of that power should engage
her in a war entirely foreign to the neutral nation.
The palpable inconsistency and falsehood of such reasoning
cannot be but equalled by its fatal consequences with respect to
society. It cannot escape the penetration of his Britannic Ma
jesty's ministers, that a principle, which would render the rela
tions and mutual obligations between two countries dependant
upon any acts whatsoever of a third power, or rather which would
constitute a state of war, the supreme "regulator of all the relations
of human society, would destroy the. very basis of that society,
in order openly to sanction the right of strength, and, in the end,
to pave the way for that of universal anarchy.
This (the undersigned regrets to avow it) is nevertheless the
tendency of the principle upon which the resolutions adopted by
the French government against the commerce of Great Britain are
cited, as motives to induce his Britannic Majesty to set aside the!
treaties subsisting between England and Denmark, and especially
that ofthe 17th June 1801, which guarantees to the latter power,
in the case expressly, foreseen, of any maritime war whatever,
the entire liberty of its commerce, with the exception only of
those restrictions mentioned in the third article. This is the
spirit of a measure, which inflicts upon the commerce of Danish-
subjects the most severe wound of which the history of neutrality
offers an example.
The undersigned does not apprehend that he has said too much
in advancing this assertion. He has done so purposely, and en
tirely foreseeing that the French decree of the 21st November,
1806, together with all its pernicious consequences to the com
merce of neutrals, will be cited to invalidate it. The under-
sighed would have esteemed himself fortunate, if. he could have
avoided the necessity of making a comparison between the two

Ixii
measures, or of drawing a parallel between their effects, more*
or less pernicious to the commerce of Denmark ; but the weighty
and important nature of the task which he has to fulfil imposes this
duty upon him. He will, however, in order to make the ministers
of his Britannic Majesty acquainted with'the measureof the impres
sion which these two decrees, in opposition to each other, must
hav£ produced in Denmark, content himself with stating, that,
according to the official explanations which the undersigned has
just received from his court, the French decree does not, as we
were led to suppose from its expressions, bear upon all vessels
carrying on commerce with England, but only upon those, which,
coming from an English port, are desirous of entering a port of
France ; that it enacts the confiscation of those vessels' only which
refuse to submit to the notification of the decree at their entry
into one of the said ports, or which are desirous of concealing"
their having lately put into a port of Great Britain ', that therefore
the provisions of the French decree, a great part of which cannot
from their nature be carried into -effect, have not as yet caused
any sensible interruption to the commerce of Denmark with
Great Britain. %
The undersigned must also observe, that the decreeof the 21st
of November, limited as it is in its application, turns evidently
against France herself and het allies; or at least obliges them to
participate in the greatest part ofthe evils and annoyance directed
against the commerce of neutrals : that it therefore seems to carry
with it the guarantee df'its lenient execution, and probably of its
short duration. "
The undersigned feels it his duty to add, that his court has never
theless made urgent representations to the French governmeht
against^a measure, the principle of which it cannot but consider
as a direct and manifest violation of its rights : that, far from being
willing or able to acquiesce in it, his court thought that it employed
the best weapons, which its situation and the justice of its cause
'afforded, when it protested solemnly against the subversion of
principle and the contempt of the law of nations, of which this
decree gives so fatal an example.
But, the greater the disgust of the court of the undersigned at
the spirit of the decree of the 21st November, and particularly at
the motive alleged for its justification1, namely, that of retalia
tion, the more profound was its regret on seeing Great Britain,
in her late measure, follow the footsteps bf ber enemy, and take
, antage of his example to sanction a doctrine, the principle of
,v. h seems more to be feared in itself than the more or less en-

lxiii
larged scale of the regulations which determine its effect and
extent. The court of Denmark cannot dissemble her apprehensions, that
the French government will reckon among its triumphs the having
engaged England in measures, which, while they justified its
own proceeding, necessarily weakened the ties of friendship which
attached the neutral nations to Great Britain, and that it will find
in the order in council of his Britannic Majesty a new motive, or
at least a pretext, not only for persisting in its fatal measures,,
and for^enfprcing their dormant rigour, but also for augmenting,
if possible, its original violence, and completing the ruin of na
tions, which until the present time had preserved the blessings
and the prosperity of peace. ' The undersigned abstains but toa
willingly from completing the terrible picture which the perspec
tive of such a contest appears t6 present.
Authorised to declare,, in the most precise manner, that the
court of. Denmark cap never acquiesce in any degree in the order
in council of his Britannic Majesty, whicb has been communica
ted to the undersigned on the 10th of January, nor consent that
her vessels should be treated in conformity to it, and to protest
formally against its principle and its consequences: the under
signed, however, feels pleasure in transmitting to his excellency
viscount Howick, and in partaking the hopes of his court, that
his Britanriic Majesty will not give effect to the resolution ia
question : but that by suppressing it, he will continue and cement
the relations of amity and good understanding which attach to his
interests the court of Denmark, whose constant efforts have been
directed to the observance of her engagements and to the preser
vation of her relations with Qreat Britain.
This hope receives additional vigour from a knowledge of the
liberal way of thinking and acting of the enlightened minister to
whom the undersigned has the honour to address these representa
tions in favour of neutral rights, which have already more than
once found in him their advocate.
The undersigned has the honour to offer to his excellency vis
count Howick the assurances of his high and respectful considera-
(Signed) J. RIST.
London, 0th March, lg07.

lxiv

No. 2.
NOTE from Lord Viscount Howick to
Mr. Rist, dated March 17, 1807.
Foreign Office, 17th March^l807.
The undersigned, his Majesty's principal secretary of state for
foreign affairs, has the honour-of informing Mr. Rist, that he
has lost no time iii submitting to' his Majesty's government his
note of the gth instant ; and that it has received all the atten
tion which the magnitude of, the subject, and the various and
important considerations which it involves, certainly required.
It is much to be wished that the Danish government, before it
had suffered itself to indulge in the representations contained in
the above official paper, had considered with more calmness the
nature and objects ofthe decree of the French government of the
21st of November last, and the order in council which, in con
sequence of that decree, has been issued by his Majesty.
The undersigned is under the necessity of thus calling, in the
outset, the attention of the Danish minister to the original^state
of the question ; because M'. Rist in his reference both to the
decree of the 21st November 1806, and to his Majesty's order :
' in council, seems to have misconceived the tenor and effect of
both ; uniformly excusing and palliating the one, and in no less a
degree heightening and aggravating the supposed tendency and
consequences of the other.
By the decree of the 21st November, which upon tlie falsest
allegations isjnstified by the principle of retaliation, the enemy
has presumed to declare the .British Isles in a state of blockade,
prohibiting at the same time all commerce" with, them, and all
trading in English merchandize ; and by the same instrument
the prize courts of France are directed to enforce these regula
tions. Neutrals are consequently interdicted from all commercial
intercourse with Great Britain, and all trading in her commo
dities. The French government, in adopting a measure at once so
violent in itself, and of such injustice with respect to the. con
sequences which must necessarily have been expected to result
from it, committed a manifest act of hostile aggression (though
immediately directed against Great Britain) against the rights of
every state not engaged in the war, which, if not resisted on

lxv
their part, must unavoidably deprive them of the privileges of a
fair neutrality, and must suspend the operation of treaties formed
for the protection of neutral rights, thus fundamentally violated
in their first and most essential principles.
The injury which would be sustained by Great Britain, if she
suffered her commerce with foreign nations to be thus interdicted,
whilst that of the enemy with them should remain unmolested,
is so manifest, that it can require no illustration. It never could
have been presumed that his Majesty would submit to such an
injury, waiting in patient acquiescence till France might think
proper to attend to the slow and feeble remonstrances of states
not engaged in the war, or that he should forbear to take imme
diate steps to check the violence of the enemy, and to retort
upon him the evils of his own injustice.
Had his Majesty at once determined to exact the full measure
of retaliation to which he was justly entitled, (and which nothing
but the most generous regard for the commercial interests of
neutral powers could have induced him to forego) let Denmark
reflect upon the effect which such a determination would have
had upon her commerce, taking into her consideration at the
same time, the means which Great Britain possesses of enforcing
it ; and then let her compare it with the measure of forbearance
and lenity which has been adopted.
His Majesty would unquestionably have been justified in resort
ing to the fullest measures of retaliation, in consequence of this
unparalleled aggression ; and other powers would have no right
to complain, if the King had immediately proceeded to declare
all the countries occupied by the enemy to be in a state of block
ade, and to prohibit all trade in the produce of those countries :
for, as the French decree itself expresses it, the law of nature
justifies the employing against the enemy the same arms which
he makes use of. If third parties suffer from these measures,
their demand of reparation must be made to that country which
first violates the established usages of war, and the rights of
neutral states.
The British government however was neither hasty nor rigor
ous in its measures. His Majesty waited nearly two months
before he had recourse even to the mitigated measure of retalia
tion, which a due regard for the dignity of his crown and the
interests of his subjects has at length exacted from him.
Whether in the mean time any such steps were taken by Den
mark as were required by the insult which had been offered by
the enemy to her sovereignty and independance, and the injury

Ixvi
done to her neutral rights, this government is altogether ignorant*
All that is known here is, that a formal communication of the
decree of the 2ist November was made by the French minister at
the court of Kiel ; the answer of the Danish government has not
transpired; but no intention of resistance has appeared in any
public document, or in any steps taken by the Danish govern
ment : whilst on the other' hand it has observed a conduct not
apparently calculated to enforce the respect due to the rights of
a neutral nation, nor in consistency with the character of a power
determined equally to resist any measures affecting those rights,
from whatever quarter they might proceed.
The troops which were stationed in Holstein, whilst those of
the allies were-1 near that frontier, have been immediately with
drawn on the approach of the French army ; and the general
intercoutse between this country and Husum, never refused in
any former war, has been the subject of continual complaint and
remonstrance on the part of the Danish ministry.
Having made these preliminary observations, it will be neces
sary to enter into a candid and dispassionate investigation of the
general nature and effect of the order of council of the 7'h
January, of the causes which produced it, and of some of the
principal objects which it had in- view. In doingthis, the under
signed is first led to consider the probable extent of its operation,
as it affects the carrying and direct trade of. Denmark, and of
other neutral powers ; and this will be the more necessary with
regard to the latter and more important description of commerce^
inastauch as impediments are supposed to be thrown in the way of
it by the Danish minister, which have no real existence, and
which the cases assumed by him in his official note, ar,e very far
from establishing. From the natural, obvious, and equitable
construction of the instrument in question, it will be seen that
these cases are altogether exempted from its operation. For
wherever it can be shewn that a Danish of other neutral vessel,
after having delivered her outward-cargo, or any part of it, at one
of the ports in possession of France or her allies, or occupied by
that power, shall bona fide propose to proceed to another, solely
for the purpose of shipping a cargo, consisting of such articles as
she may require for her homeward voyage, it is clear that such
vessel would not be considered in our courts of prize as liable to
the penal consequences of the order. In framing the order of
council ofthe 7th January, his Majesty's government has indeed
judiciously endeavoured to avoid distressing nations not engaged in
the war. The neutral is still at liberty to carry his own products

lxvii
to a market in hostile countries, to procure from thence articles
for his own consumption, and to engage in mercantile specula
tions, from hostile countries to other neutral countries^or to the
Britif.h islands.
The object of the order of council was, to prevent the enemy
from carrying on his coasting trade through the means of neutral
bottoms, at a time when the naval superiority of Great Britain
precluded him from effecting it in vessels navigated under his
own flag, and belonging to his own subjects. But the trading
from hostile port to hostile port, at the same time that it was so
beneficial and even necessary to the enemy, was comparatively of
little benefit to the neutral, and hardly entitled to the character of
neutral commerce.
The coasting trade of the enemy in time of peace is carried on
by his own navigation. Even the other branches of trade referred
to, viz. from Holland to France, to Spain, and the hostile ports
in the Mediterranean, in time of peace, chiefly pass by the na
vigation of those countries respectively.
It is principally from the success ofthe British maritime force,
which has almost annihilated the navigation of the enemy, that the
ships of Denmark and other neutral states are employed as carriers
from hostile port to hostileport, in orderto relieve theenemy from
his distress; and it is notorious that the trade thus carried on, is
supported by the shameful misconduct of neutral merchants, who
lend their names for a small per-centage, not only to cover the
goods, but in numberless instances to mask the ships of the
enemy. The Danish minister in his note seems indeed so intent upon
asserting neutral rights, as apparently to forget that there also exist
corresponding neutral duties.
Neutrality, properly considered, does not consist in taking
advantage of every situation between belligerent states, by which
emolument may accrue to the neutral, whatever may be the con
sequences to either belligerent party ; but in observing a stri-t and
honest impartiality, so as not to afford advantage in the war to
either; and particularly in so far restraining its trade ro the accus
tomed course which it held in time of peace, as not to render
assistance to one belligerent in-escaping the effect of the other's
hostilities. The duty of a neutral is, " non interponere ^- bello,
non hoste imminente hostem eripere ,-" and yet it is manifest, that
lending a neutral navigation to carry on the coasting trade of the
enemy, is in direct contradiction to this definition qf neutral ob
ligations, as it is, in effect, to rescue the commerce of the enemy
i 2

Ixviii
from the distress to which it is reduced, by the superiority of the
British navy, to assist his resources, and to prevent Great Britain
from bringing him to reasonable terms of peace!
To "put a stop therefore to this species of trade, is a measure
¦which might easily have been justified without reference to the
late conduct of France; and even if the Danish navigation were
likely to suffer some inconvenience from it, there would not exist
any just ground of complaint : but when it is the only step in the
way of retaliation which has hitherto been adopted on the part of
the British government, his Maje ^ty's forbearance and magnani
mity must appear eminently conspicuous.
If, after all, the probable, consequences of this measure are
contemplated with any degree of temper, they will appear rather
likely to prove beneficial than other-wise to the Danish nation.
The products of the hostile countries will of necessity find their
way into neutral couiv ries, not only fo- consumption but for re
exportation: Denmark will -then become a great entrepot ; her
navigation will not have the less e;.iplo\mentj the real bona fide
commerce of her subjects will be exu-rided, and her revenue at
the same time will be considerably benefited.
The enemy it is true will suffer by the enhanced price which
he must pay for the articles which he imports, when obtained in
this circuitous mode, and by the reduced price at which he will
be obliged to dispose of his exports, as well as by the encreased
difficulty of covering his commerce under a neutral flag. But it
is presumed that these considerations cannot furnish any just cause
of complaint on the part of Denmark, the real trade of which
country will, in all probability, be eventually rather benefited
than exposed to any injury from the measure in question.
Upon the whole, the undersigned is instructed to declare to
Mr. Rist, that his Majesty cannot be induced to revoke the order
in council of the 7th January, till France shall not only have
desisted from acting on the decree of the 21st November, but
shall have publicly and formally repealed it. Should Denmark
adhere to the resolution she has expressed of resisting the unjust
pretensions of the enemy, and manifest a sincere disposition to
maintain a real and honourable neutrality, it is very far from his
Majesty's wish or intention to deprive her of any of the advan
tages which fairly belong to that relation ; but if unfortunately
it shall appear that this neutrality consists in mere assertion, and
displays itself only in remonstrances on her part, against such
measures as his Majesty is justly authorized to adopt, in support
of the dignity of his crown and the interests of his subjects, and.

Ixix
on the other hand in the most complete and unqualified ac
quiescence in every demand which the enemy may think proper
to advance, tke king would consider himself as wanting in the
regard which he owes to his own honour and the welfare of his
dominions, were he to omit taking, on his part, such measures
as maybe necessary to secure both, against the injury which must
necessarily arise from a continuance of such conduct on the part
«sf the Danish government. (Signed) HOWICK.

? I N I S.

Printed by Cox, Son, and Baylis,
Great Queen Street.

LETTER.

PAGE,

VII. .

37 ,

VIII. .

53

X. .

63 ,

XII. .

S3 ,

26 .

38 .

xiii". .'

58 o

60 .

ERRATA,
£n the Observations and Additional Observations,

LINE.  _,
7 from the bottom, for repeal, read repel.
2 ditto for pro facto, read ipso faCtoT
1 0 of the Note, for reform, read rigorous.
12 for higher, read more highly.
3 of 'the, Note, for ordered, read ordering,
4 ditto for this, read the.
4 dele the (")¦
of the Note, after carried read on,

3 9002 00982 5457