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I now informed him that Mr. Gallatin, the present Minister from the United States at Paris, would take part in the negotiation, and come over to London as soon as it would be convenient to say that plenipotentiaries would be appointed on the part of Great Britain. He said, the sooner the better; and that Mr. Robinson and Mr. Goulburn would be named to treat with us. His Lordship said that he himself would be obliged to set out for the continent to attend the European congress, by the 20th or 25th of next month, but that the negotiation could go on in his absence. He intimated a wish, however, that it might open, if practicable, before he went away. I answered that all the necessary powers and instructions from our Government had not yet reached us, but that we were in daily expectation of them.
He next asked whether, in order to guard against all possible delays that might be incident to the general negotiation, which was to embrace so many points, I was prepared to agree at once to a renewal of the convention of 1815 for a term of years to be agreed on, declaring that the British Government was ready, at any moment, to concur in such agreement.
I answered, without reserve, that I was already in possession of a full power to this effect, which, independently of other objects, might be carried into execution.
I wrote yesterday to Mr. Gallatin to apprise him of the necessity of coming over, the contingency which was to bring him having happened. From the answer I have received to my letter to him of the 2d of this month, I think it probable that he will be here in three weeks, or sooner; so that, if our full powers arrive, the negotiation may be opened before Lord Castlereagh's departure. Should Mr. Gallatin concur, we will make the renewal of the convention for eight, ten, or twelve years, our first act. This I hope the President will approve. The reasons that operate with me are, 1. It will not only provide against delays, but all uncertainties in the result, of the possibility of which we are forewarned simultaneously with the desire expressed to enter the field of negotiation. It is not only important that there should be no chasm in the commercial relations between the two countries, but equally so that our merchants should have timely notice that there will be none. 2. Every inquiry that I have made among merchants from the United States, with whom I have been able to confer in this city, has produced the most unequivocal opinions that this convention is working well for us, which entirely falls in with the communications I have received from the department. 3. Taking this for the fact, it seems naturally to follow that it is our part to consent to the renewal the moment Britain says she will, lest the day should go by. On this head I will just state that I have heard, through a respectable source, that there are already some British ship-owners in Liverpool who talk of petitioning their Government against its renewal. Lastly, my power to renew seems to me, from your despatch of the 30th of May, to be complete; or will its exercise thwart, in any degree, our prospects of a more enlarged treaty under the general negotiation.
No. 31.-1818, July 28: Extract from Letter from Mr. Adams, United States Secretary of State, to Messrs. Gallatin and Rush."
In the expectation that the Government of Great Britain have accepted the proposal which Mr. Rush was instructed to make, for negotiating a treaty of commerce, embracing the continuance of the convention of 3d July, 1815, for an additional term of years, and including other objects of interest to the two nations, I have now the honour of transmitting to you the President's instructions to you for the conduct of the negotiation.
With regard to the commercial convention of the 3d July, 1815, you have already been informed that the President is willing that it should be continued without alteration for a further term of eight or ten years. We had flattered ourselves, from the liberal sentiments expressed by Lord Castlereagh in Parliament, and from various other indications, that the British Cabinet would have been now prepared to extend the principles of the convention to our commercial intercourse with their colonies in the West Indies and North America; but, from the report of two conferences between Mr. Rush and Lord Castlereagh, since received, it appears that our anticipations had been too sanguine, and that, with regard to our admission into their colonies, they still cling to the system of exclusive colonial monopoly.
Our Navigation Act, passed at the last session of Congress, is well calculated to bring this system to a test by which it has not hitherto been tried; and if the experiment must be made complete, so that the event shall prove to demonstration which of the two countries can best stand this opposition of counter-exclusions, the United States are prepared to abide by the result. Still, we should prefer to remove them at once, if for no other reason than that it would have a tendency to promote good humour between the two countries. We wish you to urge this argument upon the British Cabinet; to remind them of the principles avowed by Lord Castlereagh in Parliament, to which I have before referred, and of their precise bearing upon this question. It may also be proper to suggest that, while Great Britain is pressing upon Spain the abandonment of her commercial monopoly throughout the continent of South America, her recommendation must necessarily gain great additional weight by setting the example with her own colonies, while at the same time her own interest in her monopoly must be reduced to an object too trifling for national consideration, when the Spanish colonies shall be open to the commerce of the world. Finally it may be observed that the Free Port Act passed at the late session of Parliament goes already so far towards the abandonment of their system, that it can scarcely be perceived why they should adhere to the remnant of it any longer. Other arguments may occur to your own reflections and result from your thorough knowledge of the subject; you will urge them with earnestness, though giving it always to be understood that we shall acquiesce in their ultimate determination.
Whenever this subject has been presented to the British Cabinet, since the peace, their only objection to the proposals and arguments
a Messrs. Gallatin and Rush represented the United States and Messrs. Robinson and Goulburn represented the United Kingdom in negotiations at London.
of the United States has been, that their system has been long established. Lord Castlereagh has invariably acknowledged his own doubts whether it was wise, or really advantageous to Great Britain, but placed the determination to preserve it upon the single ground of its having long existed. Whatever weight there is in this reasoning, it would bear in favour of all those other exclusions which he congratulated Parliament and the country at having been abolished, as much as in support of this. It is the argument of all existing abuse against reformation-of mere fact against reason and justice. The commercial intercourse between the United States and the West Indies is founded upon mutual wants and upon mutual convenience; upon their relative geographical position; upon the nature of their respective productions; upon the necessities of the climate; and upon the convulsions of nature. When the British Ministry say, against all this our ancestors established a system, and therefore we must maintain it; we may reply, if your ancestors established a system in defiance of the laws of nature, it is your interest and your duty to abolish it. But who can overlook or be blind to the changes of circumstances since the establishment of the system; to the irresistible consequences of the establishment and growth of the United States as an independent Power; to the expulsion of the French from St. Domingo; to the revolution in progress in the South American provinces? Every system established upon a condition of things essentially transient and temporary must be accommodated to the changes produced by time.
Besides the Free Port Act, a printed copy of which has now been received from Mr. Rush, and which, we find, is limited to ports specially to be appointed by the Crown, in the Provinces of Nova Scotia and New Brunswick, we have seen in the public journals a Bill for permitting a certain trade between the British West Indies and any colony or possession in the West Indies, or on the continent of America, under the dominion of any foreign European Sovereign or State. This measure appears intended to counteract the effects of our late Navigation Act, and gives further manifestation of the adherence of the British Government to their colonial exclusions. It is the President's desire that nothing should be omitted which can have the tendency to convince them that a change would promote the best interests of both countries, as well as the harmony between them. Should your efforts prove ineffectual, we can only wait the result of the counteracting measures to which we have resorted, or which may be found necessary hereafter.
In carrying the convention of the 3d July, 1815, into execution, the British Government have sanctioned the practice, with regard to some of the foreign tonnage duties, first, to levy them as if the convention were not in force; and then, upon petition of the persons interested, to have them returned. If this practice cannot be given. up altogether, it will be necessary that some regulation should be adopted, by which the extra duties shall be returned of course, and without putting the parties to the trouble, expense, and delay of obtaining it by petition. At present, unless the petition is presented, the duties are not returned. It happens sometimes that masters of vessels pay the duties, without knowing that they are entitled to have them returned; in which case, they are lost to them or their owners. It will be proper, therefore, to require the adoption of some
general regulation; in virtue of which, it shall be made the duty of the officers of the customs to repay the extra duties in all cases in which they shall have been levied, without exposing the individual to lose his right by his own ignorance, or by the negligence or infidelity of his consignee.
The proceedings, deliberations, and communications upon this subject, which took place at the negotiation of Ghent, will be fresh in the remembrance of Mr. Gallatin. Mr. Rush possesses copies of the correspondence with the British Government relating to it after the conclusion of the peace, and of that which has passed here between Mr. Bagot and this Government. Copies of several letters received by Members of Congress during the late session, from the parts of the country most deeply interested in the fisheries, are now transmitted.
The president authorises you to agree to an article whereby the United States will desist from the liberty of fishing, and curing and drying fish, within the British jurisdiction generally, upon condition that it shall be secured as a permanent right, not liable to be impaired by any future war, from Cape Ray to the Ramea Islands, and from Mount Joli, on the Labrador coast, through the strait of Belleisle, indefinitely north, along the coast; the right to extend as well to curing and drying the fish as to fishing.
By the decree of the judge of the vice-admiralty court at Halifax, on the 29th of August last, in the case of several American fishing vessels which had been captured and sent into that port, a copy of which is also now transmitted to you, it appears that all those captures have been illegal. An appeal from this decree was entered by the captors to the appellate court in England, and the owners of the captured vessels were obliged to give bonds to stand the issue of the appeal. Mr. Rush was instructed to employ suitable counsel for these cases if the appeals should be entered, and, as we have been informed by him, has accordingly done so. If you do not succeed in agreeing upon an article on this subject, it will be desirable that the question upon the right should be solemnly argued before the Lords of Appeals, and that counsel of the first eminence should be employed in it. Judge Wallace agreed with the advocate general that the late war completely dissolved every right of the people of the United States acquired by the treaty of 1783. But it does not appear that this question had been argued before him, and the contrary opinion is not to be surrendered on the part of the United States upon the dictum of a vice-admiralty court. Besides this, we claim. the rights in question not as acquired by the treaty of 1783, but as having always before enjoyed them, and as only recognised as belonging to us by that treaty, and therefore never to be divested from us but by our own consent. Judge Wallace, however, explicitly says that he does not see how he can condemn these vessels without an Act of Parliament; and whoever knows anything of the English constitution must see that on this point he is unquestionably right. He says, indeed, something about an order in council, but it is very clear that would not answer. It is a question of forfeiture for a violated territorial jurisdiction; which forfeiture can be incurred not by the law
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of nations, but only by the law of the land. There is obviously no such law.
The argument which has been so long and so ably maintained by Mr. Reeves, that the rights of antenati Americans, as British subjects, even within the kingdom of Great Britain, have never been divested from them, because there has been no Act of Parliament to declare it, applies in its fullest force to this case; and, connected with the article in the treaty of 1783, by which this particular right was recognised, confirmed, and placed out of the reach of an Act of Parliament, corroborates the argument in our favour. How far it may be proper and advisable to use these suggestions in your negotiation, must be left to your sound discretion; but they are thrown out with the hope that you will pursue the investigation of the important questions of British law involved in this interest, and that every possible advantage may be taken of them, preparatory for the trial before the Lords of Appeals, if the case should ultimately come to their decision. The British Government may be well assured that not a particle of these rights will be finally yielded by the United States without a struggle, which will cost Great Britain more than the worth of the prize.
These are the subjects to which the President is willing that your negotiation should be confined. With regard to the others of a general nature, and relating to the respective rights of the two nations in times of maritime war, you are authorised to treat of them, and to conclude concerning them, conformably to the instructions already in possession of Mr. Rush; or, if the difficulty of agreeing upon the principles should continue as great as it has been hitherto, you may omit them altogether.
You will not fail to transmit, by duplicates, the result of your conferences at as early a period as may be found practicable.
No. 32.-1818, August 24: Extract from Instructions from Viscount Castlereagh (at London) to Messrs. Robinson and Goulburn.
FOREIGN OFFICE, August 24, 1818.
The accompanying papers will bring the present state of the fishery question under your view. I refer you to the proceedings at Ghent for those arguments upon which the British plenipotentiaries maintained, as I conceive unanswerably, that the second branch of the IIIrd Article of the treaty of 1783 had expired with the war. The negative of this proposition was certainly contended, but very feebly, by the American plenipotentiaries, which is proved almost to the extent of an admission of the principles contended for on the part of this Government by their tendering an article in which the same privileges were, by a fresh stipulation, to be again secured to the subjects of the United States upon an equivalent offered on their part.
The subsequent correspondence will show the nature of the claim put forward by the American Government soon after the peace. The orders issued to the British officers on the Halifax station to resist any encroachment on the rights of this country, and, finally, the friendly offer of a specified accommodation for the convenience of the American fishery which Mr. Bagot was authorised to tender to the Government of the United States. You will see by that Min