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English had the least solid foundation, or that the United States did not possess a full right to resist, by an immediate appeal to arms, every similar aggression on their sovereignty. But, being well persuaded that England, on the return of every war, would attempt a renewal of the practice, the government, urged by a steady and laudable desire to remove so intolerable and fatal a circumstance of outrage and dispute, has, in a persevering manner, brought this subject under consideration at every negotiation of a general nature. Although it cannot be said, that much encouragement was afforded for these repeated endeavours, either by a prospect of success, or a recollection of the favourable attention, with which former propositions had been received.
The commissioners, at the negotiations of 1814-1815, found the temper of the British government altogether forbidding on this as well as other subjects, connected with maritime rights, though the proposition, they were authorized to offer, embraced equal and reasonable provisions. It was, in substance, that the two governments should exclude from their vessels all but native, or already naturalized seamen. This stipulation, taken in connexion with the law of 1815, requiring that American vessels should be navigated solely by American or naturalized seamen, would have afforded full security for the English, and as a continued residence of five years was made necessary for naturalization, the wandering, uncertain habits of seamen would have deprived them of nearly all the benefits of the act. At the end, therefore, of a few years, according to the theory of this law, our navigation would be done exclusively by Americans. Undoubtedly, difficulties might be expected to arise in enforcing the provisions of it, in a time of general peace, when the seamen of all maritime nations enjoy the liberty of frequenting every port in quest of employment, but the effectual execution of this particular statute would rest upon the same general foundation as the greater part of the revenue system. As England has never objected to the practice of the American merchant in employing foreign seamen more than to that of transporting articles, contraband of war, all pretension to search and
impress would cease, when an absolute exclusion took place, and though this might not be rendered perfect and entire, the result of the system, applying equally and constantly to every American vessel, would, in its general operation and tendency, be much more favourable to that government; while that of impressment reached only to those cases, with which it accidentally came in contact. Separate from important considerations, touching the relations of the two countries, the United States would naturally be incited to a careful execution of the law from a desire to encourage their own seamen.
In 1818 this grave business was renewed with some slight prospect of arriving at an arrangement. At any rate, the attention, bestowed upon it by both parties, manifested a sincere disposition to give it a thorough examination, though from the result of the conferences at that period, it is quite evident, that in the present state of feelings and circumstances of the two countries, such discussions would be little else than a formal and unnecessary proceeding. Questions occasionally arise between nations, that appear to be beyond the reach, or even control of treaty stipulations. This topic, the most solemn one, that has been entered upon a protocol, since the foundation of the government, and in regard to which the least waivering, compromising or flinching, on the part of the United States, is an absolute surrender of sovereignty, unfortunately belongs to that order of subjects; and as settlement by negotiation has become hopeless, we must, for the present, calmly rely on an expectation, founded in the sense of justice and deliberate judgment of Great Britain, that, hereafter, circumstances may render it inexpedient to resort to the exercise of the pretension.
The proposition of 1815, concerning impressments, was revived at the negotiation of 1818. Objections were made to it, in consequence of the different opinions, entertained on the subject of allegiance, by the two governments, and of the character of sovereignty conferred on American vessels, investing them with the same attributes, as American territory. On the other hand, the opinions, held in this country, relative to allegiance, do not differ from the ancient law authori
And, while admitting the
ties, as well as usages of Europe. exercise of all belligerent rights, within their just limits, in regard to vessels, when met on the high seas, it is, by no means, acknowledged, that the enforcing the municipal regulations of a foreign nation could be comprehended within the range of those rights. But, when it was even proposed to exclude British born subjects from the private and public marine of the United States, it was intimated, that the claim of the British government to enter a foreign vessel in search of men could never be made subject to the control, either of legislative enactment or treaty stipulation. Lord Castlereagh, indeed, made an informal proposal on this topic, which his government appeared willing to incorporate in a treaty ;-it was in these words:
"1. That the treaty, containing the stipulation, should be limited to a duration of ten or twelve years, with liberty to each party to be absolved from its stipulations on a notice of three or six months. 2. That the British boarding officer, entering American ships at sea for a purpose, justified under the law of nations, should have the liberty of calling for a list of the crew, and if he saw a man, whom he knew or suspected of being an English subject, he should, without taking the man, have the privilege of making a record or procés verbal of the fact, to be presented to the consideration of the American government."-But, "in the first place, the distrust, which it implies, that the laws, for excluding British seamen, will, though stipulated, not be faithfully executed, is not warranted by any experience, nor can this government give countenance to it by assenting to any stipulation, which would be considered as resulting from it. If the United States bind themselves to this exclusion, they will sincerely and faithfully carry it into execution. It was not expressly asked by lord Castlereagh in his proposal that the officer, in calling for the shipping paper, should, also, have the power of mustering the crew, to examine them by comparison with the list; but as the mere view of the list would be useless, coupled with that power, we consider it as having been intended to be included in the proposal; and this very inspection of the crews of our vessels by a foreign officer has been found among the most insulting and grievous aggravations of the practice
of impressment. Besides this, the tendency of such an examination in every single instance would be to produce altercation between the British officer and the commander of the American vessel. If the officer should be authorized to make a record of his suspicions, the master, on his side, and the suspected seamen must, of course, have the privilege of making their counter record; and as there would be no tribunal to judge between them, the probable, ultimate result could be no other, than that of exciting irritation between the two nations, and discussions between the govern
"If the engagement to exclude British seamen from our service should fail of being executed to an extent, worthy of the slightest attention of the British government, they could not avoid having notice of it, by proofs more effectual and more abundant than could be furnished by this sort of scrutiny; a failure of execution on our part to any such extent would give them, not only the right of remonstrating to ours, but even of cancelling their obligation within a lapse of time, which must guard them against the danger of any material, national injury. We have the fullest confidence that, if the engagement, on both sides, be once contracted, Great Britain will, thenceforward, have no lawful or even plausible motive, either for wishing it cancelled, or for inspecting the crews of our vessels in search of men."
On a subsequent occasion, Messrs. Goulbourn and Robinson delivered to Messrs. Gallatin and Rush, employed to negotiate the convention of 1818, a project of an arrangement, which we shall extract at length for the single purpose of showing, what stipulations England was willing to admit concerning this difficult question.
"ART. 1. The high contracting parties engage and bind themselves to adopt respectively, without delay, the most effectual measures for excluding respectively from serving either in their public or private marine the natural born subjects and the natural born citizens of the other party: Provided always, that nothing contained in this article, shall be understood to apply to any seamen, being natural born subjects of his Britannic Majesty, or natural born citizens of the United States, who have been naturalized by the respective laws of either power, previous to the signature of the present convention.
"ART. 2. The high contracting parties engage to deliver each to the other, within eighteen months from the ratification of the present convention, a list, as far as it may be found practicable to obtain it, containing the names and description of the seamen, falling within the said exception, specifying the places of their birth and the date of their becoming naturalized. And it is further agreed, that no person, whose name shall not be included in the said lists, shall be deemed to fall within the said exceptions.
"ART. 3. It is, however, agreed, that if one of the high contracting parties shall, at any time during the continuance of this convention, think fit to notify to the other, that it does not insist upon the exclusion of its natural born subjects, or natural born citizens, from the public or private marine of the other party, it shall be competent to the said other party, notwithstanding the engagement set forth in the first article of this convention, no longer to exclude the said subjects or citizens. Provided always, that whenever the power, which has made the said notification, shall recall the same, its recall shall be immediately communicated to the ether contracting party, and on receipt of such communication, the power, receiving the same, shall, forthwith, make it known in the most public and official manner, and shall use its utmost endeavours to restrain the said subjects or citizens of the other party from further serving in its public or private marine, and shall obtain the exclusion of such of the said subjects or citizens of the other power, as may then be in its service, as if no such stipulations, as are contained in the preceding part of this article, had been agreed to.
"ART. 4. It is agreed by the high contracting parties, that, during the continuance of the present convention, neither power shall impress or forcibly withdraw, or cause to be impressed or forcibly withdrawn, any person or persons from the vessels of the other party, when met upon the high seas, or upon the narrow seas, on any plea, or pretext whatsoever. Provided always, that nothing contained in this article, shall be construed to impair or effect the rights of either power to impress or forcibly withdraw, or cause to be impressed or forcibly withdrawn, its natural born subjects, or natural born citizens, not falling within the exceptions, mentioned in the preceding articles, from any vessel, being within its ports, or within its ordinary maritime jurisdiction, as acknowledged by the law of nations: And also provided, that nothing, herein con11