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voyages, or of any irregularity in their own conduct, made no efforts to escape, and were captured and brought into port. These vessels have been condemned under the authority of the article 'D' in the 11th clause of his Majesty's instructions for privateers, issued on the 10th of March 1810, which declares to be good prize "All vessels which have made use of British convoy, either in the Atlantic or the Baltic. At the time of this declaration, these vessels were in Russia, on the point of sailing, and wholly ignorant of it.”—That the belligerent has a right to ascertain the character of neutrals met with at sea, I am not disposed to deny; but to say that the neutral shall be condemned on the mere fact that he was found under enemy's convoy, is to impose upon him the necessity of sailing without protection, even against his own separate enemies; for the case might well happen, indeed has happened, that though neutral with regard to the belligerent powers, he has had an enemy, against whom either of the belligerents might be disposed to protect him. Of such protection, the American commerce has often availed itself, during the war between the United States and the Barbary powers; nor was it ever supposed, by either of the great belligerent powers, that such commerce, so protected by its enemy, had thus become liable to capture and confiscation. The case might also occur, that of two allied belligerent powers, a third power should be enemy as to one, and neutral as to the other. I state these arguments against the broad ground taken in the royal instructions above quoted. But it will be said, that the belligerent, having also an unquestionable right to ascertain the neutrality of vessels, and belligerent right being paramount to neutral rights, where the two happen to be in collision; hence the attempt of the neutral to deprive the belligerent of his right, by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer, first, that the belligerent rights, where they come in collision with those of neutrals, are not to be deemed in all cases paramount; and that nothing can establish such a general rule but force, which is not law or justice. Secondly, that no presumption necessarily arises against the neutral, from the mere circumstance of his being found under enemy's convoy; but that this point will depend upon the peculiar circumstance of each case. Thirdly, that where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favour of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in his self preservation. These vessels did not seek convoy for any purpose, but they were forced into it; they had no motive to seek convoy as a protection against Cruisers. They had, indeed, other inducements to put themselves under convoy; the decrees of his Majesty the emperor of France being then in force, that system, working against the English orders in council, produced such a state of things, with regard to the commerce of America, that scarely one of its ships could move on the face of the ocean, without being exposed, under this unfortunate co-operation of hostile systems, to capture and confiscation. But had this happened in the cases before us, yet it would not have formed a just ground of capture and confiscation; for, the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark; indeed, at the time the vessels were taken, his majesty had not assumed any course, with respect to the American commerce, from which evil was to be apprehended; hence, I beg leave to repeat, that the ves

sels in question cannot be presumed to have sought protection under British convoy, for the purpose of avoiding his cruisers. But if the contrary had been proved, if it stood confessed, that they had sought convoy against Danish cruisers; in that case, they would have been liable to capture, certainly-but it is equally certain, that they would have been liable to condemnation. I must again totally deny, that the rule laid down in the article of the royal instructions yet above cited, is supported by any principle to be found in the law-and I can confidently ask your excelJency to show me any authorities in its favour. If the writers be silent on the subjec, then their silence is to be construed favourably for the neutral. But the law says, that neutral goods found under the enemy's forts, within his territory, or even on board his vessels at sea, which is to be as immediately and totally under his protection as is possible, that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius, in the "De Jure Belli ac Pacis," on this point, he has never been refuted, but has, on the contrary, been adopted by subsequent writers. England herself has never gone to the extent of condemning vessels upon the mere ground of their having been taken under enemies' convoy; but she has captured them in that situation, and then acquitted them."

115. Mr Rush's Outline of the Question of Impressment.

[From his "Residence at the Court of London."]

Great Britain, as a measure of state policy, impresses her seamen to serve on board her ships of war; in other words, takes them by force. The practice is one with which other nations have nothing to do, as long as it is confined to British seamen, the British dominions, or the decks of British vessels upon the seas. It may seem at variance with the high standard of personal rights upon which her laws are founded in other respects; but that consideration is wholly for herself.

But, she claims the right of searching the vessels of other nations upon the high seas, for her seamen; and here begins the cause of complaint. For, how can the claim ever be enforced consistently with what is due to other nations?

Let the steps by which the enforcement proceeds be attended: A British frigate in time of war meets an American vessel at sea, boards her, and, under terror of her guns, takes out one of the crew. The boarding lieutenant asserts, and let it be admitted, believes, the man to be a Briton. By this proceeding, the rules observed in deciding upon any other fact where individual or national rights are at stake, are overlooked. The lieutenant is accuser and judge. He decides upon his own view, instantly. The impressed man is forced into the frigate's boat, and the case ends. There is no appeal, no trial of any kind. More important still, there is no remedy, should it appear that a wrong has been committed.

Different is the mode of proceeding if an American merchant vessel be stopped and examined at sea under circumstances subjecting her to suspicion as prize of war. In the latter case, the boarding officer sends the vessels into port under accusation. Facts are inquired into judicially, and both parties heard. Both have ample opportunity of bringing forward proofs; should the tribunal decide that lawful cause of seizure existed, the vessel is restored, the captors are answerable in damages, and there are adequate modes of making them pay. If, on the other hand, the man seized, be in fact no Briton, the most that he can ever hope

for is, merely to be released. This can only take place after he has been kept an indefinite length of time on board the frigate, put to duty, and perhaps made to fight. He may be slain in battle. If this fate does not await him, his subsequent liberation, from the nature of the case, can only be effected at a distant day, and is not certain at last. He may not be able whilst on board the frigate, to obtain documents to show that he is not a Briton. He may be transferred to some other vessel of war. Even to trace him, through a navy scattered over all seas, must become to his country or friends a difficult, often a hopeless task. Should the chances, multiplied as they are against him, all turn out in his favour, and the order for his discharge be finally obtained, where is his action for damages; where his remedy for loss of liberty? for this outrage, so terrible, upon all his feelings and rights? He has none.

A claim so ex parte in the whole enforcement, so intrinsically open to error, and the error if committed so fatal, cannot, it should seem, rest upon public law. The United States say, that it does not. They have never denied to Great Britain the right of search. They allege however that this means search for enemy's property, or articles contraband of war, not search for men. They say that no public code or other adequate authority, has ever established the latter as an international right. If its exercise by any other state than Great Britain can be shown, the instances are averred to be too few, and too devoid of the evidences of general consent, to have made it part of the law of nations. Troops indeed, or men in the military service of the enemy, may be taken out of a neutral vessel at sea; but this is wholly different from impressing seamen.

Great Britain places her claim on the ground of natural allegiance. She alleges, that, by a principle of universal law, a man owes this kind of allegiance to the country of his birth. That he never can shake it off. That as his country protects him, so it may demand his services in return; especially in time of war.

The United States reply, that the principle of natural alliance, however cherished by some states, is not universal. Sir William Blackstone in his commentaries so able and masterly for the most part, lays it down as universal; but he refers for support, only to the writers of England. Puffendorf holds that allegiance may be put off; so do Grotius and Bynkershoek. If we choose to go as far back as the Justinian code, we shall there find the same doctrine. The principle of perpetual allegiance may be held sacred by Britain; it may be of the highest practical importance under her own system; but the United States say, that its operation should be confined to her own territorial dominions, and decks of her own merchant vessels. There is scarcely an important principle of public law that has not, at one time or other, had place in treaties among European states, the better to define or regulate it. This is especially the case with principles that belong to maritime affairs. Would a right of such concern to all nations using the sea, as a sovereign's to enforce the allegiance of his own subjects in neutral vessels on its broad highway, have altogether escaped notice in these solemn instruments between states? Yet it is believed that no treaty contains any thing in relation to it.

The United States have been exposed to grievances from the exercise of this claim by Britain, heavier perhaps than ever fell to the lot of an independent nation. It springs from a cause rooted in nature, and irreversible; the resemblance of their

seamen to those of England. Their language, dress, sea phrases, every thing, are alike. To discriminate, is, in most cases, impossible. Of this, the proof is incontestible, and here follows.

.

Britain disavows, unequivocally, all claim to impress from American ships, any other seamen than her own. Her sense of justice would not allow her to set up any pretence of claim to take Americans; yet these she unavoidably does take, and in numbers sufficient to surprise those not informed upon the subject.

From a report made to congress by the secretary of state in April 1816, it appeared, that the impressed American seamen on board of the British armed ships at the commencement of the war of 1812, a war occasioned chiefly by this cause, amounted to one thousand four hundred and twenty-two. Here is no exaggeration. The fact comes from the archives of Britain. It is taken from official lists, furnished by functionaries of the British government to the American agent for prisoners of war in London. These men had been transferred from English ships to English prisons, on the breaking out of the war, or during its progress.

Furthermore. Britain, at a former period, liberated one thousand one hundred and thirty-two Americans who had been impressed prior to the month of September, 1801. This fact also rests upon the authority of British archives, and was included in the same report to Congress. On the impressment of all these Americans, the British boarding officers must have believed they were taking their own subjects; else they took them knowing them to be Americans: Hence the difficulty not to be surmounted, of distinguishing American from British seamen.

What then do we learn? more than two thousand six hundred American citizens, confessedly, the sufferers under this practice! and this by no means the whole list. All were clearly Americans. No British seamen, naturalized in the United States, was ever, if impressed, given back again. Can Britain, whose pride and spirit have raised her to greatness, and who must know how to respect such qualities in other nations, can she for a moment, wonder, that a practice leading to such consequences, should excite the deepest scnsation in the United States?

She complains, that she is aggrieved by the number of her seamen who get into the merchant service of the United States, through our naturalization laws and other causes. This takes from her, she alleges, the right arm of her defence.— Without her navy, her existence, no less than her glory, might be endangered. It is therefore vital to both, that, when war comes, she should reclaim her seamen from the vessels of a nation where they are so frequently found.

The foregoing is an outline of the question, in its main features. It may serve to give some idea of the manner in which it operates upon the United States. As between the two nations, it is a question sui generis. To both, it is of the last importance. The diplomatic history of the United States will show how repeated and earnest have been their endeavours to settle it. The joint mission to London in 1806, when Mr Monroe and Mr Pinkney were our negotiators, could effect nothing on this point; and Mr King's effort in 1803, successful in all other respects, was at last frustrated by Great Britain insisting on reserving her right to impress within the narrow seas.-To this doctrine of the mare clausum of her Selden, in opposition to the mare liberum of Grotius, the United States were not prepared to assent. They never can assent to it."

I return to my interview with Lord Castlereagh. He remarked, that intrinsic as were the difficulties respecting impressment, his desire was sincere to see them removed; and his efforts to remove them, would be given with earnestness.-I assured him, that, under all my instructions, my efforts would be equally sincere and earnest. The conversation proceeded. We adverted to the principles maintained by our respective countries. He said, that the abuse of the practice, for he freely admitted its abuse, had been the result of the peculiar state of the world, all Europe having been at war, and America neutral. He did not believe that the desire to enforce their right to the same extent, would exist in future; or that it would be drawn into exercise at all, if means could be devised to keep their men out of our vessels. I said, that the question never could be put to rest as long as a British naval officer was allowed to muster an American crew upon an American deck, to look for British seamen. Besides the indignity of this, so felt by all America, the inevitable consequences to which it must lead of subjecting Americans to seizure instead of Britons, would preclude forever all hope of adjustment. The best mode we could devise of keeping British officers from our vessels on such errands, was that which he had hinted at; namely, to keep British seamen away altogether. This we were desirous to do, as far as in our power. I promised to furnish him with a proposal to this effect; and he, that it should have a liberal consideration.

men.

116. American Proposal for abolishing Impressment, Submitted by Mr Rush to Lord Castlereagh, on the 18th of April, 1818.

"Great Britain alleging a right to impress her seamen out of American vessels upon the high seas, it follows, that whenever a mode can be devised for their previous exclusion from American vessels, the motive for the practice must be at an end. It is believed that this may be effected by cach nation imposing restraints upon the naturalization of the seamen of the other, and reciprocally excluding from their service all seamen not naturalized. If Great Britain be allowed to naturalize American seamen, the United States must be allowed to naturalize British seaEach should be at liberty to afford the same facilities, or bound to interpose the same restraints. The greater the difficulty in acquiring the right of citizenship, the easier will it be to avoid imposition, and the more complete the desired exclusion. The law of Congress of the third of March one thousand eight hundred and thirteen, of all the provisions of which, Great Britain may command the benefit, will prove how sincerely the United States desire to settle this controversy on conditions satisfactory to Great Britain. By that law it is made indispensable for every British subject who may hereafter become a citizen, to reside five years in the United States without intermission, and so many guards are interposed to prevent frauds, that it seems scarcely possible they should be eluded. No British subject can be employed in a public or private ship of the United States unless he produce to the commander in the one case, and to the collector of the port in the other, a certified copy of the act by which he became naturalized. A list of the crew in the case of a private ship, must be taken, certified, and recorded by the collector; and the consuls or commercial agents of Great Britain may object to the employment of a seaman, and have the privilege of attending the investigation relative to his citizenship. The commander of a public ship receiving a person not

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