“Whenever a belligerent claim against persons on board a
neutral vessel is referred to in treaties, _enemies in military
service alone_ are excepted from the general immunity of
persons in that situation; _and this exception confirms the
immunity of those who are not included in it_.”[65]
In pursuance of this principle, thus clearly announced and repeated,
Mr. Madison instructed Mr. Monroe to propose a convention between the
United States and Great Britain containing the following stipulation:--
“No person whatever shall, upon the high seas and without the
jurisdiction of either party, be demanded or taken out of any
ship or vessel belonging to citizens or subjects of one of the
parties, by the public or private armed ships belonging to or
in the service of the other, _unless such person be at the time
in the military service of an enemy of such other party_.”[66]
Mr. Monroe pressed this stipulation most earnestly upon the British
Government; but, though treated courteously, he could get no
satisfaction. Lord Harrowby, the Foreign Secretary, in one of his
conversations, “expressed concern to find the United States opposed
to Great Britain on certain great neutral questions, in favor of the
doctrines of the Modern Law, which he termed _novelties_”;[67] and Lord
Mulgrave, who succeeded this accomplished nobleman, persevered in the
same dissent. Mr. Monroe writes, under date of 18th October, 1805:--
“On a review of the conduct of this Government towards the
United States from the commencement of the war, I am inclined
to think that the delay which has been so studiously sought
in all these concerns is the part of a system, and that it is
intended, as circumstances favor, to subject our commerce, at
present and hereafter, to every restraint in their power.”[68]
Afterwards Mr. Monroe was joined in the mission to London, as we have
already seen, by Mr. Pinkney, and the two united in again presenting
this same proposition to the British Government.[69] It was rejected,
although the ministry of Mr. Fox, who was then in power, seems to have
afforded at one time the expectation of an agreement.
While these distinguished plenipotentiaries were pressing this
principle at London, Mr. Madison was maintaining it at home. In an
unpublished communication to Mr. Merry, the British minister at
Washington, bearing date 9th April, 1805, which I extract from the
files of the State Department, he declared:--
“The United States cannot accede to the claim of any nation
to take from their vessels on the high seas _any description
of persons, except soldiers_ in the actual service of the
enemy.”[70]
In a reply bearing date 12th April, 1805, this principle was
positively repudiated by the British minister; so that the two
Governments were ranged unequivocally on opposite sides. And this
attitude was continued. In the subsequent negotiations at London,
intrusted to Mr. Rush, in 1818, we find the two powers face to face.
The Foreign Secretary was the celebrated Lord Castlereagh, who,
according to Mr. Rush, did not hesitate to complain,--
“That we gave to our ships a character of inviolability that
Britain did not: that we considered them as part of our soil,
clothing them with like immunities.”[71]