“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 In an unpublished communication to Mr.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]
To which Mr. Rush replied:—
“That we did consider them as thus inviolable, so far as to afford protection to our seamen; but that we had never sought to exempt them from search for rightful purposes, viz., for enemy’s property, articles contraband of war, or men in the land or naval service of the enemy. These constituted the utmost limit of the belligerent claim, as we understood the Law of Nations.”[72]