navy, in times of peace, comparatively absorbing few sailors, the demand was altogether for the merchant service. That demand was uniform, and the increase regular, for great numbers of men are never unexpectedly wanted on sudden emergencies, as in England. The native population of the country, therefore, not only supplied the demand, but easily kept pace with the increase, a remark, which, we believe, admits of but few exceptions till the peace of 1814, 15. It This is one of the earliest species of employment, in which the Americans made themselves known. While under the crown, American seamen were subject to all the liabilities of native born subjects, and many were impressed, particularly during Lord Chatham's wars with France. was well known to the American colonial or provincial governments, that the practice of granting powers to the admiralty to issue press warrants was considered legal and constitutional in the British courts. This power, it is true, has been constantly disputed; and, till the time of the celebrated argument of Sir Michael Foster, in 1743, was submitted to with very great reluctance. Mr. Justice Foster considers the practice to be of ancient date, to have been "uniformly continued to the present time, and, on that ground, to have now become a part of the common law. No statute has, however, expressely declared this power to be in the crown. But it is implied in a great number." This circumstance formerly gave rise to much embarrassment and difficulty. But the legality of press warrants is now established; and as a number of decisions have been made concerning them, it is not likely that any doubt, as to their legality, could exist in a court of justice. Indeed, we have the following words of lord Mansfield on this point:" The power of pressing is founded upon immemorial usage allowed for ages. If not, it can have no ground to stand upon, nor can it be vindicated or justified by any reason but the safety of the state. The practice is deduced from that trite maxim of the constitutional law of England, that private mischief had better be submitted to, than that public detriment and inconvenience should ensue. Though it be a legal power, it may, As an like many others, be abused in the exercise of it." authority of a character entirely different from that of lord Mansfield, we shall quote the words of lord Chatham. This is an extract from a remarkable speech he made on the subject of the Faulkland Islands, in November '70. Chatham was at the time in the opposition: Lord "My Lords, the subject on which I am speaking, seems to call upon me, and I willingly take this occasion to declare my opinion upon a question, on which much wicked pains have been employed to disturb the minds of the people, and to distress government. My opinion may not be very popular, neither am I running the race of popularity. I am, myself, clearly convinced, and I believe every man, who knows any thing of the English navy, will acknowledge that, without impressing, it is impossible to equip a respectable fleet within the time in which such armaments are usually wanted. If this fact be admitted, and if the necessity of arming upon a sudden emergency should appear incontrovertible, what shall we think of those men, who, in the moment of danger, would stop the great defence of their country. Upon whatever principle they may act, the act itself is more than faction-it is labouring to cut off the right hand of the community. I wholly condemn their conduct, and am ready to support any motion that may be made for bringing those aldermen, who have endeavoured to stop the execution of the admiralty warrants, to the bar of this house. My Lords, I do not rest my opinion upon necessity. I am satisfied, that the power of impressing is founded upon uninterrupted usage. It is the Consuetudo Regni, and part of the common law prerogative of the crown."* By the laws of nations and the tenor of treaties, a belligerent has a right, only, to take out of a neutral vessel enemies engaged in military service; no where has he a right to take out his own subjects. The municipal law, that is the law of allegiance of a country, cannot extend to the high seas if so, it would apply in peace as well as in war, and * See, also, a passage in Junius (vol. ii. p. 351. Woodfall's edition) written about the same time, together with the opinions of Messrs. Wedderburn, Glyn and Dunning. to property as well as to persons. If a sovereign has once a right to the persons of his subjects on the high seas, he always has that right. He may want their services as well against an internal as an poses than those of war. also, a right to search. in which England has been engaged, American seamen have been visited with the arbitrary and pernicious effects of this system. It is true it is a municipal regulation of a foreign nation; but in practice it affects the neutral more deeply than the subjects of a government, from which the law emanates. A great many projects to remedy the evil have been conceived; but none have been satisfactory to both parties, as America would not consent to any arrangement, that should not secure her citizens from impressment on the high seas. Mr. King in 1803, was on the eve of concluding an advantageous convention with lord St. Vincent, the first lord of the admiralty. It was in these words:" No seaman or seafaring person shall upon the high seas, and without the jurisdiction of either party, be demanded, or taken out of any ship or vessel belonging to the citizens, or subjects of one of the parties, by the public or private armed ships, or men of war belonging to or in the service of the other party; and strict orders shall be given for the due observance of this engagement."+ As the United States did not object that their vessels should be visited in port under the protection of the consul, this article afforded all necessary security. Lord St. Vincent ultimately refused to sign, on the pretext, external enemy, and for other purIf he has a right to take, he has, But on the occasion of every war, * We are aware that the evil is one of long standing between the governments. Seamen were impressed as early as 1792 on the coast of Africa, and in British ports in the first year of the war between England and France. † June 1797 to 1801-2059 applications for seamen impressed including many made previous to those years by Mr. King and Mr. Pinkney-102 only British subjects-less than 1-20th of the whole impressed-1142 discharged as not being British subjects-more than one half-805 for further proof-with a strong presumption that the whole, or a greater part, at least, were aliens. that the narrow seas should be exempted from the operation of the provision. It was not to be expected that the doctrine of the mare clausum would be revived on that occasion, but it served effectually to frustrate the convention. "Is there a question of contraband, is the vessel destined to a blockaded port in violation of established principles, or does she contain enemies' property, the greatest extent to which the maritime law is carried by any nation? In these cases she is conducted to port for trial, the parties are heard by an impartial and responsible tribunal, and are heard again by appeal, if they desire it. Are any of the passengers on board the neutral vessel in the naval or military service of the enemy? If such are found, they are made prisoners, but as prisoners they have rights, which the opposite belligerent is bound to respect. This practice, (impressment) however, looks to other objects than are here recited. It involves no question of belligerent on one side, and of neutral on the other. It pursues the vessel of a friend for an unlawful purpose, which it executes in a manner equally unlawful. Every commercial vessel of the United States, that navigates the ocean, is liable to be invaded by it, and not an individual on board any of them is secure, while the practice is maintained. It sets up every officer of his majesty's navy as a judge, from whose decision there is no appeal. It makes him a judge not of property, which is held more sacred, nor of the liberty of his fellow subjects only, however great the trust and liable to abuse on the main ocean, but of that of the citizens of another power, whose rights, as a nation, are trampled on by the decision; a decision, in rendering which every rule of evidence is violated, as it puts the proof of innocence on the accused, and is further highly objectionable, as there is too much reason to believe that it has been often guided more by the fitness of the party for service than any other circumstance. error. "It is possible that this practice may in certain cases, and under certain circumstances have been extended to the vessels of other powers, but with them there was an infallible criterion to prevent It would be easy to distinguish between an Englishman and a Spaniard, an Italian or a Swede; and the clear irresistible evidence of his national character, and, perhaps, of his desertion, would establish the British claim to the individual, and reconcile the nation, into whose service he had entered, to his surrender. But the very circumstances, which would constitute an infallible criterion in those cases, would be sure to produce endless error in the other. Who is so skilful in physiognomy as to distinguish between an American and an Englishman, especially among those whose profession and whose sea terms are the same? It is evident that this practice, as applied to a foreign nation to any great extent, has grown out of the American revolution, and that it is impossible for the United States not to see in it the assertion of a claim, which is utterly incompatible with that great event. When the character of this claim, and the pernicious tendency of the practice are maturely weighed, it must furnish cause for surprise, that some just and friendly arrangement has not long since been adopted to prevent the evils incident to it." We shall now return to the regular course of this narration. We have already said the American government refused to ratify the treaty of 1806. But notice of this circumstance was not received in England till July of the next year; where Mr. Pinkney remained as minister plenipotentiary. We have not spoken of the proceedings of the British ministers in this country with our own government during the period, of which a brief account has just been given. It would be but a repetition; and, in reality, with the exception of Spain to a certain extent, all our important negotiations have been conducted in Europe; particularly with France and England. During the spring of 1807, the vexatious conduct of the English on the American coast continued. The unfortunate, disastrous and profligate affair of the Chesapeake* took * United States frigate Chesapeake, CHESAPEAKE BAY, JUNE 23, 1807. SIR,-Yesterday, at 6, A. M. the wind became favourable, and knowing your anxiety that the ship should sail with all possible despatch, we weighed from our station in Hampton Roads, and stood to sea. In Lynnhaven bay we passed two British men of war, one of them the Bellona, the other the Melampus; their colours flying, and their appearance friendly. Some time afterwards, we observed one of the two line of battle ships that lay off cape Henry to get under way, and VOL. II. 3 |