In faith whereof, we, the plenipotentiaries, by virtue of our full powers, have signed and affixed hereto the seals of our arms. Done at St. Petersburg, February 10, 1783.1 [L.S.] COUNT JOHN D'OSTERMANN [L.S.] Muzio GAËTA DUKE OF ST. NICHOLAS Letter from Mr. Merry, British Chargé d'Affaires at the Court of Denmark to Count Bernstorff, Danish Secretary of State for Foreign Affairs, regarding the Right of Visitation at Sea2 COPENHAGEN, April 10, 1800. The importance which the British Government must necessarily attach to the event which took place in the month of December last in the vicinity of Gibraltar, between some frigates of the King and the frigate of His Danish Majesty named the Haufeneu, commanded by Captain Van Dockum, and the orders which have been in consequence sent me by my Court relative to this affair, impose on me the painful duty of repeating to you in writing the complaint on this subject, which I had the honor of representing to you by word of mouth, in the audience which you were so kind as to grant me for that purpose about three days ago. The facts upon which the question turns in this business are in themselves very simple, and I believe such as we are already agreed upon; that is to say, the English frigates met the Danish frigate upon the high sea escorting a convoy. The English commander, judging it proper to avail himself of the right of visiting this convoy, sent on board the Danish frigate to demand from the captain his destination. The latter having answered that he was then 1 February 21, 1783, new style. 2Collection of State Papers, vol. 10, p. 22. In the differences which have arisen between Denmark and England on the subject of the right of visitation by sea, the details of the affair of the first Danish frigate taken by the English in the neighborhood of Gibraltar have never been officially published by the English Government. The above letter, in which these details are contained, is extracted from a French paper. going to Gibraltar; the other replied, that if he was going to stop at Gibraltar he would not visit his convoy; but in case he should not cast anchor in that port, that the visit would certainly take place. Captain Van Dockum then informed the officer who had come on board, that he would in such case make resistance. Upon this the English captain made the signal to examine the convoy. The boat of the frigate, the Emerald, prepared to execute this order; some musketry was fired down from the Danish frigate; and one of the English sailors was thereby severely wounded. This frigate also took possession of a boat of the English frigate, the Flora, and did not release it until after the English captain had made Captain Van Dockum understand, that, if he did not surrender it immediately, he should commence hostilities. The Danish frigate then repaired with its convoy to the Bay of Gibraltar. There some discussions took place upon this subject between Lord Keith, admiral and commander of the naval forces of His Britannic Majesty in the Mediterranean, and Captain Van Dockum, whom Lord Keith thought proper to consider as personally responsible, and guilty of the injury done to a subject of his King, thinking it impossible that this captain could be authorized to act in such a manner by the instructions of his Court. To clear up the business, the English admiral sent an officer to Captain Van Dockum, praying that he would show him these instructions, and explain their nature. The latter refused to let the admiral see the instructions, alleging that he was forbid to do so; but he told the officer that they imported that he should not permit visitation of his convoy, and that in firing upon the King's boats he only fulfilled his orders. The captain himself afterwards made a like answer, and upon his word of honor, in conversation with Lord Keith, in presence of the Governor of Gibraltar; but he promised at the same time to surrender himself before a judge, and to give notice of his appearance; and upon this promise he was told he might return. on board. Upon his having entered his boat, he sent a letter to the admiral, in which he refused to give the notice required. These discussions were terminated by a declaration which Lord Keith made to Captain Van Dockum, that, "if he neglected to submit, and should thereby attempt to withdraw himself from justice, the affair should be represented to his Court." This, Count, is the statement of the facts which have occasioned the complaint which I am charged to lay before the Danish Government. I flatter myself that you will find it accurate, and conformable to the correspondence between I.ord Keith and Captain Van Dockum, in your possession, as you have done me the honor to inform me. The right of visiting and examining merchant vessels on the high sea, of whatever nation they may be and whatever their cargoes or destinations, the British Government regards as the incontestable right of every belligerent nation; a right founded upon the law of nations, and which has been generally admitted and acknowledged. It follows of consequence, that the resistance made to this visitation by the commander of a ship of war belonging to a friendly Power, must necessarily be considered an act of hostility, such as he is persuaded could not be enjoined by the commanders of ships of war of His Danish Majesty by their instructions. His Britannic Majesty has therefore no doubt of the displeasure which His Danish Majesty will feel on learning this violent and indefensible procedure of an officer in his service; and the King is persuaded of the promptitude with which His Danish Majesty will make to His Majesty the formal disavowal and apology which he has so just a right to expect from him in the present case, with a reparation proportioned to the nature of the offense committed. I am specially charged, Count, to make of you a demand of this disavowal, apology, and reparation. The confidence which I have in the acknowledged justice of His Danish Majesty, induces me to hope that this simple and friendly representation will suffice to obtain it with the promptitude which so important a case requires; but I ought not at the same time to conceal from you, that however great and sincere may be the desire of the King my master to maintain and cultivate the closest harmony and friendship with the Court of Denmark, nothing will induce His Majesty to depart from this just demand. I have the honor to be, etc., (Signed) ANT. MERRY Reply of Count Bernstorff to Letter of Mr. Merry, regarding the Right of Visitation at Sea, April 19, 18001 The undersigned, Secretary of State for Foreign Affairs, having laid before the King, his master, the representations which Mr. Merry did him the honor to address to him under date of the 10th instant, with regard to an encounter which took place in the month of Decemher last between a Danish frigate and certain English frigates, has just been authorized to make the following reply therto. In the first place, it should be observed that the version of the affair as set forth in Mr. Merry's note is not absolutely in accord with the account given by the commander of the King's frigate; and, although the difference between the reports of this affair bears upon minor points, we can not refrain from calling attention to it, inasmuch as the account on which the British complaints are founded seem to compromise the honor and the good faith of Captain Van Dockum. According to this account, that officer is alleged to have given his promise to Lord Keith to appear personally before an English court, and to have broken his word from the moment he returned to his vessel, while it is stated in the report of the said Captain that he constantly and positively declared, as became him, "that, being vested with the command of one of the King's war-ships, he could be responsible for his conduct to his sovereign alone." The reports on both sides agree for the rest on the principal fact. The question involved is "whether the English frigates were in the right in attempting, or the commander of the Danish frigate in preventing visitation of the convoy under the escort of the latter." Custom and treaties, it is true, have conferred upon the belligerent Powers the right to have their war-ships or privateers visit unconvoyed neutral vessels. But since this right is not a natural but a purely conventional one, its effect can not, without injustice or lawlessness, be arbitrarily extended beyond what has been agreed upon or granted. But none of the independent maritime Powers of Europe has ever, so far as the undersigned is aware, recognized the right to visit neutral vessels under escort of one or more war-ships, and it is evident that they could not do so without degrading their flags and renouncing an essential part of their own rights. Far from acquiescing in this hitherto unknown pretension, the ma 1Translation. French text at Martens, Recueil de Traités, vol. 7, p. 130. jority of these Powers have, since there has been question of this alleged right, deemed it their duty to set forth the opposite principle in their conventions relating to matters of this nature, as is evidenced. by a great number of treaties concluded between the most important Courts of Europe. This dictinction made between convoyed [and unconvoyed] vessels is as just as it is natural, for the former should not be placed in the same category as the latter. The visiting by privateers or war-ships of belligerent Powers of unconvoyed neutral vessels is founded on the right to ascertain the flag to which they belong and to examine their papers. It is merely a question of determining whether they are neutral and whether their papers are in conformity with requirements. The papers of these vessels having been found to be according to rule, no further search may legally be undertaken. Hence it is the authority of the Government in whose name these documents have been drawn up and issued that gives the belligerent Power the necessary assurance. But the neutral Government, by convoying with its war-ships the commercial vessels of its subjects, gives belligerent Powers a guarantee that is more authoritative and still more positive than is that furnished by the documents with which these vessels are furnished; and it could not, without dishonor to itself, admit any doubts or suspicions on this point, for they would be as injurious to it as they would be unjust on the part of those who should entertain or manifest them. If the principle should be admitted that the convoy given by a sovereign did not guarantee the vessels of his subjects from search. by foreign war-ships or privateers, it would follow that the most formidable squadron would not have the right to save the vessels entrusted to its protection from search by the weakest privateer. But it can not be reasonably presumed that the English Government. which has always, and for the best of reasons, shown itself to be jealous of the honor of its flag, and which in the naval wars in which it has not taken part has vigorously maintained the rights of neutrality, would, if the case arose, consider itself bound to suffer such an affront; and the King has too great confidence in His Britannic Majesty's equity and integrity to harbor the suspicion that it can be his desire to arrogate to himself a right which, under similar circumstances, he would not recognize as belonging to any other independent Power. It would seem to be sufficient to apply to the act in question the |