In January 1806 Secretary of State Madison, after studying the works of Grotius,
Pufendorf, William Temple, and Vattel on international law in treaties over a period of
150 years, published anonymously his 204-page “pamphlet” Examination of the British
Doctrine, which subjects to capture a Neutral Trade Not Open in Time of Peace.
His authorship soon became known.
When the American vessel Aurora was captured by the British,
a court had held that it had violated the British “Rule of 1756”
by transporting goods from Havana to Barcelona during a war.
In his Examination Madison was challenging the British interpretation
of the “Rule of 1756,” and his Examination begins,
In times of peace among all nations, their commercial
intercourse is under no other restrictions than what may be
imposed by their respective laws or their mutual compacts.
No one or more nations can justly control the commerce
between any two or more of the others.
When war happens between any two or more nations,
a question arises in what respect it can affect the
commerce of nations not engaged in the war?
Between the nations not engaged in the war,
it is evident that the commerce cannot be affected
at all by a war between others.
As a nation not engaged in the war remains in the same
relations of amity and of commercial pursuits with each of
the belligerent nations, as existed prior to the war,
it would seem that the war could not affect the intercourse
between the neutral and either of the belligerent nations;
and that the neutral nation might treat and trade with
either or both the belligerent nations with the same
freedom as if no war had arisen between them.
This as the general rule is sufficiently established.
But inasmuch as the trade of a neutral nation
with a belligerent nation might in certain special
cases affect the safety of its antagonist, usage
founded on the principle of necessity has admitted
a few exceptions to the general rule.
Thus all instruments of war going into the
hands of one belligerent nation may be
intercepted on the high seas by its adversary.
In like manner a neutral trade with a place actually
besieged is liable to be interrupted by the besiegers.
It is maintained also on one side, though strongly
contested on the other, that the property of a nation
at war in a neutral ship may be seized and
condemned by the enemy of that nation.
To these exceptions Great Britain has undertaken
to add another, as important as it is new.
She asserts a right to intercept the trade of neutrals
with her enemies in all cases where the trade,
as it respects the ship, the cargo, or even the individual
port of destination, was not as free before the war,
as it is made during the war.1
Madison explained these three basic premises:
First. The general rule being that the trade between
a neutral and belligerent nation is as free as if the
latter were at peace with all nations, and the cases
in which it is not as free being exceptions to the general
rule, the exceptions, according to a received maxim of
interpretation are to be taken strictly against those
claiming the benefit of the exceptions and favorably
for those claiming the benefit of the general rule.
Secondly. The exceptions being founded on a
principle of necessity in opposition to ordinary right,
the necessity ought to be evident and urgent.
In proportion as the necessity may be doubtful
and still more in proportion as the sacrifice of
neutral interests would exceed the advantage
to the belligerent, the exception fails.
Thirdly. The progress of the law of nations
under the influence of science and humanity is
mitigating the evils of war, and diminishing the
motives to it by favoring the rights of those remaining
at peace, rather than of those who enter into war.
Not only are the laws of war tempered between the
parties at war, but much also in relation to those at peace.2
In his section on “Conduct of Britain” Madison offered these main points:
1st. While Great-Britain denies to her enemies a
right to relax their laws in favor of neutral commerce,
she relaxes her own, those relating as well
to her colonial trade, as to other branches.
2nd. While she denies to neutrals the right to trade with
the colonies of her enemies, she trades herself with her
enemies and invites them to trade with her colonies.
1st. That Great Britain relaxes in time of war her trade
laws, both with respect to her colonies and to herself, is a
fact which need not be proved, because it is not denied.
A review of the progress and modifications of these
relaxations will be found in Reeve’s* Law of Shipping
and Navigation; and in the successive orders of the
British council, admitting in time of war neutral vessels,
as well as neutral supplies, into her West-India colonies.
It will not be improper, however, to show, that
in these relaxations of her peace system, she
has been governed by the same policy of eluding
the pressures of war, and of transferring her merchant
ships and mariners from the pursuits of commerce to
the operations of war, which she represents as
rendering unlawful the like relaxations of her enemies.
The object of dispensing, in time of war, with the
navigation act, was avowed by the legislature itself
in the preamble to one of its acts, which was passed
not long after the navigation act was adopted.
The preamble recites, “And whereas by the laws now
in force the navigating of ships or vessels in divers cases,
is required to be the master and three fourth parts of
the mariners being English under divers penalties and
forfeitures therein contained: And whereas great
numbers of seamen are employed in her majesty’s
service for the manning of the Royal Navy, so that it is
become necessary during the present war to dispense
with the said laws and to allow a greater number of foreign
mariners for the carrying on of trade and commerce:
Be it enacted, &c. that during the present war,” &c.3
After quoting 62 pages of British court decisions
Madison challenged to court’s conclusion, writing,
And thus we are arrived at the true foundation of th
principle which has so often varied its attitudes of defense,
and when driven from one stand,
has been so ready to occupy another.
Finding no asylum elsewhere, it at length boldly asserts,
as its true foundation, a mere superiority of force.
It is right in Great Britain to capture and condemn
a neutral trade with her enemies, disallowed by
her enemies in time of peace, for the sole reason
that her force is predominant at sea.
And it is wrong in her enemies to capture and
condemn neutral trade with British colonies,
because their maritime force is inferior to hers.
The question no longer is, whether the
trade be right or wrong in itself, but on
which side the superiority of force lies?
The law of nations, the rights of neutrals, the
freedom of the seas, the commerce of the world,
are to depend, not on any fixed principle of justice,
but on the comparative state of naval armaments.4
At the end of Madison’s long treatise on maritime law
he concluded with this paragraph:
Finally: The belligerent claim to intercept a
neutral trade in war not open in peace is rendered
still more extravagantly preposterous and pernicious
by the latitude which it is now assuming.
According to late decisions in the British courts, it is in
future to be a rule that produce of an enemy’s colony,
lawfully imported into a neutral country and incorporated
into its commercial stock, as far as the ordinary regulations
of a sovereign state can work such an effect, is to be
subject on re-exportation to capture and condemnation;
unless it can be shown that it was imported in the preceding
voyage with an intention that it should not be re-exported.
Consider for a moment the indignity offered to a
neutral sovereign in subjecting the integrity of its
internal regulations to the scrutiny of foreign courts
and to the interested suspicions of belligerent cruisers;
consider the oppression on the individual traders
inseparable from a trial in a distant court, and perhaps
an appeal to another court still more distant, where the
intention of an antecedent voyage is to be traced
through all the labyrinth of mercantile transactions.
A neutral vessel goes to sea with a cargo
consisting in whole or in part of colonial produce.
It may be the produce of a neutral colony.
It may be the produce of the country exporting it.
The United States already produce cotton,
sugar, rice, &c. as well as the West Indies.
The cruiser does not forget that the proof will probably
be thrown on the claimants; that besides the possibility
that it may be a licensed capture, the difficulty of proof
may have the same effect in producing condemnation.
He recollects also that in the event of an acquittal the costs
will, where there is the least color for seizure, be thrown
on the claimants; and that, at the worst he can only be
put to the inconvenience of giving up a few men to
take charge of the prize in exchange for a few others,
not unfrequently impressed into the vacancy.
In a word, his calculation is that
he may gain and cannot lose.
Will not, under such circumstances, every
hogshead of sugar or bale of cotton or
barrel of rum, &c. be a signal for detention?
Could ingenuity devise a project holding out
a more effectual premium for the multiplication
of vexatious searches and seizures beyond
even the ordinary proportion of condemnations?
A project in fact more unjust in itself, more
disrespectful to neutral nations, or more fatal
to the liberty and interests of neutral commerce?
Would Great Britain be patient under such
proceedings against her, if she held in her
hands the means of controlling them?
If she will not answer for herself, all the world
will answer for her, that she would not, and
what is more, that she ought not.5
On 13 January 1806 Madison wrote this letter to
the American ambassador James Monroe in England:
The perseverance of the British Government in
the principle which licenses the depredations on our
commerce in Colonial productions with the losses already
sustained and still apprehended by our merchants,
has produced a very general indignation throughout
this Country, and makes it necessary that you should
renew and extend your remonstrances on the subject.
In aid of the means for this purpose furnished by
the information and instructions given you from
time to time, I forward you an examination of it,
just published, in which you will find a variety
of facts and views of the British principle and
proceedings, that may be made to bear against them.
I will forward also in a few days copies of sundry
memorials from the Merchants of our maritime Cities,
explaining the wrongs done them,
and the disgust with which they are filled.
These with other documents accompanying them
will assist your endeavors to make on the British
Government the impression which the occasion calls for.
I shall only add at present that nothwithstanding the
conviction of the illegality of the British principle, which
becomes more and more evident the more it is investigated,
the President so far yields to a spirit of conciliation as to
be still willing to concur in the adjustment on that point
authorized in your instructions of January 5th 1804;
but expects and enjoins that you will be particularly
careful to use such forms of expression as will furnish no
pretext for considering an exception of the direct trade
between a belligerent nation and its Colonies as declaratory
of a limitation of the neutral right and not as a positive
stipulation founded on considerations of expediency.6
On January 25 James Madison wrote this letter to President Thomas Jefferson:
The Secretary of State, to whom the President has been
pleased to refer the resolution of the Senate, dated on the
10th inst. has the honor to make the following report:
The most important of the principles interpolated
into the law of Nations is that which appears to be
maintained by the British Government & its prize
Courts, that a trade opened to neutrals by a Nation
at war on account of the war is unlawful.
This principle has been relaxed from time to time by
orders, allowing, as favors to neutrals, particular branches
of trade, disallowed by the general principle; which
orders have also in some instances extended the
modifications of the principle beyond its avowed import.
In like manner the last of these orders, bearing date the
24th of June 1803, has incorporated with the relaxation a
collateral principle which is itself an interpolation, namely
that a Vessel on a return voyage is liable to capture by
the circumstance of her having on the outward voyage,
conveyed contraband articles to an enemy’s port.
How far a like penalty attached by the same order
to the circumstance of a previous communication with
a blockaded port would likewise be an interpolation,
may depend upon the construction under which that part
of the order has been or is to be carried into execution.
The general principle, first above stated, as lately
applied to re-exportations of articles imported into
neutral Countries from hostile Colonies or vice versa
by considering the re-exportation in many cases,
as a continuation of the original voyage, forms another
interpolation, deeply affecting the trade of neutrals.
For a fuller view of this and some other interpolations,
reference may be had to the documents, communicated
with the Message to Congress of the 17th instant.
The British principle, which makes a notification to
foreign governments of an intended blockade, equivalent
to the notice required by the law of Nations before the
penalty can be incurred, and that which subjects to
capture Vessels arriving at a port in the interval between
a removal and return of the blockading force; are other
important deviations from the code of public law.
Another unjustifiable measure is the mode of search
practiced by British Ships which instead of remaining
at a proper distance from the vessel to be searched,
and sending their own boat with a few men for the
purpose, compel the Vessel to send her papers in
her own boat and sometimes with great danger from
the condition of the boat & the state of the weather.
To these instances without adverting to others of
an inferior or less definite character in the practice
of Great Britain must be added the assumed right
to impress persons from American Vessels,
sailing under the American flag on the high seas.
An explanation of this practice will be found in the extract
from the instructions to Mr. Monroe, communicated
with the Message of the President above referred to.
Among the interpolations introduced by the French
Government is a decree dated 6th June 1805 (18 prairial, 13
Year) importing that every privateer of which two thirds of
the crew should not be natives of England or subjects of a
power the enemy of France, shall be considered as pirates.
Another is evidenced by the result of an application made
by the Deputy Consul of the United States at Cadiz,
through the French Consul to Admiral Villeneuve for
the liberation of some seamen of the United States who
were on board the French Fleet under his Command:
The answer of the Admiral, dated the 29th August last
(11 Fructidor 13 Year) states that “a decision of his
Imperial and Royal Majesty provides that every
foreigner found on board the Vessels of war or of
Commerce of the enemy is to be treated as a prisoner
of war and can have no right to the protection of the
Diplomatic and Commercial Agents of his Nation.”
Other unjustifiable innovations on the law of Nations are
exemplified in the Decree of General Ferrand lately passed
at the City of St. Domingo, a translation of which is annexed.
The irregular mode of search above described is
also practiced by the Cruisers of France and Spain.
The Cruisers of the two latter powers have harassed the
Commerce of the United States in various other forms,
but as it is not known or believed that their Conduct has
been prescribed or sanctioned by the public authority of
their respective Nations, they are not considered as falling
within the purview of the resolution of the Senate.7
On 27 January 1806 Secretary of State Madison
sent this letter to the United States Senate:
The Secretary of State, in compliance with the resolution
of the Senate of the 2nd March last, directing him to lay
before the Senate at their present meeting, “such laws of
Great Britain as impose any higher or greater duties on the
exportation of goods, wares and Merchandise to the United
States, than are imposed on similar goods, wares, and
Merchandise, when exported to the nations of Europe: and
also to report the amount in sterling money, of the exports
to the United States from Great Britain and Ireland, for the
Year 1802, 1803 and 1804, on which such duties are
charged,” has the honor to transmit herewith a copy of an
Act of the British Parliament passed on the 7th of May 1802,
entitled “An Act for granting to his Majesty certain duties on
goods imported into and exported from Great Britain, and on
the tonnage of ships and vessels entering outwards or
inwards in any port of Great Britain, to or from foreign
ports;” whereby on every hundred pounds of the value of
goods, Wares and Merchandise of the growth, produce or
Manufacture of Great Britain (except in special cases)
when exported to any part of Europe, or to any port or
place within the Straights of Gibraltar, a duty of ten shillings
is imposed; but on the same goods, when exported
elsewhere (except to Countries within the limits of the
charters of the East India company) the duty is doubled.
Another Act of Parliament, dated on the 4 July 1803,
a Copy of Which is also herewith transmitted, entitled
“An Act for granting to his Majesty, during the present war,
and until the ratification of a definitive treaty of peace,
additional duties on the importation and exportation of
certain goods, Wares and Merchandise, and on the
tonnage of Ships and Vessels in Great Britain,” imposes
one percent duty on goods, Wares and Merchandise,
the growth, produce, or manufacture of Great Britain
(with certain exceptions) exported to Europe or the
Mediterranean, and three percent upon such goods, Wares
and Merchandise, when exported elsewhere, except to
countries within the charters of the East India company.
A table exhibiting the amount in sterling money
of the exports from Great Britain to the United States,
in the respective Years 1802, 1803 and 1804,
on which duties under the above mentioned
acts of Parliament were payable, and the
amount of duties so paid is annexed hereto.
It must be observed, that as from the mode of
collecting ad valorem duties in Great Britain, the
Merchants generally deem themselves secure in
undervaluing their exports, to the amount of about one
fifth the real value of these exports to the United States
exceeds that given in the table by an equal proportion.
It may also be remarked that the table does not give
the full annual amount of the respective duties of one and
three percent in any year except that of 1804; the first
mentioned duty not having commenced ’till the month
of May 1802, nor the other ’till the month of July 1803.
The measures taken for complying with the resolution
of the Senate, as far as respects the exports to the
United States from Ireland, not having been successful,
the Secretary of State takes the liberty of annexing a table,
showing the value of goods exported in the years 1802;
1803 and 1804, respectively, from that Country and
distinguishing the amount subject to duty; which
amount being inconsiderable, a statement of the
unfavorable discriminations (if any) against the
United States becomes of less importance.8
On 10 March 1806 Madison sent this private report to James Monroe:
We are waiting with solicitude for the answer
promised you by Lord Mulgrave, early in December
and for the effect of the President’s message with
the information probably transmitted from British
sources here on the Counsels of that Government.
These I presume will have been
received pretty early in January.
The effect of the campaign in Germany may be greater
than that of any other cause, but as we cannot foresee
the course of events and know here very imperfectly
the real character of those which are passed,
we can make little use of that fund of calculation.
Our last accounts from the Theatre of the war are
those contained in the publications in London on the 17
& 19 of December which are less fitted to explain than
to cloud the operations of the early days in that month.
This is the 4th month since the
session of Congress commenced.
Very little business however has
been brought to a conclusion.
The two subjects of most striking importance were
the posture of things with Spain & Great Britain
that with Spain was the subject of a special and
confidential message from the President which
followed on the heels of the general message.
It intimated to Congress the ground disclosed
through Armstrong for an adjustment of the
depending differences under the auspices of frank
and was expected to have produced without delay
a provisional appropriation analogous to that which
was made for the negotiation by you & Livingston.
A very unexpected & elaborate opposition however to the
purchase of an adjustment though securing east as well
as west Florida spun out the question till a few days ago.
And a further delay is now taking place in
consequence of the opposition in the Senate to
Armstrong whom with Bowdoin the President has
nominated for the commission to treat at Paris.
The opposition to Armstrong is occasioned by a very
misjudged opinion given by him in the case of the ship
New Jersey, and the offense & complaints which it
has excited among the Merchants & underwriters.
As soon as a confirmation shall pass the Senate, the
instructions will be forwarded by a vessel now waiting
for them; and if the tide of French success should have
changed the disposition which existed in September a
satisfactory or at least an admissible result may be hoped.
The British case was also the subject of a special
message given in as soon as the Spanish one was
finally provided for in the House of Representatives.
It was accompanied by sundry documents including
your letter of 18 October which was noted as
peculiarly confidential and withdrawn after being read.
In this case also the delay and deliberations have thus far
been unexpectedly tedious and are likely to continue so.
For what has passed in it I must refer you to a file of
papers which will be committed to the Bearer Mr. Prentis.
Whether any and what harmonious result will
succeed the discord of opinions and projects
coming for upper remains to be seen.
The merchants are zealous for an Extraordinary
commission for the negotiating experiment.
In this they are seconded by those who are
averse to any legislative remedies, and by
some, perhaps generally by those who wish a
negotiation to be armed with legislative provisions.
The President has decided nothing on this point as yet.
I shall not fail to communicate his intentions
as soon as they are ready for the purpose.
You will of course be included in such a Commission,
unless it should be previously known that you will
certainly not be on the ground to act under it.
I need not express to you the confidence which your
participation will add in the mind of the President.
On the other hand, he is too much impressed with
the weight which the reasons suggested in your
letters may continue to have, in urging your return
already so long suspended, to require a further
sacrifice of what you owe to yourself & your family.
You will find much in the newspapers
with respect to Yrujo & Miranda.
The case of the former fully explains itself
and no longer interests the public attention.
That of the latter is still a subject of much noise &
misrepresentation; and vigorous attempts are made
to turn it into a battery against the administration.
Miranda had the address to make certain persons
at New York among others Col. W. Smith the Surveyor
believe that on his visit to Washington, he had enlisted
the Executive into a secret sanction to his project.
They fell into the snare, and in their testimony when
examined rehearsed the representations of Miranda
as to what passed between him & the Executive.
Hence the outcry against the latter as violating
the Law of nations against a friendly power.
The truth is that the Government proceeded with
the most delicate attention to its duty; on one hand
keeping in view all its legal obligations to Spain,
and on the other, not making themselves, by going
beyond them, a party against the people of South America.
I do not believe that in any instance
a more unexceptionable course was
ever pursued by any Government.
We have had a most remarkably mild winter; resembling
with the exception of a very few days of rigorous cold,
rather the autumn & Spring than the real Season.
The Wheat has been in a constant state of growing and is
now as much advanced as is usual in the month of April.
We have of course a prospect of good crops.
The last crop was of good quality,
but not a great one, in Virginia at least.
That of Tobacco was rather short & of inferior quality.
The price of both articles is at present dull.
Wheat sells from a dollar to a dollar & a quarter.
Tobacco of the best quality at Richmond at about six dollars.
Having not been in Orange for a year & a half,
I can say the less of the state of things on your estate,
which I understand has been farmed out.
I shall if possible make a visit as soon as Congress adjourn.
The President is just taken with one
of his afflicting periodical headaches.
We hope from some symptoms that it
will be less severe than his former ones.
I fear you will have considered me as a
delinquent in my correspondence; but it is
an appearance I could not possibly avoid.
For the last year, especially the last 5 or 6 months,
the weight of business has almost broken me down
and robbed me of every leisure for writing to my
friends, even where public considerations as well
as private inclination recommended it.9
President Jefferson designated Madison to assemble the western witnesses
to Aaron Burr’s conspiracy that was planning a new nation in the West.
Madison appointed John Graham, who was his chief clerk.
Chief Justice John Marshall presided over the trial at Richmond
and ordered subpoenas of witnesses and even included President Jefferson
who said he was too busy to submit to that.
The jury found that Burr was not guilty, and Jefferson
and Madison wanted him tried again for a misdemeanor.
When Burr was acquitted again, Jefferson suggested
a trial in Ohio for what Burr had done there.
Jefferson appointed the Baltimore lawyer William Pinkney
who helped owners of ships, and then James Monroe was
named
as a special envoy to work on a commercial treaty.
Senator William Plumer of New Hampshire in April 1806 said,
The President wants nerve—
he has not even confidence in himself.
For more than a year he has been in the habit
of trusting almost implicitly in Mr. Madison.
Madison has acquired a complete ascendency over him.10
On 3 June 1806 Madison wrote this letter to James Monroe:
Having received from Mr. Merry, a communication
of the notice given by his Government to the Foreign
Ministers at London on the 8th April last on the proposed
blockade of the four German Rivers, it was thought
proper without waiting for the communication through
you to give an answer containing the observations
which you will find in the enclosed copy of it.
They will be a guide to you in any interpositions you may
have occasion to make in behalf of American vessels
unjustly affected by the British proceedings in this case,
as well as to the sentiments proper to be expressed in
acknowledging any similar notifications in future.11
Secretary of State Madison on June 6 wrote this letter
to the British ambassador Anthony Merry:
Having transmitted to the President your Letter of
the 22nd ult, communicating the Resolution of your
Government to establish a Blockade of the Rivers,
Ems, Weser, Elbe and Trave, I have the Honor now,
in Pursuance of his Sentiments, to observe, that as a
Blockade essentially implies a Force on the Spot for
the Purpose, and as the Notification required in the
Case, must be a Warning to Neutral Traders of the Fact,
that a Blockade exists, the Communication, which your
Government has been pleased to make, derives its Title
to the Acknowledgments of the United States, from the
Supposition that it was meant as a friendly Premonition,
which though imposing of itself no legal Restraint on
Neutrals, nor inducing any penal Consequences, might
usefully influence the Course of their Mercantile Expeditions.
In this Sense the Communication is received by the
President as a Mark of that friendly Attention, which ought
in all Cases to be reciprocally maintained; and in this
Sense he is the more disposed to regard the Communication
as a different one would contradict the Definitions of a
Blockade and of the requisite Notification thereof contained
in the Orders of your Government to Commodore Hood
and the Judges of the Vice Admiralty Courts, as
communicated in your Letter of April 12th 1804.12
On 7 June 1806 Madison wrote this letter to Tobias Lear
about the situation with Tunis in North Africa.
In the present posture of our affairs with Tunis
the President has judged it proper that you should
repair thither with a view to an adjustment of them.
Of this notice was given to you in my letter of 15 May
with an instruction to get to Gibraltar by the earliest
conveyance and proceed thence in the vessel in which
the Tunisian Minister Mellimelli would be returning home.
This vessel has just sailed from this port and is bound
for Boston to receive the Minister; it having been thought
expedient that he should not leave the United States
without seeing the strength of our Country, which could
best be done by a journey through our principal towns and
most populous States, and which would therefore make
Boston the most convenient port for his embarkation.
On his arrival at Gibraltar you will join him and
proceed to Malta, where the Commanding officer
of the United States will convey you in a frigate to Tunis,
and Mellimelli also, if he should not prefer continuing his
voyage on board the vessel in which he embarks.
This vessel, a Brig of 10 guns is a present from the United
States to the Bey of Tunis, as an equivalent for the Xebeque
and the two prizes which having been disposed of at Malta,
could not be specifically restored as had been promised.
The vessel is small but valuable for the lasting materials
live oak and Cedar of which she is built.
It is presumed that she will be acceptable on that
account as well as a token of the liberal and friendly
disposition of this Government towards the Bey.
Besides this compliment, Mellimelli is charged with the
articles contained in the enclosed list presented to the
Bey and his prime Minister in return for the presents
brought by Mellimelli from them, in addition to which
Mellimelli has been presented with 2000 dollars for
himself and 1200 dollars to be distributed among his suite.
There are also in reserve to be forwarded for the Bey by
the first public ships going to the Mediterranean 4 field
pieces, six pounders with their carriages, besides two
very elegant Bureaux and a Secretary and Book case.
These articles were to have been sent at this time;
but Mellimelli had been told that he should have the
vessel for his own effects; and it was found that he
had purchased so much Sugar, Coffee and other articles
of Merchandize, that there would not be room for the whole;
it was therefore preferred that the bulky articles for the
Bey should await a future conveyance, than that Mellimelli,
who appears to have set his heart on making money
out of his Mission, should be disappointed.
It would have been difficult also to make
another arrangement after the deficiency of
room had been discovered, even if Mellimelli
would have preferred a sacrifice of his own
interest to his complaisance for his Prince.
You will be sensible of the policy of putting
the best face on the matter that it will bear,
particularly with a view to save Mellimelli from blame,
and thereby cultivate both his influence with the Bey
and his disposition to make a right use of it.
The documents herewith enclosed with your
knowledge of the circumstances which led to the
Mission from Tunis will enable you to understand
the ground on which your negotiation is to be formed.
Peace on honorable terms continues to be the ruling policy
of the United States, and it is hoped that the preservation
of it on such terms will be the result of your efforts.
In the gift of the armed Brig the President has in fact taken
away all pretext for dissatisfaction on the part of the Bey,
and if he was sincere therefore in limiting his complaints
to the seizure of the vessels violating the blockade, the
arrival of the Brig will place our affairs in the state of
harmony and friendship which preceded that occurrence.
If on the contrary he adopts or adheres to the
requisitions made by Mellimelli as seen in his
correspondence with this Department, war must
be inevitable, and it will only remain for you to give
us the earliest notice of such a turn in the negotiation,
and in the meantime to employ the most fit means
in your power in concert with the naval Commanders
of the United States for retarding hostilities on the part
of the Bey, or meeting them with the greatest effect.
By Dr. Triplitt I have forwarded you a packet of
Gazettes, printed documents, and three hundred
passports for Cruisers of a new and more simple form.
Should you find Dr. Dodge desirous of leaving Tunis,
or insufficient to perform with advantage the duties
of the station, you may provide a temporary successor.
It is not improbable that the length of Mellimelli’s
stay in the United States may be complained of.
It is therefore proper to inform you, that from his
arriving near the commencement of a very important
Session of Congress it was impossible to afford an
early and continued attention to his business, and
which was indeed the less material as it could not have
been his own choice to embark before the return of Spring.
Since the close of the Session the delay has arisen
from the fitting out of the Chesapeake and the
subsequent transfer of his passage to the Franklin,
after it was determined to give her to the Bey.P.S. Mr. Cathcart will be requested to send you a
list of the presents from Boston, as it is uncertain
whether a further part of what was contemplated
must not be left behind for want of room.
The originals of the letters to the Bey and Prime Minister
(of which copies are enclosed)
are in the hands of the Ambassador.
Mr. Davis, who has been appointed Consul for Tripoli
has prepared his passage from Norfolk.13
Madison on May 17 wrote a very long letter to James Monroe
and William Pinkney providing a comprehensive evaluation of the
diplomacy involved in maritime laws for shipping commercial products.
This is the entire letter:
I herewith enclose a Commission and letters
of Credence authorizing you to treat with the
British Government concerning the maritime wrongs
which have been committed, and the regulation of
Commerce and navigation, between the parties.
Your authority is made several as well as joint,
as a provision for any contingency depriving
either of the co-operation of the other.
The importance of the trust is evinced by it
being made the occasion of an extraordinary mission,
as well as by the subjects which it embraces.
And I have great pleasure in expressing the
confidence which the President feels in the prudence
and talents to which the business is committed.
It is his particular wish that the British Government
should be made fully to understand, that the United States
are sincerely and anxiously disposed to cherish good will
and liberal intercourse between the two nations, that an
unwillingness alone to take measures not congenial with
that disposition has made them so long patient under
violations of their rights and of the rules of a friendly
reciprocity, and that when forced at length by accumulating
wrongs to depart from an absolute forbearance, they
have not only selected a mode strictly pacific, but in
demonstration of their friendly policy, have connected
with the measure, an extraordinary mission, with powers
to remove every source of difference, and even to enlarge
the foundations of future harmony and mutual interest.
There can be the less ground of umbrage to
the British Government in the act prohibiting the
importation of certain articles of British manufacture,
1. because there is nothing in the face of the Act beyond a
mere Commercial regulation, tending to foster manufactures
in the United States, to lessen our dependence on a
single nation by a distribution of our trade, and to
substitute for woolens and linens, manufactures made
from one of our principal agricultural Staples,
2. because it is far short of a reciprocity with
British exclusions of American articles of export,
3. because as a Commercial measure discriminating
in time of war between British and other nations,
it has examples in British practice.
It deserves attention also that a discrimination was made,
and under another name still exists in the amount of
convoy duty imposed on the trade between Great
Britain with Europe and with America,
4. because the measure cannot be ascribed
to a partiality towards the enemies of Great Britain,
or to a view of favoring them in the war; having
for its sole object the interest of the United States,
which it pursues in a mode strictly conformable
to the rights and the practice of all Nations.
To observations of this kind it may be useful to add that
the measure was undertaken before the late change in the
British Ministry, and does not therefore imply any particular
distrust of the views of the new one; but merely a belief
that it was most consistent with self-respect not to be
diverted by an occurrence of that nature from a ground
which had been deliberately and publicly assumed; not to
mention that no assurances sufficiently decisive had been
received, that a disposition to correct the evils in question
predominated in the present Cabinet; while it was known
that some of its most distinguished members have
heretofore been among the warmest champions of the
maritime doctrines in which those evils have their origin.
In one respect the act may even be favorable
to the objects of the present Cabinet, if it should
be disposed to make unpopular concessions refused
by their predecessors; since concessions alone
can now regain a lost market for certain important
and popular classes of British manufactures.
In fine the Act may truly be represented as so far
from derogating from the amicable dispositions of the
United States towards Great Britain, that it has resulted
solely from the inefficacy of their protracted and reiterated
endeavors otherwise to obtain a just redress, and from a
hope that an appeal in this peaceable form to the reflections
and interest of an enlightened nation would be more
successful in removing every obstacle to a perfect
and permanent cordiality between the two nations.
The instructions given to Mr. Monroe January 5th 1804,
having taken into view and being still applicable to
a great proportion of the matter now committed to
your joint negotiations, it will be most convenient
to refer you to those instructions as your general
guide; and to confine the present to the alterations
and additions which a change of circumstances
or a contemplation of new objects may require.
The first article of the project comprised in the
instructions of 1804 relates to the impressment of Seamen.
The importance of an effectual remedy for this
practice derives urgency from the licentiousness
with which it is still pursued and from the
growing impatience of this Country under it.
So indispensable is some adequate provision for the case,
that the President makes it a necessary preliminary to any
stipulation requiring a repeal of the Act shutting the market
of the United States against certain British manufactures.
At the same time he authorizes you in case the
ultimatum as stated in the Article above referred to,
should not be acceptable to the British Government,
to substitute one in the terms following.
“No Seaman nor Sea-faring 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.”
An article in these terms was with the acquiescence
of Lord Hawkesbury and Mr. Addington concerted
between Mr. King and Ld. St. Vincents, on the approaching
renewal of the late war: It was frustrated by an exception
of the narrow Seas inserted by Lord St. Vincents; an
exception so evidently inadmissible both in principle
and in practice, that it must have been intended
as a pretext for evading the stipulation at that time.
Perhaps the present Ministry may neither be
disposed to resort to such a pretext nor unwilling
to avail themselves of the precise sanction as
far as it was given by their predecessors.
With respect to contraband which is the subject
of the 4th Article, it may be observed that as it
excludes naval stores from the list and is otherwise
limited to articles strictly military, it must if
admissible to Great Britain, leave but feeble
objections to an abolition of contraband altogether.
In the present state of the arts in Europe with the
intercourse by land no nation at war with Great
Britain can be much embarrassed by leaving those
particular articles subject to maritime capture.
While belligerent nations therefore have little interest
in the limited right against contraband, it imposes
on neutrals all the evils resulting from suspicions
and vexatious searches and from questions incident
to the terms used in the actual enumeration.
It is not an unreasonable hope therefore,
that in place of this article an entire abolition
of contraband may be substituted.
Should this be found unattainable, it may be an
improvement of the Article as it stands to subjoin for the
sake of greater caution to the positive enumeration, a
negative specification of certain articles such as provisions,
money, naval Stores &c, as in no case to be deemed
within the meaning of the article; with a proviso, that
the specification shall not be construed to imply in
the least, that any article not specified in the exception
shall on that account be liable to be drawn into question.
A doctrine has been latterly introduced by the British
Courts and at length adopted by the instructions of
June 1803 to British Cruisers, which regards contraband
conveyed in one voyage as affecting a resumed or a
return voyage, although the contraband shall have
been previously deposited at its port of destination.
It will be a further improvement of the article
to insert a declaratory clause against this
innovation and the abuses incident to it.
The 4th Article, besides the stipulation on the
subject of contraband, relates to two other Subjects;
1. that of free Ships free goods,
2. that of a trade with enemies’ Colonies.
1. With respect to the first, the principle that a neutral
flag covers the property of an enemy, is relinquished in
pursuance of the example of the Russian Treaty, on which
the article is modeled; the relinquishment however being
connected with and conditioned on, the provision required
in favor of the neutral right to the Colonial Trade.
The importance of that principle to the security of neutral
Commerce and to the freedom of the Seas has at all times
been felt by the United States; and although they have not
asserted it as the established law of Nations, they have
ever been anxious to see it made a part of that law.
It was with reluctance of course that a contrary stipulation
was authorized, and merely as a mean of obtaining from
Great Britain the recognition of a principle now become of
more importance to neutral nations possessing mercantile
Capital than the principle of “free Ships free goods.”
It is to be particularly kept in view therefore that such
a contrary stipulation is to be avoided if possible;
and if unavoidable, that the stipulation be so modified
as to interfere as little as possible with the spirit and
policy of any provisions in favor of the principle which
may be likely to be introduced into a treaty of peace
among the present belligerent powers of Europe.
Should it be known that Russia, as well as France,
means to insist on such a provision, and that such a
stipulation by the United States, however modified, will
materially affect her confidence and good will towards
them, the objection to the measure will acquire a force
that can yield only to the consideration that without such
a sacrifice the provisions for the security of our Seamen,
and of our neutral commerce cannot be obtained, and
that the sacrifice will effectually answer those purposes.
2. The vast importance of the Colonial Trade with the
circumstances and the excitement which have taken place
since the date of the original instructions to Mr. Monroe,
will require that the neutral right on this subject be
provided for in an appropriate article and in terms
more explicit than are used in the article under review.
As the right in this case turns on the general principle
that neutrals may lawfully trade with the exceptions of
blockades and contraband to and between all ports of an
enemy and in all articles, although the trade shall not have
been open to them in time of peace, particular care is to be
taken, that no part of the principle be expressly or virtually
abandoned, as being no part of the law of nations.
On the contrary it is much to be desired that the general
principle in its full extent be laid down in the stipulation;
but as this may not be attainable and as too much ought
not to be risked by an inflexible pursuit of abstract right,
especially against the example and the sentiments of great
powers having concurrent interests with the United States;
you are left at liberty, if found necessary to abridge the
right in practice, as it is done in the supplement of October
1801 to the treaty of June of that year between Russia
and Great Britain; not omitting to provide that in case
Great Britain should by her Treaties or instructions
leave to any other nation the right in a greater extent
than it is stipulated to the United States, they may
claim the enjoyment of it in an equal extent.
The abuses, which have been committed by Great
Britain under the pretext that a neutral trade from
enemy Colonies through neutral ports was a direct
trade, render it indispensable to guard against such
a pretext by some express declaration on that point.
The most that can be conceded on the part of the
United States is that the landing of the goods, the
securing the duties, and the change of the Ship, or
preferably the landing of the goods alone, or with the
securing the duties shall be requisite to destroy the
identity of the voyage and the directness of the trade;
and that the ordinary documents of the Custom House
Officers shall be sufficient evidence of the facts or fact.
A satisfactory provision on this subject of a trade with
enemy Colonies is deemed of so much consequence to the
rights and interests of the United States, and is so well
understood to have been contemplated along with a like
provision against the impressment of Seamen in the late
act of Congress prohibiting the importation of certain
classes of British manufactures, that as was enjoined
with respect to the provision against impressment,
no stipulation is to be entered into not consistent
with a continuance of that Act, unless the provision
with respect to the Colonial trade be also obtained.
In remodeling the provision with respect to the
Colonial Trade, you may with great propriety urge
the distinction between the West India Colonies, and
the very distant ones in the East Indies and elsewhere;
and the reasonableness of limiting to the former,
the exception of the direct trade with their parent
Countries out of the general neutral right.
The distinction is supported by several considerations,
particularly by the greater difficulty in the case of the
more distant Colonies of previously knowing, and
eventually proving the regulations as they may have
actually stood in time of peace and by the ruinous delays
and expenses attending the judicial investigations.
The British Courts have in fact admitted the distinction
so far as to presume the lawfulness of the neutral
trade with the East India Colonies, as being generally
open in peace as well as war; while they reverse
the presumption with respect to the West Indies.
In addition to what is proposed on the subject of
blockades in VI and VII articles, the perseverance of Great
Britain in considering a notification of a blockade, even of
an intended blockade to a foreign Government or its
Minister at London as a notice to its Citizens and as
rendering a Vessel wherever found in a destination to the
notified Port as liable to Capture calls for a special remedy.
The palpable injustice of the practice is aggravated by
the auxiliary rule prevailing in the British Courts, that the
blockade is to be held in legal force, until the Governmental
notification be expressly rescinded, however certain the fact
may be that the blockade was never formed or had ceased.
You will be at no loss for topics to enforce the inconsistency
of these innovations with the law of nations, with the nature
of blockades, with the safety of neutral commerce; and
particularly with the communication made to this
Government by order of the British Government in the
year 1804; according to which the British Commanders
and Vice Admiralty Courts were instructed “not to
consider any blockade of the Islands of Martinique and
Guadaloupe as existing unless in respect of particular
ports, which may be actually invested, and then not to
capture Vessels bound to such ports unless they shall
previously have been warned not to enter them.”
The absurdity of substituting such Diplomatic notifications
in place of a special warning from the blockading Ships
cannot be better illustrated than by the fact, that before
the notification of a proposed blockade of Cadiz in the
year 1805 was received here from our Minister at London,
official information was received from Cadiz, that the
blockade had actually been raised by an enemy’s fleet.
It may be worth your attention, that a distinction has
been admitted by the British prize Courts in consideration
of the distance of the United States from the European
blockades between their Citizens and those of States
less distant, the notice required for the former being
more positive than is made necessary for the latter.
You will be able to avail yourselves in the discussion,
and perhaps in the modification of the article, of the
reasons on which such a distinction rests.
The instructions in the hands of Mr. Monroe
are silent with respect to convoys.
If the footing on which the neutral right on that subject is
placed by the Russian and British Treaty of 1801, can be
turned to advantage in your negotiations, and should be
understood to coincide with the present way of thinking of
Russia and other maritime powers, an article corresponding
with the regulations in that Treaty may be admitted.
But as the United States are not in the practice of convoying
their trade, nor are likely to be so within the period of
any stipulation now to be made, and as the progress
of opinion is rather favorable than discouraging to the
enlargement of neutral rights, it is not in a general
view desirable that any stipulation, such as Great Britain
will probably admit, should at this time be entered into.
In whatever arrangement on the subject, limiting the
protecting right of public Ships of war may be deemed
expedient, you will be careful so to express the
limitation, that it may be applied to the exercise
of the right without affecting the abstract right itself.
There remains, as an object of great importance,
some adequate provision against the insults and
injuries committed by British Cruisers in the
vicinity of our Shores and harbors.
These have been heretofore a topic of remonstrance,
and have in a late instance been repeated with
circumstances peculiarly provoking, as they
include the murder of an American Seaman
within the jurisdictional limits of the United States.
Mr. Monroe is in full possession of
the documents explaining a former instance.
Herewith will be received those relating to the late one.
They not only support a just demand of an exemplary
punishment of the Offenders, and of indemnity for
the spoliations, but call for some stipulations
guarding against such outrages in future.
With this view it is proper that all armed belligerent
Ships should be expressly and effectually restrained
from making seizures or searches within a certain
distance from our Coasts, or taking stations near
our harbors commodious for those purposes.
In defining the distance protected against belligerent
proceedings, it would not perhaps be unreasonable,
considering the extent of the United States; the shoalness
of their coast, and the natural indication furnished by the
well defined path of the Gulf stream to expect an immunity
for the space between that limit and the American Shore.
But at least it may be insisted that the extent of the
neutral immunity should correspond with the claims
maintained by Great Britain around her own territory.
Without any particular enquiry into the extent of these,
it may be observed,
1. that the British Act of Parliament in the year 1736. 9G. 2.
C. 35. supposed to be that called the Hovering Act
assumes for certain purposes of Trade,
the distance of four leagues from the Shores,
2. That it appears both in the Reign of James I and of
Charles II the security of the Commerce with British Ports,
was provided for by express prohibitions against the
roving or hovering of belligerent ships so near the
neutral harbors and Coasts of Great Britain as to disturb
or threaten Vessels homeward or outward bound; as well
as against belligerent proceedings, generally, within
an inconvenient approach towards British Territory.
With this example and with a view to what
is suggested by our own experience, it may
be expected that the British Government will not
refuse to concur in an article to the following effect.
“It is agreed that all armed Vessels belonging to
either of the parties engaged in war shall be effectually
restrained by positive orders and penal provisions
from seizing, searching or otherwise interrupting or
disturbing vessels to whomsoever belonging &
whether outward or inward bound within the Harbors
or the chambers formed by head-lands, or anywhere
at Sea within the distance of four leagues from the shore,
or from a right line from one head land to another.
It is further agreed that by like orders and provisions all
armed Vessels shall be effectually restrained by the party to
which they respectively belong from stationing themselves,
or from roving or hovering so near the entry of any of the
harbors or Coasts of the other, as that Merchantmen shall
apprehend their passage to be unsafe, or a danger of being
set upon and surprised; and that in all cases where death
shall be occasioned by any proceeding contrary to these
stipulations, and the offender cannot be conveniently
brought to trial and punishment under the laws of the
party offended, he shall on demand made within
13 months be delivered up for that purpose.”
If the distance of four leagues cannot be obtained,
any distance not less than one sea league
may be substituted in the article.
It will occur to you that the stipulation against the
roving and hovering of armed Ships on our Coasts,
so as to endanger or alarm trading Vessels, will
acquire importance in proportion as the space
entitled to immunity shall be narrowed.
Another object not comprehended in the instructions
of 1804 to Mr. Monroe is rendered important by the
number of illegal captures and injuries, which have
been committed by British Cruisers since that date.
An indemnity for them is due on every consideration of
justice and friendship, and is enforced by the example
heretofore given by Great Britain herself, as well as by
other nations which have provided by Treaty for repairing
the spoliations practiced under color of their authority.
You will press this as an object too reasonable not
to be confidently expected by the United States.
Many of the claims indeed for indemnification are so
obviously just, that a refusal to satisfy them cannot be
decently made, and ought not therefore to be presumed.
The two modes most readily presenting themselves
for a comprehensive provision for the claims are:
First the establishment of a Board analogous to that
provided for in the 7th Article of the Treaty of 1794:
Secondly the substitution of a gross sum to be distributed
among the claimants according to a liquidation to be
made under the authority of the United States.
The second is the mode most eligible,
if the gross sum to be allowed, be thought to
approach the amount of losses to be indemnified.
To assist you in estimating these the statements
addressed to this Department by the Underwriters
and others are herewith transmitted.
These statements with those furnished by Mr. Lyman
to November 1st will be to be reduced according to
the redress which shall have been judicially afforded;
and on the other hand to be augmented by the addition
of cases not reported here and to be collected from
the sources of information within your own reach.
If the first mode should be adopted,
great care will be requisite in describing the cases,
to employ such general terms as will comprehend
all that are fairly entitled to redress.
It will be well at the same time to secure,
by specifying such of the cases, as can be specified,
and as are least susceptible of objection.
Under this head may be classed,
1. cases in which the Official communication
made by Lord Hawksbury to Mr. King of the
11th day of April 1801 has been violated.
2. cases in which the rules of blockade stated in
Mr. Merry’s communication to the Department of State
on the 12th day of April 1804 have been violated,
3. cases where the Territorial jurisdiction
of the United States has been violated.
The list of neutral rights asserted in the report
of the Secretary of State to the President on
the 25th day of January 1806 will suggest
other specifications which may be attempted.
It may be worth recollecting that the British order
of Council bearing date the 24th June 1803, and
subjecting to capture Vessels on a return Voyage,
which had carried contraband in the outward voyage,
was never promulged, nor was it known that such
a rule was to be enforced until the summer of 1805.
Could the rule be regarded otherwise than
as it certainly is, an innovation on the law of Nations,
all captures before it was made known and contrary
to antecedent practice would be marked by an
unjust surprise, fairly entitling them to redress.
The business to come before such a board may
be much diminished by the reference of cases,
particularly of costs and damages and such others
whose description by common consent entitles them
to redress to the Kings Advocate and an advocate to
be named on your part (Dr. Laurence for example)
who may be authorized to report the sums due, subject
to the approbation in each case of Mr. Lyman, our Agent.
As far as the cases fall within the observation here made,
a liquidation of them may be carried
on during the period of negotiation.
Although the subject of indemnifications for past wrongs
is to be pressed as of great magnitude in a satisfactory
adjustment of our differences with Great Britain, yet
as the British Government may be inflexible in refusing
an arrangement implying that her maritime principles
of capture were contrary to the law of Nations,
while she would not be inflexible in stipulating a
future practice conformable to our wishes,
it is not thought proper that a provision for indemnities
should be an absolute condition of the repeal of the Act
of Congress concerning British manufactures, provided
satisfactory arrangements shall be made relative to
impressments and the trade with enemy’s Colonies.
Still however it is to be kept in view, that there are
claims founded on acts of British Cruisers violating
the law of Nations, as recognized by Great Britain
herself and others founded on unexpected
departures without notice from rules of practice
deliberately settled and formally announced.
Of these examples have been referred to in the
communications of Lord Hawksbury to Mr. King,
and of Mr. Merry to the Department of State.
With respect to claims of these several Kinds,
it is evident that provision is clearly due for them,
and that it may be made without any implication which
can alarm the pride or the caution which may be professed.
You will not fail therefore to bring, if necessary, these
claims into view as distinguished from others founded
on controverted principles, and to let it be understood
that a refusal of them will be a painful ingredient in the
negotiations for extinguishing discontents on both sides, and
consolidating and perpetuating the friendship between them.
In case this distinction should operate in the adjustment,
it will furnish an additional reason for preferring a gross
sum to the liquidations of a joint Board;
First, because it will admit of a liberal sum,
if the British Government should be liberally disposed,
on presumptions not affecting her maritime principles;
Secondly, because it will leave the United States free
to apply the gross sum in redressing claims
according to our maritime principles.
A precedent for such an expedient may be found
in the Convention of January 1756 between Great Britain
and Prussia; whereby a gross sum of £20,000 Sterling
was paid to the latter as an extinguishment of claims
on account of illegal captures without reference to
the precise rules by which it was to be applied.
The Treaty of Pardo in January 1739
between Great Britain and Spain is another precedent.
In that Treaty the sum of £95,000 Sterling was
stipulated in the like general manner to be paid
to Great Britain by Spain as a compromise
for all reparations of maritime injuries.
If the United States succeed in making satisfactory
arrangements on the principle points of impressment
of Seamen, Colonial Trade, and still more,
if provision be also made for indemnity for
Spoliations, it may be naturally expected that
Great Britain will require, not only the repeal
of the prohibition Act of last Session, but also
some security that the United States will not,
by subsequent Acts of the same nature,
place her on a worse footing than other nations.
She may reasonably urge that demand on the
double plea of having yielded on these points
which were the subjects of complaint on the part
of the United States, and of her being now for
want of a Commercial Treaty, placed in that
respect at the discretion of the United States;
while they are precluded by their Treaties with the
enemies of Great Britain (Holland, France and Spain)
from the power of laying prohibitions or restrictions
particularly affecting those Nations.
The most natural arrangement in that respect will be
simply to agree that the two parties shall enjoy in the
Ports of each other, in regard to commerce & navigation,
the privileges of the most favored Nation.
But the Article should be framed so as to embrace,
1st. every privilege and particularly the exemption
from higher duties of every description either on
imports or exports and including convoy duties,
that are paid by the most favored nation;
2ndly. All the possessions of Great Britain in every part of
the world; which will secure admission at all times in both
the East and West Indies on the same terms as are now
or may in future be enjoyed by the most favored Nation,
whether it be a friend or an enemy.
The same clause of the footing of the most favored Nation
may be extended not only to navigation and Commercial
intercourse between the two nations, but to points which
relate to the rights and duties of belligerents & neutrals:
An arrangement which would secure to Great Britain the
same rights in relation to the admission of her armed
Vessels in our Ports and to the exclusion of her enemies
privateers and of their prizes, which are now enjoyed by
Holland, Spain and other most favored nations:
While it would place the rights of the United States
as neutrals on the same footing with Russia or the
most favored Nation, in respect to search,
Convoys, blockades and contraband.
If it shall be thought eligible to place the reciprocal
Commercial privileges of the two nations on a more
definite basis, than they would be placed by the general
expression of the most favored nation (a stipulation
which is liable to the difficulty of ascertaining the equivalent
to be given in cases where a privilege is granted by one
of the contracting parties to another nation in exchange
for some favor, which the other contracting party cannot
specially give) it may be done, either by abolishing all
alien duties either on Vessels or Cargo or both, and
reciprocally placing the Vessels of the other nation on
the same footing with National Vessels conformably to
the provision in which Great Britain concurred by an Act
of parliament in the year 1802; or by fixing the maximum
of alien duty which each nation shall have the right to
impose on the Vessels or Cargoes of the other Nation.
But should the last plan be adopted, care must be taken
1st. that in fixing the maximum of the alien duty
to be levied on Vessels, all charges whatever, and
under whatever name known, whether tonnage,
light house money, port charges &c. shall be included—
2ndly. that the maximum of the alien duty to be levied on
merchandize imported in the Vessels of the other Nation
(beyond the duties levied on similar articles imported in the
National Vessels) shall be a percentage on the value of the
merchandize itself and not on the original duty—
3rdly. that the right of imposing such maximum duties
either on the Vessels or merchandize shall never be
exercised so as to contravene the other stipulation of
enjoying the privileges of the most favored nation—
4thly, that the stipulation shall not embrace Vessels &
Cargoes coming from or going to ports from which the
Vessels or Cargoes of the United States are excluded.
Should the expedient of a maximum be adopted it must
not be overlooked that the productions of the United States
exported to Great Britain employ a far greater tonnage
than the exports from Great Britain to the United States;
that the higher the maximum therefore the more favorable
to Great Britain, who may avail herself according to the
degree of it to secure to her Vessels the carriage of our
bulky productions, of which her duty on Tobacco
imported in American Vessels is an example; leaving
to the United States the opportunity only of securing to
their Vessels, the carriage of her unbulky exports; and
that consequently no maximum ought to be admitted
more unfavorable to the United States, than the
regulations likely to prevail, if uncontrolled by Treaty.
A mutual abolition of alien duties would probably be
favorable to the navigation of the United States, which
would then have to contend on equal terms with British
navigation, for which it may be expected to be at least a
match at all times, and more than a match when Great
Britain is at war, which is not less than half the time.
The only great branch of Commercial Intercourse which
would remain unprovided for is that of intercourse with
the British Colonies and dependencies: and if nothing can
be obtained on that ground, care also must be taken in
framing the article for reciprocally enjoying the privileges
of the most favored nation, not to deprive the United States
of the right of making such regulations as they may think
proper in relation to Vessels coming from Ports from
which their own Vessels are excluded, or in relation
generally to the intercourse with such ports.
As the United States confer no particular benefit on the
British possessions in the East Indies by their intercourse
with that Country, it can hardly be expected that Great
Britain will grant anything more than the general stipulation
to be placed on the footing of the most favored nation;
or possibly a stipulation to the United States of the privileges
heretofore granted to foreigners, which in relation to the
coasting trade, and the trade from India Ports to all foreign
Countries, as well as that owning the Vessel, exceeded
the privileges stipulated in the Treaty of 1794.
But as relates to the West Indies and North American
Colonies, it must be a permanent object of the policy
of the United States to have the intercourse with them
made as free as that with Europe.
The relative situation of the United States and
of those Colonies and particularly those wants
which we can alone supply must necessarily
produce that effect at some not very distant period.
And it should not be voluntarily retarded either
by abandoning by Treaty the strong hold which
our right of stopping the intercourse gives us,
or by accepting any temporary or trifling privilege
the exercise of which would diminish the probability
of soon obtaining a perfectly free trade.
It is not probable that Great Britain will be disposed
to open the intercourse to our Vessels with her North
American Colonies; nor does it appear that any limitation
or restriction can be offered by the United States, calculated
to quiet the apprehensions of Great Britain, that to open
that trade to our Vessels would destroy their own.
It is not perceived that anything else can be proposed
but perfect reciprocity as is contemplated in relation
to the intercourse between the United States and
the British Dominions in Europe; such reciprocity
to consist either of a total abolition of alien duties
or of a fixed maximum as above stated; and the
intercourse to be also either general or confined to
articles of the growth, produce or manufacture of the
United States and of the said Colonies respectively.
It must not be forgotten, as relates to our Commerce
with Nova Scotia and New Brunswick, that however
advantageous to both parties, it is more beneficial
to the United States than to those Colonies.
The importance of not less than 30, perhaps 50 thousand
tons of Plaister to our Agriculture needs no comment;
and notwithstanding our exclusion from their Ports
we have in fact, as the trade has hitherto been carried on,
a greater share of it than themselves.
This however is the result of a connivance in practice;
which may possibly be withdrawn.
The produce of their fisheries is brought
by them from Halifax to Boston and by us
from Boston carried to the West Indies.
Their Plaister is brought by them from Fundy Bay
to Maine, and by us from Maine to New York,
Philadelphia and the Chesapeake.
A strong jealousy seems to exist between the Shipping
interest of Massachusetts and that of these Colonies.
Hence the wish of their Legislative Assemblies to
prohibit the exportation of Plaister in their own Vessels,
to our Eastern Ports; and hence the law which Laid
the Light House money tax and a high duty
on their fish, taking away at the same time
the drawback on the re-exportation of such fish.
An enlightened policy and a mutual wish to promote the real
interest and welfare of the inhabitants on both sides, should
induce both Governments to throw the trade perfectly open.
But it cannot be denied that it will give us
a very great share of their carrying trade.
The minimum which should be accepted in relation
to the intercourse with the West Indies, will be the
admission of our Vessels laden solely with articles
of our growth, produce or manufacture, the
importation of which in British Vessels is not
prohibited on the same terms as British Vessels
solely laden with the Colonial Articles shall be
admitted in our ports, that is to say, either
without alien duties or with a fixed maximum
of such alien duties with the two following restrictions—
1st that Great Britain may prohibit our Vessels
from exporting from the British West India Islands
in Sugar and Coffee, more than one half of the
proceeds of their inward Cargo—
2ndly that such Sugar and Coffee shall be exported only
to the United States, or that the Vessels thus admitted
in the West Indies shall be obliged to return and land
their Cargoes in the United States, provided they may
however, on their return touch at any other West India
Island or the Bahamas to complete their Cargo.
For it is usual to carry the specie, which proceeds from the
sale of a Cargo in the West Indies to Turks Island or the
Bahamas and there load with Salt for the United States.
Although those restrictions and particularly the first
be inconvenient, yet they may be acquiesced in.
As respects the first restriction, the value of our average
exportations to the British West India Islands, being Six
Millions of Dollars, and our importations from thence in
every article (sugar and Coffee excepted) being three
millions of Dollars, the privilege of bringing in return in
Sugar and Coffee one half of the Value of our exportations,
will just complete the return Cargoes.
But it would be desirable that the restriction should be
altogether dispensed with, or that Great Britain should
allow the exportation in these two articles to the amount
of 2/3 or 3/4 of the value of our Cargoes.
As relates to Great Britain, if she once yields the point of
admission, the restrictions which are proposed seem to
be amply sufficient to remove her minor objections.
We now import notwithstanding the nominal prohibitions
to some amount in American Vessels, about one million
and half Dollars, being the whole amount imported from
the British Islands in both American and British Vessels.
The value of our average importations from all the world
is: in Sugar 7,800,000 in Coffee 8,400,000 }
or more than Sixteen Millions of Dollars.
The value of our annual consumption exclusively of the
New Orleans Sugar, is in Sugar 4,000,000
in Coffee 1,500,000 } or 5½ Millions of Dollars.
To permit us therefore to import for 3 Millions
cannot enable us to re-export.
And three Millions of Dollars compared with the value of the
Sugar and Coffee exported annually from the British West
Indies which amounts to not less than 22 millions, cannot in
any degree affect their own Commerce or navigation.
The second restriction is intended still more effectually
to remove any apprehension that our Vessels might
become carriers of British West India produce to any
other Country than the United States.
And it may even, if insisted on, be further agreed that
no drawback shall be allowable on the re-exportation
of those articles imported from the British West Indies
in American Vessels; provided, however, that on that
condition the first mentioned restriction limiting the
quantity which may be thus imported from the British
West Indies in American Vessels shall be dispensed with.
The utmost care is to be taken in framing the restriction
on reexporting from the United States, the produce
of the British West Indies imported in American
Vessels so to express it as to leave no possible
pretext for applying the restriction to any similar
articles whether produced within the United States,
or imported from any other than British possessions.
It will be a reasonable Stipulation on the part of
Great Britain, that at all times and places at which the
trade of the United States is admitted generally or partially,
the residence of Consuls and factors shall also be admitted.
The duration of the Commercial part of the Treaty,
and of any other parts which do not establish in their
full extent the rights of neutral nations ought not to exceed
the term of eight years; and an abridgment even of that
term may perhaps be rendered expedient by the tenor
of articles not inconsistent with these instructions.14
Secretary of State Madison learned that Monroe and William Pinkney,
who were worried about Napoleon’s Berlin Decree,
had agreed with the British in a treaty on 31 December 1806 that
was contrary to their instructions for not mentioning impressment,
and they accepted
Britain’s arrogant position on naval warfare.
On 3 February 1807 Madison wrote in a letter to James Monroe
of his concern and that of President Jefferson.
The turn which the negotiation has taken,
was not expected and excites as much of
regret as of disappointment.
The conciliatory spirit manifested on both sides with
the apparent consistency of the interest of Great Britain,
with the right of the American flag, touching impressments,
seemed to promise as much success to your efforts
on that subject as on the others; and notwithstanding
the perseverance of the British Cabinet in resisting
your reasonable propositions, the hope is not
abandoned that a more enlightened and enlarged
policy will finally overcome scruples which doubtless
proceed more from habits of opinion and official caution
than from an unbiassed regard to all the considerations
which enter into the true merits of the question.
In the meantime the President has with all those friendly
and conciliatory dispositions which produced your mission,
and pervade your instructions, weighed the arrangement
held out in your last letter, which contemplates a formal
adjustment of the other topics under discussion and an
informal understanding only on that of impressment.
The result of his deliberations, which I am now to state
to you, is that it does not comport with his views of the
national sentiment or the Legislative policy, that any
treaty should be entered into with the British Government
which, while on every other point it is either limited to,
or short of strict right, would include no article
providing for a case which both in principle and
in practice is so feelingly connected with the honor
and Sovereignty of the nation as well as with its fair
interests; and indeed with the peace of both nations.
The President thinks it more eligible, under all
circumstances, that if no satisfactory and formal
stipulation on the subject of impressment be attainable,
the negotiation should be made to terminate without
any formal compact whatever, but with a mutual
understanding, founded on friendly and liberal discussions
and explanations, that in practice each party will entirely
conform to what may be thus informally settled.
And you are authorized, in case an arrangement of this
kind shall be satisfactory in its substance, to give
assurances that as long as it shall be duly respected
in practice by the other party, more particularly on
the subjects of neutral trade and impressments,
it will be earnestly, and probably successfully
recommended to Congress by the President, not
to permit the nonimportation Act to go into operation.
You are also authorized to inform the British government
that the President adhering to the sentiments which led
him to recommend to Congress at the commencement
of the Session, a suspension of that act, and trusting to
the influence of mutual dispositions and interests in giving
an amicable issue to the negotiations will, if no intervening
intelligence forbid, exercise the authority vested in him
by the Act of continuing its suspension from the 1st day
of July to the time limited by the Act, and which will
afford to Congress, who will then be in Session, the
opportunity of making due provision for the case.
You will perceive that this explanation of the views of the
President requires that if previous to the receipt of it,
a Treaty not including an article relating to impressments
should have been concluded and be on the way, the British
Commissioners should be candidly apprised of the reasons
for not expecting its ratification, and that on this ground they
be invited to enter anew on the business with an eye to
such a result as has just been explained and authorized.
Having thus communicated the outline assigned
by the President, as your guide in the important and
delicate task on your hands, I proceed to make a few
observations which are suggested by the contents of
your last dispatches, and which may be of use in your
further discussions and your final arrangements.15
Madison then proceeded in the letter to explain the policies on impressment,
colonial trade, blockades, marginal jurisdiction on the high seas,
East and West India trade, and indemnification.
Madison on 20 May 1807 wrote near the end
of a very long letter to James Monroe:
There are considerations, moreover, which cannot be
without weight with a prudent Cabinet however composed.
They must know that apart from the obstacles which may
be opposed here to the use of British manufactures,
the United States by a mere reciprocation of the British
navigation and Colonial laws may give a very serious blow
to a favorite system, a blow that would be felt, perhaps,
as much too in its example as in its immediate operation.
Should this policy be adopted by the United States
as it respects the British West Indies, the value of
those possessions would be either speedily lost
or be saved no otherwise than by a compliance
with the fair reciprocity claimed by this Country.
It can no longer be unknown to the most sanguine
partisan of the Colonial monopoly, that the necessaries
of life and of cultivation can be furnished to those Islands
from no other source than the United States; that immediate
ruin would ensue if this source was shut up; and that a
gradual one would be the effect of even turning the
supplies out of the present direct channel, into a
circuitous one through neutral ports in the West Indies.
In this latter alternative the least unfavorable that presents
itself the produce of this Country would be carried to
probably a Danish Island with the same mercantile profit
and the same employment of our navigation, as if carried
to the British Island consuming it; and would thence be
transported to the British Island with little advantage to
British ships, which would necessarily be sent in ballast,
and confined to a sickly climate; while the enhanced
price of the supplies would be fatal, first to the prosperity
and finally to the existence of those dependencies.
It ought to occur moreover to the British Government,
that its marine may become as dependent as its
Colonies on the supplies of the United States.
As an auxiliary resource for naval stores, this Country
must be at all times important to Great Britain.
But it will be the sole and therefore an essential one in
case that of the Baltic and even of the black sea should fail.
And it may be justly remarked, that a prohibition of
this branch of our exports would be a less sacrifice
than that of any other important one; inasmuch as
some of the articles of which it consists, being
necessary to ourselves and of an exhaustable
nature, make it a problem whether the regulation
would not in itself accord with our permanent interests.
Lastly, it should not be forgotten, that the
United States are one of the granaries which
supply the annual deficit of the British harvests.
The northern part of Europe, the usual concurrent
resource, is in a situation that must disable it for
some time, whatever the course of events may be,
to spare any of its stock of food; nor can any
substitute, other than the redundant harvests of the
United States be relied on to make up that deficiency.
Add to this prospect the possibility of an unfavorable
season requiring enlarged importations of bread from
the only source that can furnish it; and the risk of losing
this would be an evil, which no provident Councils
would neglect to guard against by any measures
equitable in themselves or even by concessions
neither dishonorable nor materially injurious.
On the other hand, Great Britain having been led by
her peculiar system to carry her commercial exclusions
and restrictions to the utmost limit permitted by her
immediate wants, would find no countervailing
resources to be turned against the United States.
She could not prohibit the importation of our productions.
These are necessaries which feed her people, which supply
her manufactories, which keep up her Navy; and which by
direct and indirect contributions to her revenue and credit,
strengthen all her faculties as a great power.
As little could she prohibit the exportation
of her manufactures to the United States.
This is the last evil she would think of inflicting on herself.
If it withheld from us the means of enjoyment, it would
take from her own people the means of existence.
Would war be a better resort?
That it would be a calamity to the United States is so
well understood by them that peace has been cherished
in the midst of provocations, which scarcely permitted
honor to listen to interest, to reason, or to humanity.
War they will continue to avert by every
policy which can be reconciled with the
essential duties which a nation owes to itself.
But what will be the gain and the loss to
Great Britain by a choice of this resort?
The spoils of our defenseless commerce might enrich her
greedy cruisers and flatter the sentiment of national wealth.
A temporary spasm might, at the same time,
be produced in the affairs of the United States.
But these effects weigh little against the
considerations which belong to the opposite scale.
To say nothing of the hostile use that might be made
against Great Britain of 50,000 seamen, not less
hardy or enterprising than her own; nor of her
vulnerable possessions in our neighborhood, which
though little desired by the United States are highly
prized by her, nor of the general tendency of adding
the United States to the mass of nations already in
arms against her; it is enough to observe that a war
with the United States involves a complete loss of the
principal remaining market for her manufactures,
and of the principal, perhaps the sole, remaining source
of supplies without which all her faculties must wither.
Nor is it an unimportant circumstance, though it seems to
have engaged little of her attention, that in the loss would
be included all the advantages which she now derives
from the neutrality of our flag and of our ports, and for
which she could find no substitutes in distributing her
manufactures and even her fish to their necessary
markets, and in obtaining the returns which she wants.
The more these collateral advantages are enquired
into, the more important will the interest appear
which Great Britain has in preserving them.
These are views of the subject, which though not to
be presented to Great Britain with an air of menace or
defiance, equally forbidden by respect to ourselves,
and to her, may find a proper way to her attention.
They merit hers as well as ours; and if they
ought to promote on both sides, a spirit of
accommodation, they show at the same time
that Great Britain is not the party which has
the least interest in taking counsel from them.
Such are the instructions and explanations under
which the task is consigned to you of renewing
the discussions with the British government.
The President is well assured that it will be executed
with all the advantage which talents and patriotism
can contribute; and he is unwilling to believe that
that government will finally prefer to the reasonable
terms proposed, the serious state of things which will
be left by a miscarriage of this ulterior appeal to the
motives which ought to govern a just and friendly nation.
As it is possible, however, that this favorable calculation
may not be verified, and it will necessarily remain to be
decided whether such a state of things can be obviated
by any additional proposition not beyond the justifiable
limits of concession, the President has taken the case
into his serious deliberation; and has concluded to
authorize you in the event of a rejection of every
arrangement already authorized, but in that event
only to admit an article to the following effect:
“It is agreed that after the term of months computed
from the exchange of ratifications, and during a war
in which either of the parties may be engaged,
neither of them will permit any seaman not being
its own citizen or subject, and being a citizen or
subject of the other party, who shall not have been
for two years at least prior to that date, constantly
and voluntarily in the service or within the jurisdiction
of the United States to enter or be employed on board
any of its vessels navigating the high seas: and proper
regulations enforced by adequate penalties shall be mutually
established for distinguishing the seamen of the parties
respectively, and for giving full effect to this stipulation.”
You will observe that the proposition is so framed
as not to comprehend among British seamen, those
who have been made citizens of the United States;
and who must necessarily be so regarded
within their jurisdiction and under their flag.
This modification of the article cannot produce
any real objection on the part of Great Britain,
1. because the legal pre-requisites to naturalization
in the United States imply what is sufficiently
known, that the number of seamen actually
naturalized or likely to be so, is too small to
claim attention in any arrangement on this subject.
2. because the right of British subjects to naturalize
themselves in a foreign trade and navigation, as laid down
by the judicial authority of Great Britain, ought to restrain
its government from making a difficulty on this point.
(See Dunford and Easts—Wilson vs. Marriatt—
and the same case in Bosanquet and Puller’s Reports.)
You will observe also that the article does
not extend to British seamen navigating,
not the high seas but our interior waters.
Should the success of the proposition be
endangered by this distinction, it may be given up.
But it cannot well be supposed of sufficient importance
to have that effect; The objection too is answered
by the consideration that as Great Britain would
regard the proposed disuse of her seamen as a
commutation for her claim to impress them, which is limited
to the high seas, the principle of the compromise does not
embrace the seamen not employed on the high seas.
If an attempt should be made to bind the United States
to deliver up the seamen to Great Britain, instead of
excluding them merely from their own service,
you are to say at once, that it would be inconsistent
with our principles, and cannot be acceded to.
It will occur to you that the period of two years has been
chosen in allusion to the period established by Great Britain,
as sufficiently incorporating alien with British seamen.
Her own example at least must have weight with her;
and the implied appeal to it may be of use in shielding
the measure against public prejudices to which the
government may not wish to expose itself.
If the British government be not predetermined against a
friendly adjustment, it is confidently presumed that the
concession proposed will not only overcome all obstacles to
your success on the essential points, but may be turned to
account in promoting the amendment of the other articles.
Should the concession, however, contrary to all
expectation, not succeed, even as to the essential objects,
the course prescribed by prudence will be to signify your
purpose of transmitting the result to your government;
avoiding carefully any language or appearance of hostile
anticipations; and receiving & transmitting at the same
time any overtures which may be made on the other
side with a view to bring about accommodation.
As long as negotiation can be honorably protracted,
it is a resource to be preferred, under existing
Circumstances to the peremptory alternative
of improper concessions or inevitable collisions.
The last suggestion I have to make to you is that
in case of great difficulties in re-adjusting the multiplied
provisions embraced by the treaty of December,
particularly those relating to commerce, it may be
advisable to simplify the transaction by confining it
to the few essential objects; or by not adding more
than a few others of least difficulty and most importance.
A general article may be sufficient for the rest, giving
reciprocally in regard to trade and navigation armed ships
and prizes, the privileges of the most favored nation;
and leaving for more leisurely and detailed provision,
whatever further may conduce to the mutual interests
and correspond with the friendly disposition of the parties.
A general stipulation of this sort applied to the subject of
Commerce would have the advantage to the United States
of abolishing and preventing British discriminations on
exports, and to Great Britain the like advantage with
respect to American discriminations on imports.16
On 22 June 1807 news arrived that the HMS Leopard
had attacked the USS Chesapeake near Hampton Roads.
In the battle the Americans suffered three killed and 18 wounded,
and three other sailors were impressed into Britain’s Royal Navy.
President Jefferson advised Virginia’s Governor to prepare for British “insults.”
On July 2 the cabinet met and agreed on a proclamation ordering
British warships to leave American harbors without getting supplies
or aid unless they were there for distress or diplomacy.
The cabinet approved bringing all the American warships home
from the Mediterranean Sea, and 120,000 men were put on alert.
Madison sent stronger instructions to his diplomats in Europe,
and he advised all American ships in British ports to come home.
The British were still threatening Hampton Roads, and Jefferson
ordered Virginia’s Governor Cabell to prepare 100,000 militiamen.
He also had the Secretary of War Henry Dearborn provide funding.
Treasury Secretary Gallatin issued a memorandum to fifteen seaports to strengthen defense.
Madison sent instructions to Monroe in England to avoid provocations with American ships.
British King George III ordered his naval commanders to continue impressments,
and he required neutral ships in Europe to get licenses in British ports.
Napoleon reacted by threatening ships with his Milan Decree.
Secretary of State Madison on 6 July 1807 wrote a fairly long letter
to James Monroe with much cypher writing shown here in italics:
The documents herewith enclosed from
No. 1 to No. 9 inclusive explain the hostile attack
with the insulting pretext for it lately committed near
the Capes of Virginia by the British ship of war the
Leopard on the American Frigate the Chesapeake.
No. 10 is a copy of the Proclamation issued
by the President, interdicting in consequence of
that outrage, the use of our waters and every
other accommodation to all British armed ships.
1st. This enormity is not a subject for discussion.
The immunity of a National ship of war from every
species and purpose of search, on the high seas,
has never been contested by any nation.
Great Britain would be second to none in resenting such
a violation of her Rights and such an insult on her Flag.
She may bring the case to the test of her own feelings
by supposing that, instead of the customary demand of
our mariners serving compulsively even, on board her ships
of war, opportunities had been seized for rescuing them
in like manner, whenever the superiority of force or the
chance of surprise might be possessed by our ships of war.
But the present case is marked by circumstances
which give it a peculiar die.
The seamen taken from the Chesapeake had been
ascertained to be native Citizens of the United States;
and this fact was made known to the bearer of the demand,
and doubtless communicated by him to his Commander
previous to the commencement of the attack.
It is a fact also, affirmed by two of the men with
every appearance of truth that they had been
impressed from American vessels into the British
Frigate from which they escaped, and by the third,
that having been impressed from a British Merchant
ship, he had accepted the recruiting bounty under that
duress, and with a view to alleviate his situation till he
could escape to his own Country: Add that the attack
was made during a period of negotiation, and in the
midst of friendly assurances from the British Government.
The Printed Papers, herewith sent will enable you to
judge of the spirit which has been roused by the occasion.
It pervades the whole community, is abolishing the
distinctions of Party; and regarding only the indignity
offered to the Sovereignty & Flag of the nation, and
the Blood of Citizens so wantonly and wickedly shed,
demands in the loudest tone an honorable reparation.
With this demand you are charged by the President.
The tenor of his proclamation will be your guide
in reminding the British Government of the uniform
proofs given by the United States of their disposition
to maintain faithfully every friendly relation;
of the multiplied infractions of their rights by British Naval
Commanders on our Coasts and in our Harbors; of the
inefficacy of re-iterated appeals to the Justice & Friendship
of that Government; and of the moderation on the part of
the United States which re-iterated disappointments had
not extinguished; till at length no alternative is left but a
voluntary satisfaction on the part of Great Britain or a
resort to means depending on the United States alone.
The nature and extent of the satisfaction ought to be
suggested to the British Government not less by a sense of
its own honor than by Justice to that of the United States.
A formal disavowal of the deed, and restoration of the
four seamen to the Ship from which they were taken are
things of course and indispensable as a security for the
future, an entire abolition of impressments from Vessels
under the Flag of the United States if not already arranged,
is also to make an indispensable part of the satisfaction.
The abolition must be on terms compatible with the
Instructions to yourself and Mr. Pinkney on this subject;
and if possible without the authorized rejection
from the Service of the United States of British
Seamen who have not been two years in it.
Should it be impossible to avoid this concession
on the part of the United States it ought (as of itself
more than a reasonable price for future Security)
to extend the reparation due for the past.
But beyond these indispensable conditions the United
States have a right to expect every solemnity of form and
every other ingredient of retribution and respect, which
according to usage and the sentiments of mankind, are
proper in the strongest cases of insult to the Rights and
Sovereignty of a nation and the British Government is to
be apprised of the importance of a full compliance with
this expectation to the thorough healing of the wound which
has been made in the feelings of the American Nation.
Should it be alleged as a ground for declining or
diminishing the satisfaction in this case, that the United
States have themselves taken it by the interdict contained
in the President’s Proclamation; the answer will be obvious.
The Interdict is a measure not of reparation, but
of precaution and would besides be amply justified by
occurrences prior to the extraordinary outrage in question.
The exclusion of all armed ships whatever from our
waters is, in fact, so much required by the vexations and
dangers to our peace experienced from their visits,
that the President makes it a special part of the charge
to you, to avoid laying the United States under any
species of restraint from adopting that remedy.
Being extended to all Belligerent nations, none of them
could of right complain; and with the less reason,
as the Policy of most nations has limited the admission
of Foreign Ships of War into their Ports, to such numbers
as being inferior to the naval force of the Country, could
be readily made to respect its authority and Laws.
As it may be useful, in enforcing the Justice of
the present demand, to bring into view applicable
cases, especially where Great Britain has been the
complaining Party, I refer you to the ground taken
and the Language held by her in those of Falklands
Island and Nootka Sound; notwithstanding the
assertion by Spain in both cases, that the real Right
was in her and the possessory only in Great Britain.
These cases will be found in the Annual Registers for 1771
and 1790 and in the Parliamentary Debates for those years.
In the latter you will find also two cases referred to; in one
of which the French King sent an Ambassador Extraordinary
to the King of Sardinia, in the most public and solemn
manner with an apology for an infringement of his
Territorial Rights in the pursuit of a smuggler and murderer
In the other case an Ambassador Extraordinary was
sent by the British Government to the Court of Portugal,
with an apology for the pursuit and destruction
by Admiral Boscawen, of certain French Ships,
on the Coasts of this last Kingdom.
Many other cases more or less analogous may doubtless
be found, see particularly the reparation by France to Great
Britain for the attack on Turks Island in 1764, as related in
the Annual Register & in Smollets continuation of Hume
vol. 10; the proceedings in the case of an English
Merchantman, which suffered much in her crew and
otherwise from the fire of certain Spanish Xebecs
cruising in the Mediterranean; and the execution
of the Lieutenant of a Privateer for firing a gun
into a venetian merchantman which killed the
Captain as stated in the Annual Register for 1781 p. 94.
The case of an affront offered to a Russian Ambassador
in the reign of Queen Anne, though less analogous,
shows in a general view the solemnity with which
reparation is made for insults having immediate
relation to the Sovereignty of a nation.
Although the Principle which was outraged in
the proceedings against the American Frigate is
independent of the question concerning the allegiance
of the Seamen taken from her, the fact that they were
Citizens of the United States and not British Subjects,
may have such an influence on the feelings of all,
and perhaps on the opinions of some unacquainted
with the Laws and usages of Nations, that it has been
thought proper to seek more regular proofs of their national
character than were deemed sufficient in the first instance.
These proofs will be added by this conveyance,
if obtained in time; if not, by the first that succeeds.
The President has an evident right to expect
from the British Government, not only an ample
reparation to the United States in this case, but
that it will be decided without difficulty or delay.
Should this expectation fail, and above all, should
reparation be refused, it will be incumbent on you
to take the proper measures for hastening Home,
according to the degree of Urgency, all American
vessels remaining in British ports;
using for the purpose, the mode least likely to
awaken the attention of the British Government.
Where there may be no ground to distrust the
prudence or fidelity of Consuls, they will probably
be found the fittest vehicles for your intimations.
It will be particularly requisite to communicate to our Public
Ships in the Mediterranean, the state of appearances if it be
such as ought to influence their movements.
All negotiation with the British Government on
other subjects will of course be suspended
until satisfaction on this be so pledged and
arranged as to render negotiation honorable.
Whatever may be the result or the prospect,
you will please to forward to us the earliest information.
The scope of the Proclamation will signify to you
that the President has yielded to the Presumption,
that the hostile act of the British Commander
did not pursue the intentions of his Government.
It is not indeed easy to suppose that so rash & so critical
a step should have originated with the Admiral;
but it is still more difficult to believe that such orders were
prescribed by any Government under circumstances, such
as existed between Great Britain and the United States.
Calculations founded on dates are also strongly
opposed to the supposition that the orders in question
could have been transmitted from England.
In the same scale are to be put that apparent and declared
persuasion of the British Representative Mr. Erskine that
no orders of a hostile spirit could have been issued or
authorized by his Government; and the coincidence of this
assurance with the amicable professions of Mr. Canning,
the organ of the new administration, as stated in the
Dispatch of April 22nd from yourself and Mr. Pinkney.
Proceeding on these considerations, the President
has inferred that the Justice and Honor of the British
Government will readily make the atonement required;
and in that expectation he has forborne an immediate call
of Congress; notwithstanding the strong wish which has
been manifested by many, that measures, depending
on their authority, should without delay be adopted.
The motives to this forbearance have, at the same time,
been strengthened by the Policy of avoiding a course,
which, might stimulate the British Cruisers, in this quarter,
to arrest our Ships and Seamen now arriving, and
shortly expected in great numbers from all quarters.
It is probable however that the Legislature will be
convened in time to receive the answer of the British
Government on the Subject of this Dispatch,
or even sooner, if the conduct of the British Squadron here,
or other occurrences, should require immediate
measures beyond the Authority of the Executive.
You are not unaware of the good will and Respect for the
United States, and personally even for the President which
have been manifested by the Emperor of Russia, nor of the
inducements to cultivate the friendship of so great a Power,
entertaining principles and having interests, according, in
some important views, with those of the United States.
This consideration, combined with the subsisting relations
between Russia and Great Britain, make it proper in the
opinion of the President, that, in case of an express or
probable refusal of the satisfaction demanded of the British
Government, you should take an early occasion, if there be
no special objection unknown here, of communicating to
the Russian Minister at London, the hostile insult which has
been offered, as well as the resort which may become
necessary, on our part, to measures constituting or leading
to war; and of making him sensible of the regret which will
be felt at a rupture with a power, to which the Emperor is
allied by so many close and important Interests.
In order to give the more expedition and security
to the present Dispatch, a public armed Vessel,
the Revenge is specially employed; and Doctor Bullus
is made the Bearer, who was on board the Chesapeake
on his way to a Consulate in the Mediterranean,
and will be able to detail and explain circumstances
which may possibly become interesting in the course
of your communications with the British Government.
The vessel after depositing Doctor Bullus at a British Port,
will proceed with dispatches to a French port; but will
return to England with a view to bring the result of
your transactions with the British Government.
The trip to France will afford you and Mr. Pinkney a
favorable opportunity for communicating with our Ministers
at Paris, who being instructed to regulate their conduct on
the present occasion by the advice they may receive from
you will need every explanation that can throw light on the
probable turn and issue of things with Great Britain.17
Madison wrote to Monroe on 17 July 1807.
Since the event which led to the Proclamation of the
2nd instant, the British squadron has conducted itself
in a continued spirit of insolence and hostility.
Merchant vessels arriving and departing have been
challenged, fired at, examined and detained within our
jurisdiction with as little scruple as if they were at open sea.
Even a Revenue Cutter conveying the Vice President and his
sick daughter from Washington to New York and wearing
her distinctive and well known colors did not escape insult.
Not satisfied with these outrages, the British Commodore
Douglass advanced into Hampton Roads with his whole
squadron consisting of two 74’s one ship of 50 guns and a
frigate; threatened by his soundings and other indications,
a hostile approach to Norfolk; and actually blockaded the
town by forcibly obstructing all water communication with it.
In a word, the course of proceeding amounted
as much to an invasion and a siege as if an army
had debarked and invested it on the land side.
It is now said that the whole squadron has left Hampton
roads in consequence of a formal notice of the President’s
proclamation, and has fallen down to their former position
at a small distance from the Capes, awaiting probably the
further orders of the commanding Admiral at Halifax.
These enormities superadded to all that have gone
before, particularly in the case of Bradley, Whitby, Love,
the destruction of the French ship on the sea board
of North Carolina, the refusals of Douglass while
within our waters to give up American seamen
not denied to be such; to say nothing of British violence
against our vessels in foreign ports, as in Lisbon and
Canton, form a mass of injuries and provocations which
have justly excited the indignant feelings of the nation
and severely tried the patience of the Government.
On the present occasion, it will be proper to bring these
collective outrages into view; and to give them all the force
they ought to have not only in augmenting retribution for
the past, but in producing securities for the future.
Among these the enlargement of our marginal jurisdiction,
and the prohibition of cruisers to hover about our
harbors and way lay our trade, merit every exertion
that can properly be made, and if not obtained,
will place in a stronger view the necessity of leaving
unfettered the right of the United States to exclude
all foreign armed ships from our ports and waters.
In the adjustment between Great Britain
and Spain of the Affair of Nootka Sound,
there is an article which acknowledges and
stipulates to the latter a margin of ten leagues.
Every consideration which could suggest such
a latitude in favor of the Spanish Territory,
equally at least supports the claim of the United States.
In addition to the remarks heretofore made
on the subject of infesting our commerce
near the mouths of our harbors, I beg leave to refer
to what is contained in Azuni in relation to it.18
Madison knew Federalist Richard Peters in the Continental Congress.
On 5 September 1807 Madison wrote this letter to Judge Peters
who had become an expert on admiralty law:
I wish you had been led to a more thorough development
of the principles which enter into the subject now engaging
the public attention—I mean the desertion of seamen.
Although the question produced between this and a
Foreign nation by the late outrage against one of our
Frigates does not turn on that point, there would be an
advantage in several views in placing the questions
incident to the desertion of seamen on the true ground.
Judging from what is seen and heard, few subjects of
importance stand more in need of elucidation;
although few, one would suppose, could less require it.
Desertions from Merchantmen are merely breaches of
private contract; and when the parties and the contract
are wholly alien, it may or may not be enforced within
our jurisdiction, as the policy of the Country may dictate.
As an encouragement to commerce, and as a claim to
reciprocity, there is sound policy in enforcing the contract;
and there are special considerations for enforcing it
specifically here, even where this would not be done
in the Country to which the parties belong.
Still, the Law of nations leaves us free to provide
or omit the means necessary for the purpose.
In Great Britain no such provision has been made.
In several cases applications have been made in
vain for the restoration of seamen deserting our
Merchant vessels in British ports; the magistrates
alleging that it was not authorized by law.
I recollect particularly that on the late renewal of the war
with Spain by the seizure of the Spanish treasure, so many
of our seamen at Liverpool were tempted to desert and
enlist on board British Privateers, that our trade was
seriously embarrassed, in consequence of which the
Consul thought it his duty to appeal to the magistracy.
He received for answer that
the law afforded no relief in such cases.
Desertions from ships of war are
of a character essentially different.
The deserters in such cases are on the common
footing of exiles, liable to punishment, even to
capital punishment, for violating the law.
It is well understood that no nation is bound
to surrender them to the angry Sovereign,
unless by some positive stipulation.
Great Britain never does it otherwise.
Her laws do not authorize it; nor is
the Prerogative of the King competent to it.
It is, perhaps, sometimes done, indirectly and covertly,
by the instrumentality of impressments and the courtesy of
Naval commanders; but always then of favor, not of duty.
With us there is not only no obligation, but less than with
other nations the policy of inviting reciprocity, our navy
being so small, and so little resorting to Foreign ports.
It is rather our policy to discourage the resort to Foreign
ships of war to our ports; and as far as humanity can be
justly consulted, it does not plead for the surrender of
men to vengeance for leaving a situation such as that
of a British ship of war into which they had been
engaged by a mode such as that of impressment.
All these considerations, however, amount to
no more than that a gratuitous surrender of
such deserters ought not to be expected.
There are certainly views of the subject which
would authorize an article for the purpose in a
convention, combining with it other articles
providing for objects desirable to this Country.
The only distinctions between deserters from
National ships and other fugitive offenders is—
1. That in the former case the flight itself
constitutes the offense; in the latter, it is
the consequence of a preceding offense.
This being a circumstantial distinction
does not affect the sameness of the principle.
2. The offense committed by deserters from ships
of war generally takes place within the Country
affording a refuge; whereas the offenses of other
fugitives generally take place in their own Country.
But this again is a distinction not affecting the principle.
Ships of war in a Country not their own Country are with
respect to the discipline on board a part of their own
Country, not of the Foreign Country where they happen
to be; desertions violate the laws of the former, not of
the latter; and Tribunals deriving authority from the
former, not the latter, inflict the punishment incurred.19
After a summer of heavy rains Madison returned
to Washington on 5 October 1807.
Madison wrote to James Monroe again on October 21.
I enclose for your information copies of the letters
which have passed on several subjects between
Mr. Erskine and the Department of State;
and which it may be useful for you to possess.
The proceedings at Halifax with respect to one of the men
taken from the Chesapeake, and whose restoration was
included in the demand of reparation for that outrage,
are calculated to inspire great distrust of the temper and
intentions of the British Government towards this Country.
Is it conceivable that at so late a day Berkley could be
unapprised of the light in which his original offense was
viewed by his superiors, or that if apprised of their
displeasure at it, he would brave the consequences
of an additional temerity of so irreparable a character.
Before the receipt of this communication you will
probably have been enabled to interpret the
phenomenon, and this communication suggests the light
in which it is to be presented to the British Government.
If the responsibility rests on Berkley or any other officer,
and that Government means to give the satisfaction
due to the honor of the United States, there can be
no pretext for refusing to make the severest
example of the offender or offenders.
Among the papers accompanying this will be found
British evidence that the seaman sentenced to
death was not a deserter from a British ship of war
as alleged on his trial, but from a merchantman only.
You will find also that, according to information received
here through the Collector of Baltimore the Court martial
at Halifax, disregarding still further every restraint of law,
of decency and of common prudence, proceeded to the
trial of the three other men taken from the Chesapeake,
without even pretending that they were British subjects,
that a partial execution of the sentence on one of them was
fatal to his life, and that the two others were forced into
the service of a British ship of War, by making that the
alternative of the doom to which they were sentenced.
Should this information be confirmed, and it has not yet
been impaired by any circumstance whatever, the measure
of atrocity will be filled up, and every motive supplied
for requiring on our part and for affording on that of
Great Britain the full measure of punishments due to it.
The last letter received from Mr. Erskine
respecting the detention of a letter to him
from Vice Admiral Berkley will not be answered,
unless the subject should be resumed after receiving
mine which had not reached him at the date of his.
If a further answer should be required, it may be
necessary to remind him that if the ground for a
prosecution were as legal as he supposes, the
measure however it might be dictated by the respect
which the United States owe to themselves, could not
be demanded of right by a Government which has left
unpunished the repeated violations committed by its officers
on the most solemn dispatches of the United States.
Instances of these have from time to time
been transmitted to you.
In that of the letter from the President to the King
of Holland with the great seal externally impressed,
the offense was of the most flagrant kind,
and rendered the more conspicuous by its
publication in the British Newspapers.
This circumstance, while it necessarily brought the
aggravated insult to the notice of the Government
might the rather have been expected to be followed
by the punishment of the guilty officer, as this course
alone could guard the Government itself, to which the copy
of the President’s letter must be presumed to have been
sent by the officer who violated it, against appearances
and conjectures of the most unfavorable sort.20
President Jefferson suggested that his cabinet consider an embargo,
and he wanted to consult “the wisdom of Congress.”
He asked, “If therefore on leaving our harbors we are certain to lose them,
is it not better as to vessels, cargoes and seamen to keep them at home?”21
Madison accepted that duty to question the Congress.
During this naval crisis Madison drafted a plan for an immediate embargo
on American shipping, and he wrote a message for President Jefferson.
In the cabinet only Treasury Secretary Gallatin
warned about the effects of an embargo.
The Congress debated the embargo bill for
four days and passed it on December 22.
Jefferson signed it that day, and it became effective on December 23.
The United States planned to stop exports to the
British West Indies as well as imports from Britain.
The United States Senators William Giles and Wilson Cary Nicholas
were Madison’s congressional managers.
In January 1808 the United States Congress and the state of Vermont expressed
their support for James Madison for President, and the Virginia legislature voted
to endorse James Madison for President with 136 votes to 57 for James Monroe.
By March 1808 the United States Congress had
imposed rules of enforcement for the trade embargo.
President Jefferson wrote this short letter to James Madison on March 11:
I suppose we must dispatch another packet
by the 1st of April at farthest.
I take it to be a universal opinion that war
will become preferable to a continuance of
the embargo after a certain time.
Should we not then avail ourselves of the intervening
period to procure a retraction of the obnoxious decrees
peaceably if possible?
An opening is given us by both parties sufficient
to form a basis for such a proposition.
I wish you to consider therefore the
following course of proceeding, to wit:
To instruct our ministers at Paris & London by the
next packet, to propose immediately to both those
powers a declaration on both sides that these
decrees & orders shall no longer be extended to
vessels of the U. S. in which case we shall remain
faithfully neutral: but, without assuming the air of
menace, to let them both perceive that if they do not
withdraw these orders & decrees, there will arrive
a time when our interests will render war preferable to
a continuance of the embargo: that when that time arrives,
if one has withdrawn & the other not, we must declare war
against that other; if neither shall have withdrawn,
we must take our choice of enemies between them.
This will certainly be our duty to have ascertained by
the time Congress shall meet in the fall or beginning of
winter so that taking off the embargo they may decide
whether war must be declared & against whom.22
Madison on May 2 sent these instructions to John Armstrong:
The conditions on which the suspending authority is
to be exercised will engage your particular attention.
They appeal equally to the justice and the
policy of the great belligerent powers now
emulating each other in violations of both.
The President counts on your best endeavors to give to this
appeal all the effect possible with the French Government.
Mr. Pinkney will be doing the same
with that of Great Britain.
The relation in which a recall of its retaliating
decrees by either power, will place the United States
to the other, is obvious; and ought to be a motive
to the measure proportioned to the desire which
has been manifested by each, to produce collisions
between the United States and its adversary; and which
must be equally felt by each to avoid one with itself.
Should wiser Councils or increasing distresses induce
Great Britain to revoke her impolitic orders against
neutral commerce, and thereby prepare the way for
a removal of the Embargo as it applies to her, France
could not persist in the illegal part of her decrees, if she
does not mean to force a contest with the United States.
On the other hand should she set the example of revocation
Great Britain would be obliged, either by following it,
to restore to France the full benefit of neutral trade
which she needs, or by persevering in her obnoxious
orders after the pretext for them had ceased, to
render collisions with the United States inevitable.
In every point of view therefore it is so clearly the sound
policy of France to rescind so much at least of her decrees
as trespass on neutral rights, and particularly to be the
first in taking the retrograde step, that it cannot be
unreasonable to expect that it will be immediately taken.
The repeal of her decrees is the more to be expected,
above all if Great Britain should repeal or be likely to
repeal hers, as the plan of the original decree at Berlin
did not extend to a violation of the freedom of the seas,
and was restricted to a municipal operation nearly an
entire year notwithstanding the illegal British orders
of January 1807, and as a return of France to that
restricted scope of her plan would so immaterially
diminish its operation against the British commerce, that
operation being so completely in the power of France
on land, and so little of her power on the high seas.
But although we cannot of right demand from France
more than a repeal of so much of her decrees as violate
the freedom of the seas, and a great point will be gained
by a repeal of that part of them, yet as it may not have
the effect of inducing a repeal of the whole illegal
system of the British Government which may seek
pretexts, or plead a necessity for counteracting the
unprecedented and formidable mode of warfare practiced
against her, it will be desirable that as little room as
possible should be left for this remaining danger to
the tranquil enjoyment of our commercial rights.23
Madison sent official letters to William Pinkney
on February 19,
March 8, and April 4 and 8,
and Pinkney became the United States Minister to Britain on April 27.
On 1 May 1808 Madison wrote this in a letter to William Pinkney:
The colonizing & taxing features of the British
orders have so effectually reinforced the other
charges against them, that the public mind
everywhere is rallying to the policy of the Embargo;
and there can be no doubt that the efforts to render
it unpopular are recoiling on the authors of them.
It has been somewhat eluded, but the last
supplemental act will probably give it due effect.
An indignation against the smugglers is moreover beginning
to co-operate with those charged with its execution.
The British Government may therefore calculate on the
efficacy as well as the duration of the measure, unless a
repeal of its orders should obtain an exercise of the Power
vested in the President to open our ports in that event.
To this prudent course it must be strongly impelled by
the distresses of the West Indies, the discontents at home,
the alienation of our habits from her manufactures, and
the vigorous means taking to provide substitutes of our
own; and by the apprehension that France may entitle
herself to a removal of the Embargo as it applies to her,
and thus expose Great Britain to the dilemma of appearing
to be forced into the measure by that example, or of
encountering the consequences of adhering to her
system after all pretext for it shall be at an end.
On another hand the Administration may find a retreating
ground for its pride, in a statement in the answer to
Mr. Erskine’s letter, which corroborates & completes
the proof that her Orders were not warranted by an
acquiescence of the U.S. in the French decree on a
presumption of which they were founded.24
Madison’s letter to Pinkney on July 21 discussed
the controversial embargo and other issues.
Great efforts have been made to render the Embargo
unpopular and to prosecute evasions & violations of it.
These efforts have not ceased & have not
been without a certain degree of effect.
With the means used by our own Citizens have been united
great exertions from the Canadian & Nova Scotia borderers.
On the lakes Combinations have been formed on both
sides of the boundary, and it is believed, though not
as yet proved, that a British party passed the boundary
and carried away by force a quantity of Potash &c
embodied by Colluders on our side for the purpose.
It is certain also that no inconsiderable quantities of
provisions have been smuggled into the West Indies.
The Measure however, cannot but have
had a powerful effect in that quarter.
The general price even of provisions shows it, and
with respect to Lumber so indispensable to their
situation & pursuits, there is reason to believe that
scarcely any supplies whatever have found their way,
So that on the whole, connecting the Embargo with
the Orders in Council, the West Indian interest has
no reason to exult in the policy of the latter.
Within ourselves the body of the people have borne
the privations with a firmness which leaves no doubt
of their perseverance, as long as these shall be the
alternative with submission to the foreign Edicts.
The sense of National honor & independence seems to be
entering deeper & deeper into the mass of the people, and
the operation of the retaliating system on the onstanding
navigation affords daily evidence of the good fortune
of that which has been saved from the danger.
If the British Orders continue much longer,
they will certainly have more than a
temporary effect on British manufactures.
It is astonishing what a zeal for homespun has been excited,
and I am persuaded that although calculations may carry
the extent and permanency of the substitutes in some cases
too far, it will be found the looms & wheels set up will be
continued after the crisis is over in a degree beyond any
idea entertained beyond the Atlantic, To say nothing of the
patronizing measures of the Government & how it has been
long known to the planters & farmers that it was cheaper to
make than to buy much of their common garments, but the
trouble of making the innovation and the habit of resorting
to the Shops stifled that consideration of interest.25
In 1808 the legislatures of Massachusetts, Vermont Rhode Island,
New York, Pennsylvania, Maryland, New Jersey, and North Carolina
asked Jefferson to continue as President before he made his final decision
not to serve a third term.
He sent this response to each of them:
That I should lay down my charge at a proper period
is as much a duty as to have borne it faithfully.
If some termination to the services of the chief magistrate
be not fixed by the Constitution or supplied by practice,
his office, nominally for years, will in fact become for life;
and history shows how easily
that degenerates into an inheritance.
Believing that a representative government, responsible
at short periods of election, is that which produces
the greatest sum of happiness to mankind,
I feel it a duty to do no act which shall essentially
impair that principle; and I should unwillingly be
the person who, disregarding the sound precedent set
by an illustrious predecessor, should furnish the first
example of prolongation beyond the second term of office.
Truth also, requires me to add that I am sensible of that
decline which advancing years bring on; and feeling
their physical, I ought not to doubt their mental effect.
Happy if I am the first to perceive and to obey this
admonition of nature, and to solicit a retreat from
cares too great for the wearied faculties of age.26
Madison on 10 August 1808 wrote this letter to President Jefferson:
I received last evening yours of the 9th with the papers
to which it refers & now return as desired Sullivan’s &
Ishmael’s letters with your proposed answer to the former.
The questions arising on them are not without difficulty,
and this is not a little increased by the spirit
which seems to haunt the Governor.
His letter furnishes against his own statements, the
inference which is enforced by the positive violations
of the Embargo asserted & specified by Ishmael;
and carries other inconsistencies on the face of it.
Still it is much to be apprehended as he suggested
that avarice & ? may be excited in that quarter
to acts which would be as unfortunate at the present
moment, as they would be shameful at all times.
At home the evil would be tempered by opening
the eyes of Honest Citizens everywhere to the
real sources of our embarrassment.
But the effect abroad would not fail to be of the worst kind
and ought particularly to be dreaded at this precise moment.
It becomes questionable therefore whether it might not be
as well to tolerate the indiscreet Grant of permits a little
longer and substitute for their suspension more invigorated
means of another sort for enforcing the Embargo Laws.
Indeed it seems requisite in every view that gun boats &
other naval precautions should without the loss of a moment
be displayed in the suspicious situations along the New
England Coast; the more so as lumber & other articles
produced in that quarter are smuggled as well as flour, &
are perhaps still more wanted in the West India Markets.
I do not see why all our naval force other than Gunboats,
actually equipped, might not patrol the coast suspected
to be in connection with British Smugglers.
It is more than possible from what is stated, that they would
if suddenly brought into that service, soon bring to light
enough of frauds to explain & justify the measure.
I am the more apprehensive of some mischievous turn,
in case of an immediate discontinuance of the permits,
as from the advice Sullivan has given, and the temper he
is in, there is danger that his aim would be more to justify
himself than to carry through your measures.
This is indicated by the use he calculates on making
of your letter, though I think he would be a little
staggered in this by your recital of a passage from his.
After all, the laws must be enforced, and if it be
thought the other means cannot be made effectual, the
consequences of suspending the permits must be risked.
The grounds on which your proposed letter places the
question appear to be well chosen and well presented.
I have penciled however an alteration or two with a view
to avoid the appearance of charging the Governor with
flinching from his duty & of sacrificing his popularity to
that of the Executive of the U. S. in Massachusetts.
The literal recital from his letter may
strengthen also the foreign policy which
counts on the factious spirit against the Embargo.
If you approve of any alterations,
you will make them what they ought to be.27
Madison sent this report to William Pinkney on 9 November 1808.
The conduct of the British cabinet in rejecting the fair offer
made to it, and even sneering at the course pursued by the
U. S. proves at once a very determined enmity to them,
and a confidence that events were taking place here which
would relieve it from the necessity of procuring a renewal
of commercial intercourse by any relaxations on its part.
Without this last supposition it is difficult to believe
that with the prospects at home & abroad in Europe,
so great a folly would have been committed.
As neither the public nor Congress have yet had
time to disclose the feelings which result from the
posture now given to our relations with Great Britain
I cannot speak positively on that subject.
I shall be much disappointed however, if a spirit of
independence & indignation does not strongly reinforce
the past measures with others, which will give a
severity to the contest of privations at least for
which the British Government would seem to be
very little prepared in any sense of the word.
It was perhaps unfortunate that all the intelligence
from this Country previous to the close of your
correspondence with Mr. Canning, was from a
quarter and during a period most likely to produce
miscalculations of the general & settled dispositions.
You will see in the newspapers sufficient evidence
of the narrow limits to which discontent was confined;
and it may reasonably be expected that the
countercurrent will be greatly strengthened by
the communications now going forth to the public.
Among the documents communicated confidentially
to Congress I hope you will excuse us for including
(with the exception of some small passages)
your private letter of September 21.
The excellent views which it appeared to take of our affairs
with Great Britain were thought to justify the liberty.
They coincided indeed so entirely with the sentiments
of the Executive, and were so well calculated to
enlighten the Legislative Body, that it was
confidently presumed the good effects would
outweigh the objections in the case.
A like liberty was taken with a
private letter from General Armstrong.
The President’s message mentions that no answer
was given by the French Government &c.
It may not be inexpedient to intimate, in order to appreciate
this omission, that the note of General Armstrong in
consequence of the arrival of the St. Michael bears date
August 6 while he was absent from Paris; that the Court
did not return thither till about the middle of that Month;
that no succeeding note on that subject was sent in the
experiment being declined under an idea that it would be
injurious; and that the last letter from General Armstrong
to the Department of State acknowledging the dispatches by
the Hope, bears date the 30th of August: at certain mineral
Springs between 2 & 300 Miles from Paris, to which General
Armstrong had not returned when the Messenger left it.
These circumstances will show that the French Government
may easily, if reflection or events should induce, still
take up the relations with the U. S. in a favorable view.
General Turreau fosters such an expectation and talks
of the possibility of soon receiving favorable answers
to his representations, whether with sincerity or
from policy is best known to himself.28
After the voting from November 4 to December 7 the Electoral College
had
122 votes for Madison and 47 for the Federalist candidate Charles C. Pinckney.
Vice President George Clinton of New York was re-elected.
On 13 November 1808 President Jefferson wrote this explanation
why he was letting President-Elect Madison make decisions,
On this occasion I think it is fair to leave to those
who are to act on them the decisions they prefer,
being to be myself but a spectator.
I should not feel justified in directing measures
which those who are to execute them would disapprove.
Our situation is truly difficult.
We have been pressed by the belligerents to the very wall,
and all further retreat is impracticable.29
On 11 February 1809 President-elect Madison
wrote this letter to William Pinkney:
My official letter by this conveyance leaves
little of importance to be added to its contents.
You will see with regret the difficulty experienced in
collecting the mind of Congress to some proper focus.
On no occasion were the ideas so mutable and so scattered.
The most to be hoped for at present is that
a respectable majority will finally concur in
taking a course not essentially dishonoring
the resolution not to submit to the foreign Edicts.
The last vote taken, as stated in reports of their
proceedings, 60 odd against 50 odd, implies that
a non-intercourse with Great Britain & France
including an Embargo on Exports to those two Nations,
will be substituted for the general Embargo existing.
And it is not improbable that 8 or 10 of the minority who
prefer a simple adherence to the latter, will on finding it
cannot be retained, join in the non-intercourse proposed.
It is impossible however to foretell the
precise issue of such complicated views.
If the non-intercourse as proposed, should
be adopted, it will leave open a trade to all the
Continent of Europe, except France.
Among the considerations for not including the other
Continental powers with France were
1st the certainty that the Russian Edict, of which I
enclose a Copy does not violate our neutral rights &
2ndly the uncertainty as to most of the others whether
they have in force Unlawful Edicts or not.
Denmark, it is ascertained though not officially notified,
is under the same description as Russia.
Holland & Spain are the only two Countries which are
known to have copied the several Decrees of France.
With respect to Holland it is understood that she
will favor as far as she can an intercourse with
neutrals in preference to a co-operation with France.
It would be imitating the cruelty of the
Belligerents to retaliate the reluctant
injuries sustained from such a quarter.
With respect to Spain the same remark is applicable,
even if her decrees should not have been revoked.
Besides this, it is particularly important not to
extend the non-intercourse to the Spanish Colonies,
which while a part of Spain, would be within the
effect of the Spanish Decrees on the question.
It is probable also that if Great Britain should lose or
withdraw her armies from Spain, she will endeavor to
mitigate the odium by conniving at least at neutral supplies;
or rather not to increase the odium & the evil by
subjecting them to the famine threatened by
the exhausted State produced by the war.
As another motive she may be expected to consult
the sympathies with the parent nation, of the
Spanish Colonies to which her attention will doubtless
be turned in the event of a subjugation of Spain.
As to Portugal there can be little doubt, that the British
Cabinet will have prudence if not humanity and not oppose
a trade supplying that country with the necessaries of life.
On what principle is it that Great Britain arrests
our trade with Russia or even Denmark?
Neither of these powers have edicts to
countenance her pretended retaliations;
nor can the former be regarded as under the
sway of France in the sense applied to some others.
Is it that Russia excludes the British flag?
That she has a right to do.
England does the same.
Is it that she prohibits a trade
with England under a neutral flag?
That she has an equal right to do and has
equally examples in the British Code justifying it.
I have been frequently asked whether a trade
from the U. S. to Russia would be captured.
I have been obliged to answer that, as it came under the
letter of the British Orders, though excluded by what was
held out as the principle of them, it was to be inferred from
the spirit & practice of British Cruisers & Courts that such
would be the fate of vessels making the experiment.
The repeal of the Embargo has been the result of the
opinion of many, that the period prescribed by honor
to that resort against the tyrannical Edicts against our trade,
had arrived; but principally from the violence excited
against it in the Eastern quarter, which some wished
to assuage by indulgence, and others to chastise into
an American spirit by the lash of British Spoliations.
I think this effect begins to be anticipated by some
who have been most clamorous for the repeal.
As the Embargo is disappearing, the orders & decrees
come into view with the commercial & political
consequences which they cannot fail to produce.
The English market will at once be glutted, and the
continental market, particularly for the Sugar & Coffee
in the Eastern Warehouses, will be sought at every risk.
Hence Captures and clamors against the authors of them.
It cannot I think be doubted that if the Embargo be repealed
& the orders be enforced, that war is inevitable, and will
perhaps be clamored for in the same quarter which now
vents its disappointed love of gain against the Embargo.
There is reason to believe that the disorganizing
spirit in the East is giving way to the universal
indignation of all parties elsewhere against it.
It is explained in part also by the course of events
abroad which lessens the prospect of British support,
in case of a Civil war.
Yours very sincerely
James Madison
P. S. The mode in which Canning’s letter
got to the Press is not ascertained.
I have seen it stated, on what authority I know not, but
with some probability, that the copy was obtained from
the Minister here and was to have been published in the
first instance at Halifax; but being shown by the Bearer
to certain British partisans, of more zeal than discretion,
at Boston, he was prevailed on to hand it at once to the
Palladium, the paper in which it first appeared.30
Notes
1. Letters and other Writings of James Madison, Volume II 1794-1815, p. 229-230.
2. Ibid., p. 231-232.
3. Ibid., p. 290-292.
4. Ibid., p. 364.
5. Ibid., p. 390-391.
6. From James Madison to James Monroe, 13 January 1806 (Online).
7. From James Madison to Thomas Jefferson, 25 January 1806 (Online).
8. From James Madison to the Senate, 27 January 1806 (Online).
9. Letters and other Writings of James Madison, Volume II 1794-1815, p. 218-221.
10. The Fourth President: A Life of James Madison by Irving Brant, p. 379.
11. From James Madison to James Monroe, 3 June 1806 (Online).
12. From James Madison to Anthony Merry, 3 June 1806 (Online).
13. From James Madison to Tobias Lear, 7 June 1806 (Online).
14. From James Madison to James Monroe and William Pinkney, 17 May 1806 (Online).
15. From James Madison to James Monroe, 3 February 1807 (Online).
16. From James Madison to James Monroe, 20 May 1807 (Online).
17. Writings by James Madison, p. 673-679.
18. From James Madison to James Monroe, 17 July 1807 (Online).
19. Letters and other Writings of James Madison, Volume II 1794-1815, p. 408-410.
20. To James Madison from James Monroe, 21 October 1807 (Online).
21. The Fourth President: A Life of James Madison, p. 386.
22. From Thomas Jefferson to James Madison, 11 March 1808 (Online).
23. James Madison: A Biography in His Own Words ed. Merrill D. Peterson, p. 265-267.
24. From James Madison to William Pinkney, 1 May 1808 (Online).
25. From James Madison to William Pinkney, 21 July 1808 (Online).
26. The Life of Thomas Jefferson Volume III by Henry Randall, p. 252.
27. From James Madison to Thomas Jefferson, 10 August 1808 (Online).
28. From James Madison to William Pinkney, 9 November 1808 (Online).
29. History of the United States During the Administrations of Thomas Jefferson
by Henry Adams, p. 1171.
30. From James Madison to William Pinkney, 11 February 1809 (Online).