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Topic: The American Revolution and Constitution

1805 - TO JAMES MONROE. d. of s. mss. instr. - James Madison, The Writings, vol. 7 (1803-1807) [1908]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 7.

Part of: The Writings of James Madison, 9 vols.

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TO JAMES MONROE.d. of s. mss. instr.

Department of State March 6th 1805.

Sir,

My last general letter was dated the 26th of October, and sent in sundry copies both to London and Madrid, it not being then certain at which of those places it would find you. The letters since received from you are of October 15th & December 20th. From Mr. Purviance a letter has also been received of October 19th.

The procrastinations of the British Ministry in meeting you effectively, on the subjects proposed in your project for a Convention, betray a repugnance to some of them, and a spirit of evasion, inauspicious to a satisfactory result. Still your conduct was prudent, in winking at this dilatory policy, and keeping the way open for a fair and friendly experiment on your return from Madrid, which it is presumed will have taken place before this will reach London. The experience of every day, shows more and more the obligation on both sides, to enter seriously on the means of guarding the harmony of the two countries against the dangers with which it is threatened by a perseverance of Great Britain in her irregularities on the high seas, and particularly in the impressments from American vessels. The extent in which these have taken place since the commencement of the War, will be seen by the inclosed report required from this Department by a vote of the House of Representatives, and the call for it whilst negotiations on the subject were understood to be in train, is itself a proof of the public sensibility to those aggressions on the security of our citizens and the rights of our flag. A further proof will be seen in the motion also inclosed, which was made by Mr. Crowninshield, and which will probably be revived at the next Session. This motion with his remarks on it, appear very generally in the newspapers, with comments proceeding from a coincidence of the sensibility out of doors with that within. A still stronger proof of impatience under this evil, will be found in the proceedings authorized by an Act of Congress just passed and which is likewise inclosed, against British Officers committing on the high seas trespasses or torts on board American vessels; offences manifestly including cases of impressment.

In communicating these circumstances it will occur to you that whilst they may be allowed to proclaim the growing sensibility of the United States on the subject of impressments, they ought, by proper explanations and assurances to be guarded against a misconstruction into marks of illiberal or hostile sentiments towards Great Britain. The truth is, and it may be so stated by you, that this practice of impressments, aggravated by so many provoking incidents has been so long continued, and so often, in vain remonstrated against, that without more encouragement than yet appears, to expect speedy redress from the British Government, the United States are in a manner driven to the necessity of seeking for some remedy dependent on themselves alone. But it is no less true that they are warmly disposed to cherish all the friendly relations subsisting with Great Britain; that they wish to see that necessity banished by just and prudent arrangements between the two Governments; and that with this view you were instructed to open the negotiations which are now depending. It is impossible for the British Government to doubt the sincerity of these sentiments. The forbearance of the United States year after year, and war after war, to avail themselves of those obvious means which without violating their national obligations of any sort, would appeal in the strongest manner, to the interest of Great Britain, is of itself a sufficient demonstration of the amicable spirit which has directed their public councils. This spirit is sufficiently manifested also, by the propositions which have been lately made thro’ you, and by the patience and cordiality with which you have conducted the negotiation. I might add, as a further proof to the same effect, that notwithstanding the refusal of which we have official information, from Glasgow and Liverpool particularly, to restore American seamen deserting their ships in British ports, the laws of many of the States have been left, without interruption, to restore British deserters. One of the States, Virginia, has even at the last Session of its Legislature, passed an Act for the express purpose of restoring such deserters; which deserves the more attention, as it was done in the midst of irritations resulting from the multiplied irregularities committed by British ships in the American seas.

Mr. Merry has expressed some inquietude with respect to the clause in the Act above referred to, which animadverts on British trespasses on board American vessels; and his language on several late occasions has strongly opposed the expectation that Great Britain will ever relinquish her practice of taking her own subjects out of neutral vessels. I did not conceal from him my opinion that the terms “trespass &c” would be applicable to the impressment of British subjects as well as others, or that the United States would never accede to that practice. I observed to him that every preceding administration had maintained the same doctrine with the present on that point; and that such were the ideas and feelings of the Nation on it, that no administration would dare so far surrender the rights of the American flag. He expressed dissatisfaction also at the section which requires certain compliances on the part of British ships of War entering our harbours, with arrangements to be prescribed by the Collectors. He did not deny the right of the Nation to make what rules it might please in such cases; but apprehended that some of them were such as the Commanders might deem incompatible with their just pretensions, especially when subjecting them to the discretion of so subaltern an authority as that of the Collectors; and consequently, that the law would have the unfriendly effect of excluding British ships of War altogether from American ports. He was reminded, in reply, that the Collectors were, according to the terms of the section, to be guided in the exercise of their power by the directions of the President; and it was not only to be presumed, but he might be particularly assured, that the directions given would be consistent with the usages due to public ships, and with the respect entertained for nations in amity with the United States. He asked whether in transmitting the Act to his government, as his duty would require, he might add the explanation and assurances he had heard from me. I answered, that without having received any particular authority for that purpose from the President, I could safely undertake that what I had stated was conformable to his sentiments.

Inclosed is another Act of Congress restraining and regulating the arming of private vessels by American citizens. This Act was occasioned by the abuse made of such armaments in forcing a trade, even in contraband of war, with the Island of St. Domingo; and by the representations made on the subject of that trade by the French Chargé des Affaires and Minister here, and by the British Minister with respect to abuses which had resulted ormight result from such armaments in cases injurious to Great Britain. A report of these representations as made to the President is herewith inclosed. The Act, in substituting a security against the unlawful use of the armaments in place of an absolute prohibition of them; is not only consistent with the obligations of a neutral nation, but conformable to the laws1 and ordinances of Great Britain and France themselves, and is consequently free from objections by either. The interposition of the Government tho’ claimed in behalf both of Great Britain and of France, was most pressed in behalf of the latter. Yet the measure, particularly as it relates to the shipment of contraband Articles for the West Indies, is likely to operate much more conveniently for Great Britain than for France, who cannot like Great Britain otherwise ensure a supply of these Articles for the defence of her Colonies.

(In the project which you have offered to the British Government I observe you have subjoined a clause for securing respect to certificates of citizenship. The effect of this clause taken as it ought to be & as was doubtless intended, in context with the preceding clause, is limited to the case provided for in that clause. Still it may be well in order to guard against the possibility of its being turned into a pretext for requiring such certificates in other cases, that a proviso for the purpose be added, or that words of equivalent restriction be inserted.

I find also that you have considered it as expedient to drop altogether the 4th Article contained in the project transmitted to you. It would certainly be better to do this than to listen to such an Article concerning provisions as Sweden was induced by the little interest she has in that branch of trade, to admit into her late Treaty with Great Britain. It is certainly, in a general view, ineligible also to strengthen by positive stipulations the doctrine which subjects to confiscation, enemies property in neutral vessels. It appears to the President nevertheless, that this consideration is outweighed by the great advantages which would be gained by the Article, and by the sanction which the United States have already given to that doctrine. It can scarcely be presumed that France would complain of such an Article when seen in its real shape. The immunity given to naval stores, and the security given to the trade of her Colonies, including the supplies essential to them, would seem to render such an Article particularly desirable to her. For this reason among others it is not probable that the British Government would have ever acceded to the Article even as making a part of the general arrangement; and more so that it will be rejected on its intrinsic merits. I have thought it proper, however, to make you acquainted with the view which the President has of the subject, that you may pursue it as far as any opportunity may present itself.)

Another subject requiring your attention is pointed at by the Resolutions of the Senate moved by General Smith on the subject of a British Tax on exports under the name of a Convoy duty. A copy of the Resolution is inclosed. A duty under that name was first laid in the year 1798. It then amounted to p. of one P. Cent on exports to Europe; and one P Cent on exports to other places, and consequently to the United States. The discrimination being evidently contrary to the Treaty then in force, became a subject of discussion between Mr. King and the British Ministry. His letters to the Secretary of State and to Lord Grenville explain the objections urged by him and the pretexts in support of the measure alleged by them. The subject was resumed in my letter of 5th March 1804 to Mr. King with a copy of which you have been already furnished. It was received by Mr. Gore during the absence of Mr. King on the Continent; and if any occasion was found proper by either for repeating the remonstrance against the duty, it appears to have been without effect. Whilst the Treaty was in force the discrimination was unquestionably a violation of its faith. When the War ceased, it lost the pretext that it was the price of the Convoy, which giving a larger protection to the American than to the European trade, justified a higher price for the former than for the latter. Even during war the exports are generally made as American property and in American vessels, and therefore with a few exceptions only, a convoy which would subject them to condemnation, from which they would otherwise be free, would be not a benefit but an injury. Since the expiration of the Treaty, the discrimination as well as the duty itself can be combated by no other arguments than those, which in the document referred to are drawn from justice, friendship and sound policy; including the tendency of the measure to produce a discontinuance of the liberal but unavailing example given to Great Britain by the regulations of commerce on our side, and a recurrence to such counteracting measures as are probably contemplated by the mover of the Resolutions of the Senate. All these arguments gain strength in proportion to the augmentations which the evil has latterly received; it being now stated that the duty amounts to 4 P Cent on the exports to the United States. These, according to Cockes answer to Sheffield amounted in the year 1801 to about 7 Millions sterling and therefore levy a tax on the United States of about 1,300,000 dollars. From this is indeed to de deducted a sum proportional to the amount of re-exportations from the United States. But on the other hand, is to be added, the increase of the exports since the year 1801 which probably exceed the re-exportations.

With the aid of these communications and remarks, you will be at no loss for the views of the subject most proper to be presented to the British Government, in order to promote the object of the Resolutions; and the resolutions themselves ought powerfully to second your efforts, if the British Government feels the same desire as actuates the United States to confirm the friendship and Confidence on both sides, by a greater conformity on that side to the spirit of the Commercial regulations on this.

I have referred above to the inclosed copy of the motion made by Mr. Crowninshield in the House of Representatives. The part of it which has relation to the trade with the West Indies, was suggested as appears in his introductory observations by the late proclamations of the British West India Governors, excluding from that trade vessels of the United States, and certain Articles of our exportations particularly fish, even in British vessels. These regulations are to be ascribed partly to the attachment of the present administration in Great Britain to the Colonial and Navigation system, partly to the interested representations of certain merchants and others residing in the British Provinces on the Continent. Without entering at large into the policy on which the Colonial restrictions are founded, it may be observed that no crisis could be more ineligible for enforcing them, than the present, because at none more than the present, have the West Indies been absolutely dependent on the United States for the supplies essential to their existence. It is evident in fact that the United States by asserting the principle of a reasonable reciprocity, such as is admitted in the trade with the European ports of Great Britain, and as is admitted even in the Colonial trade of other European Nations, so far at least as respects the vessels employed in the trade, might reduce the British Government at once to the dilemma of relaxing her regulations or of sacrificing her Colonies: and with respect to the interdict of supplies from the United States of Articles necessary to the subsistence and prosperity of the West Indies, in order to force the growth and prosperity of the Continental provinces of Nova Scotia &c; what can be more unjust than they to impoverish one part of the foreign dominions which is considered as a source of wealth and power to the parent country, not with a view to favor the parent country but to favor another part of its foreign dominions, which is rather expensive than profitable to it? What can be more preposterous than thus at the expence of Islands which not only contribute to the Revenue, commerce and navigation of the parent state, but can be secured in their dependence by that Naval ascendancy which they aid, to foster unproductive establishments which from local causes must eventually detach themselves from the parent state and the sooner in proportion as their growth may be stimulated.

Considerations, such as these ought to have weight with the British Government, and may very properly enter into frank conversations with its Ministry on favorable occasions. However repugnant that Government may be to a departure from its system in the extent contemplated by Mr. Crowninshield’s motion, it may at least be expected that the trade as opened in former wars, will not be refused under circumstances which in the present, particularly demand it: it may be hoped that the way will be prepared for some permanent arrangement on this subject between the two Nations, which will be conformable to equity, to reciprocity and to their mutual advantage.

I have the honor to be &c

TO JAMES MONROE.d: of s. mss. instr.

Department of State April 12th 1805.

Sir,

The papers herewith inclosed explain particularly the case of the Brig Aurora.

The sum of the case is, that whilst Spain was at War with Great Britain, this vessel, owned by a citizen of the United States, brought a cargo of Spanish produce purchased at the Havana, from that place to Charleston, where the cargo was landed, except an insignificant portion of it, and the duties paid or secured, on a like cargo from whatever port, meant for home consumption; that the cargo remained on land about three weeks when it was reshipped for Barcelona in old Spain, and the duties drawn back, with a deduction of three and a half p cent as is permitted to imported articles in all cases, at any time within one year under certain regulations which were pursued in this case; that the vessel was taken on her voyage by a British cruizer and sent for trial to Newfoundland where the cargo was condemned by the Court of Vice Admiralty; and that the cause was carried thence by appeal to Great Britain where it was apprehended that the sentence below would not be reversed.

The ground of this sentence was, and that of its confirmation if such be the result, must be, that the trade in which the vessel was engaged was unlawful; and this unlawfulness must rest, first on the general principle assumed by Great Britain, that a trade from a Colony to its parent Country, being a trade not permitted to other Nations in time of peace, cannot be made lawful to them in time of war; secondly, on the allegation that the continuity of the voyage from the Havana to Barcelona was not broken by landing the cargo in the United States paying the duties thereon and thus fulfilling the legal pre-requisites to a home consumption; and therefore that the cargo was subject to condemnation, even under the British regulation of Jany 1798 which so far relaxes the general principle as to allow a direct trade between a belligerent Colony and a neutral Country carrying on such a trade.

With respect to the general principle which disallows to neutral Nations in time of War, a trade not allowed to them in time of peace, it may be observed;

First, that the principle is of modern date, that it is maintained, as is believed by no other nation but Great Britain; and that it was assumed by her under the auspices of a maritime ascendency, which rendered such a principle subservient to her particular interest. The History of her regulations on this subject shows that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the 4th Vol of Robinsons Admiralty Reports.

Secondly, that the principle is manifestly contrary to the general interest of commercial Nations, as well as to the law of Nations, settled by the most approved authorities, which recognizes no restraints on the trade of nations not at war, with nations at war, other than that it shall be impartial between the latter, that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.

Thirdly, that the principle is the more contrary to reason and to right, inasmuch as the admission of neutrals into a Colonial Trade shut against them in times of peace, may, and often does result from considerations which open to neutrals direct channels of trade with the parent state shut to them, in times of peace, the legality of which latter relaxation is not known to have been contested; and inasmuch as a commerce may be, and frequently is opened in time of war, between a Colony and other Countries, from considerations which are not incident to the war, and which would produce the same effect in a time of peace; such, for example as a failure or diminution of the ordinary sources of necessary supplies, or new turns in the course of profitable interchanges.

Fourthly, That it is not only contrary to the principles and practice of other Nations; but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace; and particularly to open her Colonial trade both to Neutral vessels and supplies, to which it is shut in times of peace; and that one at least of her objects, in these relaxations is to give to her trade an immunity from capture, to which in her own lands it would be subjected by the war.

Fifthly, the practice, which has prevailed in the British dominions, sanctioned by orders of Council and an Act of Parliament (39 G. 3 C. 98) authorizing for British subjects a direct trade with the enemy, still further diminishes the force of her pretensions for depriving us of the Colonial trade. Thus we see in Robinson’s Admiralty reports passim, that during the last war a licenced Commercial intercourse prevailed between Great Britain and her enemies, France, Spain & Holland, because it comprehended articles necessary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself as to particular objects of trade beneficial to herself whilst she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favour of Neutrals. But the injustice and inconsistency of her attempt to press a strict rule on neutrals is more forcibly displayed by the nature of the trade which is openly carried on between the Colonies of Great Britain and Spain in the West Indies. The mode of it is detailed in the inclosed copy of a letter from a Mr. Billings, wherein it will be seen that American vessels and cargoes, after being condemned in British Courts under pretence of illicit commerce, are sent on British account to the enemies of Great Britain, if not to the very port of the destination interrupted when they were American property. What respect can be claimed from others to a doctrine not only of so recent an origin and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the Nation itself, which stands alone in contending for it?

Sixthly—It is particularly worthy of attention that the Board of Commissioners jointly constituted by the British and American Governments under the 7th Article of the Treaty of 1794, by reversing condemnations of the British Courts founded on the British instructions of Novem. 1793, condemned the principles that a trade forbidden to neutrals in time of peace, could not be opened to them in time of war; on which precise principle these instructions were founded. And as the reversal could be justified by no other authority than the law of nations, by which they were to be guided, the law of Nations according to that joint Tribunal, condemns the principle here combatted. Whether the British Commissioners concurred in these reversals, does not appear; but whether they did, or did not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both Nations in like questions recurring between them.

On these grounds the United States may justly regard the British captures and condemnations of neutral trade with Colonies of the enemies of Great Britain as violations of right; and if reason, consistency or that sound policy which cannot be at variance with either, be allowed the weight which they ought to have, the British Government will feel sufficient motives to repair the wrongs done in such cases by its cruizers and Courts.

But, apart from this general view of the subject, a refusal to indemnify the sufferers, in the particular case of the Aurora, is destitute of every pretext; because in the second place, the continuity of her voyage was clearly and palpably broken, and the trade converted into a new character.

It has been already noted that the British regulation of 1798, admits a direct trade in time of War, between a belligerent Colony and a neutral Country carrying on the trade; and admits consequently the legality of the importation by the Aurora from the Havana to Charleston. Nor has it ever been pretended that a neutral Nation has not a right to re-export to any belligerent Country whatever foreign productions, not contraband of war, which may have been duly incorporated and naturalized, as a part of the Commercial stock of the Country re-exporting it.

The question then to be decided under the British regulation itself, is whether in landing the cargo, paying the duties, and thus as effectually qualifying the articles for the legal consumption of the Country, as if they had been its native production, they were not at the same time equally qualified with native productions, for exportation to a foreign market. That such ought to be the decision results irrestably from the following considerations:

1st. From the respect which is due to the internal regulations of every Country, where they cannot be charged with a temporizing partiality towards particular belligerent parties, or with fraudulent views towards all of them. The regulations of the United States on this subject, must be free from every possible imputation; being not only fair in their appearance, but just in their principles, and having continued the same during the periods of war, as they were in those of peace. It may be added that they probably correspond, in every essential feature relating to re-exportations, with the laws of other Commercial Countries, and particularly with those of Great Britain. The annexed outline of them by the Secretary of the Treasury, will at once explain their character, and shew that, in the case of the Aurora, every legal requisite was duly complied with.

2d From the impossibility of substituting any other admissible criterion, than that of landing the Articles, and otherwise qualifying them for the use of the Country. If this regular and customary proceeding, be not a barrier against further enquiries, where it may be asked are the enquiries to stop? By what evidence are particular articles to be identified on the high seas, or before a foreign Tribunal? If identified, how is it to be ascertained, whether they were imported with a view to the market whether to one forbidden or permitted by the British regulations; for it is to be recollected, that among the modifications which her policy has given to the general principle assented by her, a direct trade is permitted to a neutral carrier, from a belligerent Colony to her ports, as well as to those of his own Country. If, again, the landing of the goods, and the payment of the duties be not sufficient to break the continuity of the voyage, what it may be asked, is the degree of internal change or alienation, which will have that effect? May not a claim be set up to trace the articles from hand to hand, from ship to ship in the same port, and even from one port to another port, as long as they remain in the Country? In a word in departing from the simple criterion provided by the Country itself, for its own legitimate and permanent objects, it is obvious, that besides the defalcations which might be committed on our carrying trade, pretexts will be given to cruizers for endless vexations on our commerce at large, and that a latitude and delays will accrue in the distant proceedings of Admiralty Courts, still more ruinous and intolerable.

3d From the decision in the British high Court of Admiralty itself, given in the case of the Polly, Lasky, Master, by a Judge deservedly celebrated for a profound judgment, which cannot be suspected of leaning towards doctrines unjust or injurious to the rights of his own Country. On that occasion he expressly declares “It is not my business to say what is universally the test of a bona fide importation: it is argued, that it would not be sufficient that the duties should be paid and that the cargo should be landed. If these criterias are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold, that it would be sufficient, that the goods should be landed and the duties paid.” 2 Rob. Reports P. 368-9.

The President has thought it proper that you should be furnished with such a view of the subject, as is here sketched; that you may make the use of it best suited to the occasion. If the trial of the Aurora should not be over it is questionable whether the Government will interfere with its Courts. Should the trial be over and the sentence of the Vice Admiralty Court at St. John’s have been confirmed, you are to lose no time in presenting to the British Government a representation corresponding with the scope of these observations; and in urging that redress in the case, which is equally due to private justice, to the reasonable expectation of the United States, and to that confidence and harmony which ought to be cherished between the two Nations.

The effect of the doctrine involved in the sentence of the Court in Newfoundland, on our carrying trade, will at once be seen by you. The average amount of our re-exportations for three years ending 30th Sept. 1803, has been 32,003,921 dollars. Besides the mercantile and Navigation profits, the average revenue from drawbacks on goods re-exported for three years ending 31st Dec. 1803 is 184,271 dollars; to which is to be added an uncertain but considerable sum consisting of duties paid on articles re-exported after having lost thro’ neglect or lapse of time, the privilege of drawback. A very considerable portion of this branch of trade with all its advantages, will be cut off, if the formalities heretofore respected are not to protect our re-exportations. Indeed it is difficult to see the extent to which the apprehended innovation may be carried in theory; or to estimate the mischief which it may produce in practice. If Great Britain disregarding the precepts of Justice, suffers herself to calculate the interest she has in spoliating or abridging our commerce, by the value of it to the United States, she ought, certainly not to forget that the United States must in that case, calculate by the same standard, the measures which the stake will afford, for counteracting her unjust and unfriendly policy.

I have the honor to be &c

TO JOHN ARMSTRONG.d. of s. mss. instr.

Department of State June 6th 1805.

Sir,

On reviewing the letters from you not yet acknowledged, I find them under the following dates viz 12th November, 24, 25 & 30th Decem. 14th Feby. and 18th March last.

I have the pleasure to observe to you that the President entirely approves the just and dignified answer given to the venal suggestions emanating from the French functionaries as explained in your letter of the 24th December. The United States owe it to the world as well as to themselves to let the example of one Government at least, protest against the corruption which prevails. If the merit of this honest policy were questionable, interest alone ought to be a sufficient recommendation of it. It is impossible that the destinies of any Nation, more than of an individual, can be injured by an adherence to the maxims of virtue. To suppose it, would be to arraign the justice of Heaven, and the order of nature. Whilst we proceed therefore in the plain path which those maxims prescribe, we have the best of securities that we shall, in the end, be found wiser than those crooked politicians, who regarding the scruples of morality as a weakness in the management of public affairs, place their wisdom in making the vices of others, the instruments of their own.

Previous to the receipt of your last letters inclosing copies of your two to Mr. Monroe, the communications from Madrid had given us a view of the unfavorable posture which the negotiations with Spain was taking. The extract now inclosed, of the answer which is gone to Madrid, will shew the turn which it is thought most expedient to give to the negotiation, in case its general object should fail, and will enable you to manage your communications with the French Government with a more distinct reference to the course of things at Madrid. This is the more necessary, as it is evident that the Spanish Government must derive its boldness and its obstinacy, from the French Cabinet. The part which France takes in our controversies with Spain, is not a little extraordinary. That she should wish well to her ally, and even lean towards her, in the terms of an adjustment with the United States, was perhaps to be expected. But that she should take side wholly with Spain, and stimulate pretensions, which threatening the peace of the two countries might end in placing the United States on the side of Great Britain, with resentments turned against France as the real source of their disappointment, this is more than was to be expected, and more than can easily be explained. If the Imperial cabinet be regardless of the weight which this Country could add to the British scale, it is a proof that the prospects in Europe are extremely flattering to its views. If the object be, as you finally conjecture, and as on the whole seems least improbable, merely to convert the negotiations with Spain into a pecuniary job for France and her Agents, the speculation altho’ pushed with a singular temerity, may finally be abandoned under a despair of success, and yield to the obvious policy of promoting equitable arrangements between Spain and the United States.

Whatever the views of France may be, there is little ground to rely on the effect of an appeal to right or to reasoning in behalf of our claims on Spain. Were it otherwise it would seem impossible for her to withhold her acquiescence in them. Not to repeat what has been sufficiently urged in the communications you already possess, it may be observed that nothing can be more preposterous than the joint attempt now made by the French and Spanish Governments in discussing the boundaries of Louisiana, to appeal from the text of the Convention which describes them, to a secret understanding or explanations on that subject between those Governments. France sold us Louisiana as described in the Deed of conveyance, which copies the description from the Deed of Spain to France. If France sold more than she had a right to sell, she would at least be bound to supply the deficiency by a further purchase from Spain, or to remit protanto, the price stipulated by us. But the case rests on a still better footing. France assigned to us Louisiana as described in the Conveyance to her from Spain. Our title to the written description is therefore good against both, notwithstanding any separate explanation or covenant between them, unless it be shewn that notice thereof was given to the Uinted States before their bona fide purchase was made. This is a principle of universal justice, no less than of municipal law. With respect to France it will scarcely be pretended that any such notice was given. On the contrary she corroborated our title according to the text of the bargain by the language of Mr. Tallyrand to Mr. Livingston; she corroborated our particular construction of the Text, in relation to the Eastern boundary of Louisiana by the language of Mr. Marbois; and she corroborated our construction in relation to both Eastern and Western boundaries by her silence under the known extent to which that construction carried them. And with respect to Spain, who is equally bound by the assignment of the ostensible title of France, unless she can prove a notice to the United States that the real title was different from the ostensible one, it is to be observed, first, that no such proof has ever been attempted; and next, that Spain cannot even pretend an ignorance of the necessity of such notice. This is evinced by her conduct in another instance where a secret stipulation with France, contrary to the tenor of her Treaty with France, was alledged in opposition to the Treaty of the United States with France. France it appears had promised to Spain, thro’ her Minister at Madrid, that she would in no event alienate the Territory ceded to her by Spain. The Spanish Government sensible that this promise could not invalidate the meaning of the instrument, which exhibited the title of France as absolute and therefore alienable, no sooner heard of the purchase concluded at Paris by the Ministers of the United States, than she instructed her Minister at Washington to communicate without delay to the Government of the United States the alledged engagement of France not to alienate. This communication was made on the 9th of Sept. 1803; and so convinced was Spain of the necessity of the most formal notice on such occasions, that the Spanish Minister here repeated the same notice on the 27th of the same month, with the addition of some other pretended defects in the title of France, and urged on the Government here an obligation to forbear under such circumstances to ratify the Convention with France. Now if it was necessary for Spain, in order to protect herself by a secret engagement of France not to alienate, against the overt transaction giving France a right to alienate, that she should give notice of that engagement to third parties; and if Spain knew this to be necessary the same course was equally necessary and equally obvious, when the effect of the overt stipulation as to the limits of the Territory sold was to be arrested or restricted by any separate agreement between the original parties. Yet this course has not been pursued. So far from it, Spain, in finally notifying thro’ her Minister here, a relinquishment of her opposition to the assignment of Louisiana to the United States, and consequently to the title of France as derived from the Treaty itself never gave the least intimation of any other secret articles or engagements whatever, which were to qualify the exposition of the overt description of boundaries contained in the text of the Treaty; fully acquiescing thereby in the meaning of the text according to the ordinary rules of expounding it.1

In your letter of Feby. 14th, it is intimated that a disposition appeared in the French Government to open the Colonial Trade to the U. States, in consideration of a pecuniary equivalent. The objections to such an arrangement are considered by the President as insuperable. If made in time of War, it would beget discontents in Great Britain who would suspect or pretend that the arrangement was a cover for a subsidy; and with the more plausibility, as during war, nearly the same privileges are allowed without purchase. The precedent, in the next place, would be a novel and a noxious one. Add that our trade with the French Colonies, in time of war, being more important to France than to the United States, there is as much reason why she should buy it of us in time of war, as that we should buy it of her in time of peace. Finally, the reciprocity of advantages in the Trade at all times, makes it the Trade at all times, makes it the real interest of France as of other nations, to lay it open to us at all times. Of this truth, the enlightened Statesmen of Europe are becoming every day more sensible; and the time is not distant when the United States with a reduced debt, and a surplus of revenue, will be able, without risking the public credit, to say with effect, to whatever nation they please, that they will shut their trade with its Colonies in time of war, if it be not opened to them equally at all times.

Still the peculiar situation of St. Domingo makes it desirable that some such arrangement should take place as is suggested in my letters to Mr. Livingston of 31st Jany & 31 March 1804, extracts from which are inclosed. And the late Acts of Congress, having done what ought to be followed by proofs of a corresponding disposition on the part of France, the President thinks it proper that you should not lose sight of that object. It is thought proper also, that you should continue to press on favorable occasions the reasonableness of permitting Commercial Agents of the United States to reside wherever a commerce is permitted.

You have already been apprized of the depredations committed by the lawless cruizers of France in the West Indies; sometimes in connection with French ports; sometimes in connection with Spanish ports. This subject claims the serious attention of the French Government; as laying the foundation for just claims of indemnity, as well as producing irritations unfriendly to the relations prescribed by the interest and it is hoped by the dispositions of both Countries. In some instances great irregularities are committed, beyond those of mere depredation. Inclosed is a statement of a peculiar outrage, and of the letter written to Turreau on the subject with his answer. France cannot give a more acceptable proof of her justice, nor a more seasonable one of her sound policy, than by provisions that will effectually remove such grounds of complaint.

I inclose also a copy of a very extraordinary decree issued by the French Commandant at Santo Domingo. The letter written by Genl. Turreau, of which a copy, with one of his in answer, is inclosed, will explain the sentiments of the President thereon, and be a guide to the representations which you will make to the French Government. I add a copy of a letter to the President from Mr. Walton residing at Santo Domingo, which, having, relation to our affairs with that Island may assist your view of them. There is no reason to believe that under the decree of Genl. Ferrand any of our Citizens have been put to death; but it seems certain that they have suffered the indignity and the outrage of corporal punishment, and consequently that an exemplary satisfaction is due from the French Government, at least, in cases which fall not under municipal law but that of Nations. Genl. Turreau, you will observe, undertakes to vindicate the justice of the bloody decree, at the same time that he promises to interpose against its effects. It was thought unnecessary to reply to his answer, which would have brought on a fruitless and endless discussion, and the more unnecessary as the principles maintained by the United States, with respect to the trade with St. Domingo, were sufficiently understood.

In the course of last month sailed for the Mediterranean, a reinforcement consisting of the frigate John Adams of 32 Guns and 600 men, 9 Gun boats carrying each about 20 men and most of them two thirty two pounders, and two bomb vessels with 13 inch Mortars. The boats are of a size and structure supposed to be much superior to any yet known in that sea, and to be peculiarly fitted for the service in which they are to be employed.

Mr. Bowdoin sailed from Boston about the 10th of last Month, in the Baltic, Cap Blount for St. Andero.

The laws of the last Session of Congress being just edited, a copy is transmitted by this opportunity.

I have the honor to be &c.

TO JAMES MONROE.d. of s. mss. instr.

(Private).

Philadelphia September 24th 1805.

Dear Sir:

The decision of the Admiralty Courts of Great Britain disallowing the sufficiency of landing and paying duties on Colonial produce of belligerent Colonies, re-exported from ports of the United States to protect the produce against the British Cruizers and Courts, has spread great alarm among the merchants, and has had a grievous effect on the rate of insurance. From the great amount of property afloat subject to this new and shameful depredation, a dreadful scene of distress may ensue to our commerce. The subject was brought to attention by the case of the Aurora, which gave rise to the observations and instructions contained in my letter of the 12th of April last. I omitted in that letter to refer you to a case in Blackstone’s reports, where Lord Mansfield says “that it was a rule settled by the Lords of appeal, that a transhipment off a neutral port, was equivalent to the landing of goods from an enemy’s Colony, and that in the case of a landing there could be no color for seizure.” As Mr. King’s correspondence may not be in London, I think it not amiss to remind you of what passed with the British Government in 1801 in consequence of such seizures as are now sanctioned. A copy of the doctrine transmitted by the Government to the Vice Admiralty Courts as the law for their guidance is enclosed. If such a condemnation out of their own mouths has no effect, all reasonings will be lost; and absolute submission, or some other resort in vindication of our neutral rights, will be the only alternative left.

I hope you will have received the instructions above referred to, and that your interposition will have had a good effect. I am engaged in a pretty thorough investigation of the original principle, to which so many shapes are given, namely, “that a trade not open in peace is not lawful in War”; and shall furnish you with the result as soon as my researches are digested. If I am not greatly deceived, it will appear that the principle is not only against the law of nations, but one which Great Britain is precluded from assuming by the most conclusive facts and arguments derived from herself. It is wonderful that so much silence has prevailed among the neutral authors on this subject. I find scarcely one that has touched on it; even since the predatory effects have been known to all the world. If you can collect any publications, which can aid in detecting and exposing the imposture, be so good as to send them.

I have been here eight weeks with Mrs. Madison, who was brought hither in order to have the assistance of Dr. Physic, in curing a complaint near her knee; which from a very slight tumor had ulcerated into a very obstinate sore. I believe the cure is at length effected, and that I shall be able to set out in a few days for Washington. The President is to be there on the 2nd of October. I postpone all reflections of a public nature until I can communicate the result of his cabinet consultations. Mrs. Madison presents her affectionate respects to Mrs. Monroe.

I have the honor &c. &c.

[1 ]See Act of Parliament 35 G., 3 C., 92 S., 37-38 and Nalins’ Commentaries Liv. 1. Tit. 10, Art 1.—Note in the Original.

[1 ]Madison wrote to Livingston July 5:

“The communications from Genl Armstrong are not later than May 4. Those from Madrid are of about the same date. They concur in shewing that Spain struggles much agst our demands, & that France has her views in embarrassing if not defeating the negociation What the end will be remains to be seen. Altho’ appearances are not flattering, is there not some room to calculate, that When France finds she cannot get her hand into our pocket, and that our disputes with Spain may involve herself, & throw the U. S. into the British Scale, she will, unless events should place her above all such considerations. promote an adjustment of our affairs with her ally? Whether Madrid or Paris be the Theatre, the issue, it would seem, equally depends on the influence, or rather authority over the Spanish Cabinet.”—Mad. MSS.

To G. W. Erving, chargé at Madrid, he wrote November 1, 1805:

“Dear Sir By Mr. Smith to whom this is committed you will receive the public letter in which the course approved by the P. is marked out for your conduct at Madrid. The grounds for it are strengthened by the posture of things in Europe, and by the approach of the Session of Congs. The impression made on this Country by the proud & perverse conclusion given by Spain to the endeavours of Mr. M. & Mr. P. to adjust our differences, ought if faithfully reported to her, to teach her a lesson salutary at all times & particularly so at the present moment. She may be sure that she will never better her stipulations with this Country by delay. If she calculates on the friend at her elbow, or be jogged by him into follies not altogether her own, she is so far to be pitied or despised, as she avails herself of such explanations. But here again she receives a lesson from the scene which appears to be opening in Europe agst the Imperial career of France. England seems as ready to play the fool with respect to this Country as her enemies. She is renewing her depredations on our Commerce in the most ruinous shapes, and has kindled a more general indignation among our Merchts. than was ever before expressed. How little do those great nations in Europe appear, in alternately smiling and frowning on the U. S., not according to any fixed sentiments or interests, but according to the winds & clouds of the moment. It will be the more honorable to the U. S. if they continue to present a contrast of steady and dignified conduct, doing justice under all circumstances to others, and taking no other advantage of events than to seek it for themselves.”—Mad. MSS.