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Subject Area: Political Theory
Topic: The American Revolution and Constitution

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.

(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.

TO JOHN ARMSTRONG AND JAMES BOWDOIN.1d. of s. mss. instr.

Department of State March 13th 1806.

Gentlemen,

I have duly received from time to time your several letters bearing dates 3 July 10 & 15 Augt. 10 Sept. 3 & 25 Oct & 26 Nov.

Previous to the arrival of Mr. Skipwith with your dispatches of Sept. 10th our affairs with Spain had undergone the particular consideration of the President; with a reference as well to the change in the state of things in Europe, as to the approaching Session of Congress; and it had been determined that the manner in which the negotiations at Madrid had been closed by Spain, forbade any application whatever to her for a renewal of them; 2d that the case should be presented to Congress for such provisions as it might be thought to require on their part; 3d That in the mean time you should be charged to place before the French Government, the necessity to which Spain by refusing to concur in a diplomatic adjustment of her controversies with the United States, had reduced the latter of seeking justice by those ulterior measures which the occasion called for. It had also been determined by the President, that with a view to enable the French Government, if it should be so disposed, to hasten by its mediating influence on Spain the change in her Councils necessary to an amicable adjustment with the United States, and to bring Spain forward for the purpose, that you should be furnished with the terms which Spain might obtain from the U. States.

On the receipt of your communications by Mr. Skipwith the ideas disclosed by the French Government were considered as forming a sufficient basis for an anticipating provision by Congress, such as was made in reference to the Convention of the 30 April 1803, and it was accordingly determined in pursuance of that example to await the meeting of Congress and lay the subject before them. This was done, and the Act and Resolutions of which copies are inclosed were the result of their discussions; a result which has been delayed by the forms of proceeding, and some variances of opinion on the occasion longer than might have been wished.

I now inclose the outline and substance of a Conventional arrangement adapted to the views expressed by Congress, and such as the President authorizes you to conclude. You will lose no time in imparting it to the French Government in the manner you may deem most expedient; letting it know, at the same time that no direct communication on the subject has been made to the Spanish Government; that after the reception given by Spain to the overtures made thro’ an Extraordinary Mission to Madrid, followed by her Military and menacing indications within and near the controverted territories as explained in the annexed extracts, the United States tho’ ready to meet Spain in negotiation under the auspices of a common friend do not consider it belonging to them to Court a further negotiation in any form; that consequently the steps necessary on the part of Spain must be the result either of her own reflections or of the prudent counsel which France may undertake to give her.

The President leaves to your own management the expression of those sentiments, which without any improper condescensions on the part of the United States will best conciliate the French Government to our objects. The ascendency which it will have over that of Spain, if no change of circumstances intervene, and the preference of an Amicable termination of our differences with Spain, to an appeal to force, require that every honorable use should be made of the occasion which seems to offer itself.

Should the Emperor still be absent, without authority in any hands at Paris to take measures in concert with you for instituting the business, it must remain with you to decide according to the probable course of his movements on the most expedient and expeditious mode of holding the necessary communications with his Cabinet. Rather than risque a delay which may lose a favorable crisis, it may be even desirable to repair to his military quarters. This is a step, however, to which there may be so many objections, that it will require very strong considerations to recommend it.

As soon as any authority at Paris shall be ready on the part of Spain, you will enter on the subject and press it to a conclusion with as much celerity and decision as circumstances will justify. The terms stated as your guide require little explanation more than accompanies the several articles. The object with the United States is to secure West Florida which is essential to their interests and to obtain East Florida which is important to them; procuring at the same time equitable indemnities from Spain for the injuries for which she is answerable; to all which the proposed exchange of territory and arrangement of the Western boundary may be made subservient. The desire manifested by the House of Representatives in the Resolution herewith inclosed that such an exchange and arrangement may be found sufficient, without any price in money, will engage all your attention and exertions. If the exchange stated in the Resolution, with the Sabine River for our Western boundary below the ridge dividing the Waters running into the Mississippi from those running into the gulph Westward of the mouth of that river can be obtained, the exchange will be satisfactory, especially if accompanied with a reasonable provision for the indemnities due from Spain to Citizens of the United States. If the exchange can be obtained even without this last provision or without, including the territory Eastward of the Perdido, or any pecuniary payment for the territory Westward thereof, it is not to be rejected; but in that case it will be extremely desirable to make the authorized establishment of an interval of territory not to be settled for a given period, subservient to a provision for indemnities.

In order to determine the price and the payments to Spain for the Cession of Territory, and to provide indemnities for the Spoliations and other injuries for which Spain is responsible, you will add to the preceding articles, others proper on those subjects. For the several modifications which will best comport with the conveniency of our Treasury and the sentiments of the Secretary of that Department, I refer to copies of a letter and paper from him herewith inclosed; stating to you generally for your guide 1st. That the sum to be made payable to Spain for the Cession is not to exceed NA millions of dollars. 2d That as little as possible, and in no event more than two millions are to be paid prior to the delivery of possession or the ratification. 3d That as ample a provision as possible be made for indemnities either by constituting a Board of Commissioners for settling them or by a sum in gross sufficient to cover their probable amount which is not less than four millions of dollars, and distributable by the United States to such claimants and in such proportions as may be decided under their authority. This last mode of providing for the object will be much the best, if the sum in gross be equal to the amount of claims likely to be allowed by a Board of Commissioners. 4th It is particularly desirable that in defining the cases to be indemnified the terms should be such as will embrace those where French subjects or Citizens, as well as those where Spanish subjects were the wrong doers. If a sum in gross be stipulated, it may be expected that Spain will not object to a definition which will authorize the U. States to apply it to both cases, especially if terms be chosen which will not expressly designate the contested French cases. 5 In defining the cases it will be proper to have in view those of any description which exist, more particularly depredations on the high seas, and unjust or unlawful injuries within the Spanish jurisdiction whether in old Spain or her Colonies; in a word all injurious Acts either to the United States or to their Citizens, for which the Spanish nation is responsible according to the principles of justice, equity, treaty or the law of nations.

I have the honor to be &c.

P. S. Particular care must be taken in case a Convention shall be made which does not provide for the Spoliations or for the portion of them subsequent to the Convention of Augt. 1802, to guard against an abandonment either express or constructive of the just claims of our Citizens on that account.

[1 ]They were appointed jointly envoys to Spain March 17, 1806, but conducted the negotiations in Paris and did not go to Madrid.