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

1795: TO THOMAS JEFFERSON. mad. mss. - James Madison, The Writings, vol. 6 (1790-1802) [1906]

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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. 6.

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

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO THOMAS JEFFERSON.mad. mss.

Philada, Jany 26, 95.

Dear Sir,—

I have received your favor of Decr 28, but till three weeks after the date of it. It was my purpose to have answered it particularly, but I have been robbed of the time reserved for the purpose. I must of consequence limit myself to a few lines and to my promise given to the Fresco Painter to forward you the enclosed letter. Nothing since my last from Jay or Monroe. The Newspapers as usual teem with French victories and rumors of peace. There seem to be very probable indications of a progress made to this event, except in relation to G. B. with whom a Duet Campaign is the cry of France. The Naturalization has not yet got back from the Senate.1 I understand however it will suffer no material change. They have the prudence not to touch the nobility clause. The House of Reps are on the Military estabt & the public debt. The difficulty & difference of opinion as to the former produced a motion to request the P. to cause an estimate of the proper defence &c. It was in its real meaning, saying we do not know how many troops ought to be provided by our legislative duty, and ask your direction. It was opposed as opening the way for dragging in the weight of the Ex. for one scale on all party questions—as extorting his opinion which he shd reserve for his negative, and as exposing his unpopular opinions to be extorted at any time by an unfriendly majority. The prerogative men chose to take the subject by the wrong handle, and being joined by the weak men, the resolution passed. I fancy the Cabinet are embarrassed on the subject. On the subject of the Debt, the Treasury faction is spouting on the policy of paying it off as a great evil, and laying hold of two or three little excises past last session under the pretext of war, of claiming more merit for their zeal than they allow to the opponents of their (pecuniary) resources. Hamilton has made a long Valedictory Rept on the subject. It is not yet printed, & I have not read it. It is said to contain a number of improper things. He got it in by informing the Speaker he had one ready, predicated on the actual revenues, for the House, when they shd please to receive. Berdinot the ready agent for sycophantic jobs, had a motion cut & dry just at the moment of the adjournment, for informing him in the language applied to the P. on such occasions, that the House was ready to receive the Rept when he pleased, which passed without opposition & almost without notice. H gives out that he is going to N. Y. and does not mean to return into public life at all.—N. Jersey has changed all her members except Dayton, whose zeal agst G. B. saved him. There are not more than 2 or 3 who are really on all points Repubns Dexter is under another sweat in his district, and it is said to be perfectly uncertain whether he or his Rival competitor will succeed.

Adieu Yrs.

TO JAMES MADISON.mad. mss.

Feby 23, 1795.

Hond. Sir

Inclosed is the explanation from the offices concerning Mr L’s claim.—The Treaty made by Mr Jay is not yet come to hand & we know nothing more of its articles than what has been conjectured from the hints in the News papers. I have already let you know that if you mean that I shd sell your paper you must forward the proper power. The period is becoming favorable. It can now be sold at par, as I shall not be able to get off for some time after the adjournment, you may venture to write & communicate with me till I give you notice that your letters will be too late. If you, my mother or Fanny want any particular articles to be got let me know it. I understand it is reported in some parts of my District that I decline being a candidate in March. Perhaps I ought on many considerations to do so—but I have said nothing from which the Report could spring, and find myself constrained again to sacrifice both my inclination and interest. If you have an opportunity of seeing or dropping a few lines to any particular friend in Louisa (say Mr A. Fontaine) I should therefore be glad you would contradict the Report, as well as let it be known that it is not in my power to be in the district before the election as I would wish. I rely on you & my brother W. to give the proper explanations in Orange & Madison Counties—Congs. will adjourn on the 3d. of March—

Yr Affe Son

TO ROBT. R. LIVINGSTON.1mad. mss.

August 10, 1795.

Dr Sir

Your favour of july 6. having been addressd to Williamsburg, instead of Orange C. Ho[u]se, did not come to hand till two day ago. Your gloomy Picture of the Treatys does not exceed my Ideas of it.2 After yealding terms which would have been scorned by this Country in the moment of its greatest embarrissments, & of G. Britain’s full enjoyment of peace & confidence, it adds to the ruinous bargain with this Nation a disqualification to make a good one with any other. In all our other Treaties it has been carefully stipulated that the Nation to be treated as the most favored Nations & to come in for all new privileges that may be granted by the U. States, must pay for them the same or an equivalent price with the Grantee. The proposed Treaty with G. B., disregarding this obvious rule of justice & equality, roundly agrees that no duty restriction or prohibition with respect to ships or merchandize shall be applied to G. B., which do not operate on all other nations (see Art. XV). should any other Nation therefore, be disposed to give us the most precious & peculiar advantages in their trade, in exchange for the slightest preferences in ours, this Article gives G. B. a negative on the transaction; unless it be so modified as to let her in for the favour without paying the price of it. But what Nation would be willing to buy favours for another; especially when the Inducement to buy & the value of the purchase might depend on the peculiarity of the favour. it must be seen at once that this extraor dinary feature would monopolize us to G. B., by precluding any material improvement of our existing Treaties, or the hope of any new ones that would be of much advantage to us. That so insidious an article should have occurred to lord Grenville’s jealousy of the U. S. & his policy of barring their connection with other Countries & particularly with the French republic, can surprise no one. The concurrence of the American Envoy may not be so easily explained, but it seems impossible to screen him from the most illiberal suspicions without referring his conduct to the blindest partiality to the British Nation & Govt. & the most vindictive sensations towards the Fh Republic. Indeed, the Treaty from one end to the other must be regarded as a demonstration that the Party to which the Envoy belongs & of which he has been more the organ than of the U. S., is a British party systematically aiming at an exclusive connection with the British Governt & ready to sacrifice to that object as well the dearest interests of our commerce as the most sacred dictates of National honour. this is the true Key to this unparalleled proceeding, & can alone explain it to the impartial & discerning part of the Public. the leaders of this Party stand self condemned in their efforts to paliate the Treaty by magnifying the necessity of the British commerce to the U. S. & the insufficiency of the U. S. to influence the regulation of it. you will find on turning to a Pamphlet addressed to your people by Mr. Jay when the Federal Constitution was before them, that he then could see our power under such a Constitution to extort what we justly claimed from G. B., & particularly to open the W. India ports to us. as an Agent for the Constitution he now voluntarily abandons; the very object which as an advocate for the Constitution he urged as an argument for adopting it,—read also the Paper No. XI in the Publication entitled the Federalist for the view of the subject then inculcated by another advocate,—it is with much Pleasure I assure you that the sentiments & voice of the People in this State, in relation to the attempt to Prostrate us to a foreign & unfriendly Nation, are as decided & as loud as could be wished. many, even of those who have hitherto rallied to the most exceptionable Party measures, join in the general indignation agst the Treaty. the few who hold out will soon be under the Dilimma of following the example or of falling under imputations which must disarm them of all injurious influence. you will see by the N. papers that the City of Richmond has trodden in the steps of the other Cities by an unanimous address to the President. You will remark that our chancellor, Mr. Wythe, presided in the meeting, a circumstance which will draw the more attention to it, as he is not only distinguished for his moderation of character; but was President of the Meeting which addressed the P. in support of his proclamation of Neutrality. How far the other Towns & Counties will Imitate Richmond is uncertain. If they should be silent, it will assuredly be the effect in the former of a supposed notoriety of their harmony in opposition, &, in the latter to the same cause added to the dispersed situation of the People. I think it certain, that there is not a Town or county in this State (except perhaps Alexandria) where an Appeal to the Inhabitants would be attended with any show of opposition. You will readily conclude therefore that here, the Public do not need the measure to which you report. With respect to the P. his situation must be a most delicate one for himself as well as for his Country; & there never was, as you observe, a crisis where the friends of both ought to feel more solicitude or less reserve. At the same time, I have reasons, which I think good for doubting the Propriety & of course utility of uninvited communications from myself. He cannot, I am persuaded, be a stranger to my oppinion on the merits of the Treaty; & I am equally persuaded that the state of the Public oppinion within my sphere of information will sufficiently force itself on his Attention.

It is natural eno’ for the Apologists of the Treaty to lay hold of the Doctrine maintained by Mr. Jefferson but whether that Doctrine be right or wrong, they might be reminded that he expressly urges the Policy of guarding agst it instead of establishing it by Treaty. the appeal to him therefore must add to their condemnation. See his letter to Mr. G. Morris explaining the discussions with Mr. Genet.

With respect &c &c.

TO — —1 .mad. mss.

Orange, Augst 23, 1795.

Dear Sir

Your favor of the 3d instant did not come to hand till a few days ago, having been probably retarded by the difficulty the post met with in passing the water-courses which have been much swelled of late by excessive rains. It gives me much pleasure to learn that your health has been so much improved; as well as that you are taking advantage of it to cooperate in elucidating the great subject before the public. We see here few of the publications relating to it, except those which issue from meetings of the people, & which are of course republished everywhere. The only Philada paper that comes to me is the Aurora wch besides frequent miscarriages, is not I find the vehicle used by the regular champions on either side. I have occasionally seen Dunlap’s, & in that some specimens of the Display of the “Features &c.” I wish much to see the whole of it. Your obliging promise to forward it along with any other things of the kind, will have a good opportunity by the return of Mr. Wilson Nicholas who is on his way to Phila & will call on me on his way home. I requested the favour of him to apprize you of the opportunity. I am glad to find that the author of the “Features &c.” meditates a similar operation on “The Defence of the Treaty by Camillus”1 who if I mistake not will be betrayed by his anglomany into arguments as vicious & as vulnerable as the Treaty itself. The Resolutions of the Chamber of Commerce in N. Y. justify this anticipation. What can be more absurd than to talk of the advantage of securing the privileges of sending raw materials to a manufacturing nation, and of buying merchandizes which are hawked over the four quarters of the globe for customers. To say that we must take the Treaty or be punished with hostilities is something still worse. By the way, it is curious to compare the language of the author & abettors of the Treaty, with that held on the subject of our commercial importance, when the Constitution was depending. Jay himself could then view its adoption as the only thing necessary to extort the Posts, &c., and open the W. India Ports. (See his address to the people of N. Y. in the Museum.) The Federalist (No. XI) will exhibit a still more striking contrast on this point, in another quarter.—You intimate a wish that I wd. suggest any ideas in relation to the Treaty that may occur to my reflections.1 In my present sequestered situation I am too little possessed of the particular turns of the controversy to be able to adapt remarks to them. In general I think it of importance to avoid laying too much stress on minute or doubtful objections which may give an occasion to the other party to divert the public attention from the palpable and decisive ones, and to involve the question in uncertainty, if not to claim an apparent victory. The characteristics of the Treaty which I have wished to see more fully laid open to the public view are 1. its ruinous tendency with respect to the carrying trade. The increase of our shipping under the new Govt has, in most legislative discussions, been chiefly ascribed to the advantage given to American vessels by the difference of 10 Per Ct on the impost in their favor. This, in the valuable cargoes from G. B. has been sufficient to check the preference of British Merchts for British bottoms; and it has been not deemed safe hitherto by G. B. to force on a contest with us, in this particular, by any countervailing regulations. In consequence of the Treaty, she will no doubt establish such regulations; and thereby leave the British capital free to prefer British vessels. This will not fail to banish our tonnage from the trade with that Country. And there seems to have been no disposition in the Negociator to do better for our navigation in the W. India trade; especially if the exclusion of our vessels from the re-exportation of the enumerated articles Sugar Coffee &c be taken into the account. The nature of our exports & imports compared with that of the British, is a sufficient, but at the same time our only defence agst. the superiority of her capital. The advantage they give us in fostering our navigation ought never to have been abandoned. If this view of the subject be just and were presented to the public with mercantile skill, it could not fail to make a deep impression on England. In fact the whole Treaty appears to me to assassinate the interest of that part of the Union.—2 the insidious hostility of the Treaty to France in general; but particularly the operation of the 15th. article, which as far as I have seen has been but faintly touched on, tho it be in fact, pregnant with more mischief than any of them. According to all our other Treaties as well as those of all other nations, the footing of the most favored nations is so qualified, that those entitled to it, must pay the price of any particular privilege that may be granted in a new Treaty. The Treaty of Jay makes every new privilege result to G. B., without her paying any price at all. Should France, Spain, Portugal or any other nation offer the most precious privileges in their trade, as the price of some particular favour in ours, no bargain could be made, unless they would agree, not only to let the same favor be extended to G. B., but extended gratuitously. They could not purchase for themselves, without at the same time purchasing for their rival. In this point of view, the 15th art. may be considered as a direct bar to our Treating with other nations, and particularly with The French Republic. Much has been said of a suspected backwardness to improve our coml arrangements with France; and a predilection for arrangements with G. B., who had less to give, as well as less inclination to give what she had. It was hardly imagined that we were so soon to grant every thing to G. B. for nothing in return; and to make it a part of this bad bargain with her, that we should not be able to make a good one with any other nation. 3. the spirit in which every point of the law of nations is regulated. It is the interest of the U. S. to enlarge the rights of Neutral nations. It is the general interest of humanity that this shd. be done. In all our other Treaties this policy has prevailed. The same policy has pervaded most of the modern Treaties of other nations. G. B. herself has been forced into it in several of her Treaties. In the Treaty of Jay, every principle of liberality, every consideration of interest has been sacrificed to the arbitrary maxims which govern the policy of G. B. Nay a new principle has been created, in the face of former complaints of our Executive. As well as against the fundamental rights of nations & duties of humanity, for the purpose of aiding the horrible scheme of starving a whole people out of their liberties.

1 I Even waiving the merits of the respective complaints & pretensions of the two parties as to the inexecution of the Treaty of peace, the waiver implies that the two parties were to be viewed either as equally culpable or equally blameless; and that the execution of the Treaty of peace equally by both ought now to be provided for. Yet, whilst the U. S. are to comply in the most ample manner with the article unfulfilled by them, and to make compensation for whatever losses may have accrued from the delay; G. B. is released altogether from one of ye articles unfulfilled by her and is not to make the smallest compensation for the damages which have accrued from her delay to execute the other.2

The inequality of these terms is still further increased by concessions on the part of the U. S. which, besides adding to the Constitutional difficulties unnecessarily scattered thro’ the Treaty, may in a great measure defeat the good consequences of a surrender of the Western posts.3

The British Settlers and Traders, within an undefined Tract of Country, are allowed to retain both their lands and their allegiance at the same time; and consequently to keep up a foreign and unfriendly influence over the Indians within the limits of the U. States.

The Indians within those limits are encouraged to continue their trade with the British by the permission to bring their goods duty free from Canada; where the goods being charged with no such impost as is payable on the goods of the U. S., will be offered for sale with that tempting preference; a regulation but too likely also to cloak the frauds of smuggling traders in a country favorable to them. The reciprocity in this case is ostensible only and fallacious.

Under another ostensible & fallacious reciprocity the advantage secured to the U. S. in the fur trade by their possession of the carrying places is abandoned to the superiority of British Capital, and the inferiority of the Canada duties on imports.

A part only of the ports harbors & bays of a single British Province is made free to the U. S., in consideration of a freedom of all the ports harbors and bays of the whole U. S. The goods and merchandize of the U. S., not entirely prohibited by Canada (but which in fact are always entirely prohibited, when partial & temporary admissions are not dictated by necessity,) may be carried there, in consideration, of a free admission of all goods and merchandize from Canada not entirely prohibited by the U. S. (where, in fact there never is this entire prohibition.) A like stipulation, liable to the like observations, is extended to the exports of the U. S. and the Province of Canada. These are further instances of a nominal & delusive reciprocity.

In the case of the Mississippi there is not even an ostensible or nominal reciprocity. The ports and places on its Eastern side, are to be equally free to both the parties; altho’ the Treaty itself supposes that the course of the Northern Boundary of the U. S. will throw the British beyond the very source of that river. This item of the Treaty is the more to be noticed, as a repetition and extension of the stipulated privileges of G. B. on the Mississippi, will probably be construed into a partiality in the U. S. to the interests and views of that Nation on the American Continent, not likely to conciliate those from whom an amicable adjustment of the navigation of the Mississippi is to be expected; and were no doubt intended by G. B. as a snare to our good understanding with the nations most jealous of her encroachments & her aggrandizement.

II. Without remarking on the explicit provision for redressing past spoliations & vexations, no sufficient precautions are taken against them in future. On the contrary,

By omitting to provide for the respect due to sea letters passports and certificates and for other customary safeguards to neutral vessels, “a general search-warrant, (in the strong but just language of our fellow Citizens of Charlestown) is granted against the American navigation.” Examples of such provisions were to be found in our other Treaties, as well as in the Treaties of other nations. And it is matter of just surprise that they should have no place in a Treaty with G. B. whose conduct on the seas so particularly suggested and enforced every guard to our rights that could reasonably be insisted on.

By omitting to provide against the arbitrary seizure & impressment of American seamen, that valuable class of Citizens remains exposed to all the outrages, and our commerce to all the interruptions hitherto suffered from that cause.

By expressly admitting that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admitting that such cases exist at present; not only a retrospective sanction may be given to proceedings agst which indemnification is claimed; but an apparent license is granted to fresh and more rapacious depredations on our lawful commerce. And facts seem to shew that such is to be the fruit of the impolitic concession. It is conceived that the pretext set up by G. B., of besieging and starving whole Nations, and the doctrine grounded thereon, of a right to intercept the customary trade of Neutral nations, in articles not contraband, ought never to have been admitted into a Treaty of the U. S.; because 1. it is a general outrage on humanity, and an attack on the useful intercourse of Nations. 2. it appears that the doctrine was denied by the Executive in the discussions with Mr. Hammond, the British Minister, and demands of compensation founded on that denial are now depending. 3 As provisions constitute not less than NA of our exports, and as Great Britain is nearly half her time at war, an admission of the doctrine sacrifices a correspondent proportion of the value of our commerce. 4. After a public denial of the doctrine, to admit it, in the midst of the present war by a formal Treaty, would have but too much of the effect as well as the appearance of voluntarily concurring in the scheme of distressing a nation in friendship with this Country, and whose relations to it, as well as the struggles for freedom in which they are engaged, give them a title to every good office not strictly forbidden by the duties of neutrality. 5. It is no plea for the measure to hold it up as an alternative to the disgrace of being involuntarily treated in the same manner, without a faculty to redress ourselves; the disgrace of being plundered with impunity agst our consent being under no circumstances, greater than the disgrace of consenting to be plundered with impunity; more especially as the calamity in the former case might not happen in another war, whereas in the latter case it is bound upon us for as much of twelve years, as there may be of war within that period.

By annexing to the implements of war, enumerated as contraband, the articles of ship-timber, tar or rosin, copper in sheets, sails, hemp & Cordage, our neutral rights and national interests are still further narrowed. These articles were excluded by the U. S. from the contraband list, when they were themselves in a state of war.1 Their other Treaties expressly declare them not to be contraband. British Treaties have done the same. Nor, as is believed, do the Treaties of any nation in Europe, producing these articles for exportation, allow them to be subjects of confiscation. The stipulation was the less to be admitted as the reciprocity assumed by it is a mere cover for the violation of that principle, most of the articles in question, being among the exports of the U. S. whilst all of them are among the imports of G. B.

By expressly stipulating with G. B. against the freedom of enemy’s property in neutral bottoms, the progress towards a compleat & formal establishment of a principle in the law of nations so favorable to the general interest and security of Commerce, receives all the check the U. S. could give to it. Reason & experience have long taught the propriety of considering free ships, as giving freedom to their cargoes. The several great maritime nations of Europe have not only established it at different times by their Treaties with each other, but on a solemn occasion (the armed neutrality) jointly declared it to be the law of Nations by a specific compact, of which the U. S. entered their entire approbation.1 G. B. alone dissented: But she herself, in a variety of prior Treaties, & in a Treaty with France since, [1786], has acceded to the principle. Under these circumstances, the U. S., of all nations, ought to be the last to unite in a retrograde effort on this subject, as being more than any other interested in extending & establishing the commercial rights of neutral Nations. Their situation particularly fits them to be carriers for the great nations of Europe during their wars. And both their situation & the genius of their Government & people promise them a greater share of peace and neutrality than can be expected by any other nation. The relation of the U. S. by Treaty on this point to the enemies of G. B. was another reason for avoiding the stipulation. Whilst British goods in American vessels are protected agst French & Dutch capture, it was eno’ to leave French & Dutch goods in American Vessels to the ordinary course of Judicial determinations, without a voluntary, a positive, and an invidious provision for condemning them. It has not been overlooked that a clause in the Treaty proposes to renew, at some future period, the discussion of the principle it now settles; but the question is then to be not only in what, but whether in any cases, neutral vessels shall protect enemy’s property; and it is to be discussed at the same time, not whether in any, but in what cases provisions & other articles, not bound to invested places, may be treated as contraband. So that when the principle is in favor of the U. S., the principle itself is to be the subject of discussion; when the principle is in favor of G. B., the application of it only is to be the subject of discussion.

III Whenever the law of nations comes into question the result of ye. Treaty accommodates G. B. in relation to one or both of the Republics at war with her, as well as in diminution of the rights and interests of the U. S.

Thus American vessels, bound to G. B. are protected by sea papers agst French or Dutch searches; bound to France or Holland, are left exposed to British searches, without regard to such papers.

British property in American Vessels is not subject to French or Dutch confiscation: French or Dutch property in American vessels is subjected to British confiscation.

American provisions in American vessels, bound to the Enemies of G. B., are left by Treaty to the seizure and use of G. B.; provisions whether American or not, in American vessels, cannot be touched by the Enemies of G. B.

Timber for ship-building, tar or rosin, copper in sheets, sails, hemp & cordage, bound to the enemies of G. B., for the equipment of vessels of trade only, are contraband; bound to G. B. for the equipment of vessels of war, are not contraband.

American citizens entering, as volunteers the service of F. or Holland agst G. B. are to be punished; American volunteers joining the arms of G. B. agst F. or H. are not punishable.

British Ships of war and privateers, with their prizes made on Citizens of Holland, may freely enter & depart the ports of the U. S. Dutch Ships of war and privateers with their prizes made on subjects of G. B. are to receive no shelter or refuge in the ports of the U. S. And this advantage in war is given to G. B., not by a Treaty prior & having no relation, to an existing war; but by a Treaty made in the midst of war, and prohibiting a like article of Treaty with Holland for equalizing the advantage.

The article prohibiting confiscations & sequestrations, is unequal between the U. S. & G. B. American Citizens have little if any interest in public or bank Stock or in private debts within G. Britain. British subjects have a great interest in all within the U. S. Vessels & merchandize belonging to individuals, governed by the same “confidence in each other & in regard to their respective Govts for their municipal laws, and for the laws of nations allowed to be part thereof as consecrates private debts,” are not exempted from such proceedings. So that where much would be in the power of the U. S. and little in the power of G. B., the power is interdicted. Where more is in the power of G. B. than of the U. S., the power is left unconfined. Another remark is applicable. When the modern usage of nations, is in favor of G. B., the modern usage is the rule of the Treaty. When the modern usage was in favor of the U. S., the modern usage was rejected as a rule for the Treaty.

IV The footing on which the Treaty places the subject of Commerce is liable to insuperable objections.

1. The nature of our exports & imports, compared with those of other Countries, and particularly of G. B., has been thought by the Legislature of the U. S. to justify certain differences in the tonnage & other duties in favor of American bottoms; and the advantage possessed by G. B. in her superior capital was thought at the same time to require such countervailing encouragements. Experience has shewn the solidity of both these considerations. The American navigation has, in a degree been protected against the advantage on the side of British Capital, and has increased in proportion. Whilst the nature of our exports, being generally necessaries or raw materials, and of our imports consisting mostly of British manufactures, has restrained G. B. from any attempt to counteract the protecting duties afforded to our navigation. Should the Treaty go into effect, this protection is relinquished; Congress are prohibited from substituting any other; and the British Capital, having no longer the present inducement to make use of American Bottoms may be expected, thro’ whatever hands operating, to give the preference to British Bottoms.

2. The provisions of the Treaty which relate to the W. Indies, where the nature of our exports and imports gives a commanding energy to our just pretensions, instead of alleviating the general evil, are a detail of peculiar humiliations and sacrifices. Nor is a remedy, by any means to be found in the proposed suspension of that part of the Treaty. On the contrary;

If Great Britain should accede to the proposition; and the Treaty be finally established without the twelfth article, she will, in that event, be able to exclude American bottoms altogether from that channel of intercourse, and to regulate the whole trade with the W. Indies in the manner hitherto complained of; whilst by another article of the Treaty, the U. S. are compleatly dispossessed of the right & the means hitherto enjoyed of counteracting the monopoly, unless they submit to a universal infraction of their trade, not excepting with nations whose regulations may be reciprocal and satisfactory.

3. The treaty, not content with these injuries to the U. S. in their commerce with G. B., provides in the XV article against the improvement or preservation of their commerce with other nations, by any beneficial Treaties that may be attainable. The general rule of the U. S. in their Treaties, founded on ye example of other nations has been, that where a nation is to have the privileges that may be granted to the most favored nations, it should be admitted gratuitously to such privileges only as are gratuitously granted; but should pay for privileges not gratuitously granted the compensations paid for them by others. This prudent & equitable qualification of the footing of the most favored nation was particularly requisite in a Treaty with G. B., whose commercial system, being matured & settled, is not likely to be materially varied by grants of new privileges that might result to the U. S. It was particularly requisite at the present juncture also when an advantageous revision of the Treaty with France is said to be favored by that Republic; when a Treaty with Spain is actually in negociation, and Treaties with other nations whose commerce is important to the U. S. cannot be out of contemplation. The proposed Treaty, nevertheless, puts G. B. in all respects, gratuitously, on the footing of the most favored nation; even as to future privileges for which the most valuable considerations may be given. So that it is not only out of the power of the U. S. to grant any peculiar privilege to any other nation, as an equivalent for peculiar advantages in commerce or navigation to be granted to the U. S.; but every nation, desiring to treat on this subject with the U. S. is reduced to the alternative either of declining the treaty altogether, or of including G. B., gratuitously, in all the privileges it purchases for itself. An article of this import is the greatest obstacle, next to an absolute prohibition, that could have been thrown in the way of other Treaties; and that it was insidiously meant by G. B. to be such, is rendered the less doubtful, by the other kindred features visible in the Treaty.

It can be no apology for these commercial disadvantages, that better terms could not be obtained at the crisis when the Treaty was settled. If proper terms could not be obtained at that time, commercial stipulations, which were no wise essentially connected with the objects of the Envoyship ought to have waited for a more favorable season. Nor is a better apology to be drawn from our other Treaties. The chief of These, were the auxiliaries or the guaranties of our independence, and would have been an equivalent for greater commercial concessions than were insisted on. (Under other circumstances, there is no ground to suppose, that the same treaties, tho’ more favorable in several material articles than the Treaty in question, would have been embraced by the U. S.1 )

V. A. Treaty thus unequal in its conditions, thus derogatory to our national rights, thus insidious in some of its objects, and thus alarming in its operation to the dearest interests of the U. S. in their commerce and navigation, is in its present form unworthy the voluntary acceptance of an Independent people, and is not dictated to them by the circumstances in which providence has kindly placed them. It is sincerely believed, that such a Treaty would not have been listened to at any former period, when G. B. was most at her ease, and the U. S. without the respectability they now enjoy. To pretend that however injurious the Treaty may be it ought to be submitted to in order to avoid the hostile resentment of G. B. which wd evidently be as impolitic as it would be unjust on her part, is an artifice too contemptible to answer its purpose. It will not easily be supposed, that a refusal to part with our rights without an equivalent will be made the pretext of a war on us; much less that such a pretext will be founded on our refusal to mingle a sacrifice of our commerce & navigation with an adjustment of political differences. Nor is any evidence to be found, either in History or Human nature, that nations, are to be bribed out of a spirit of encroacht & aggressions by humiliations which nourish their pride, or by concessions which extend their resources & power.

To do justice to all nations; to seek it from them by peaceable means in preference to war; and to confide in this policy for avoiding that extremity; or securing the blessing of Heaven, when forced upon us, is the only course of which the United States can never have reason to repent.

TO JAMES MONROE.mad. mss.

Philada, Decr 20, 1795.

Dear Sir,

The last of your favors come to hand bears date Septr 8, 1795, of which a duplicate has also been received. The others which it may be proper to acknowledge or reacknowledge are of Novr 30th, 1794, which was opened at Halifax, & forwarded to me in that state,—Decr 18, 1794, covering a copy of one of the same date to Mr. Randolph; Feby 18, 1795, covering a copy of one of Feby 12 to the same,—Feby 25, covering a duplicate of ditto,—June 13, inclosing a copy of a letter of May 4, from Mr. Short,—June 3-28-30,-July 26, covering the correspondence with Jay; and August 15.—As I cannot now give minute answers to each of these letters, & the necessity of them as to most has been superseded, I shall proceed to the object most immediately interesting to you, to wit the posture of things here resulting from the embassy of Mr. Jay. The Treaty concluded by him did not arrive till a few days after the 3d of March which put an end to the last session of Congs. According to previous notification to the Senators that branch assembled on the 28th of June, the contents of the Treaty being in the mean time impenetrably concealed. I understood it was even withheld from the Secretaries at War & the Treasury, that is Pickering & Wolcot. The Senate, after a few weeks consultation, ratified the Treaty as you have seen. The injunction of secrecy was then dissolved by a full House, and quickly after restored sub modo, in a thin one. Mr. Mason disregarding the latter vote sent the Treaty to the press, from whence it flew with an electric velocity to every part of the Union. The first impression was universally & simultaneously against it. Even the mercantile body, with the exception of Foreigners and demi-Americans, joined in the general condemnation. Addresses to the P. agst his ratification, swarmed from all quarters, and without a possibility of preconcert, or party influence. In short it appeared for a while that the latent party in favor of the Treaty, were struck dumb by the voice of the Nation. At length however, doubts began to be thrown out in New York, whether the Treaty was as bad as was represented. The Chamber of commerce proceeded to an address to the P., in which they hinted at war as the tendency of rejecting the Treaty, but rested the decision with the constituted authorities. The Boston Chamber of Commerce followed the example, as did a few inland villages. For all the details on this subject I refer to the Gazettes, which I presume you continue to receive from the Department of State. It appears that the struggle in the public mind was anxiously contemplated by the President, who had bound himself first not to disclose the Treaty till it should be submitted to the Senate, and in the next place, not to refuse his sanction if it should receive that of the Senate. On the receipt here, however of the predatory orders renewed by G. B., the President as we gather from Mr. Randolph’s pamphlet1 was advised not to ratify the Treaty unless they should be revoked and adhered to this resolution, from the adjournment of the Senate, about the last of June till the middle of August. At the latter epoch Mr. Fauchet’s intercepted letter became known to him, and as no other circumstance on which a conjecture can be founded has been hinted to the public, his change of opinion, has been referred to some impression made by that letter, or by comments upon it, altho’ it cannot easily be explained how the merits of the Treaty, or the demerits of the provision order could be affected by the one or the other. As soon as it was known that the P. had yielded his ratification the 2Br party were reinforced by those who bowed to the name of constituted authority, and those who are implicitly devoted to the Pr. Principal Merchants of Philada, with others amounting to abt four hundred, took the lead in an address of approbation. There is good reason to believe that many subscriptions were obtd by the Banks, whose directors solicited them and by the influence of Br capitalists. In Baltimore Charleston, & the othercommercial towns, except Philada, New York, & boston, no similar proceeding has been attainable. Acquiescence has been inculcated with the more success by exaggerated pictures of the public prosperity, an appeal to the popular feeling for the President, and the bugbear of war; still, however there is little doubt that the real sentiment of the mass of the community is hostile to the treaty. How far it may prove impregnable, must be left to events. A good deal will depend on the result of the session, & more than ought, on external contingencies. You will see how the Session opened in the President’s Speech & the answer to it.1 That you may judge the better on the subject, I add in the margin of the latter, the clause expunged, as not true in itself, and as squinting too favorably at the Treaty. This is the only form in which the pulse of the House has been felt. It is pretty certain that a majority disapproves the Treaty but it is not yet possible to ascertain theirultimate object, as matters now are. The Speech of the Pr was well adapted to his view. The answer was from a Committee, consisting of myself, Sedgwick, & Sitgrove, in the first instance, with the addition of two other members on the recommitment. In the first committee, my two colleagues were of the Treaty party; and, in the second, there was a willingness to say all that truth wd permit. This explanation will assist you in comprehending the transaction.

Since the answer, as passed, & was presented, no has been said or done in relation to the Treaty. It is much to be feared that the majority against the Treaty will be broken to pieces by lesser & collateral differences. Some will say it is too soon to take up the subject before it is officially presented in its finished form; others will then say it is too late. The opportunity of declaring the sense of the House in the answer to the speech was sacrificed to the opinion of some, from whom more decision was expected than will be experienced towards an immediate consideration of the subject by itself. The truest policy seems to be, to take up the business as soon as a majority can be ascertained; but not to risk that event on a preliminary question. What the real state of opinions may be, is now under enquiry. I am not sanguine as to the result. There is a clear majority who disapprove the Treaty, but it will dwindle under the influence of causes well known to you; more especially as the States, instead of backing the wavering, are themselves rather giving way. Virginia has indeed set a firm example; but Maryland, North Carolina, & New Hampshire, have counteracted it, & New York will soon follow with some strong proceedings on the same side.

I am glad to find by your letters that Fr, notw the late Treaty, continues to be friendly. A magnanimous conduct will conduce to her interest as well as ours. It must ult baffle the insidious projects for bartering our honour and our Trade to Br pride & Br monopoly. The fifteenth article of the Treaty is evidently meant to put Br on a better footing than Fr & prevt a further Treaty with the latter; since it secures to Br, gratuitously, all privileges that may be granted to others for an equivalent, and of course obliges Fr, at her sole expense, to include the interest of Br in her future treaties with us. But if the Treaty should take effect, this abominable part will be of short duration, and, in the mean time, something may perhaps, may be done, towd. disconcerting the mischief in some degree. You will observe a navigation act is always in our power. The article relating to the Mississippi, being permanent, may be more embarrassing, yet possibly not without some antidote for its poison. I intended to go on in Cypher, but the tediousness obliges me to conclude the present letter, in order to seize a conveyance just known to me. Mr. R’s pamphlet is just out. Mr. Tazewell will send that & several other things collected for you by this conveyance. Pickering is Secretary of State—Chs Lee Attorney Genl; no Secy at War. The Senate have negatived Rutledge as chief Justice. Mr. Jones keeps you informed of your private affairs.—He & Mr. Jefferson are well. I have just recd your two favors of Octr 23 & 24, with the accompaniments, by Mr. Murray. The articles have probably not arrived in the same ship, as Mr. Yard has no information from N. Y. thereon. Accept from Mrs. M. & myself ten thousand thanks for your & Mrs. Monroe’s goodness, which will, as generally happens probably draw more trouble upon you. Mr. Yard & Mrs. Y. well,—Your friends at New York so, too.

[1 ]This was the second naturalization law, approved January 29, 1795, which introduced the five years’ residence previous to naturalization and the declaration of intention three years before. It required also that good character and attachment to the Constitution be established, and that any title of nobility the applicant might bear must be renounced. This act was really the parent of our naturalization system, and its chief author was Madison. The debate extended from December 22, 1794, to January 8, 1795, Madison making several short speeches. In the course of the debate (January 1) on the clause requiring renunciation of titles, Dexter of Massachusetts opposed it, and ridiculed certain tenets of the Catholic religion, declaring that priestcraft had done more harm than aristocracy. Madison replied:

“. . . He did not approve the ridicule attempted to be thrown out on the Roman Catholics. In their religion there was nothing inconsistent with the purest Republicanism. In Switzerland about one-half of the Cantons were of the Roman Catholic persuasion. Some of the most Democratical Cantons were so; Cantons where every man gave his vote for a Representative. Americans had no right to ridicule Catholics. They had, many of them, proved good citizens during the Revolution. As to hereditary titles, they were proscribed by the Constitution. He would not wish to have a citizen who refused such an oath.”—Annals, 3d Cong., 1035.

[1 ]The letter is not in Madison’s hand, but some corrections in its body are.

[2 ]The treaty was concluded November 19, 1794, reached the United States soon after the adjournment of Congress, March 3, 1795, and was laid before the Senate in special session June 8. It was ratified June 24, with an amendment, providing that Article XII. be suspended. This article stipulated that American commerce with the West Indies should be restricted to American ports, and that British vessels engaged in West Indian commerce should have equal rights with American vessels in American ports. The Senate adjourned June 26. On June 12, four days after the treaty was laid before the Senate, and while it was still a secret document, Pierce Butler, Senator from South Carolina, wrote to Madison that he would send him by each post a sheet of the treaty till he had received the whole. He was to show it to Jefferson alone. He asked Madison to give him the benefit of his free opinion of the treaty (Mad. Mss.). Stevens Thomson Mason, Senator from Virginia, gave a copy of the treaty to The Aurora, which printed it June 30, one day before it was to have been made public by Washington.

[1 ]The letter is a rough draft and a blank is left in the original for the name of the person to whom it was sent. In the New York Public Library (Lenox) there is another draft, also in Madison’s hand, of the greater part of the letter. (See note 1, p. 244.) It is probable, therefore, that the letter was sent in substance to several of Madison’s correspondents.

[1 ]Hamilton. See the letters in Hamilton’s Works (Lodge), IV., 371.

[1 ]Among the Madison MSS. is a statement not in Madison’s hand, but doubtless written from a draft of his (dated August, 1795), relating to the treaty especially with reference to the British debts. It says that no law of any State passed since the treaty of 1783 had released the American debtor from any of his debts. Delays of payment and insolvencies had taken place. The treaty of 1794, however, settled that he was to bear the consequence of his own laches. Resolved into convenient shape the treaty of 1782 provided that the following things were to be done: (1) Great Britain was to acknowledge the absolute independence of the United States. This was the sine qua non of opening negotiations. (2) Hostilities were to cease on both sides. (3) Peace was to be an accomplished fact by the delivery to the United States of certain parts of the country then held by Great Britain. This stipulation had not been fulfilled by Great Britain. (4) In evacuating the posts the British forces were to abstain from certain descriptions of injurious acts, which had before taken place upon the evacuation of posts held by them for a time in America. This had not been carried out in the matter of the negroes whom the enemy carried with him when he evacuated. (5) When all of these things had been done, then, and not until then, were the British owners and late owners of certain descriptions of property to meet with no lawful impediment to the recovery of the same. (6) When these stipulations had been carried out, certain persons were to receive the benefit of Congressional recommendations for the recovery of claims against citizens of the United States. (7) There were certain other stipulations affecting national and local rights, such as those concerning the fisheries and the Mississippi, at present untouched.

Great Britain had acknowledged our independence, hostilities had ceased, but she had evacuated but one place (New York) held by her when the treaty was framed, and in doing so had repeated the designated acts of injury from which she was required by the treaty to refrain. Putting this question aside, however, it could be correctly stated that, as long as the armed troops of one country occupied fortified places within the territory of another, peace was not in fact restored, and such being the case the demand of the British debts could not be legally made. A state of war still existed and British creditors were alien enemies, as they must continue to be until the British troops abandoned the posts they invasively occupied.

[1 ]From this paragraph to the end, the MS. in the New York Public Library (Lenox) is the same, with a few variations indicated in these notes.

[2 ]In the Lenox MS. this sentence is added: “These equitable and reciprocal claims of the U. S. are not even allowed the chance of arbitration.”

[3 ]The Lenox MS. adds: “. . . if that article of the treaty shd be faithfully executed by G. Britain.”

[1 ]“See Ordinance regulating captures in 1781.”—Note in Madison’s hand.

[1 ]The Lenox MS. adds: “[See their act of 5 Octr. 1780.]”

[1 ]This sentence does not appear in the Lenox MS.

[1 ]“A Vindication of Mr. Randolph’s Resignation,” Philadelphia, 1795. Samuel H. Smith. Randolph resigned August 19.

[2 ]Italics for cypher.

[1 ]The sentence to which the Republicans objected was. “. . . in justice to our own feelings, permit us to add the benefits which are derived from your presiding in our councils, resulting as well from the undiminished confidence of your fellow-citizens, as from your zealous and successful labors in their service.” Madison wished to bring a less pronounced clause before the House, but Sitgreaves and Sedgwick overruled him. Josiah Parker, of Virginia, flatly declared that his confidence in the President was diminished, others that the confidence of a part of the people was diminished. On December 17th the House adopted the following, written by Madison:

“In contemplating that spectacle of national happiness which our country exhibits, and of which you, Sir, have been pleased to make an interesting summary, permit us to acknowledge and declare the very great share which your zealous and faithful services have contributed to it, and to express the affectionate attachment which we feel for your character.”—Annals, 4th Cong., 1st Sess., 155.