James Madison Papers

To James Madison from Thomas FitzSimons and Others, 10 December 1805

From Thomas FitzSimons and Others

Philadelphia 10th December 1805


Among the numerous Captures of American Vessels, lately made by British Cruizers the Circumstances attending four Vessels taken on their passage from Bourdeaux (three for New York the other for this place)1 has particularly attracted the Attention of the Merchants & Insurance Companies of this place where the property has been principally Insured. Those Vessels carried Cargoes from the U. S. to Bourdeaux & were returning with Articles, the Manufacture or Growth of France, partly the proceeds of the Goods they Carried out & partly purchased with other funds. The Vessels & their Cargoes were libelled in the Vice Admiralty Court at Halifax & are held over for further proof.

By a letter received from the Proctor of the Claimants (Copy of which accompanies this)2 it appears that the Kings Advocate advanced on the Trial principles new and Extraordinary, which was favorably received by the Judge who has called for proofs that has never been required on any former occasion.

Such proofs as has been usual, have actually been sent forward, but strong doubts exist whether the others called for if obtainable ought to be adduced. Wishing to act with due Circumspection in an Affair which may involve important Consequences It has been deemed advisable to submit the Case with such Observations as have occurred to us to the Department of State that We may benefit of any advice or opinion You may favour us with.

The proofs required by the Judge which to us appear exceptionable are

1st. Of what Colony or Country the Outward Cargo was the growth product or Manufacture.

2d. Under what Certificates were the same admitted to entry in the Ports of France and whether liable to foreign or reduced Duties.

3d. What are the french Laws on this subject, and what limitations are imposed on return Cargoes.

We Consider the 1st. as exceptionable in as much as it has not been heretofore required. It has been held under former decisions of the British Courts—that return Cargoes are not questionable on Account of the Outward One except the latter consisted of Articles Contraband of War. In the last order of the British King the exception is confined to the product of Articles Contraband of War. The embarrassment which the establishing this as a principle would Occasion is too obvious to require Explanation.

2nd. Under what Certificate were the same admitted to entry in the ports of France and whether liable to foreign or reduced duties.

To this besides the objection already stated, it seems utterly irreconcilable to the principles of Justice; that the Claimants should be called upon either to prove a negative or furnish a Cause of Condemnation of their property.

It was suggested by the Judge in his reasoning that the permission of importing into France the produce of her Colonys by neutrals, while those of the British Dominions were excluded was of itself—a breach of Neutrality—and if on reduced duties—that would be an additional reason.

The fact (as respects those ships) is that they Carried from the United States Cargoes taken on freight from various people and Consisting of Articles the produce of the U. S. and of the French and Spanish Colonies. The Cargoes with which they were returning are not precisely the proceeds of the outward ones nor all belonging to the same persons it is therefore imposing upon the owners of the present one a most unreasonable task & has this still further disadvantage—that if those proofs are furnished in Cases in which they are attainable—In every instance in which that could not be done it may be made a ground for Condemnation—besides that it would be used for a precedent on all future occasions.

To the third, there is no other Objection, but that it puts upon the Claimant a proof which if material ought to be adduced by the Captors; if as they contend the Laws of France which provides for neutral Commerce is a ground of Condemnation, the proof of the existence of such Law in reason rests with the Captors.

As the French Laws are explained to us, they provide against the introduction into that Kingdom of any Goods or Merchandize the Manufacture or Growth of any of the Dominions of Britain. And it is therefore required that all Goods carried there should be accompanied with Certificates shewing of what Country they are the Manufacture or Growth—and such Certificates are to be verified by the Commercial Agent of France at the Port of their shipment or his Deputy. These are called Certificates of Origin and are indispensable.

With respect to the reduced duties We understand that there has existed in France (many Years previous to the Revolution) a regulation, which provided that the Exporters of Goods from her Colonies, by paying certain duties at the place of Export would be allowed an Abatement on the duties, to which they would otherwise be liable on their introduction into France. When that Law was decreed—French subjects only could export the products of her Colonies to the Mother Country Since the Revolution the like provision has been extended to all persons exporting those products but We are informed, that it is embarrassed with so many provisions & difficulties, that the Abatement in France is seldom Claimed & much seldomer obtained. Some imperfect notices extracted from Letters found on board those Ships has probably suggested this inquiry and not any certain Knowledge of the Law or its effect on the Goods in question.

To the latter part of the 3d. proof required—it can be established that no Condition is exacted from the Exporters of Goods from France to any neutral Country.

In the present state of our Commerce the principles to which We have referred cannot be viewed by the Merchants & Underwriters of this City without extreme Anxiety. Relying on the decisions which formerly took place in the British Courts the Merchants of this Country have risked property to an immense Amount much of which is now at hazard & depending on the establishment of the principles which are the subject of this Communication.

The time limited for exhibiting our proofs at Halifax expires on the 8th. february. If you shall deem it necessary to favour us with any Communication on the subject it may be in time & will be used in such way as you may advise. We are with Respect sir Yr Mo hble servts

Thos. FitzSimons
Presidt Delaware I Co of Philada
James S Cox, Prest.
Ins Co. Pennsa
Joseph Ball, President
Union Insure. Co. of Philada.
Chas. Pettit, Prest. of the Inse.
Co. of N America

RC (DNA: RG 46, President’s Messages, 9A–E3; Tr (DNA: RG 233, President’s Messages, 9A–D1). RC in a clerk’s hand, except for FitzSimon’s complimentary close and signature; signed also by Cox, Ball, and Pettit; docketed by Wagner, with his note: “British.” Minor differences between the copies have not been noted.

1FitzSimons probably referred to the Eugenia, the Enterprise, Thompson, and the Jefferson, Crocker, all bound from Bordeaux to New York, and to the Zulima, bound from Bordeaux to Philadelphia. The Hamilton, Masterton, bound from Bordeaux to New York, was also captured and sent into Halifax (Boston Democrat, 26 Oct. 1805; ASP, Foreign Relations, 2:765–66). See also James Stewart to John Black, 8 Nov. 1805, ibid., 770. For the Eugenia, see JM to Nathaniel Lawrence and John Patrick, 6 Nov. 1805, and nn. 2–3.

2Enclosure not found.

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