James Madison Papers

To James Madison from James Monroe, 3 January 1807

No. 8.

London January 3d. 1807.


We have the honor to transmit you a Treaty which we concluded with the British Commissioners on the 31st. of December. Altho’ we had entertained great confidence from the commencement of the negotiation, that such would be it’s result, it was not untill the 27th. that we were able to make any satisfactory arrangement of several of the most important points that were involved in it. On the next day we communicated to you that event by several dispatches, three of which were forwarded by vessels from Liverpool, so that we hope you will receive very early intelligence of it. We commit this, with the Treaty, to Mr. Purviance, who we flatter ourselves will have the good fortune to arrive in time to deliver it to you before the adjournment of Congress.

The necessity we feel ourselves under to forward to you the Treaty without delay will we fear render it impossible for us to enter so fully into the subject of it, as on many considerations it might be proper to do. We are aware that such instruments must be construed by an impartial view of their contents uninfluenced by extraneous matter. A knowledge however of the sense in which the several articles of a treaty were understood by the parties to it may in ⟨   ⟩ cases be useful. It is also just to remark that some circumstances occurred in the course of this negotiation, which, altho’ they do not appear on the face of the Instrument itself, yet a⟨s⟩ they may have no inconsiderable influence on the future relations of the two countries, it is peculiarly important to explai⟨n.⟩ We shall endeavor to give such explanations, where they may be necessary, in the best manner that may be found compatible with the dispatch which the occasion so imperiously requires, and we flatter ourselves without omitting any thing on any point that may be deemed of essential importance.

The first article of the present Treaty which stipulates that peace shall subsist between the parties is taken from that of 1794 and is found in most of the modern treaties.

The second article confirms those of a permanent nature in the treaty of 1794. The British Commissioners were very desirous to introduce the permanent articles of that treaty in the form of new stipulations into the present one. They insisted with great earnestness that the article which relates to the trade with the Indian tribes should be so amended as to admit the traders of Canada and the Hudson Bay Company to participate with us in the trade, with the tribes in Louisiana. They seemed to admit that by a fair construction of the article they could not support such a claim, but contended that it was justified by its spirit. Their solicitude on this point which they had supposed was an unimportant one to the U. States created some embarrassment and delay in the business. They intimated that it proceeded from a desire to conciliate the public opinion in this country in favor of the treaty, which became necessary in consequence of the concessions which they thought they made us on other points. As we were decidedly of opinion that the article in the Treaty of 1794. could not apply to territory afterwards acquired, and could see nothing in its spirit which entitled it to such an extension, and more especially as our instructions contemplated a different result, it was impossible for us to adopt that proposal. They finally agreed therefore, tho’ not without evident reluctance, to the article in it’s present form.

We regret to say that the third article which regulates our trade with the the British possessions in India, which with one essential and most unfavorable difference is the same with the thirteenth articl⟨e⟩ of the treaty of 1794., is not what we had been led to hope it would be practicable to make it. Aware of the importance attached to this commerce in America, we have used the most zealous and persevering efforts, not only to prevent the introduction of new restraints upon it, but even to emancipate it from some of those which the treaty of 1794. had distinctly sanctioned. The India company have however been less accomodating than was at first expected, and hence the rejection of all the amendmen⟨ts⟩ proposed by us, one of which sought to omit entirel⟨y⟩ and (when that was refused) to modify, the provis⟨ions⟩ copied from the treaty of 1794, that our voyages from the British possessions should be direct to the U. States. This amendment, in both it’s shapes, was repelled in such a manner as to convince us that nothing would be gained by continuing to press it, and we gave it up at length with great reluctance. In this stage of the business the British Commissioners insisted upon an amendment upon their part by which our voyages to British India were required to be direct from the U. States. This unexpected amendment was proposed, at the instance of the India Company, after the project of the British Commissioners (which, with reference to this subject, was a literal copy of the 13. art. of the treaty of 1794) had not only been presented to us, but fully discussed, and, as we understood, settled. The real intention and office of it were said by Lord Holland and Lord Auckland to be no more than to make the article speak unequivocally what was the true meaning of the article in the late treaty. We replied to this that the article in the late treaty was not susceptible of this limited construction; that its obvious import was that only the voyage from India should be direct; that this had been solemnly adjudged by their own courts of law, and that the practice ha⟨d⟩ been and still continued to be so. We were answered by the production of a paper purporting to be a report of [  ] that in their opinion an American vessel was not entitled to a clearance from a port in G. Britain to Calcutta under the treaty of 1794. We were told moreover that Lord Grenville when he made the treaty, the India Company when it sanctioned, and the British government when it ratified it, did not mean to authorize any other than direct voyages, outward as well as homeward, between the U. States and their Indian possessions, and that if the treaty was liable to any other construction, it arose from mere inadvertence in adjusting the phraseology; but that in truth it was not a fair and natural interpretation of words, which authorized a commerce between two defined limits, that a commerce between one of those limits, and some third place was intend⟨ed⟩ to be allowed, altho’ not a word was said abo⟨ut⟩ it in the article. Having given the obvious answer to these suggestions, we urged as long and as zealously as was thought advisable the inconveniences to which our trade with India would be subjected by prohibiting any of the modes in which it was prosecuted, as well as the unfriendly appearance of the new restriction for which there existed no adequate motive. We spoke of the sensibility which would be excited in our country by such an ill-timed and ungracious interference, the interests which it would affect, and the passions which it would enlist against the entire treaty; to all which it was finally answered that the India Company could not be prevailed upon to relax upon this point; that moreover it ought not to be forgotten that this was a trade from which their own subjects were ordinarily excluded in favor of the company’s monopoly: that this monopoly, as a losing concern, seemed at present to require peculiar protection: that our admission into British India at all was a boon for which we did not and could not give any equivalent, and of course that we could not justly complain, if that admission was somewhat qualified with a view to the mitigation of the evils, by which it was undoubtedly attended and which it was not possible wholly to prevent; especially if we were not placed upon a more disadvantageous footing in that respect than other friendly powers, which was so far from being the case that we were unquestionably admitted by the article, as they proposed to amend it, upon much better terms than any other nation, inasmuch as our commer⟨ce⟩ (exclusive of the advantage of being secured by treaty) would be subject only to British duties, whereas the Danes and Swedes paid alien duties to a considerable amount, without enjoying any priviledge (whatever might be said to the contrary) to which we were not equally entitled. We were at last reduced to the necessity of accepting the article with the obnoxious amendment, rendered less obnoxious perhaps by the clause, relative to the most favored nation, or making a treaty without any article upon the subject, which would have the same and probably worse effects, or of making no treaty at all. We preferred the first.

The fourth and fifth articles regulate the trade between the U. States and the British possessions in Europe By these, we are persuaded that much greater satisfaction will be given to our government and country, than by the preceding one. The three first clauses of the fifth article which place the vessels and merchandize of each country in the ports of the other, in respect to duties and prohibitions, on the footing of the most favored nation, are taken from the treaty of 1794. To these we were not aware that any well founded objection was ever made. But the subsequent clauses give a new character to this intercourse. The right which the British government reserved by the Treaty of 1794 to impose a tonnage-duty on American vessels equal to the duty which was payable on British vessels in the U. States is, by the first of these clauses made reciprocal. Under that reservation or rather as we presume the pretext of it, the British govt. had actually imposed a tonnage duty on American vessels of 6/ 5 [  ] per ton, being almost three times the amount of the duty which was payable on British vessels in the U. States. And as the U. States had expressly stipulated not to raise the duty on British vessels higher than it then was, it was out of their power, without a palpable violation of that stipulation, to countervail the duty imposed by G. Britain on American vessels. But by making the reservation reciprocal the U. States have an unquestionable right to raise the duty on British vessels to the same level, wherever that may be. And by conjoining the reciprocity strictly to the principle of national equality, that is an equality of tonnage-duties which shall be payable on the vessels of each party in the ports of the other, a right is reserved by each to give what preference it thinks fit within that limit to its own vessels and people. At present such preference is given by our law, to the amount of [  ] Cents p. ton, which is not only protected by this clause against any countervailing measure, other than by lessening the duty, but the right is secured to increase it in the degree above stated. By this we do not wish to imply that it would be advisable to take all the advantage of this circumstance which the article admits of. The presumption is that the British govt. will, in case the treaty is ratified, repeal the additional duty on American vessels, which will leave them charged in common with their own and those of every other nation with the sum of 4/ 5 [  ] per ton. Should our government think proper to raise the duty on British vessels to the same point, it may perhaps be adviseable not to increase the present discrimination. The last clause of this article which stipulates that the same duties of exportation and importation shall be paid on all goods and merchandize, and that the same drawbacks and bounties shall be allowed in both countries, whether the same be in British or American vessels, will it is also hoped be found of very essential advantage to the U. States. The right which G. Britain had reserved by the treaty of 1794, to countervail the difference of duty payable in the U. States on European or Asiatic goods when imported in British or American vessels had been productive of very serious injury. The duties which had been imposed by the British govt. on American productions, on that principle, were so high, making in most cases a difference of [  ] shillings per ton in favor of British vessels, that it must have been impossible in peace for our navigation to have borne it. The evil was the greater because the species of commercial warfare in which it engaged in consideration of the comparative value and ⟨   ⟩ of the articles subject to it, in each country, furnished no remedy. On the contrary as the principle was unfavorable the farther it was carried the worse would be it’s effect. By this clause it is presumed that the evil will be completely done away, while we flatter ourselves that the stipulation in favor of drawbacks and bounties, without exposing us to any inconvenience, will be productive of some advantage.

It is proper to remark that we did not omit to propose an arrangement on the subject of export duties by which the U. States should at least be placed in that respect upon the footing of all other nations. The discrimination to our prejudice in the British duties on exportation which took their rise in the convoy duty of the last war has undoubtedly an unkind and oppressive effect. This discrimination is found in the 43. Geo. 3. ch. 68:, a permanent act (which repealed the then existing duties, and substituted others) and in the 43. Geo. 3. ch. 70. which imposes additional duties during the present war. Taking the war duty and the permanent duty together, the consumers in the U. States of certain British manufactures (for the duties in question apply only to British manufactures, and not to all of them; British cotton, yarn and manufactures, and some other articles being excepted) pay 2 1/ 2 percent ad valorem more than the consumer in Europe, or within the Straights, pays on the same goods.

The only mode in which it could be supposed to be possible that this unpleasant distinction could be removed, was by applying to the subject the rule of the most favored nation. G. Britain was not likely in her present situation to stipulate against all export duties or even to agree to a maximum. Neither was she likely by considering the actual duties as originally and even now convoy duties, and therefore in their principle applicable only to the navigation which her convoys protect, to relieve from them wholly or in part such merchandize as should be carried to our country in American vessels and leave them to oppress her own tonnage, thus offering a bounty in favor of American ships against her own. The rule of the most favored nation was therefore finally suggested with a hope that it would meet with no objection. It was however perseveringly opposed. We were told that the single effect of such an arrangement would be to compel G. Britain to raise the export duties against other countries, not to reduce them as to us, and that this would be of no advantage to the U. States, but might be a serious embarrassment to G. Britain. It was urged on our part that, if G. Britain could not give up entirely the excess of export duty now paid by us, it did not follow that it might not be fairly distributed among the consumers of her merchandize in every part of the world so as still to produce the same revenue with more regard to justice; that as her best customers we had a right to be placed upon at least an equal footing with other nations, and to complain if we were rather distinguished by the peculiar burthens which she undertook to impose upon us; that the discrimination against us upon the notion, that the duty had reference to convoy, was a fallacy, since part of the discrimination was permanent, and of course a peace as well as a war duty; since we who paid the duty derived no benefit from the convoy, which was professed to be the consideration of it; and since, the protection of their own trade in their own navigation being a general and national concern, there was no sound reason why the relative expence of particular convoys should be allowed to suggest the relative measure of the duties, which were to supply the means of affording them. They replied to the idea of distributing the amount of the discrimination among all the consumers of their merchandize by referring us to the present state of Europe. They reminded us that their own colonies in America paid the same export duty that was paid by us, and repeated that, as it was only the discrimination between the U. States and Europe of which we could have any right to complain, we could not demand to have any part of the duty against which we remonstrated, withdrawn from us, and that we could gain nothing by forcing this country to add to the burthens of others, already overwhelmed and impoverished by the calamities of war. We were obliged, tho’ very reluctantly, to abandon this object.

The sixth article relates to the commerce with the West Indies which it was found impossible to arrange in a satisfactory manner. There were many serious obstacles to an agreement on this point, some of which seemed to be peculiarly applicable to the present time. The British W. India merchants had at an early stage represented that by the trade which our citizens enjoyed with the colonies of their enemies, we had so completely stocked the markets of the continent with W. India productions as to shut those markets on them. They had remonstrated earnestly against any arrangement of that point which should sanction in any degree our trade with those colonies. This question had taken deep hold of the minds of a great proportion of this community, among whom may be classed, not those in the mercantile line only, who were immediately engaged in the trade, but the whole commercial interest, and many in other circles of great consideration in the country. Of this fact sufficient proof was furnished by the debate which took place in the last session of Parliament on the bill for regulating the intercourse between the U. States and the W. Indies. The British Commissioners seemed to have taken from that debate, more especially from the support which their opponents apparently received from the public in it, a very strong admonition not to touch the subject by treaty at this time. They were apprehensive that any regulation of this trade, however fair it might be, which should accompany their sanction of that with the colonies of their enemies, would produce the worst effect with all parties and endanger any treaty which might be formed. They were therefore desirous of postponing the subject for the present: to which we agreed. In the stipulation which provides for the postponement we have as you will perceive, in conformity with our instructions, reserved the right to our govt. to counteract any regulations by which the Briti⟨sh⟩ govt. may exclude us from a fair participation in that commerce. While the war lasts we shall enjoy it in a certain degree with the consent of the British govt. by necessity. And the reservation cannot fail to be considered by it, as a permanent weapon of defence, to be used, when occasion calls for it. It must be seen that it will be impossible for the Congress to prohibit an intercourse between the U. States and the W. Indies in British vessels, without producing a very serious effect on their whole navigation and commercial interests. We flatter ourselves therefore that it may be found practicable, and perhaps not difficult to arrange this business hereafter to the satisfaction of both countries.

The seventh article relates to the appointment of Consuls by each party in the territories and ports of the other. It was taken from the treaty of 1794.

The eighth article which specifies the causes for which vessels may be captured or detained, including among them the circumstance of their having enemies property on board is (except the last clause) a transcript of the 17. art. of the treaty of 1794. The stipulation contained in that clause, that the parties shall be allowed adequate damages and charges of the trial in all cases of unfounded detention or other contravention of the regulations of the present treaty, will, we presume, produce the salutary effect contemplated by it. There is perhaps no principle, in the maritime pretensions of this country, which has been more abused in practice, than that which this provision is intended to remedy. That damages should be allowed in all such cases is, it is true, a doctrine recognized by the court of admiralty. It cannot however be doubted that by providing for them in the treaty, the obligation to allow them will acquire greater force with the court and even the govt. itself, while it cannot fail to give an useful admonition to the cruisers.

The ninth article regulates what shall be deemed contraband of war. You will observe that tar and turpentine, except when destined to a place of naval equipment, are not comprized in it, and that provisions are altogether omitted. We endeavoured to exclude from it naval stores but without effect. We succeeded however in exempting the vessel on the return voyage, after depositing her cargo at the port of her destination, from being detained on the pretence, that it consisted of contraband articles.

The provision in the tenth article, relative to vessels sailing without knowledge of a blockade, is somewhat altered from the treaty of 1794. The precise effect of the change cannot perhaps be pronounced with certainty; but it seems to be clear that it cannot be otherwise than advantageous. The alterations consist in the introduction into the preamble of "the distance and other circumstances incident to the situation of the contracting parties", and of the word "such" into the provision which follows. The first amendment appears to justify an inference that, on account of the peculiar circumstances, local and relative, thus recited as the reasons why in the opinion of the contracting parties "it may frequently happen that vessels may sail for a port or place without knowing that it is besieged, blockaded or invested", our vessels ought not to be liable to be judicially affected with knowledge of a blockade, so as to subject them to penalty, by the evidence usually held to be sufficient for that purpose. Sir W. Scott decided in 1799, that, in consequence of the distance of the U. States from Europe, we were entitled to a more favorable rule in that respect than other countries, and our article may be fairly considered as adopting that idea and acting upon it. On the foundation of the single fact of distance Sir W. Scott justified a conjectural destination from America to Amsterdam, altho the blockade of that port had been notified; and the parties concerned were proved to have known of the commencement of it. The article, as it now stands, seems necessarily to imply at least the same indulgence: and, if it does, it certainly goes farther than Sir W. Scott’s opinion, which does not admit that an inquiry can be made of the blockading force, as our article unquestionably does, in the cases to which it applies. It does not appear to be unreasonable to hold that, a peculiar motive being now assigned in the preamble for the provision which it introduces, a corespondent peculiar effect is contemplated by that provision; and no such effect can follow from it, if it be not that (as our distance makes it impossible "that we should have constant information of the state of the blockade, whether it continues, or is relaxed") the mere notification of the blockade or even the knowledge that the blockade has been commenced de facto, shall not be sufficient to make the destination illegal, but that, notwithstanding such notification or knowledge, we shall receive warning at the port or place blockaded. The words "without knowing that the same is either besieged, blockaded or invested" will admit of this interpretation, since, by reason of our distance, it may in our case be truly said (and has in substance been judicially said) to be one thing to know that a blockade has been notified or instituted, and another that it continues. We endeavoured without success to obtain the consent of the British Commrs. to the article proposed in your project. They would only agree as you will perceive to take its preamble and engross it upon the article of 1794, observing that this would give to that article a new and more favorable, tho’ certainly an undefined character, and that, at a moment, when their maritime efforts in this mode of hostility might more than ever become indispensable to the national safety, it was impossible to do more. We pressed them long and earnestly to connect with the clause a definition of blockade, to which in the early stages of our negotiation it was believed there would be no objection. We found them however decidedly averse from such a definition by treaty, notwithstanding the precedent afforded by Lord St. Helen’s convention with Russia. They maintained that the British doctrine was already as explicit on this point as any definition could make it, that it was difficult if not impracticable to agree upon one which should be at the same time accurate and complete; that the clause in it’s present form would do much towards the accomplishment of our object; and that what remained it would be in their power, as it certainly was in their inclination, to supply, as effectually as in the treaty itself, by taking occasion to state, in a letter which it was intended should be delivered to us on their part at the time of the signature of the treaty, which you will hereafter find explained, the theory and practice of the British government on this subject.

This reasoning was in no degree satisfactory and it was resisted accordingly, but without effect. The proposed substitute for a definition by treaty might be of some value and was not therefore opposed; but it was obvious that it would be greatly impaired if not wholly destroyed by the nature of the letter of which we had received a full explanation and in which the suggested document was to be inserted.

The eleventh article regulates the great question of our commerce with enemies colonies, the interruption of which was one of the principal causes of the late disagreement between the two countries. We trust that the compromise which has been made on this point will be advantageous to our commercial interest and satisfactory to our government. The British Commrs. were very desirous of burthening this intercourse with several severe restrictions, to place, as they did not hesitate to state, their own merchandise on an equal footing, in the great markets of the continent, with those of the U. States. With that view, and to settle all questions concerning the continuity of the voyage, they proposed, that all articles of W. India produce should be stored in the U. States for the term of one month, be transported thence to Europe in another ship from that in which they were brought, and be likewise subjected to a duty of at least four per cent on re-exportation. They finally agreed however to relinquish all these pretensions, except the landing of the goods in the U. States and the payment (by which is understood the securing of the payment in the mode prescribed by our law) of one per cent on such European articles as may be carried thence to the colonies, and of two per cent on such W. India productions as may be carried to Europe, including the parent and every other country. We are persuaded that this arrangement will be attended with less inconvenience to the parties than the other restrictions above mentioned or either of them. The storing of the goods especially for a month seemed to be peculiarly objectionable, as it would have subjected us to a serious injury without being attended with any circumstances to alleviate the regret inseparable from it. We flatter ourselves that the sum agreed to be paid will not be felt as a heavy one on our merchants, whose patriotism will be gratified by the recollection that the duty which they pay will redound to the advantage of their country. By the compromise which is made the practical enjoyment of the rights of each party is forborne, in the manner stated and for the term specified, while the rights themselves are reserved. The stipulation being in the form of a concession on the part of G. Britain is intended to mitigate her principle where it applies but in no respect to enlarge the sphere of its operation. No judicial decision of the court of admiralty in this country has hitherto extended the British principle to enemies colonies in the East Indies, and it is understood that it does not apply to the greater part, if to any, of them. Some cases are depending before it, from the vice admiralty courts of Halifax and Columbo, which will bring the point into question. Should the opinion of the court be that the principle is applicable to the colony to which the cause relates, then the party will have the advantage of the provision contained in this article; should it on the contrary decide, that it does not apply to such colony, then the trade between it and the parent country will be free. This view of the subject was entertained equally by the British commrs. and ourselves, and is that, as they assure us, which the court of admiralty will adopt in its decisions. We endeavoured to exempt this branch of the trade with enemies colonies from the operation of the British principle; but that was found to be impracticable. We flatter ourselves that the arrangement made respecting it will be deemed the next most eligible one that could have been adopted, and that it will produce in practice, in a great measure, if not altogether, the same effect.

The twelfth article establishes the maritime jurisdiction of the U. States to the distance of five marine miles from their coast in favor of their own vessels and the unarmed vessels of all other powers who may acknowledge the same limit. This govt. contended that three marine miles was the greatest extent, to which the pretension could be carried by the law of nations, and resisted, at the instance of the admiralty and the law officers of the crown in Doctors Commons, the concession which was supposed to be made by this arrangement with great earnestness. The Ministry seemed to view our claim in the light of an innovation of dangerous tendency, whose admission, especially at the present time, might be deemed an act unworthy of the government. The outrages lately committed on our coast, which made some provision of the kind necessary as an useful lesson to the commanders of their squadrons, and a reparation for the insults offered to our govt., encreased the difficulty of obtaining any accommodation whatever. The British commrs. did not fail to represent that which is contained in this article as a strong proof of a conciliating disposition in their govt. towards the govt. and people of the U. States. The limit established was not so extensive as that which we had contended for and expected to have obtained. We persuade ourselves however that the great object which was contemplated by any arrangement of the subject will result from that which has been made. The article in the treaty, in connexion with the causes which produced it, forms an interesting occurrence in the history of our country which cannot fail to produce the most salutary consequences. It is fair to presume that the sentiment of respect which G. Britain has shewn by this measure for the U. States will be felt and observed in future by her squadrons in their conduct, on our coast, and in our bays and harbours. It is equally fair to presume that the example of consideration which it affords in their favor by a nation so vastly preponderant at sea, will be followed by other powers.

By the thirteenth article it is agreed that the sum for which bonds shall be given by the commanders of privateers before they receive their commission, to indemnify those who shall be injured by their misconduct, shall be increased to a greater amount than was required by the 19th. article of the treaty of 1794. It is also enjoined in stronger and more definite terms on the belligerent, in this than in the former article, to see that it’s ships of war and privateers shall observe in a manner the most favorable to neutrals the acknowledged principles and rules of the law of nations in the search of merchant vessels. We endeavoured to obtain an arrangement more adequate to the object, and relinquished the pursuit of it with regret. While the subject of visitation and search was under consideration the British commrs. assured us that their govt. would regulate it in a satisfactory manner to the U. States by Act of Parliament, especially in respect to privateers; which assurance was repeated when the treaty was signed.

The following articles to the twenty first inclusive are taken from the treaty of 1794. The British Commrs. shewed a desire to retain them, and, as it appeared that they had in substance been introduced into the Treaty with France of 1801, and that an attempt on our part to omit them would be thought unaccommodating and captious, we agreed to them.

The twenty second article contains a new and useful provision in favor of the unfortunate in the case of shipwreck.

The twenty third article, after declaring that it is the intention of the high contracting parties that the people of their respective dominions shall be on the footing of the most favored nations, stipulates that in case either of the parties shall hereafter grant any additional advantages in navigation or commerce to any other nation, the citizens or subjects of the other party shall fully participate in them. This article is deemed particularly important in many views, but more especially in it’s application to the British possessions in the E. Indies. If it can be shewn that any peculiar accomodation is or shall be hereafter granted to any other powers we become entitled to it of course.

The twenty-fourth article engages that the parties shall communicate to each other the laws which their respective legislatures may enact for the abolition or limitation of the African slave trade, and that they will also use their best endeavors to procure the co-operation of other powers for the complete abolition of that trade. As this engagement reposes on our laws, it follows that it does not enjoin any obligation unknown to them. If it should be acted on at all by our govt., farther than by communicating to this the laws of Congress, as is proposed in the first part of the article, the sphere of its operation would be a very contracted one till the year 1808. After that period such a co-operation on a more enlarged scale would become a constitutional measure of the govt., and as we think a suitable one. Mr. Fox had taken great interest in this question, and it is understood that in suggesting the idea, in the address of the house of Commons to the King, of obtaining the co-operation of other powers, the U. States were held particularly in view. The British Commrs. proposed the article and shewed great desire that we should agree to it. As this stipulation was not comprized within the scope of our instructions, we have thought it our duty to explain to you the cause to which its admission into the treaty is to be attributed.

The twenty fifth article was introduced for the purpose of protecting other powers having treaties with either party, in the enjoyment of the rights secured by them. The stipulation contained in our treaty with France in 1803, of certain commercial priviledges in favor of French and Spanish subjects for a defined term in Louisiana, made such a provision particularly necessary

The twenty sixth article fixes the term of the treaty at ten years from the date of the exchange of the ratification⟨s⟩.

We are sorry to add that this treaty contains no provision against the impressment of our seamen. Our dispatch of the 11. of Novr. communicated to you the result of our labours on that subject, and our opinion that altho’ this govt. did not feel itself at liberty to relinquish formally by treaty it’s claim to search our merchant vessels for British Seamen, it’s practice would nevertheless be essentially if not completely abandoned. That opinion has been since confirmed by frequent conferences on the subject with the British commrs., who have repeatedly assured us that in their judgement we were made as secure against the exercise of their pretension by the policy, which their govt. had adopted in regard to that very delicate and important question, as we could have been made by treaty. It is proper to observe however that the good effect of this disposition and its continuance may depend in a great measure on the means which may be taken by the Congress hereafter to check desertions from the British service. If the treaty is ratified, and a perfect good understanding produced by it between the two countries, it will be easy for their governments by friendly communications to state to each other what they respectively desir⟨e⟩ and in that mode to arrange the business as satisfactorily, as it could be done by treaty.

We regret also to be under the necessity of stating that no provision has been made by the treaty to indemnify our citizens for their losses by the late seizures and other violations of the law of nations. This object engaged our attention in every stage of the negotiation, and was not abandoned by the signature of the treaty. On the day it was signed we stated in explicit terms to the British commrs. that we could not conclude without having a satisfactory assurance by them of the part their govt. intended to take equally in regard to the vessels and cargoes which had been condemned and the suits that were depending. The principle established in the correspondence between Mr. King & Lord Hawkesbury we admitted should form the bounda of our claim in respect to the seizures for an imputed illegal trade, for every violation of which in cases of condemnation we expected a full indemnity, and a dismission of all the causes still depending that were protected by it. The British commrs. observed that it was neither their wish nor expectation that we should relinquish our claim; on the contrary they were willing we should preserve it: with which view they proposed that we should present them a paper, bearing date prior to the signature, which should make the reservation in such form as we thought best suited to the object. They intimated that in cases of vested right it was not in the power of their govt. to interfere to the prejudice of the parties, and that it wou’d be hard on the govt. and unpopular in the ministry to apply the public mony to such a purpose; still they said nothing to preclude that expectation, on the contrary they encouraged it, and were still more explicit in suggesting that the depending cases would not be unfavorably adjudged. They seemed desirous that, while we should resume our claim, their government should retain a right to pursue such a course of conduct in regard to it as might be dictated hereafter by circumstances. To enter into an engagement in favor of our claim in the present state of things appeared to them as being likely to expose their govt. to the imputation of having done it by coercion, and to deprive it of a claim to any merit for such an accommodation as it might under other circumstances be disposed to yeild. Should the circumstances of collision which had taken place between the two countries be done away, and their commerce and friendly relations be re-established, as they hoped was already in a great measure done, and would be so completely by this treaty, their govt. they thought would feell itself more at liberty to yeild accommodations on this topic than in the actual state. This was the substance of the communication made us on this subject by the British commrs. before the signature of the treaty, on which and our declaring explicitly that we would reserve the right in the manner they had proposed in full confidence that their govt. would respect it, we proceeded to sign the treaty. We have had an interview with the British commrs. since the signature, and were happy to find that they had not forgotten what had passed between us on that occasion. We had asked the interview, as we informed them, for the purpose of conferring on this subject, and of obtaining their sentiments in so distinct a form, as to leave us under no embarrassment in the communication it was our duty to make to you on it. Nothing passed in this interview on their part to change the ground on which the business had been placed in the former one. They intimated however that it might be advantageous, and would certainly be proper for us, in the present stage, to confer with Lord Howick on this subject, since any declaration from him could not fail, according to it’s import, to merit the peculiar attention of our government. We have accordingly seen and conferred with Lord Howick upon this topic, whose sentiments appeared to correspond strictly with those which had been delivered to us by the British commrs. He intimated however that it would be better for us to address the note which should contain a reservation of our rights to indemnity, to him than to the Commrs., to which we assented, as we could not perceive that that circumstance would make any difference in the case. We are engaged in preparing this paper which we now expect to present to his Lordship in a few days, tho we fear it will not be ready in time to enable us to obtain his answer to it to be forwarded to you with this dispatch. We shall not fail to communicate to you without delay whatever may occur on this subject. We think it our duty however to add that we do not wish our govt. to be too sanguine in the expectation of a satisfactory result. In the deliberations on this subject it may perhaps be better to presume that such a one may not be obtained, as it is not provided for in the treaty. The above statement is nevertheless perfectly correct, and we beg you to be assured that we shall continue to exert our best endeavors to secure an object which we consider of so much importance. We shall send you a statement of the cases of condemnation, and of the causes still depending, which is less extensive in both views than may have been supposed.

It happened, when the negotiation had reached a very advanced stage, that an account was received here of the decree of the Emperor of the French at Berlin of Nov. 21., which declared G. Britain and Ireland in a state of blockade, and all British manufactures and the produce of British colonies lawful prize. This circumstance produced a strong impression on this govt., which was very seriously felt in our concerns. It seemed probable for some days that it would subject the negotiation to a long suspension, if it did not entirely defeat its object. The British commrs. informed us that the decree of the govt. of France had opposed a powerful obstacle to the conclusion of any treaty with us, before our govt. should be consulted on the subject, and it’s answer obtained as to the part it might take in regard to it: that in case the U. States submitted to a violation of their neutral rights by France in the manner contemplated by that decree, it would be impossible for G. Britain to respect them: that by concluding a treaty with the U. States, by which they should not only bind themselves to the observance of such rights, but agree to concessions or relaxations of what they conceived to be their unquestionable rights of war, after knowing the contents of that decree, they might be understood to restrain themselves from counteracting the policy of France, which it would be improper to do, unless our govt. should engage to support its rights against the measures of France. In consideration of these circumstances they proposed that we should proceed in the business so far as to agree on all the articles of the treaty, to reduce them to form, and then transmit the instrument to the U. States, to become obligatory in case our govt. should enter into a satisfactory engagement of the kind proposed. We replied in very explicit terms to the British commrs. that we considered their proposition altogether inadmissible on our part, and not likely to accomplish, if we could agree to it, the object which they contemplated by it: that such a proposition to our government, under the circumstances attending it, would amount, in substance to an offer to it of the alternative between the treaty and a war with France, since if our govt. refused to give the satisfaction which they desired, the treaty would be lost; and if such satisfaction was given and the treaty concluded, and France should persist to execute her decree, according to the construction given of it here, war seemed to be inevitable; that if it should happen that our govt. should approve the treaty it was not to be presumed that it would make any sacrifice, or stipulate anything not contained in the instrument, especially so very important an act as that alluded to, as the condition on which it was to be obtained: that the arrangement of our differences and other concerns with G. Britain was an affair which rested on it’s own ground, and had no connexion with our relations with France: that his Majesty’s government ought to suppose that the U. States would not fail in any case to support with becoming dignity their rights with any power, and that it must be sensible that it would be more at liberty to enter into suitable friendly explanations with the govt. of France on the subject of the decree in question, after the adjustment of their differences with G. Britain than while they existed, as it likewise must be that the prospect of obtaining satisfactory explanations on that point of France would be better while they acted under their own impulse as an independant and friendly power than it would be in case they entered into an engagement of the kind proposed with her adversary. The British Commrs. admitted that these considerations were entitled to much attention: at length however after the subject had been, as we had reason to believe, maturely weighed in the Cabinet, they informed us that their government still thought it incumbent on it to make a reservation of their right to counteract the policy of France in case our govt. did not give them the satisfaction they desired, either by suitable assurances before the ratification of the treaty or by it’s conduct afterwards. With this view they presented us a paper which we have the honor to transmit with this dispatch. In transmitting to you this paper it is our duty to observe that we do not consider ourselves a party to it, or as having given it in any the slightest degree our sanction. The incident which produced the paper was unexpected on our part, and without entering into its merits we used our best exertions to diminish it’s effect in relation to the objects of our negotiation. The British Commrs. brought the incident into view, and made it the subject of discussion in the manner above stated, as they did the part which it became their govt. to take in the depending negotiation in consequence of it. We therefore thought, not only that we were at liberty but that it was imperiously our duty, to use our best exertions to make the paper which they proposed to present to us, in reference to the degree of France, as little injurious as possible, and even to urge that decree as a strong reason why G. Britain should be more explicit and satisfactory in her definition of neutral rights, as well for the purpose of vindicating herself against the strong denunciation it contained, as to enable our govt. to urge with more force with the govt. of France, it’s objections to the decree. We were glad to find that these remarks were not altogether without effect, as will appear by the paper referred to, especially the definition it gives of a blockade, which is tolerably correct.

You will observe that the commerce between the U. States and the British colonies which bound them to the East and North, has not been regulated by this treaty. The British commrs. refused to agree to any arrangement of it in consequence of our declining to admit their Canada and Hudson Bay traders into Louisiana. It has occurred to us that it might be advantageous to the U. States and consistent with the views of our govt. to comprize both these objects, under suitable regulations, in a separate Convention, especially if they can be made instrumental to a satisfactory establishment of our boundaries. We have reason to think that in the form of a new act, in connection with these other objects, it would be more agreeable to this govt. to settle the question of boundary, according to the views of the President and Senate, than by ratifying the Convention already entered into with the exception of the 5th: article. The British Commrs. have expressed their willingness to proceed in the business for the purpose of arranging all these topics in a satisfactory manner, as Lord Howick has likewise done; and it seems to be highly important to take advantage of this disposition to settle amicably with this govt. at the present time every remaining cause of strife, so far as it may be practicable. Should we undertake to form such a convention, the commercial part of it will of course be limited to the same term, not to exceed that of the treaty. We shall also be attentive to the conditions on which the traders with the Indian tribes are to be admitted into Louisiana; by being particularly careful that it be done on such conditions as to render it impossible for them to do any injury. We are persuaded that such regulations might be adopted, as would even at this time have that effect. We are confident that our population will have so far spread over the whole surface of that country, by the time the treaty would expire, as to supercede the necessity of renewing it. We have the honor to be with great consideration & esteem, Sir Your most obedient Servts.

Jas. Monroe

Wm: Pinkney

DNA: RG 233—LRHR—Legislative Records of the House of Representatives.

Index Entries