Department of State March 31. 1807.
In my last letter of 26. I enclosed you a copy of one from Mr. Erskine communicating the British order of Jany 7th., and of my answer. Occurring circumstances and further reflection on that extraordinary measure, produced a return to the subject; and another letter was added to the first answer. A copy is inclosed, with the same view which led to the last inclosure.
The more this order is examined, the more unjustifiable it appears in its principles, the more comprehensive in its terms, and the more mischievous in its operation. In the recitals prefacing the measure as communicated by Mr. Erskine, in the order itself, and in the Note of Lord Howick to you, there is a medly of motives, for which a cause must be sought either in the puzzle to find an adequate one, or in the policy of being able to shift from one to another, according to the posture which the case may take. Whatever be the explanation, the order in relation to the United States at least, must ever remain with the candid and intelligent, a violation of those rules of law and of justice, which are binding on all Nations, and which the greatest Nations ought to pride themselves most, in honorably observing. Considered as a retaliation on the United States, for permitting the injury done to Great Britain, thro’ their Commerce, by the French decree, the Order, over and above the objections stated to Mr. Erskine, subjects the British Government to a charge of the most striking inconsistency, in first admitting that the Decree gave a right to retaliate in the event, only, of a failure of the UStates to controul its operation, as well as that such a failure alone would justify a final refusal of the Treaty, signed by its Commissioners; and, then, actually proceeding to retaliate, before it was possible for the decisions of the United States to be known or even made.
If it be said as is stated, that captures had commenced under the decree, the fact would be of little avail. Such occurrances could not have escaped anticipation: Nor can the amount of them, under the present superiority of British power at sea, afford the slightest plea for the extensive and premature retaliation comprised in the Order. A Government, valuing its honor and its character, ought to have dreaded less the injury to its interest from the pillage committed by a few Cruisers on Neutral Commerce, than the reproach or even the suspicision; that a pretext was eagerly siezed for unloosing a spirit, impatient under the restraint of neutral rights, and panting for the spoils of neutral trade. The British Government does not sufficiently reflect on the advantage which such appearances give to her adversary, in the appeal they are both making to the judgment, the interests and the sympathies of the world. If Great Britain wishes to be regarded as the Champion of law, of right and of order among Nations, her example must support her pretensions. It must be a contrast to injustice and to obnoxious innovations. She must not turn the indignation of Mankind, from the violence of which she complains on one element, to scenes more hostile to established principles, on the element, on which she bears away. In a word, she ought to recollect, that the good opinion and good will of other Nations, and particularly of the United States, is worth far more to her, than all the wealth which her Navy, covering as it does every Sea, can plunder from their innocent Commerce.
As to the scope of the Order, it is evident, that its terms comprehend not only the possessions of France and of her Allies, in Europe, but in every other quarter; and consequently, both in the West and in the East Indies. And as to the injury which, if the order be executed, as it will be interpreted, by British Cruizers, in the full extent of its literal meaning, will be brought on the Commerce of the United States, an idea may be collected from the glance at the amount in the letter to Mr. Erskine. The enclosed state of our exports to Europe and of the proportion of them which not being destined to England may be food for this predatory order, will reduce the estimate to some precision. To make it still more precise, however, it will be necessary, on one hand, to transfer from the proportion cleared for Great Britain, as much as may have touched there only on its way to Continental Ports; and, on the other, to deduct the inconsiderable destinations to Portugal, the Baltic, and the Austrian ports in the Mediterranian.
Having in your hands the materials which this communication will compleat, you will be able to make whatever representations to the British Government, you may deem expedient, in order to produce a proper revision of the order. If it shall have been finally ascertained that the French Decree will not be applied to the Commerce of the United States, you will, of course, insist on an immediate revocation of the order so far as it may have been applied to that commerce; and, if, as in that case the order can no longer be maintained on the principle of retaliation, the pretext of a blockade, or of illegality in the trade as a coasting one, be substituted, you will be at no loss for the grounds, on which the order is to be combated, and its revocation demanded.
Among the papers accompanying my last was a printed Copy of the Proclamation, empending the non-importation act, until December next. This measure of the President, under any circumstances, ought to be viewed as the effect of his amicable policy toward Great Britain. But when it is considered as having been taken with the British order of Jany., before him, a measure subject to the strictures which have been made on it, it is the strongest proof that could be given, of his solicitude to smooth the path of negociation, and to secure a happy result to it; and in this light, you will be pleased on the proper occasions to present it. I have the honor to be, with great respect, and Consideration Your most Obt. Servt.
DLC: Papers of James Madison, Rives Collection.