James Madison Papers

From James Madison to James Monroe, 20 May 1807

Department of State May 20th. 1807


My letter of March 18th. acknowledged the receipt of your dispatches and of the Treaty signed on the 31st. of December, of which Mr Purviance was the bearer, and signified that the sentiments and views of the President formed on the actual posture of our affairs with Great Britain, would without any needless delay, be communicated. The subject is accordingly resumed, in this dispatch, with which Mr Purviance will be charged. To render his passage the more sure and convenient, he takes it in the sloop of war, the Wasp, which will convey him to a British port, on her way to the Mediterranean. She will touch also at a French port, probably L’Orient, with dispatches for Genl. Armstrong and Mr Bowdoin, and will afford a good opportunity for any communications you may have occasion to make to those gentlemen.

The President has seen in your exertions to accomplish the great objects of your instructions, ample proofs of that zeal and patriotism in which he confided; and feels deep regret that your success has not corresponded with the reasonableness of your propositions, and the ability with which they were supported. He laments, more especially, that the British Government has not yielded to the just and cogent considerations which forbid the practice of its cruizers in visiting and impressing the crews of our vessels, covered by an independant flag, and guarded by the laws of the high seas, which ought to be sacred with all nations.

The President continues to regard this subject in the light in which it has been pressed on the justice and friendship of Great Britain. He cannot reconcile it with his duty to our sea faring Citizens, or with the sensibility or sovereignty of the nation, to recognize, even constructively, a principle that would expose on the high seas, their liberty, their lives, every thing in a word that is dearest to the human heart, to the capricious or interested sentences which may be pronounced against their allegiance, by officers of a foreign Government, whom neither the law of nations, nor even the laws of that Government, will allow to decide on the ownership or character of the minutest article of property found in a like situation.

It has a great and necessary weight also with the President, that the views of Congress, as manifested during the Session which passed the Non-importation Act, as well as the primary rank held by the object of securing American Crews against British impressment, among the objects which suggested the solemnity of an Extraordinary mission, are opposed to any Conventional arrangement, which, without effectually providing for that object, would disarm the United States of the means deemed most eligible as an eventual remedy.

It is considered, moreover, by the President the more reasonable that the necessary concession in this case should be made by Great Britain, rather than by the United States, on the double consideration; first, that a concession on our part would violate both a moral and political duty of the Government, to our Citizens; which would not be the case, on the other side; secondly that a greater number of American Citizens, than of British subjects are, in fact, impressed from our vessels; and that, consequently, more of wrong is done to the United States, than of right to Great Britain; taking even her own claim, for the legal criterion.

On these grounds, the President is constrained to decline any arrangement, formal or informal, which does not comprize a provision against impressments from American vessels on the High seas, and which would, notwithstanding, be a bar to Legislative measures, such as Congress have thought, or may think proper, to adopt for controuling that species of aggression.

Persevering at the same time in his earnest desire to establish the harmony of the two Nations on a proper foundation, and calculating on the motives which must be equally felt by Great Britain to secure that important object, it is his intention that your efforts should be renewed, with a view to such alterations of the instrument signed on the 31 Decr., as may render it acceptable to the United States.

That you may the more fully understand his impressions and purposes, I will explain the alterations which are to be regarded as essential; and proceed then to such observations on the several articles, as will shew the other alterations which are to be attempted, and the degree of importance respectively attached to them.

lst. Without a provision against impressments, substantially such as is contemplated in your original instructions, no Treaty is to be concluded.

2d. The eleventh Article on the subject of Colonial trade cannot be admitted, unless freed from the conditions which restrict to the market of Europe, the re exportation of Colonial produce, and to European Articles, the supplies to the Colonial market.

3 The change made by the 3d. article in the provisions of the Treaty of 1794, relative to the Trade with the British possessions in India, by limiting the privilege to a direct trade from the United States, as well as to them, is deemed an insuperable objection.

4th. Either an express provision is to be insisted on indemnifying sufferers from wrongful captures, or at least a saving, in some form or other, of their rights against any implied abandonment.

5. Articles 18 & 19 To be so altered as to leave the United States free as a neutral nation to keep and place other belligerent nations on an equality with Great Britain.

6 Such an alternative as is presented by the declaratory note on the subject of the French decree of Novr. 21 1806, will be inadmissible.

1 The considerations which render a provision on the subject of impressments, indispensable, have been already sufficiently explained.

2 The essential importance of the amendment required in the llth. article, results from the extensive effect which the article, if unamended, would have on the system of our commerce as hitherto carried on, with the sanction or acquiescence of Great Britain herself.

It was hoped that the British Government, in regulating the subject of this article, would at least have yielded to the example of its Treaty with Russia. It could not have been supposed, that a modification would be insisted on, which shuts to our neutral commerce important channels, left open by the adjudications of British Courts, and particularly by the principle officially communicated by that Government to this, thro’ Mr King in the year 1801.

According to that principle and those adjudications, the indirect trade thro’ our neutral ports was as free, from enemy Colonies to every other part of the world, as to Europe; and as free, to such Colonies, in the articles of all other Countries, as in European articles.

According to the tenor of the article, and the general prohibitory principle assumed by Great Britain, to which it has an implied reference: the productions both of the Continental and of the insular Colonies in America, can no longer be re exported as heretofore to any part of Asia or Africa, or even of America; and consequently can no longer enter into the trades carried on, from the United States, to the Asiatic or African shores of the Mediterranean; nor to any of the places beyond the Cape of Good Hope offering a market for them; nor finally to any other enemy or neutral Colonies in this quarter, to which in reason, as well as according to practice, they ought to be as re exportable, as to the Countries in Europe to which such Colonies belong.

In like manner the importations from beyond the Cape of Good Hope, more especially the cotton fabrics of China and India, can no longer be sent, as heretofore, to the West Indies, or the Spanish Main, where they not only now yield a great profit to our merchants, but being mixed in cargoes with the produce of this Country, facilitate and encourage the trade in the latter. Besides the effect of the Article in abridging so materially our valuable commerce, the distinction which it introduces between the manufactures of Europe and those of China, and India, is charged with evils of another sort. In many cases, it might not be easy to pronounce on the real origin of the articles. It is not improbable, that supposititious attempts also might be occasionally made, by the least scrupulous traders. With such pretexts as these, arguing from the abuse made of less plausible ones, the interruptions and vexations of our trade, by the greedy cruizers which swarm on the ocean, could not fail to be augmented in a degree, not a little enforcing the objection to the article in its present form.

As the prohibitory principle of Great Britain does not extend to the case of a Colonial Trade usually open, and no judicial decision has professedly applied the principle to such a trade; it is a reasonable inference, that the Article will not be so construed as to interfere with the trade of that description, between enemy Colonies beyond the Cape of Good Hope, and other Countries and ports in that quarter. But, on the other hand, it may not be amiss to guard against a construction of the article that would abolish the rule observed in the prize Courts of Great Britain; which, in the case of the Eastern Colonies, presumes that these ports were always open, and thereby throws on the captors, instead of the claimants, the disadvantage of proving the fact in question.

It is observable that the duration of this article is limited to the period of the present hostilities, whilst the others are to be in force for ten years; so that if there should be a peace and a renewal of the war, as is very possible, within the latter period, the onerous parts of the bargain would survive a part, in consideration of which, they were assumed. Justice and reciprocity evidently require that the more important articles of the Treaty should be regarded as conditions of each other, and therefore that they should be co-durable. In this point of view, you will bring the subject under reconsideration; and without making this particular amendment an ultimatum, press it with all the force which it merits. This amendment ought to be the less resisted on the British side, as it would still leave to that side, an advantage resulting from the nature of the two great objects to be attained by the United States, namely, the immunity of our crews, and of our neutral commerce; which are connected with a state of war only; whereas the stipulations, valued by Great Britain, will operate constantly throughout the period of the Treaty, as well in a state of peace, as in a state of war.

Whatever term may finally be settled for the continuance of this regulation, it will be proper to retain the clause which saves the right involved in the article, from any constructive abandonment or abridgment. Even the temporary modification of the right, as it will stand without the inadmissible restrictions now in the article, is considered as an important sacrifice on the part of the United States, to their desire of friendly adjustment with Great Britain. To an admission of the article with those restrictions, the President prefers the footing promised to the Colonial trade, by the deference of Great Britain for the maritime powers, and by an unfettered right of the United States to adapt their regulations to the course which her policy may take.

That the operation of the article, in its present form, might be more fully understood, it was thought proper to avail the public of the ideas of a citizen of great intelligence and experience with respect to our commerce. His remarks, contained in a paper herewith inclosed, afford a valuable elucidation of the subject. They will suggest, at the same time, some explanatory precautions worthy of attention; particularly in the case of articles, which paying no duty on importation into the United States, do not fall under the regulation of drawbacks; and in the case of securing by bond, instead of actually paying, the duties allowed to be drawn back. It appears by the observations in your letter of Jany 3 that the bond was understood, as it surely ought to be, equivalent to actual payment. But this is a point so material, that it cannot be too explicitly guarded against the misinterpretation of interested cruizers, and the ignorance or perverseness of inferior Courts.

3 The necessity of the change required in the 3d. article, in order to secure an indirect, as well as a direct trade, to the British East Indies, will be fully explained by the observations which have been obtained from several of our best informed Citizens on that subject, and which are herewith inclosed.

As this latitude of intercourse was stipulated by the 13th. art of the Treaty of 1794, as judicially expounded by British Superior Courts; as it was enjoyed by the United States prior to that epoch, and has been always enjoyed, both before and since, by other friendly nations; and as there is reason to believe that the British Government has been at all times ready, since the article expired, to renew it in its original form; it may justly be expected that the inserted innovation will not be insisted on. Should the expectation fail, the course preferred is to drop the article altogether, leaving the trade on the general footing of the most favored nation, or even trusting to the interest of Great Britain for such regulations as may correspond with that of the United States.

Should the negotiation take up the East India article of the Treaty of 1794, you will find several amendments suggested in the extracts above referred to; some of which may be attempted with the greater chance of success, as they are harmless, if not favorable, to the British system. To these suggestions may be added, a privilege to American vessels, of tou⟨ch⟩ing at the Cape of Good Hope. The objection to such a stipulation, under the present defeasable title of Great Britain to the Cape, may be obviated by a descriptive provision, not necessarily applicable to it, in the event of its restoration by a Treaty of peace; but embracing it, in case the British title should be established by that event: It may be agreed "that vessels of United States may touch for refreshment at all the ports and places in the possession of Great Britain on or in the African or Assiatic Seas."

4th. Without a provision, or a reservation as to the claims of indemnity, an abandonment of them may be inferred from a Treaty as being a final settlement of existing controversies. It cannot be presumed that a precaution against such an inference, in any mode that may be most effectual, can be opposed or complained of. On the contrary, it excites just surprize that so much resistance should be made to indemnifications supported by the clearest rules of right, and by a precedent in a former Treaty between the two Countries, from which so many other articles have been copied. The only colorable plea for refusing the desired provision, flows from a presumption not only that the British Courts are disposed, but that they are competent, to the purpose of complete redress. Not to repeat observations heretofore made on this subject, an unanswerable one is suggested by the clause in the [  ] article of the Treaty annulling the principle or rather the pretence, that vessels without contraband of war on board, returning from a port to which they had carried articles of that sort, were subject to capture and condemnation. Previous even to this recognition, it had been settled as the law of Nations by the British High Court of Admiralty, that vessels so circumstanced, were exempt from interruption. Yet a British order of August [  ] 1803 expressly declares them to be lawful prize; and it is well known that a number of American vessels have been seized and condemned under that order. Here then is a class of wrongs, undeniably entitled to redress, and which neither can nor ever could possibly be redressed, in the ordinary course of justice; it being an avowed rule with the prize Courts to follow such orders of the Government, as either expounding or superseding the law of nations. Even cases not finally decided, would probably be considered as falling under the rule existing at the time of the capture, and consequently be added to this catalogue of acknowledged, but unredressed injuries.

5--Articles 18 & 19

An effect of these articles is to secure to British Cruizers and their prizes, a treatment in American ports more favorable, than will be permitted to those of an enemy; with a saving of contrary stipulations already made, and a prohibition of any such in future. As none of our Treaties with the belligerent nations, (France excepted) stipulate to the cruizers an equality in this respect, and as there are parties to the War with whom we have no treaties, it follows that a discrimination is made in the midst of war between the belligerent nations, which it will not be in the power of the United States to redress.

Weighty considerations would dissuade from such a deviation from a strict equality towards belligerent nations, if stipulated at a time least liable to objection. But it would be impossible to justify a stipulation in the midst of war, substituting, for an existing equality, an advantage to one of the belligerent parties over its adversaries; and that too, without any compensation to the neutral, shielding its motive from the appearance of mere partiality. Hitherto the U States have avoided as much as possible such embarrassments; and with this view have gratuitously extended to all belligerents the privileges stipulated to any of them. Great Britain has had the benefit of this scrupulous policy. She can therefore, with the less reason, expect it to be relinquished for her benefit.

The last paragraph of the l9th. art establishes a just principle as to the responsibility of a neutral nation whose territory has been violated by captures within its limits; but by extending the principle to the two Miles added to our jurisdiction by the 12th. art, qualified as that addition is, it is made peculiarly important, that an amendment should take place.

Passing by the failure of a reciprocity, either in the terms or the probable operation of the responsibility, the United States seem to be bound to claim from the enemies of Great Britain, redress for a hostile act, which such enemies may not have renounced their right to commit within the given space; making thus the United States liable to the one party, without a correspondent liability to them in the other party; and at the same time entitling Great Britain to redress, for acts committed by her enemies, which she has reserved to herself, a right to commit against them.

Should all the other belligerent nations, contrary to probability, concur in the addition of two miles to our jurisdiction, this construction would still be applicable to their armed ships; those unarmed alone being within the additional immunity against British Cruizers; and the Armed, as well as the unarmed ships of Great Britain, being expressly within the additional responsibility of the United States.

6 No Treaty can be sanctioned by the United States, under the alternative presented by the declaratory note on the subject of the French decree of Novr. 21. It is hoped that the occasion which produced it, will have vanished, and that it will not be renewed in connection with a future signature on the part of Great Britain. The utmost allowable in such a case by a due respect to the United States would be a candid declaration that, in signing or ratifying the Treaty, it was understood on the part of Great Britain, that nothing therein contained would be a bar to any measures, which, if no such Treaty existed, would be lawful as a retaliation against the measures of an enemy. And with such a declaration, it would be proper, on the part of the United States, to combine an equivalent protest against its being understood, that either the Treaty or the British declaration would derogate from any rights or immunities, against the effect of such retaliating measures, which would lawfully appertain to them, as a neutral nation, in case no such Treaty or declaration existed.

Having given this view of the alterations which are to be held essential, I proceed to notice such others as, tho’ not included in the ultimatum, are to be regarded as more or less deserving your best exertions. This will be most conveniently done by a review of the several articles in their numerical order.

The 2d. 4th. & 5th. all relate to the trade and navigation between the two Countries. The two first, make no change in the stipulations of the Treaty of 1794. The last has changed, and much for the better, the provisions of that Treaty, on the subject of tonnage and navigation.

Two important questions however, enter into an estimate of these articles.

The first is whether they are to be understood as a bar to any regulations, such as navigation Acts, which would merely establish a reciprocity with British regulations. From the construction which seems to have been always put on the same stipulations in the Treaty of 1794, it is concluded that no such bar would be created, and consequently that the articles are in that respect unexceptionable. It may be well, nevertheless, to ascertain that the subject is viewed in this light, by the British Government.

The second question is, whether the parties be, or be not, mutually restrained from laying duties, as well as prohibitions, unfavorably discriminating between Articles exported to them, and like articles exported, to other nations.

According to the construction put by the United States on the same clauses in the Treaty of 1794, the mutual restraint was applicable to discriminations of both kinds. The British discriminating duties on exports, introduced under the name of Convoy duties and since continued and augmented under other names, were accordingly combated, during the existence of the treaty, as infractions of its text. The British Government, however, never yielded to our construction either in discussion or in practice. And it appears from what passed in your negotiations on this subject, that the construction which is to prevail, admits discriminating duties on exports.

In this point of view, the stipulation merits very serious attention. It cannot be regarded as either reciprocal or fair in principle, or, as just and friendly in practice.

In the case of prohibitions where both governments are on an equal footing, because it is understood that both have the authority to impose them, neither is left at liberty to exercise the authority.

In the case of duties, where the British Government possesses the authority to impose them, but where it is well known that the authority is withheld from the Government of the United States, by the Constitution, the articles are silent; and of course, the British Government is left free to impose discriminating duties on their exports, whilst no such duties can be imposed by that of the United States. How will it be in practice? Stating the exports from Great Britain to the United States at 6 Millions sterling only, the present duty of 4 PCent levies a tax on the United States amounting to 240 thousand pounds or one million Sixty five thousand Six hundred dollars, and there is nothing, whilst the war in Europe checks competition there, and whilst obvious causes must for a long time enfeeble it here, that can secure us against further augmentations of the tribute.

Even under a regulation placing the United States on the footing of the most favored nation, it appears that the British Government would draw into its Treasury from our consumption 3/ 8 of the revenue now levied by her on the United States. Such a footing however, would be material, as giving the United States the benefit of the check accruing from the more manufacturing state of the European nations. But to be deprived of that check by the want of an Article, putting us on the footing of the nations most favored by Great Britain, and at the same time deprived of our own checks, by clauses putting Great Britain on the Commercial footing of the nations most favored by the United States, would, in effect, confirm a foreign authority to tax the people of the United States, without the chance of reciprocity or redress.

The British duty on exports to the United States has another effect, not entirely to be disregarded. It proportionally augments the price of British manufactures, re- exported from the United States to other markets, and so far promotes a direct supply from Great Britain, by her merchants and ships. Should this not be the effect of her regulations as now framed, there is nothing that would forbid a change of them having that for its object.

On these considerations it is enjoined upon you by the President to press in the strongest terms, such an explanation or amendment of this part of the Treaty, as will, if possible restrain Great Britain altogether from taxing exports to the United States, or at least place them on the footing of the most favored nation; or if neither be attainable, such a change in the instrument in other respects, as will reserve to the United States the right to discriminate between Great Britain and other Nations, in their prohibition of exports, the only discrimination in the case of exports, permitted by the Constitution. The unwillingness of the President to risk an entire failure of the projected accommodation with Great Britain, restrains him from making an amendment of this part of the Treaty, a sine qua non; but he considers it so reasonable, and so much called for by the [  ] opinions and feelings [  ] of this Country, that he is equally anxious and confident with respect to a compliance on the part of the British Government.

Art: 6

This article as taking the case of the West India trade out of any general stipulation of privileges granted to other nations, may prove convenient, by disincumbering measures which may be taken against the British monopoly, from questions of which that stipulation might otherwise be susceptible.

Art: 7 tho’ to remain if desired, would be more reasonable without the last paragraph, or with a right only to except ports and periods, at which the trade of the other party may not be permitted.

Art 8

This art: is framed with more accuracy than the l7th. on the same subject in the Treaty of 1794, and is improved by the additional paragraph at the close of it. But as such general stipulations have not been found of much avail in practice, and as it continues to be the wish of the President to avoid, especially at the present juncture, unnecessary confirmations of the principle that a neutral flag does not protect enemy’s property; an omission of the article is much preferred, unless it be so varied as to be free from this objection. This may easily be done, by substituting a general stipulation, "that in all cases where vessels shall be captured or detained for any lawful cause, they shall be brought to the nearest or most convenient port; and such part only of the articles on board as are confiscable by the law of nations, shall be made prize, and the vessel, unless by law subject also to condemnation, shall be at liberty to proceed &c"

There ought to be the less hesitation on the British side in making this change, as the article in its present form, departs from that of 1794; and there is the more reason on our side for requiring the change, as the addition of "for other lawful cause" after specifying the two cases of enemy’s property and contraband of war, is probably valued by Great Britain as supporting her doctrine, and impairing ours, with respect to Colonial trade. The only case other than those specified, to which the right of capture is applicable, is that of blockades, which might have been as easily specified as provided for by such a residuary phraze; and the pretext for appropriating this phraze to the case of the Colonial trade, would be strengthened by the specific provision, in a subsequent article, for the case of blockades.

It cannot be alleged that the specification of the two cases of enemy’s property, and contraband of war, is necessary to prevent uncertainty and controversy; the United States having sufficiently manifested their acquiescence in these causes of capture. If there be a source of uncertainty and controversy, it is in the expressions "other lawful cause," and "otherwise confiscable"; and this source could not be increased by the change here proposed.

Art 9.

This art: is an improvement of that on the same subject in the Treaty of 1794, inasmuch as it excepts from the list of contraband, tar and pitch, when not bound to a port of naval equipment, and when so bound, substitutes preemption for forfeiture. It has an advantage also in the clause, renouncing the principle of the British order of Augt. 1803 against vessels returning from places, to which they had carried contraband of War.

On the other hand, it would not have been unreasonable to expect that the British Government would, in a Treaty with the United States, have insisted on no stipulation less favorable, than her stipulation on the same subject, with Russia; especially as the naval stores exported from the United States, are equally the growth and produce of the Country.

Consistency again, as well as reason, evidently required, that the exception in favor of tar and pitch should have been extended to every species of naval stores, equally applicable to other uses than those of War, and destined to places, other than those of naval equipment.

Lastly, it is observable, that even turpentine and rosin are not included with Tar and pitch, in the favorable exception; tho’ of a character so kindred as to leave no pretext for the distinction.

Neither has the British Government the slightest ground for regarding as a concession, the stipulated immunity of a vessel, which, on her outward voyage, had carried contraband to a hostile port. The principle asserted by her order on that subject, is an innovation against the clearest right of neutrals as recognized and enforced even by British Courts. The very language of the article implies that there is no pretence for the innovation.

These considerations urge a remodification of the article, and they are strengthened by the great dislike of the President to formal recognitions, at this particular moment, of principles combated by some, and unfavorable to all neutral nations. So ineligible indeed, in his view, is any step tending in the least to retard the progress of those principles, that naval stores are to be left on a stipulated list of contraband, in the event only, of an inflexible refusal of the British Government to omit them; nor are they to be retained in any event, without an addition or explanation that will except turpentine and Rosin, as well as tar and pitch, there being no plausible motive for the distinction; and the quantity and value of the two former exported from the United States, being found, on inquiry, to make them of equal importance with the two latter. It can scarcely be supposed that the British Government will insist on this unwarrantable distinction. It is not indeed improbable, that it has been a mere inadvertence. Such an inference is favored by the circumstance of your speaking, in your comment on this article, of Tar and Turpentine, as being the two exceptions. Whatever the true state of the case may be, it is thought better to omit a list of contraband altogether, than not to include in the exception from it Turpentine and Rosin, as well as tar and pitch.

Art. 10

The abuse of blockades has been so extravagant and has produced so much vexation and injury to the fair commerce of the United States, that, as on one hand it is of great importance to find a remedy; so, on the other, it is the more necessary, that the remedy should be such as not itself to admit of abuse. The considerations which reconciled you to the tenor of the article, as at least a constructive approach to a solid provision for the case, are allowed the weight which they justly merit; whilst the course which your discussions took, are a proof of the exertions which were used to give the article a more satisfactory form.

The failure however of the British Commissioners to substantiate a favorable construction of the Article, by a proper explanatory letter addressed to you; with their reasons for refusing to insert in the Treaty, a definition of blockade, justify apprehensions that the vague terms, which alone were permitted to compose the article, would be more likely to be turned against our object, by Courts and Cruizers, and perhaps by a less liberal Cabinet, than to receive, in practice, the more favorable construction which candor anticipated.

The British doctrine of blockades, exemplified by practice, is different from that of all other nations, as well as from the reason and nature of that operation of war. The mode of notifying a blockade by proclamations and diplomatic communications, of what too is to be done, rather than of what, in fact, had been done, is more particularly the evil which is to be corrected. Against these nominal blockades, the article does not sufficiently close the door. The preamble itself which refers to distance of situation, as a frequent cause of not knowing that a blockade exists, though, in one view giving the United States, the advantage of a favorable presumption, in another view carries an admission unfavorable to our principle, which rests not on the distance of situation, but on the nature of the case; and which consequently rejects, in all cases, the legal sufficiency of notifications in the British mode. The preamble is liable to the remark also, that it separates our cause from the common one of neutral nations in a less distant situation, and that the principle of it may even be pleaded against us in the case of blockades in the West Indies. These considerations would have been outweighed by the advantage of establishing a satisfactory rule on this subject, in favor of our trade; but without such a provision in the Article, it is thought less advisable to retain it, than to trust to the law of blockades as laid down by all writers of authority; as supported by all treaties which define it, and more especially, as recognized and communicated to the United States by the British Government, thro’ its Minister here in -- last; not to mention the influence which the course of events, and the sentiments of the Maritime nations in friendship with Great Britain, may have in producing a reform on this subject.

The last paragraph, tho’ subjecting persons in civil as well as Military service of an enemy, to capture in our vessels, may prove a valuable safeguard to ordinary passengers and mariners against the wrongs which they now frequently experience, and which affect the vessel as well as themselves.

Art 12

It is much regretted that a provision could not be obtained against the practice of British Cruizers, in hovering, and taking stations, for the purpose of surprizing the trade going in and out of our harbours; a practice which the British Government felt to be so injurious to the dignity and rights of that nation, at periods when it was neutral. An addition of two miles nevertheless to our maritime jurisdiction, so far as to protect neutral and other unarmed vessels, notwithstanding its want of any thing like a due reciprocity, is not without its value. This value will, at the same time, be very materially impaired, if the stipulation cannot be liberated from the clause requiring the consent of the other belligerent nations, as necessary to exempt their vessels from search and seizure. None of the other belligerent nations have, in fact, unarmed vessels engaged in our trade, nor are they likely to have any during the war; and these alone could derive advantage from their consent, their armed vessels being expressly excepted. There can be no motive with them, therefore, to agree to the regulation. They would rather be tempted to embarrass it, with a view to continue as much as possible, vexations which lessen the mutual good will of the parties. And as by their not agreeing to the regulation, the right is reserved to British Cruizers to examine all vessels for the purpose of ascertaining whether they may not belong to a belligerent, the disturbance of our trade may be little diminished within the additional two miles. Besides the mere interruption of a search concerning the vessel, it is hardly to expected from the general spirit of Cruizers, that the search will not be extended to the cargo; and if the latter should be thus, or otherwise, found or suspected to be of a confiscable sort, that the temptation to capture would be resisted; the less so perhaps, as the increased distance from the shore, and the increased difficulty of proof, would favor the chance of condemnation, or at least countenance Courts in their propensity to refuse damages and costs to the claimants.

To secure the advantage promised by this article, the right of search ought to be suppressed altogether, the additional space enjoying in this respect the same immunity as is allowed to the marine league. To this object the President wishes your endeavours to be directed.

I reserve for the 19th. article another view of the subject which will claim your attention.

Art 13

The general provision here copied from the Treaty of 1794, tho’ not hitherto found of much effect, in controuling the licenciousness of Cruizers, and very different from the special rules in favor of neutrals contained in most treaties which touch the subject of search, enters very properly into a comprehensive arrangement between two friendly nations. The introductory sentence alone, which consists of new matter, invites particular notice. The expressions "as the course of the war may possibly permit" and "observing as much as possible the acknowledged principles and rules of the law of nations", however favorably intended by the British negotiators, will not improbably be construed into a relaxation of the neutral right in favor of belligerent pleas drawn from circumstances of which belligerent Agents will be the Judges. The expressions may easily be so varied as to refer simply to the law of nations for the rule, and to the friendship of the parties, for the spirit, according to which the search is to be conducted. If such an amendment should be deliberately rejected by the British Government, it will be a proof of lurking danger, that will recommend an Omission of what relates to the subject of search, in preference to retaining it.

Arts. 14. 15. & 16 call for no particular observation.

Art: 17

So much of this article as relates to the admission of ships of War, would be advantageously exchanged for a general stipulation, allowing on this subject the privilege granted to the most favored nation. It would then be in the power of the United States, to limit the number admissible at one time; whereas such an indefinite admission of British ships imposes on our neutrality, a like indulgence to the fleets of other nations. Such an alteration of the article is the more reasonable and important, as there will be little reciprocity in its character; the United States having but few ships; and the inconveniences from British ships in our ports, being much greater than those from our ships in British ports.

The engagement to treat officers of the navy with respect, is not only too indefinite to be enforced by penal regulations, but implies a reproachful defect of hospitality and civility. In this light it was viewed during the discussion of the Treaty of 1794. The clause probably grew then out of recent complaints well or ill founded, of disrespectful conduct on some occasion, towards British officers. If latter occurrences were to be consulted, it would be a more apt provision now, to stipulate for the punishment of venal Commanders making insulting and ungrateful returns for the kindness and respect shewn them in our ports and towns. The President makes almost a point of excluding this part of the article.

Art: 20

Considering the great number of British Merchants residing in the United States, with the great means of influence possessed by them, and the very few American merchants who reside in Great Britain, the inconvenience which may be incident to such a protracted right to remain, during a state of war, is evidently much greater on our side than on the other. In this view the stipulation is very unequal. The liberal spirit of it is, at the same time, highly commendable. It were only to be wished that the readiness on one side to make sacrifices of this sort, to a spirit which ought to pervade every part of a Treaty between the parties, had been less met by an apparent disposition on the other side, rather to extort from, than to emulate it.

Art 21 Tho’ not agreeable, not to be an insuperable obstacle.

Art 22 is altogether proper.

Art 23

This article, granting the privileges of the most favored nation, seems to require explanation, if not attention. The terms "shall continue to be on the footing of the most favored nation", implies that the parties are now on that footing. To look no further, the discrimination between exports from Great Britain to Europe and to the United States, is a proof that the fact is otherwise.

But may not the expression be construed into a barrier against laws on the part of the United States, establishing a reciprocity with the British navigation act and West India regulations. It might be impolitic to extend such laws to all other nations, as it would be unjust to extend them to such as had not adopted the restrictive system of Great Britain: And yet a discrimination might be arraigned as not continuing Great Britain on the same footing with other nations.

The object of this article, so far as it is a legitimate one, would be sufficiently provided for by a mutual stipulation of the privileges in trade and navigation enjoyed by the most favored nation; and such stipulations, moreover, ought in justice to import or imply that, where privileges are granted to a third nation, in consideration of privileges received, the privileges cannot be claimed under the stipulation, without a return of the same or of equivalent privileges. The condition is certainly not without difficulties in the execution; but it avoids a greater evil. Should Spain or France open her Colonies to our ships and productions, on our granting certain privileges to her trade, these could not be claimed or expected by the most friendly nation who would not pay the price of them.

Arts. 24 & 25 are entirely proper.

Art: 26.

It is particularly desirable that the duration of the Treaty should be abridged, to the term limited in the instructions of the 5th. day of Jany. 1804.

Having taken this view of the subject, with reference to a formal treaty under new modifications, it is necessary to recollect that you were authorized by my letter of Feby 3d. to enter into informal arrangements, and that before the receipt of my letter of March 18, a plan of that sort may have been definitively settled. In such a state of things, it is impossible to do better than to leave your own judgments, aided by a knowledge of circumstances unknown here, and by the sentiments of the President now communicated, to decide how far it may be eligible, or otherwise, to attempt to supersede that informal arrangement, by opening the negotiation herein contemplated.

Should, on another hand, the negotiation be found in the state authorized by my letter of March 18, that is to say, matured provisionally only, and consequently leaving the door open for the experiment now provided for, it must equally remain with your own judgments, guided by a comparison of the terms of the provisional arrangement, with the present instructions, to decide how far it may be best to close the former, or to pursue the object of the latter; or to pursue the object of the latter, with a view, in case of failure, to return to and close the former.

Whatever may be the course recommended by the actual state of things, you will feel the propriety of smoothing the way for it, by the explanations which will best satisfy the British Government, that the several steps taken on the part of the United States, have proceeded from their solicitude to find some ground on which the difficulties and differences existing between the two Countries, might be amicably and permanently terminated. You will be equally aware of the importance of transmitting hither as early and as circumstantial information of your proceedings and prospects, as opportunities will permit; and will particularly keep in mind the earnest desire of the President to possess, in due time, every material preparatory to the communications relating to our affairs with Great Britain, which will be so anxiously expected on the meeting of Congress the first Monday in December.

Since the contents of this Dispatch were determined on, and mostly prepared, advices have been received of the change which is taking place in the British administration. Composed as the new one is likely to be, or rather is said to be, the event will subject our British affairs to new calculations. The difference in the general complexion ascribed to the politics of the rival parties, towards the United States, and the language held by some individuals of the one now entering the Cabinet, augur, on one hand, fresh obstacles to a favorable negotiation. On the other hand, however, a less degree of confidence in their own strength than was felt by their predecessors, and a dread of furnishing these with such a topic as might be found in a real or impending collision with this Country, may be a powerful controul on illiberal dispositions towards it. Another favorable consideration is, that an important member of the new Ministry, Lord Hawksbury, was, formerly, as the head of the Foreign Department, the person who negotiated with Mr King a relinquishment of impressments on the high seas; who made to the same public Minister, the communication assuring to neutrals, a re exportation of Colonial produce unfettered in any respect other than by the condition of its having been landed and paid the ordinary duties; and finally who communicated to this Government, thro’ Mr. Merry, the instructions given to the British Commanders and Courts in the West Indies, in which blockades and the mode of giving notice of them were defined in terms liable to no objection. His concurrence therefore in an admissible provision, on these cardinal points, is due to that consistency which all men value more or less; and to which you will of course appeal, as far as circumstances may invite, and delicacy permit. The inducement to touch that string is the greater, as it has not appeared that in any of the late Parliamentary discussions, this nobleman has joined in the unfriendly language held in relation to the neutral and commercial rights of this Country. It is to be recollected, also, that Lord Sidmouth was at the head of the Administration at the period alluded to, and consequently ought to be induced by a like regard for his character, to promote the adjustment we claim, in case he should be excepted, as is said to be not improbable, out of the dismission of his colleagues.

There are considerations, moreover, which cannot be without weight with a prudent Cabinet however composed. They must know that, apart from the obstacles which may be opposed here to the use of British manufactures, the United States, by a mere reciprocation of the British navigation and Colonial laws, may give a very serious blow to a favorite system, a blow that would be felt, perhaps, as much too in its example, as in its immediate operation. Should this policy be adopted by the United States as it respects the British West Indies, the value of those possessions would be either speedily lost, or be saved no otherwise, than by a compliance with the fair reciprocity claimed by this Country. It can no longer be unknown to the most sanguine partizan of the Colonial monopoly, that the necessaries of life, and of cultivation, can be furnished to those Islands from no other source than the United States; that immediate ruin would ensue if this source was shut up; and that a gradual one would be the effect of even turning the supplies out of the present direct channel, into a circuitous one thro’ neutral ports in the West Indies. In this latter alternative, the least unfavorable that presents itself, the produce of this Country would be carried to, probably a Danish Island, with the same mercantile profit, and the same employment of our navigation, as if carried to the British Island consuming it; and would thence be transported to the British Island with little advantage to British ships, which would necessarily be sent in ballast, and confined to a sickly climate; whilst the enhanced price of the supplies would be fatal, first to the prosperity, and finally to the existence of those dependencies.

It ought to occur moreover, to the British Government, that its marine may become as dependant as its Colonies, on the supplies of the United States. As an auxiliary resource for naval stores, this Country must be at all times important to Great Britain. But it will be the sole, and therefore an essential one, in case that of the Baltic, and even of the black sea, should fail. And it may be justly remarked, that a prohibition of this branch of our exports, would be a less sacrifice than that of any other important one; inasmuch as some of the articles of which it consists, being necessary to ourselves and of an exhaustable nature, make it a problem whether the regulation would not in itself accord with our permanent interests.

Lastly, it should not be forgotten, that the United States are one of the granaries which supply the annual deficit of the British harvests. The northern part of Europe, the usual concurrent resource, is in a situation that must disable it, for some time, whatever the course of events may be, to spare any of its stock of food; nor can any substitute, other than the redundant harvests of the United States be relied on, to make up that deficiency. Add to this prospect, the possibility of an unfavorable season, requiring enlarged importations of bread from the only source that can furnish it; and the risk of losing this, would be an evil, which no provident Councils would neglect to guard against, by any measures equitable in themselves, or even by concessions neither dishonorable nor materially injurious.

On the other hand, Great Britain having been led by her peculiar system to carry her commercial exclusions and restrictions to the utmost limit permitted by her immediate wants, would find no countervailing resources to be turned against the United States. She could not prohibit the importation of our productions. These are necessaries which feed her people, which supply her manufactories, which keep up her Navy; and which, by direct and indirect contributions to her revenue and credit, strengthen all her faculties as a great power. As little could she prohibit the exportation of her manufactures to the United States. This is the last evil she would think of inflicting on herself. If it withheld from us the means of enjoyment, it would take from her own people, the means of existence.

Would war be a better resort? That it would be a calamity to the United States is so well understood by them, that peace has been cherished in the midst of provocations, which scarcely permitted honor to listen to interest, to reason, or to humanity. War they will continue to avert, by every policy which can be reconciled with the essential duties which a nation owes to itself. But what will be the gain and the loss to Great Britain by a choice of this resort? The spoils of our defenceless commerce might enrich her greedy cruizers, and flatter the sentiment of national wealth. A temporary spasm might, at the same time, be produced in the affairs of the United States. But these effects weigh little against the considerations which belong to the opposite scale. To say nothing of the hostile use that might be made, against Great Britain, of 50,000 seamen, not less hardy or enterprizing than her own; nor of her vulnerable possessions in our neighbourhood, which, tho’ little desired by the United States, are highly prized by her, nor of the general tendency of adding the United States to the mass of nations already in arms against her; it is enough to observe, that a war with the United States involves a complete loss of the principal remaining market for her manufactures, and of the principal, perhaps the sole, remaining source of supplies, without which all her faculties must wither. Nor is it an unimportant circumstance, tho’ it seems to have engaged little of her attention, that in the loss would be included, all the advantages which she now derives from the neutrality of our flag and of our ports, and for which she could find no substitutes in distributing her manufactures, and even her fish, to their necessary markets, and in obtaining the returns which she wants. The more these collateral advantages are enquired into, the more important will the interest appear which G Britain has in preserving them.

These are views of the subject, which, tho’ not to be presented to Great Britain with an air of menace or defiance, equally forbidden by respect to ourselves, and to her, may find a proper way to her attention. They merit hers as well as ours; and if they ought to promote on both sides, a spirit of accommodation, they shew at the same time, that Great Britain is not the party, which has the least interest in taking counsel from them.

Such are the instructions and explanations under which the task is consigned to you, of renewing the discussions with the British government. The President is well assured that it will be executed with all the advantage which talents and patriotism can contribute; and he is unwilling to believe that that government will finally prefer to the reasonable terms proposed, the serious state of things which will be left, by a miscarriage of this ulterior appeal to the motives which ought to govern a just and friendly nation. As it is possible, however, that this favorable calculation may not be verified, and it will necessarily remain to be decided whether such a state of things can be obviated by any additional proposition not beyond the justifiable limits of concession, the President has taken the case into his serious deliberation; and has concluded to authorize you, in the event of a rejection of every arrangement already authorized, but in that event only, to admit an article to the following effect:

"It is agreed that after the term of [  ] months computed from the exchange of ratifications, and during a war in which either of the parties may be engaged, neither of them will permit any seaman not being its own citizen or subject, and being a citizen or subject of the other party, who shall not have been for two years at least prior to that date, constantly and voluntarily in the service or within the jurisdiction of the U. States, to enter or be employed on board any of its vessels navigating the high seas: and proper regulations enforced by adequate penalties shall be mutually established, for distinguishing the seamen of the parties respectively, and for giving full effect to this stipulation."

You will observe that the proposition is so framed as not to comprehend among British seamen, those who have been made citizens of the U. States; and who must necessarily be so regarded within their jurisdiction and under their flag. This modification of the article cannot produce any real objection on the part of G. Britain, 1. because the legal pre-requisites to naturalization in the U. States imply what is sufficiently known, that the number of seamen actually naturalized or likely to be so, is too small to claim attention in any arrangement on this subject. 2. because the right of British subjects to naturalize themselves in a foreign trade and navigation, as laid down by the judicial authority of G. Britain, ought to restrain its government from making a difficulty on this point. (See Dunford and Easts--Wilson vs. Marriatt--and the same case in Bosanquet and Puller’s Reports.)

You will observe also that the article does not extend to British seamen navigating, not the high seas, but our interior waters. Should the success of the proposition be endangered by this distinction, it may be given up. But it cannot well be supposed of sufficient importance to have that effect; The objection too is answered by the consideration that as G. Britain would regard the proposed disuse of her seamen as a commutation for her claim to impress them, which is limited to the high seas, the principle of the compromise does not embrace the seamen not employed on the high seas.

If an attempt should be made to bind the U. States to deliver up the seamen to G. Britain, instead of excluding them merely from their own service, you are to say at once, that it would be inconsistent with our principles, and cannot be acceded to.

It will occur to you that the period of two years has been chosen in allusion to the period established by G. Britain, as sufficiently incorporating alien with British seamen. Her own example at least must have weight with her; and the implied appeal to it, may be of use in shielding the measure against public prejudices to which the government may not wish to expose itself.

If the British government be not predetermined against a friendly adjustment, it is confidently presumed that the concession proposed will not only overcome all obstacles to your success on the essential points, but may be turned to account in promoting the amendment of the other articles.

Should the concession, however, contrary to all expectation, not succeed, even as to the essential objects, the course prescribed by prudence will be, to signify your purpose of transmitting the result to your government; avoiding carefully any language or appearance of hostile anticipations; and receiving & transmitting at the same time, any overtures which may be made on the other side, with a view to bring about accomodation. As long as negociation can be honorably protracted, it is a resource to be preferred, under existing Circumstances, to the peremptory alternative of improper concessions, or inevitable collisions.

The last suggestion I have to make to you is that in case of great difficulties in re-adjusting the multiplied provisions, embraced by the treaty of December, particularly those relating to commerce, it may be adviseable to simplify the transaction, by confining it to the few essential objects; or by not adding more than a few others of least difficulty and most importance. A general article may be sufficient for the rest, giving reciprocally, in regard to trade and navigation, armed ships and prizes, the priviledges of the most favored nation; and leaving for more leisurely and detailed provision, whatever further may conduce to the mutual interests, and correspond with the friendly disposition of the parties. A general stipulation of this sort applied to the subject of Commerce, would have the advantage to the U. States of abolishing and preventing British discriminations on exports, and to G. Britain the like advantage with respect to American discriminations on imports. With sentiments of the highest respect & consideration I remain gentlemen, yr. mo: obed. hble Sert

James Madison

DLC: Papers of James Monroe.

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