James Madison Papers

To James Madison from David Montagu Erskine, 23 February 1808

Washington February 23rd. 1808.


I have the Honor to transmit to you the Copies of certain Orders of Council which His Majesty has thought proper to issue in Consequence of the hostile Conduct of France towards the Navigation and Commerce of Great Britain and of Neutral States.

His Majesty has been induced hitherto to forbear recurring to Measures of this Nature by the Expectation that the Governments of the Neutral States, who have been the Objects of the French Decrees, would have been awakened to a just Sense of what they owe to their Interests and own Rights, and would have interposed with Effect, either to prevent the Execution of the French Decrees, or to procure their Abrogation.

But His Majesty having been disappointed in this just Expectation, and perceiving that the Neutral Nations, so far from opposing any effectual Resistance, have Submitted to whatever Regulations France may have prescribed for giving Effect to her Decrees, can no longer refrain from having Recourse to such Measures as by retorting on the Enemy the Inconveniences and Evils produced by his Injustice and Violence, may afford the only remaining Chance of putting an End to a System, the Perseverance in which is not more injurious to His Majesty’s Dominions than to Nations not Parties to the War between Great Britain and France.

The Principle upon which His Majesty finds himself compelled to proceed, would justify a complete and unqualified Retaliation on His Part of the System announced and acted upon by France, in Respect to His Majesty’s Dominions: and His Majesty might therefore have declared in a State of rigorous and unmitigated Blockade all the Coasts and Colonies of France and her Allies. Such a Measure the Maritime Power of Great Britain would have enabled His Majesty to enforce: nor would those Nations which have acquiesced, without effectual Remonstrance, in the French Decree of Blockade, have derived any Right from the more perfect Execution of a corresponding Determination on the Part of His Majesty, to complain of His Majesty’s enforcing that Measure which the Enemy has executed imperfectly only from the Want of the Means of Execution.

His Majesty, however, actuated by the same Sentiments of Moderation by which His Majesty’s Conduct has been uniformly governed, has been desirous of alleviating, as much as possible, the Inconveniences necessarily brought upon Neutral Nations by a State of Things so unfavorable to the Commercial Intercourse of the World; and has therefore anxiously considered what Modifications it would be practicable to apply to the Principle upon which He is compelled to act, which would not, at the same Time that they might afford Relief from the Pressure of that Principle upon Neutral or Friendly Nations, impede or enfeeble its Operation upon the Enemy.

In Pursuance of this Desire, the Order in Council, which, if it had ended with the Sixth Paragraph, would have been no more than a strict and justifiable Retaliation, for the French Decree of November 1806, proceeds, as you will observe, Sir, to provide many material Exceptions, which are calculated to qualify the Operation of the Order upon Neutral Nations in general, but which must be considered as most peculiarly favorable to the particular Interests of the United States.

It will not escape you, Sir, that by this Order in Council, thus modified and regulated, the direct Intercourse of the United States with the Colonies of the Enemy is unrestrained: an Indulgence which, when it is considered to be (as it really is) not only a Mitigation of that Principle of just Reprisal upon which the order itself is framed, but a Deviation, in favor of the United States, from that ancient and established Principle of Maritime Law by which the Intercourse with the Colonies of an Enemy, in Time of War, is limited to the Extent which that Enemy was accustomed in Time of Peace to prescribe for it and which, by Reference to the Conduct of France in a Time of Peace, would amount to a complete Interdiction, cannot fail to afford to the American Government a Proof of the amicable Disposition of His Majesty towards the United States.

You will observe, Sir, also that the Transportation of the Colonial Produce of the Enemy from the United States to Europe, instead of being altogether prohibited (which would have been the natural Retaliation for the rigorous and universal Prohibition of British Produce and Manufactures by France) is freely permitted to the Ports of Great Britain, with the Power of subsequently re-exporting it to any Part of Europe under certain Regulations.

The Object of these Regulations will be the Establishment of such a protecting Duty, as shall prevent the Enemy from obtaining the produce of his own Colonies at a cheaper Rate than that of the Colonies of Great Britain. In this Duty it is evident that America is no otherwise concerned than as being to make an Advance to that Amount for which it is in her own Power amply to indemnify herself at the Expence of the Foreign Consumer.

Another most important Relaxation of the Principles upon which His Majesty’s Orders proceed is that which licenses the Importation of all Flour and Meal, and all Grains, Tobacco and other Articles, the Produce of the Soil of America with the Exception of Cotton, through the Ports of His Majesty’s Dominions, into those of His Enemies, without the Payment of any Duty on the Transit. This is, I beg leave to observe, an Instance in which His Majesty has deprived His Measure of its most efficacious and hurtful Operation against the Enemy, through Motives of Consideration for the Interests of America. The Reason why His Majesty could not feel himself at Liberty, consistent with what was necessary for the Execution of His Purpose, in any tolerable Degree, to allow this Relaxation to apply to Cotton, is to be found in the great Extent to which France has pushed the Manufacture of that Article, and the consequent Embarrassment upon her Trade which a heavy Impost upon Cotton, as it passes through

*Great Britain

*altered by the direction of Mr. Erskine

Danl. Brent.

to France, must necessarily produce.

I cannot refrain from calling the Attention of the Government of the United States to the Contrast between the different Modes in which His Majesty’s Orders and those of France are carried into Execution. By His Majesty’s, the utmost Consideration is manifested for the Interests of those Nations whose Commerce He is reluctantly compelled to impede, and ample Time allowed for their becoming acquainted with the new Regulations and conforming to them. Whereas France, without any previous Notice, and without any Interval, applies her Orders to Trade already entered upon in Ignorance of Any such Orders, and subjects to Condemnation Ships, whose Voyages, when commenced, were in strict Conformity to all the Regulations at that Time promulgated by France.

Even with these and other Modifications, His Majesty is not unaware that a Measure extorted from Him by the Injustice of the Enemy, must inevitably produce Inconveniences to the Neutral Parties who are affected by its Operation.

The Right of His Majesty to resort to Retaliation, cannot be questioned. The Suffering occasioned to Neutral Parties is incidental, and not of His Majesty’s Seeking.

In the Exercise of this undoubted Right, His Majesty has Studiously endeavoured to avoid Aggravating unnecessarily the Inconveniences suffered by the Neutral. And I am commanded by His Majesty, especially to represent to the Government of the United States the earnest Desire of His Majesty to see the Commerce of the World restored once more to that Freedom which is necessary for its Prosperity, and His Readiness to Abandon the System which has been forced upon him whenever the Enemy shall retract the Principles which have rendered it necessary; but His Majesty entertains the Conviction, upon which alone His present Measures are founded, that it would be vain to hope for Such a Retraction, until the Enemy shall himself have been made to feel a Portion of the Evils which he has endeavoured to inflict upon others. I have the Honor to be, with great Consideration and Respect, Sir, your most obedient humble Servant

D. M. Erskine

DNA: RG 59-NFL-Notes from Foreign Legations, Great Britain.

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