James Madison Papers

From James Madison to David Montague Erskine, 25 March 1808

Department of State March 25th: 1808:


Having laid before the President Your Letter of the 23d. of Febry., explaining the character of certain British orders of Council issued in Novr. last, I proceed to communicate the observations and representation which will manifest to Your Government, the Sentiments of the President, on so deep a violation of the commerce and rights of the United States

These Orders interdict to neutral nations, or rather to the United States, now the only Commercial nation in a State of neutrality, all Commerce with the enemies of Great Britain, now nearly the whole commercial world, with certain exceptions only, and under certain regulations, but too evidently fashioned to the Commercial, the manufacturing, and the fiscal policy of Great Britain, and on that account, the more derogatory from the honor and Independence of neutral nations.

The Orders are the more calculated to excite surprize in the United States, as they have disregarded the remonstrances conveyed in my letters of March 20: & 29th: 1807, against another order of Council issued on a similar plea; in the month of January 1807. To those just remonstrances, no answer was indeed ever given; whilst the Order has been continued in its pernicious operation, against the Lawful commerce of the United States. And we now find added to it others constituting still more ruinous depredations, without even the addition of any new pretext: and when moreover, it is notorious, that the Order of January was of a nature, greatly to overbalance in its effects, any injuries to Great Britain that could be apprehended from the illegal operation of the French Decree on which the Order was to retaliate, had that Decree, in its illegal operation, been actually applied to the United States, and been acquiesced in by them.

The last Orders, like that of Jany. proceed on the most unsubstantial foundation. They assume for fact, an acquiescence of the United States, in an unlawful application to them of the French Decree: and they assume for a principle, that the right of retaliation accruing to one belligerent against a neutral, thro’ whom an injury is done by another belligerent, is not to have for its measure, that of the injury received, but may be exercised in any extent, and under any modifications, which may suit the pleasure, or the policy of the complaining party.

The fact, Sir, is unequivocally disowned. It is not true that the United States have acquiesced in an illegal operation of the French Decree: Nor is it even true, that at the date of the British Orders of Novr. 11, a single application of that Decree to the commerce of the United States on the high Seas, can be presumed to have been Known to the British Government.

The French Decree in question has two distinct aspects; one clearly importing an intended operation within the territorial limits as a local Law; the other aparently importing an intended operation on the high Seas.

Under the first aspect the Decree, however otherwise objectionable, cannot be Said to have violated the neutrality of the United States. If the Governing Powers on the Continent of Europe, chuse to exclude from their Ports, British property or British productions, or neutral Vessels proceeding from British Ports, it is an Act of Sovereignty which the United States have no right to controvert. The same Sovereignty is exercised by Great Britain at all times, in peace as well as in War, Towards her Friends as well as her enemies. Her Statute Book presents a thousand illustrations.

It is only, therefore; under the other aspect of the Decree, that it can have violated neutral rights; and this would have resulted from its execution on the high Seas, whether on the pretext of a nominal blockade, or with a view to enforce a domestic regulation against foreign Vessels not within the domestic precincts, but under the authority and protection of the law of Nations.

Had then the French Decree been executed on the High Seas against the commerce of the United States with Great Britain? and have the United States acquiesced in the unlawfull and injurious proceeding?

I state, Sir, on undeniable authority that the first instance in which that Decree was put in force against the neutral rights of the United States, was that of the Horizon; an American Ship bound from Great Britain to Lima; wrecked within the territorial jurisdiction of France, but condemned under an exposition of the Decree extending to the high Seas its operation against neutrals. This judicial decision took place as late as the 30th: day of October 1807, and was not officially Known to the Minister Plenipotentiary of the United States at Paris, till some time in November. At the date therefore of the first Order of Great Britain, no injury whatever had been done to her, thro’ an aggression on the commerce of the United States. No presumption even had been Sufficiently authorized, that the express Stipulations in the Treaty of France with the United States, would not exempt their commerce at least, from the operation of any Edict incompatible with them. At the date even of the latter Orders of Novr: 11: it appears that the only aggression, which had then occurred, was pretty certainly unknown to the British Government, and could therefore have had no Share in producing this alledged retaliation.

To the fact that the case of the Ship Horizon was the first that occurred, of an execution of the French Decree, on the high Seas, I am able to add, that as late as the 30th: of November, no other case had been brought into the French Court of prizes. From accounts which have lately appeared, it is more than probable that unlawful Captures by French Cruizers, have since taken place; but it remains to be Known, whether they are to be referred to the concurence of the French Government, in the judgment pronounced in the case of the Horizon; or not rather, to a French Decree of the 17th. of December last, professing to be a retaliation on the British Orders of Novber. 11th.

I State with equal confidence, that at no time, have the United States acquiesced in violations of their neutral rights injurious to Great Britain, or any other belligerent nation. So far were they, in particular, from acquiescing in the French Decree of Novber. 1806, that the moment it was Known to their Minister at Paris, he called for explanations of its meaning in relation to the United States, which were favorable; and uncontradicted by the actual operation of the Decree; that he Steadily watched over the proceedings under it, with a readiness to interpose against any unlawful extention of them, to the commerce of the United States; that no time was lost, after the Decree came to the Knowledge of the Government here; in giving him proper instructions on the Subject; that he was equally prompt, on receiving the Decision of the Court, in the case of the Horizon, in presenting to the French Government, a remonstrance in terms which can never be censured for a defect of energy, and that by the first opportunity after that decision reached the President, the particular instructions required by it, were forwarded to that Minister. Nor is it to be forgotten, that previous to the British Orders of November, it had been explicitly communicated to the British Government, by the American Minister at London, that explanations, uncontradicted by any overt act, had been given to our Minister at Paris, which justified a reliance that the French Decree would not be put in force against the United States; and that the communication was repealed to the British Government, immediately on the publication of those orders.

What more could have been required on the part of the United States, to obviate retaliating pretensions of any Sort on the part of Great Britain? Retaliations are measures of rigor in all cases. Where they are to operate thro’ a third and involuntary party, they will never be hastily resorted to, by a magnanimous, or a just power; which will always allow to the third party its right to discuss the Merits of the case; and will never permit itself to enforce its measures, without affording a reasonable time; for the use of reasonable means for substituting another remedy. What would be the Situation of neutral powers if the first blow levelled thro’ them by one belligerent against another, was to leave them no choice, but between the retaliating vengeance of the latter, and an instant declaration of war against the former. Reason revolts against this, as the sole alternative. The United States could no more be bound to evade the British Orders by an immediate War with France, than they were bound to atone for the burning of the French Ship of War on the Shore of North Carolina, by an immediate resort to Arms, against Great Britain.

With respect to the principle assumed by the British Orders, it is perfectly clear, that it could not justify them in the extent given to their operation, if the facts erroniously assumed, could have been fully Sustained.

Retaliation is a specific or equivalent return of injury for injury received, and where it is to operate thro’ the interests of a third party having no voluntary participation in the injury received, the return ought, as already observed, to be inflected with the most forbearing hand.

This is the language of common sense, and the clearest equity. As the right to retaliate results merely from the wrong suffered, it cannot in the nature of things extend beyond the extant of the Suffering. There may often be a difficulty in applying this rule, with exactness, and a reasonable latitude may be allowable on that consideration. But a Manifest and extravagant departure from the rule can find no apology.

What then is the extent of the injury experienced by Great Britain from the measures of her enemies so far as the operation of these measures thro’ the United States, can render them in any sense responsible?

A mere declaration by a belligerent, without the intention or the means, to carry it into effect, against the rights and obligation of a neutral nation, and thence against the interests of another belligerent, could afford no pretext to the latter to retaliate at the expence of the neutral. The declaration might give just offence to the neutral, but it would belong to him alone, to decide on the course prescribed by the respect he owed to himself.

No real damage having accrued to the belligerent, no indemnity could accrue.

For the same reason, a declaration of a belligerent which he is known to be either not in a Situation, or not to intend to carry, but partially into execution against a Neutral to the injury of another belligerent, could never give more than a right, to a commensurate redress against the neutral. All remaining unexecuted, and evidently not to be executed, is merely ostensible, working no injury to any, unless it be in the disrespect to the neutral, to whom alone it belongs to resent or disregard it.

Bring the case before us to this plain and equitable test. The French Decree of Novber. 1806 undertook to declare the British Isles in a State of blockade, to be enforced, if you please, against the neutral commerce of the United States, on the high Seas, according to the faculty possessed for the purpose. As far as it was actually enforced, or an effect resulted from an apprehension that it could, and would be enforced, it was an injury to Great Britain for which let it be supposed, the United States we⟨re⟩ answerable. On the other hand, as far as it was not enforced and evidently, either would not, or could not be enforced, no injury was experienced by Great Britain, and no remedy could lie against the United States. Now, Sir, it never was pretended that at the date of the 1st. British Order issued in Jany. 1807, any injury had occured to, or was apprehended by Great Britain from an execution of the French Decree against the Commerce of the United States, on the Theatre of their neutral rights: So far from it, that the Order Stands self condemned, as a measure of retaliation, by expressly Stating that the Fleets of France and her allies, instead of being able to enforce the blockade of the British Isles, were themselves confined to their own Ports by the entire Superiority of the British Navy; converting thus, by the Strongest of reasonings, the Security of Great Britain against injury from the French Decree, into a title to commit injury on a neutral party. In the Novber. Orders, also, whilst it is admitted, that the French Decree could not be but imperfectly executed for want of means, it is asserted that the intention of the French Decree, and not the injury accruing from its operations, thro’ the commerce of the United States, is the Scale by which the retaliating injury against them is to be measured.

Such are the pretexts, and such the principles, on which one great branch of the Lawful commerce of this Country, became a victim to the first British Order, and on which the last orders are now Sweeping from the Ocean, all its most valuable remains.

Against Such an unprecedented System of Warfare on neutral rights, and National Independence, the common judgment, and common feelings of mankind, must forever protest.

I touch Sir, with reluctance the question on which of the belligerent side, the invasion of neutral rights had its origin. As the United States do not acquiesce in these invasions by either, there could be no plea for involving them in the controversy. But as the British Orders have made the Decree of France, declaring contrary to the law of Nations the British Isles in a state of Blockade, the immediate foundation of their distructive warfare on our commerce, it belongs to the Subject, to remind Your Government of the illegal interruption and Spoliations Suffered, previous to that Decree, by the neutral commerce of the United States, under the proceedings of British Cruisers and Courts, an⟨d⟩ for the most part, in consequence of express Orders of the Government itself. Omitting proofs of inferior Note, I ref⟨er⟩ to the extensive aggressions on the trade of the United Stat⟨es⟩ founded on the plea of blockades, never Legally establish⟨ed⟩ according to recognized definitions, to the Still more extensive violations of our commerce with Ports of her Enemies, not pretended to be in a State of blockade; And to the British order of Council issued near the commencement of the existing War. This order, beside its genera⟨l⟩ interpolation against the established law of Nations, is distinguished by a Special ingredient, violating tha⟨t⟩ law as recognized by the course of decisions in the British Courts. It Subjects to capture and condemnation, all neutral vessels, returning with lawful cargoes, on the Sole consideration, that they had, in their outward voyage deposited contraband of War, at a hostile Port.

If the commerce of the United States, could therefore in any case, be reasonably made the Victim an⟨d⟩ the Sport of Mutual charges and reproaches between belligerent parties with respect to the priority of their aggressions on Neutral commerce; Great Britain must look beyond the Epoch she has chosen for illegal Acts of her adversary, in Support of the allegation on which She founds her retaliating Edicts against our Commerce.

But the United States are given to understand that the British Government has, as a proof of its indulgent and Amicable disposition toward them, mitigated the authorized rigor it might have given to its measures by certain exceptions peculiarly favorable to the commercial interests of the United States.

I forbear Sir, to express all the emotions with which Such a language, on such an occasion is calculated to inspire a Nation, which cannot for a Moment be unconscious of its rights, nor mistake for an alleviation of wrongs, regulations, to admit the validity of which would be, to assume badges of humiliation, never worn by an Independent Power.

The first of these indulgences is a commercial intercourse with the Dependences of the Enemies of Great Britain, and it is considered as inhanced by its being a deviation, in favor of the United States, from the ancient and established principle of Maritime law, prohibiting altogether such an intercourse in time of War.

Surely, Sir, Your Government, in assuming this principle, in Such terms, in relation to the United States, must have forgotten their repeated and formal protests against it, as these are to be found in the discussions and communications of their Minister at London, as well as in explanations occasionally made on that Subject, to the British representative here. But permit me to ask, more particularly, how it could have happened, that the principle is characterized as an ancient and established one? I put the question the more freely, because it has never been denied, that the principle as asserted by Your Government, was for the first time introduced during the war of 1756. It is, in fact invariably cited and described in all Judicial and other official transactions "as the rule of 1756." It can have no pretensions therefore to the title of an Ancient rule.

And instead of being an established rule or principle, it is well Known that Great Britain is the only nation that has acted upon, or otherwise given a Sanction to it: Nay, it is not even an established principle in the practice of Great Britain herself. When first applied in the War of 1756, the Legality of a Neutral trade with Enemy’s Colonies, was not contested by it. In certain cases, only, of the Colonial trade, the Allegation was, that the presumptive evidence arising from circumstances agains⟨t⟩ the bona fide Neutrality of the Ownership justified the condemnation, as of Enemy’s property. If the rule of condemnation was afterwards, during that war, converted into the principle now asserted, it could not possibly have been in operation, in its new Shape, more than a very few Years. During the Succeeding war of 1778, it is admitted by every British Authority, that the principle was never brought into operation. It may be regarded, in fact as hav⟨ing⟩ been Silently abandoned. And within the period of War, Since its commencement in 1792. the manner in which the principle has been alternately contracted and extended, explained sometimes in one way, sometimes in another, rested now on this foundation, and now on that, is no secret to those who have attended to its history and progress in the British orders of Councils, and the British Courts of Admiralty.

With the exception therefore of a period, the l⟨   ⟩ in modern times, from which authentic precedents of Maritime law will be drawn, and throughout which the United States more interested in the question, than any Other Nation, have uniformly combatted the innovation, the principle has not in the British Tribunals, been in operation for a longer term than Three, four or five Years, whilst in no other has it ever made its appearance, but to receive a decision protesting against it.

Such is the Antiquity, and Such the Authority, of a principle, the deviation from which are held out as so many favors, consoling the United States, for the wide spread destruction of their legitimate commerce.

What must be said, as to the other exceptions which Seem to have been viewed as claims on the gratitude of the United States? Is it an indulgence to them, in carrying on their trade with the whole Continent of Europe, to be laid under the necessity of going first to a British Port, to accept a British Licence, and to pay a tribute to the British Exchequer; as if we had been reduced to the Colonial situation, which once imposed these Monopolizing restraints?

What, again, must be said as to the other features which we see blended on the face of these regulations? If the policy of them be to Subject an Enemy to privations, why are channels opened for a British trade with them, which they are Shut to a Neutral trade? If in other cases the real object be to admit a neutral trade with the Enemy, Why is it required that neutral Vessels, shall perform the ceremony of passing thro’ a British Port; When it can have no imaginable effect, but the known and inevitable one, of prohibiting the admission of the trade into the Port of destination?

I will not ask, why a primary article of our productions and exports, Cotton wool, is to be distinguished in its transit, by heavy impost not imposed on other articles because it is frankly avowed, in your explanation of the orders, to be intended as an encouragement to British Manufactures, and a check to the rival ones of France? I suppress also, tho’ without the Same reason for it, the enquiry, why less rigorous restrictions are applied to the trade of the Barbary Powers, than are enforced against that of a Nation such as the United States, and in relations, such as have existed between them and Great Britain.

I cannot however pass without notice the very unwarrantable innovations contained in the two last of the Orders.

In one of them, a certificate of the local origin of a Cargo, altho permitted in the Port of departure, and required in the Port of destination, by regulations purely domestic in both, and Strictly analogous in principle to regulations in the Commercial code of Great Britain, is made a cause of Capture on the high Seas, and of condemnation in her Maritime Courts. In the other order, the Sale of a Merchant Ship by a belligerent owner to a neutral, altho, a transaction as legal when fair, as a dealing in any other articles, is condemned by a general rule; withou⟨t⟩ an atom of proof, or of presumption, that the transfer, in the particular case, is fraudulent, and the property, therefore left in an Enemy.

In fine, Sir, the President sees in the Edicts communicated by you, facts assumed which did not exist; principles asserted which never can be admitted; and, under the name of retaliation, measures transcending the limits reconciliable with the facts, and the principles, if both were as corrects as they are unfounded. He sees moreover, in the modifications of this System, regulations violating equally our neutral rights and our national Sovereignty. He persuades himself therefore, that Your Government will see, in the justice of the observations now made, in addition to those I had the honor verbally to State to you in the first instance, that the United States are well warranted in looking for a Speedy revocation of a System, which is every day augmenting the Mass of injury, for which the United States have the best of claims to redress. I have the honor to be, Sir, with Sentiments of high consideration and respect Your Most Obt. Servant

(signed) James Madison

Library and Archives Canada, Ottawa, Ontario, Canada.

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