London 24th. May 1808
The case referred to in the printed Paper enclosed in my letter of the 2nd: Inst: Vizt. that of the Missouri, Reid from Batavia to Cowes & a Market came on this Morning; and the Judgement of the Court, which I consider as final, notwithstanding the 2 Months farther allowed to the Captors, was delivered in a style and manner which I cannot hope to express from memory alone; and I had not the opportunity of taking a single Note, as the Judge is heard with difficulty without the Bar. I took stenographic sketches of the Arguments of the Doctors, who are more audible, and whom I could therefore hear in a more remote situation where I could use a Pen; but these were much less important than what fell from the Judge of which I shall endeavour to give you the substance. The King’s Advocate, for the Captors, endeavoured to treat the Reference to Authorities in Holland, or rather to the Dutch Lawyers, as a Question of the legality of the Voyage antecedent to the late war; but Arnold contra, referring to the Orders, shewed that the question, if not confined to the period of the intermediary Peace, at least included that period; and produced 11 or 13 Affidavits (I forget which number.) to prove that the trade was admitted during such period. Lawrence, same side, said it was allowed at all times in the other Ports of Java, tho’ not at Batavia, and contended that the Colonial principle was done away, with respect to Batavia, by the annihilation of the monopoly Company; and that a Change in the former policy, however short in it’s operation, if made Sincerely, does away the Colonial system: that no hostile Conclusion was to be drawn fromn the silence of the Dutch Lawyers; who were afraid, or perhaps interdicted, from giving any opinion at all; or might reasonably judge that if they gave an opinion in a Case clearly in their favor; their Silence, on any doubtful point in future, might condemn the property.
Robinson, in contending against these points, made a slight reference to the Judgement at Bombay (that of Sir James Macintosh) which I could not distinctly catch; but which I hoped at the moment would induce the Judge to notice that Decree. He did not however refer to it at all, his Judgement being to the following Effect, Vizt:
"This Case does not appear before me with the Evidence that was sought; and there are other ways to obtain it than from the Dutch Lawyers. The requisite information does not lie hidden in the deep Caverns of the Law. There are very respectable dutch Merchants in Engd. to whose testimony the Court would pay every Kind of respect; and such Evidence is extremely desireable from the value and Importance of the Case itself, and of the other Cases involved in the Same Question. If I were to pronounce Judgement now it must be of course in favor of the Claimants; who have brot: forward several Affidavits to shew that the Trade was open in time of Peace; whereas there is nothing produced by the Captors, except an Extract from a letter written by I know not who,*
and on which I cannot place much dependence. There is no Evidence satisfactory to my Mind of that compleat monopoly that amounted to an exclusion of foreigners even before the late war. We know that our own East India Trade has never been subjected to that rigid exclusion which has been applied to the West India Colonies. Foreigners have been admitted to a considerable share of it; and it has only lately become a Question whether it should be considered as a close monopoly. The same may no doubt be said of the foreign East India Possessions, and indeed if there were no other Evidence of the intention of leaving the Trade open to neutrals; and we had Evidence, as we have not, of the colonial principle operating before the late War, the Court would be disposed to hold that the particular measures adopted for bringing back Surinam &ca. to the former Restriction, without any Notice of the other, was Evidence of the Intention to leave the Trade open. If a Colonial Trade of the Enemy be open’d to the neutral during War, and thereby subjected to Capture, yet if it be continued open in the subsequent Peace, and there be Evidence of an intention to abandon the Principle of Exclusion that existed before the War, the Court would consider it as drawing the Cord too tight to deprive the neutral of it in a following War. Nor would the Court require any special abrogation of the former Law of Monopoly; it would be sufficient that the Trade was proved to exist practically without any written admission of the Right. The Practice of former times, if dropped in time of Peace, could not be cited to shew the existence of the Principle in point of Law, and thus to punish the neutral for transgressing an invisible Rule. With respect to the Dutch India Company we Know that it has undergone an entire Change. Time was when it rivalled in Splendor & Consequence the Government of Holland itself; but we Know also that it has since fallen to decay; we know in fact that both Government and Company are no more what they were. A system contrary to the Genius and Character, and no doubt to the inclination of the People, has taken place of that under which they formerly lived. If, in the course of these Changes, with the fall of the exclusive Company, the exclusive principle were suffered to fall, it would be enough that the former practice was thus deserted; and here are Affidavits to shew that during the last Peace American ships were suffered to trade at Batavia, without the least Reserve. They say nothing of other Countries: whether the Admmission was to neutrals generally, or to the Americans by private Agreement, or particular understanding, does not appear; tho’ I think the fact does, that they were admitted; and I should certainly think it incumbent on me so to dispose of the Case; but it is a great Question on which therefore the Court would wish to have the most complete information. If the Dutch Lawyers dare not tell the world what is their habit of administering the Law; the dutch Merchants residing here may be consulted; and, there is security I think in this Case."? Arnold "yes Sir". "I shall allow two Months for that purpose. This I think disposes of these three Cases*"
Arnold "Except the John Bulkeley we submit." Something that I could not distinctly hear, upon which the Bail in that case was discharged. As I wrote this in short hand in a Coach where there were two Ladies waiting for me, and no Chance for silence; it would be too much to pretend, tho’ done immediately on leaving the Court, that it is in all respects correct; indeed I now remember that the Allegory of the deep Caverns was in the latter part of the Judgement; and I cannot therefore pretend to have followed the Judge’s arrangement; yet on revising it I am satisfied with it as an Effort of memory, and believe it to contain the entire substance of the Decree, for such I consider it, presuming the Captors will contend no farther, but arrange the question of Costs with the Claimants. Indeed I am by no means satisfied that I could have done it better in the most silent Retreat. Pliny found his Cogitations greatly improved by bodily Exercise, and Dr. Blacklock "Wrote to the rumbling of his Chariot Wheels." I have often regretted, too, that I could not rivet an Idea that has flitted across my brain on horseback; conceiving such among the best I could boast; but, for that very reason alas, subtile and evaporatory. There is an omission, however, which I cannot charge to interruption since I noted it on the back of my book the moment it recurred to me; vizt: in the midst of the Record; I could not then recollect, nor can I now, where it concatenates; but the Judge did certainly observe that there was no reason to doubt the late Peace was sincere on the part of Holland, insinuating at the same time, that the sincerity of the cheif Enemy of this Country was not quite so clear. I wonder I should have overlooked this; tho’ a detached Mem:; as I have often thought it desirable to ascertain juridically the operation that the subtleties of the Law might have upon the difference of Effect on the neutral question between a sincere and a hollow peace. Too little was said on this occasion to throw much light on this abstract point; but I think I may congratulate you on the decision that a dereliction of the Colonial Principle in time of Peace, or even in War, and continued in Peace, sha⟨ll⟩ open the trade to the neutral in a subsequent War. There is no doubt it will become matter of Record, for not only Doctor Robinson, but every Doctor in the Court, and every Proctor but one, had his book out & his Pen flying from the beginning to the end of the Judgement. There is still some room for Cavil in the Event of a hollow Peace or the opening of a Colonial Trade in contemplation of War. I have often thought it mo⟨st⟩ fortunate that either the immediate Policy, or the Negligence, of this Government, induced ⟨it⟩ to overlook this Aspect of the Louisiana sale especially when the belliferous application of a great part of the purchase money was considered. The annunciation of this Event by Mr King, and the reply of Lord Hawkesbury, are precious documents on this subject; and we have now only to wish that we may not encounter a worse pretence than might have been apprehended from this Country; for that business does not appear to have been so well executed as conceived; and I have always regretted as I wrote you in 1805 that the Plan was not compleated by the Purchase of East Florida, and the total extincti⟨on⟩ of the Spanish Title. The Union for New York having been detained a day or two Beyond her intended time of sailing gives me the opportunity of dispatching this immediate⟨ly⟩ to you. As she sails without Convoy I shall send Duplicate & 3cate, I think via Liverpool & Greenock. I rest, very truly, Dr. Sir, Your friend & Serv.,
DLC: Papers of James Madison.