James Madison Papers

From James Madison to James Monroe, 11 July 1816

Montpelier July 11. 1816

Dear Sir

I have recd. yours of the 7th. and return the communications from Mr. Adams.

The arrangement of the fisheries is a delicate subject, as it relates to the public sensibility; to its intrinsic merits; and to the peculiar importance attached to it by respectable names. It will be better to do nothing, than to surrender the point of right, or to accept what may be of small value, with an actual privation of the residue formerly enjoyed.

I had hoped from the conversation of Ld. Castlereah with Mr. Adams, that nothing more would be required of us, than a concurrence in regulations which would prevent smuggling, and the annoyance of private interests; and which would avoid any necessary implication that the treaty of 1783. was still in force on this subject. The proposition of Mr. Bagot is of a very different tenor. It either necessarily implies that the treaty is not in force; or it sacrifices our rights under it, with respect to the marine league, and the shores elsewhere, without equivalent, or the shadow of reciprocity. However controvertible the doctrine may be which saves from the effect of war, the stipulations of 1783 in our favor, it is not without countenance from the peculiar character of that treaty, and can plead the sanction of high authorities on the Law of Nations to the principle that a war does not repeal engagements between the parties, with which the causes of the war are unconnected. The Edenburg Reviewers, if my memory be right, distinctly maintain this principle. We are to keep in view also, that our Envoys at Ghent carefully excluded from the treaty of peace, any admission or implication favorable to the British doctrine, or pretensions, that their country might be left at full liberty to avail itself of its own.

All these considerations impose on us much circumspection in the present case. You have done very right therefore in taking measures for obtaining information from quarters the best informed and most interested; and we shall be justified in allowing much weight to the opinions which may be communicated, if they should place great value on what Mr. Bagot may be authorized to yield, and little on what we should lose. But reversing the supposition, it will be adviseable to leave the subject where it is, for the present. Our declining the offers made, will rather strengthen our cause; and perhaps the subject may be more easily managed, in connection with the further negociations with G.B. on the general subject of commerce, which can not be very remote, or with the negociations relating to the trade with her colonies, which are already in view, than when taken up for insulated discussion.

Should the difficulties of such a discussion, however, be overcome, a safe & proper form for the arrangement, will be very requisite. Perhaps it may be found necessary to omit a preamble altogether; simply stating the stipulations entered into, and wording them so as to shun implications for or against rights or claims on either side. If a preamble be adopted, it might run, "The parties being mutually disposed to guard agst. incidents unfavorable to their harmony, or injurious to particular interests, without authorizing inferences impairing the rights or claims asserted by either, it is agreed &c." But it is scarcely possible to frame a recital precisely suitable, untill the terms & scope of the agreement be settled & reduced to paper.

In what light is the Gulf of St. Laurence viewed by G.B.-- as a water within her jurisdiction, or as a high sea? If as the former the use of the shores proposed, lose their value: if as the latter, and the contiguous marine league be not made free also, the value of the shores will be much impaired. I presume that jurisdiction is not claimed, beyond the marine league, and that this would create no difficulty. Indeed the use of the uninhabited shores, and of the marine league adjoining them, ought no where to create difficulty; nor the use even of the marine league, where the shores are inhabited, considering the means which the Sovereign of the Shores has of preventing violations of the revenue laws.

With respect to the naval forces on the Lake, I do not see why Mr. Bagot should suspend an arrangement, on that subject, untill the subject of the fisheries be disposed of. There is no connection between the two; and an immediate attention to the former is the more necessary as it is said that an enlargement of the British force, particularly on Lake Erie, is actually going on. It would be far more proper to suspend this enlargement, till the negociations concerning it be concluded. What seems expedient to be stipulated is 1. that no increase of existing armaments should take place. 2. that existing armaments be laid up. 3 that revenue Cutters if allowed at all be reduced to the minimum of size and force. There might be advantage in communicating on this subject with persons best acquainted with it; perhaps with Governor Tompkins, and particularly with Govr. Cass.

What is the practice with respect to jurisdiction on the Lakes? is it common to both parties over the whole, or exclusive to each on its side of the dividing line. The regulation of revenue Cutters may be influenced by this question. There is an able argument of Judge Woodward at Detroit, in a case touching fugitives, which may perhaps throw light on this point. It was put on the files of the Dept. of State some years ago.

Ld. Castlereah’s interview with Mr. Adams betrays a consciousness that his Govt. was exposed to suspicion in the business at Algiers. He makes a limping retreat from the British obligation to force the Barbarians out of the practice of enslaving Xns. Why more scrupulous in the case of Algiers, than of Tunis? Why more careful of the rights of the African blacks, than of the European Whites? Why more delicate towards the Dey of Algiers, than the Kings of Spain & Portugal? True, G. B. does not make war in form agst. them, but she disregards their sovereignty, in seizing & adjudging their slave ships. Let her do the same with the slave ships of the Barbarians. It wd. be equally effectual: nor is it less required by the opinion of Europe & the dictates of humanity, by which she justifies her interposition on behalf of the Negroes. Friendly respects,

James Madison

DLC: Papers of James Monroe.

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