James Madison Papers
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From James Madison to Thomas Jefferson, 16 August 1809

To Thomas Jefferson

Montpellier Aug. 16. 1809

Dear Sir

I got home from my trip to Washington on Saturday last; having remained there three days only. You will have seen in the Procln. issued, the result of our consultations on the effect of what has passed on our commercial relations with G. B. The enforcement of the non-intercourse act agst. her, will probably be criticized by some friends and generally assailed by our adversaries, on the ground that the power given to the Ex. being special, was exhausted by the first exercise of it; and that the power having put out of force the laws to which it related, could under no possible construction restore their operation. In opposition to this reasoning, it was considered that the Act of the last Session continuing the non-intercourse, no otherwise excepted G. B. than by a proviso that it should not affect any trade which had been, or might be permitted, in conformity with the section of the original act authorizing a proclamation in favor of the nation revoking its Edicts; and that the proclamation in favor of G. B. was not conformable to that section. It was not so in substance, because the indispensable pre-requisite, a repeal of the Orders in Council, did not take place. It was not so even in form; the law requiring a past and not a future fact to be proclaimed, and the proclamation on its face pointing to a future, not to a past fact. This difficulty was felt at the time of issuing the first proclamation; but it yielded to the impossibility of otherwise obtaining without great delay the coveted trade with G. B. and an example that might be followed by France; to the idea that the mode in which the repeal tho’ future, of the orders & of the law was coupled by the proclamn. might on the occurrence of the former, give a constructive validity to the latter; and to the opportunity afforded by an intervening session of Congs. for curing any defect in the proceeding. In one respect, it would have been clearly proper for Congress to have interposed its Authority, as was frequently intimated to members; that is, to provide for the contingency, not so much of a disavowal by G. B. which was never suspected, as of her not receiving the Act of her Minister, till after the 10th. of June. Congress however never could be brought to attend to the subject, altho’ it was pressed by several members I believe, certainly by Gardenier, on the general ground, that the Procln. however acceptable, was not in a form or under the circumstances, contemplated by law.1 In some of the instructions given by Mr Gallatins circular, a liberty has been taken having no plea but manifest necessity, and as such will be before Congress.

Erskine is in a ticklish situation with his Govt. I suspect he will not be able to defend himself agst. the charge of exceeding his instructions, notwithstanding the appeal he makes to sundry others not published. But he will make out a strong case agst. Canning, and be able to avail himself much of the absurdity & evident inadmissibility of the articles disregarded by him. He can plead also that the difference between his arrangemt. & the spontaneous orders of Apl. 26. is too slight to justify the disavowal of him. This difference, seems indeed to limit its importance to the case of Holland, & to consist in the direct trade admitted by the arrangement, and an indirect one, thro’ the adjoining ports, required by the orders. To give importance to this distinction, the Ministry must avow, what if they were not shameless they never wd. avow, that their ob[ject] is not to retaliate injury to an Enemy; but to prevent the legitimate trade of the U. S. from interfering with the London smugglers of Sugar & Coffee.

We are looking out for Mr. & Mrs. Gallatin every day. Untill they arrive, and we learn also the periods of your being at & absent from Home, we do not venture to fix a time for our proposed visit to Monticello. Accept my most affectionate respects

James Madison

Capt: Coles has been with us since sunday. I refer to him for the state of our foreign affairs with which he is sufficiently acquainted, to say more than I cou’d well put on paper.

RC (DLC). Docketed by Jefferson, “recd. Aug. 16.”

1Representative Barent Gardenier (a Federalist from New York) observed in a 1 June speech praising the proclamation which reopened trade with Great Britain that implementing legislation was needed. “It is not only necessary that the proclamation should be approved,” Gardenier said, “but that a law should be passed giving validity to it” (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 11th Cong., 1st sess., 217).

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