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To James Madison from Tench Coxe, 20 April 1813

From Tench Coxe

Phila Apl. 20. 1813

In the course of my reflections upon the intended negociations at St. Petersburg, I find my mind equally solicitous for a pacific issue, and for an issue, which may be found regular at public law, as it was received and considered in 1783 & from thence till the commencement of the wars which have arisen from the late European revolutions. The Former object of solicitude is immediate peace: but the latter appears to me deeply important to our national character, to our permanent, peace, and even to our present peace with the opposite belligerents. It is not clear that Austria, Turkey, the confederation of the Rhine, Sweden and the extensive dominions subject to or connected with the Emperor of France, will see the Russia prowess & progress in the same light as G Britain naturally does. Want of specific supplies & want of money & credit, will try Russia and her coadjutors in proportion as they advance into Germany. If they resort to plunder or taking supplies for paper bon[d]s, they will draw on themselves a share of that odium, which has lain so heavily on France, for those things. Europe will be an embarrassed, distracted & divided scene in 1813. In such a time, and under such circumstances our regularity is our best caution against new quarrels, & for future permanent peace, which is so important to our young country.

It has ever appeared to me, that Great Britain has been the less regular in her conduct, because we did not, distinctly, explicitly and without reserve of the ground of right, hold her to answer for &, if I may so say, correct her; in certain matters wherein she has violated principle, and regularity, or faln short of a conduct which principle & regularity require.

1 Great Britain, so far as I stand informed, was never brought to an explanation for her detention & of our & other neutral ships and cargoes in 1792 in her ports, when she was neutral, we neutral, & France in Amity with her & us; for which her ministers asked & obtained an act of indemnity.1

2 Great Britain has never been publicly and officially set wrong in our intercourse or communications with her, with respect to her pretences, that she was first injured by her adversary belligerents, and justified, by our acquiescence in those pretended first injuries, (through our side,) in issuing her orders in council.2 Hence have grown up nearly all our commercial evils. It was important to show that she had no right to such grounds of measures denominated retaliations. This ever appeared to me a great topic, and conducted, with moderation, continues to be a great one, for present argument.

3. Out of the preceding evils have grown the pretence and practice of making, at her one sided discretion, or will, orders in council, acts of parliament, blockades (by their civil government) of remote ports & countries, upon general war considerations, even defensive considerations; blockades of neutral ports; exactions of war measures, in effect, from neutrals in consequence of the measures of her enemies, while her prince himself neutral in Hanover submitted to the same measures or to worse measures on Land, and other things of the same nature.3

4. Great Britain has not repealed or modified her orders in council, so as to cease to violate our neutral rights, for our crops (if owned by a foreign friend of hers) could not go in our vessels to her enemies unblockaded ports: nor could our supplies, or innocent goods, the property of her friends, be imported (supposing we were at peace) in our vessels from her enemies unblockaded ports; nor could we carry, in our ships, innocent goods from her enemies ports to the ports of her friends, being the property of such friends. These are actual & serious violations of our neutral rights. From the want [of] explicit notice of these & perhaps other points, on which the orders in council were not so modified as to cease to violate our neutral rights, the British legislature & people, and many public & private men in America consider us as having maintained, the war for reasons far less substantial than they really are.

We are, it is conceived in a serious delemma on this account, in the present negociations. We must appear to have no reason to object to the present or late form of the orders in council in July 1812 to the injury of the character of our government for not making peace at St. Petersburg, or we must make peace, leaving the implied right, (in the minds of many public & private men in both countries,) in the hands of G Britain to act in the same manner, the day after the ratification of the treaty; when we may have put an end to our preparations & means of war. We have a right to remember the renewed order of council of 1795,4 the impression made on Mr. King as to the terms we could have had as to our seamen, which is never denied in England,5 the defeating of the arrangement with Mr. Erskine,6 the implied maintenance of the right to make orders from the want of any prospective remedy or compensation, in Mr. Jays treaty, and the assertions of Lord Castlereagh & others as to the right & policy of their orders in council of 1807, down to the present Session of Parliament.7 Great Britain told Mr. T. Pinckney & now tells us that they did not repeal or modify from any consideration of right on our part.8 Peace on such a footing is very precarious, dangerous, unjust, and injurious.

5. So as to Seamen. It has been adjudged, in our part of the late British Empire, that it was not murder or manslaughter to kill a person, engaged in impressing, within the jurisdiction of the Crown.9 How much worse then is our condition, if Britain be indulged in all the untrue positions, she maintains as to the conduct of herself and other nations in respect to taking seamen in peace, hired to & by us, in lawful contracts, when found at Sea, or in ports foreign to them & us. It is remembered, with perfect respect, that the Legislature has taken certain grounds on this subject, but its immense importance & nicety remains to this chapter of the discussion.

RC (DLC). Unsigned. Docketed by JM, “Coxe T.”

1On 7 Jan. 1793 the French minister to Great Britain, Bernard-François de Chauvelin, wrote to foreign secretary William Wyndham Grenville protesting the detention in British ports of ships bound for France with cargoes of foreign grain. A royal proclamation of 15 Nov. 1792 had prohibited shipments of grain from Great Britain; however, a second proclamation exempting foreign grain from the interdiction had been issued soon thereafter and should have prevented the detentions (William Cobbett, The Parliamentary History of England from the Earliest Period to the Year 1803 … [36 vols.; London, 1806–20], 30:259–60). The “act of indemnity” Coxe referred to here was Section 35 of “An Act for the Encouragement of Seamen, and for the better and more effectually manning his Majesty’s Navy,” passed by Parliament on 17 June 1793. The section stipulated that “nothing in this Act contained shall be construed to restrain his Majesty … from giving such further Rules and Directions from Time to Time to his respective Courts of Admiralty and Vice Admiralty, for the Adjudication and Condemnation of Prizes, as by his Majesty … shall be thought necessary or proper” (Statutes at Large [1763 ed.], 16:421, 428). Coxe had discussed these events in his pamphlet entitled An Examination of the Conduct of Great Britain, Respecting Neutrals (Philadelphia, 1807; Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 12364), a copy of which JM owned (ViU).

2In his letter to JM of 23 Feb. 1808, British minister David M. Erskine informed the secretary of state that the order in council of 11 Nov. 1807, restricting American commerce with European ports, had been issued because “the Governments of the Neutral States” had not “interposed with Effect” against Napoleon’s Berlin and Milan decrees. Since neutral nations had “submitted” to the French edicts, Erskine asserted, Great Britain was justified in “retorting on the Enemy the Inconveniences and Evils produced by his Injustice and violence” (DNA: RG 59, NFL, Great Britain). The letter was printed in the National Intelligencer of 4 Apr. 1808. For statements made in 1812 by George Canning and Spencer Perceval emphasizing the retaliatory nature of the orders in council, see PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (6 vols. to date; Charlottesville, Va., 1984–). description ends , 5:87 n. 3.

3The Treaty of Basel, concluded by Prussia and France in 1795, established a neutral zone in northern Germany that included the electorate of Hanover. This outcome placed George III, as elector of Hanover, in the anomalous position of being neutral toward France in that capacity while at war with France as king of England. Hanover subsequently served as a pawn in the power struggles between Prussia and France (Brendan Simms, The Impact of Napoleon: Prussian High Politics, Foreign Policy and the Crisis of the Executive, 1797–1806 (Cambridge, 1997), 67–70, 81–89, 177–81).

4A secret order in council of 25 Apr. 1795 instructed British commanders to detain all ships bound to French ports with grain or provisions if there was reason to believe that the cargoes had been procured by French government agents. Not knowing its actual contents, Americans assumed that the order effectively reinstated the provision order of 8 June 1783, which required the confiscation of all cargoes of grain or provisions bound for an enemy port. The news raised serious questions about British intentions to abide by the as yet unratified Jay treaty. Coxe concluded that Great Britain had deliberately violated the treaty on the assumption that it would be ratified before news of the new order in council reached the United States (Mayo, Instructions to British Ministers description begins Bernard Mayo, ed., Instructions to British Ministers to the United States, 1791–1812, Annual Report of the American Historical Association of the Year 1936, vol. 3 (Washington, 1941). description ends , 88, 97; Coxe, Examination of the Conduct of Great Britain, 34).

5For Rufus King’s belief that given more time he could have come to an agreement with the British on impressment in 1803, see Albert Gallatin to Thomas Jefferson, 18 Aug. 1803 (printed in Adams, Writings of Gallatin [1960 reprint], 1:140–44).

6For the British disavowal of Erskine’s agreement, see Presidential Proclamation Restoring Commerce with Great Britain, 15–19 Apr. 1809, and JM to Jefferson, 12 June 1809, PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (6 vols. to date; Charlottesville, Va., 1984–). description ends , 1:117–18, 239–40 and n. 1.

7For Lord Castlereagh’s defense of the orders, see George Joy to JM, 13 June 1812, ibid., 4:477–78 and n. 1.

8On 6 Nov. 1793, George III issued instructions requiring commanders of British ships and privateers to detain all ships trading with the colonies of France. The instructions were modified on 8 Jan. 1794, but Grenville told Thomas Pinckney that this had been done not in response to U.S. protests but because the first, more stringent version had been temporary in nature and was no longer necessary (ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 1:430–31). For the conditional repeal on 23 June 1812 of the orders in council of 7 Jan. 1807 and 26 Apr. 1809, which reserved the right to reinstate the orders, see PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (6 vols. to date; Charlottesville, Va., 1984–). description ends , 4:488–89 n. 2.

9Coxe probably referred to the 1769 case of Rex v. Corbet, in which Michael Corbet, a seaman on the brig Pitt Packet, was charged with murder for resisting impressment by the officers of the British frigate Rose. The incident took place off the coast of Massachusetts. Corbet was defended by John Adams, who argued that impressments of American seamen were illegal and that Corbet’s act of resistance amounted to no more than justifiable homicide. The court acquitted Corbet but declined to address the legality of impressments in general, claiming instead that its decision was based on the fact that the officers of the Rose had no warrant for such activities (L. Kinvin Wroth and Hiller B. Zobel, eds., Legal Papers of John Adams [3 vols.; Cambridge, Mass., 1965], 2:276–82).

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