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From James Madison to James Monroe and William Pinkney, 17 May 1806

To James Monroe and William Pinkney

Department of State May 17th. 1806.


I herewith inclose a Commission and letters of Credence1 authorizing you to treat with the British Government concerning the maritime wrongs which have been committed, and the regulation of Commerce and navigation, between the parties. Your authority is made several as well as joint, as a provision for any contingency depriving either of the co-operation of the other.

The importance of the trust is evinced by its being made the occasion of an extraordinary mission, as well as by the subjects which it embraces. And I have great pleasure in expressing the confidence which the President feels in the prudence and talents to which the business is committed.

It is his particular wish that the British Government should be made fully to understand, that the United States are sincerely and anxiously disposed to cherish good will and liberal intercourse between the two nations, that an unwillingness alone to take measures not congenial with that disposition has made them so long patient under violations of their rights and of the rules of a friendly reciprocity, and that when forced at length by accumulating wrongs to depart from an absolute forbearance, they have not only selected a mode strictly pacific, but in demonstration of their friendly policy, have connected with the measure, an extraordinary mission, with powers to remove every source of difference, and even to enlarge the foundations of future harmony and mutual interest.

There can be the less ground of umbrage to the British Government in the act prohibiting the importation of certain articles of British manufacture,2 1. because there is nothing in the face of the Act beyond a mere Commercial regulation, tending to foster manufactures in the United States, to lessen our dependence on a single nation by a distribution of our trade, and to substitute for woolens and linens, manufactures made from one of our principal agricultural Staples, 2. because it is far short of a reciprocity with British exclusions of American articles of export, 3. because as a Commercial measure discriminating in time of war, between British and other nations, it has examples in British practice. It deserves attention also that a discrimination was made, and under another name, still exists in the amount of convoy duty3 imposed on the trade between Great Britain with Europe, and with America, 4. because the measure can not be ascribed to a partiality towards the enemies of Great Britain, or to a view of favoring them in the war; having for its sole object the interest of the United States, which it pursues in a mode strictly conformable to the rights and the practice of all Nations.

To observations of this kind it may be useful to add that the measure was undertaken before the late change in the British Ministry, and does not therefore imply any particular distrust of the views of the new one; but merely a belief that it was most consistent with self respect not to be diverted, by an occurrence of that nature, from a ground which had been deliberately and publicly assumed; not to mention that no assurances sufficiently decisive had been received, that a disposition to correct the evils in question predominated in the present Cabinet; whilst it was known that some of its most distinguished members have heretofore been among the warmest champions of the maritime doctrines in which those evils have their origin.

In one respect the act may even be favorable to the objects of the present Cabinet, if it should be disposed to make unpopular concessions refused by their predecessors; since concessions alone can now regain a lost market for certain important and popular classes of British manufactures.

In fine the Act may truly be represented as so far from derogating from the amicable dispositions of the United States towards Great Britain, that it has resulted solely from the inefficacy of their protracted and reiterated endeavors otherwise to obtain a just redress, and from a hope that an appeal, in this peaceable form, to the reflections and interest of an enlightened nation, would be more successful in removing every obstacle to a perfect and permanent cordiality between the two nations.

The instructions given to Mr. Monroe January 5th. 1804,4 having taken into view, and being still applicable to, a great proportion of the matter now committed to your joint negotiations, it will be most convenient to refer you to those instructions, as your general guide; and to confine the present, to the alterations and additions which a change of circumstances, or a contemplation of new objects may require.

The first article of the project comprized in the instructions of 1804, relates to the impressment of Seamen. The importance of an effectual remedy for this practice derives urgency from the licenciousness with which it is still pursued, and from the growing impatience of this Country under it. So indispensable is some adequate provision for the case, that the President makes it a necessary preliminary to any stipulation requiring a repeal of the Act shutting the market of the United States against certain British manufactures. At the same time he authorizes you, in case the ultimatum as stated in the Article above referred to, should not be acceptable to the British Government, to substitute one in the terms following. “No Seaman nor Sea-faring person shall upon the high Seas, and without the jurisdiction of either party, be demanded or taken out of any Ship or Vessel, belonging to the Citizens or Subjects of one of the parties, by the public or private armed Ships or men of war belonging to or in the service of the other party: and strict orders shall be given for the due observance of this engagement.”

An article in these terms was, with the acquiescence of Lord Hawkesbury and Mr. Addington, concerted between Mr. King and Ld. St. Vincents, on the approaching renewal of the late war: It was frustrated by an exception of the narrow Seas inserted by Lord St. Vincents;5 an exception so evidently inadmissible both in principle and in practice, that it must have been intended as a pretext for evading the stipulation at that time. Perhaps the present Ministry may neither be disposed to resort to such a pretext, nor unwilling to avail themselves of the precise sanction, as far as it was given, by their predecessors.

With respect to contraband which is the subject of the 4th. Article, it may be observed that as it excludes naval stores from the list, and is otherwise limited to articles strictly military, it must if admissible to Great Britain, leave but feeble objections to an abolition of contraband altogether. In the present state of the arts in Europe, with the intercourse by land, no nation at war with Great Britain can be much embarrassed by leaving those particular articles subject to maritime capture. Whilst belligerent nations therefore have little interest in the limited right against contraband, it imposes on neutrals all the evils resulting from suspicions and vexatious searches, and from questions incident to the terms used in the actual enumeration. It is not an unreasonable hope therefore, that in place of this article, an entire abolition of contraband may be substituted. Should this be found unattainable, it may be an improvement of the Article as it stands, to subjoin, for the sake of greater caution, to the positive enumeration, a negative specification of certain articles, such as provisions, money, naval Stores &c, as in no case to be deemed within the meaning of the article; with a proviso, that the specification shall not be construed to imply in the least, that any article not specified in the exception, shall, on that account, be liable to be drawn into question.

A doctrine has been latterly introduced by the British Courts and at length adopted by the instructions of June 1803,6 to British Cruisers, which regards contraband conveyed in one voyage as affecting a resumed or a return voyage, although the contraband shall have been previously deposited at its port of destination. It will be a further improvement of the article, to insert a declaratory clause against this innovation and the abuses incident to it.

The 4th. Article, besides the stipulation on the subject of contraband, relates to two other Subjects; 1. that of free Ships free goods, 2. that of a trade with enemies Colonies.

1. With respect to the first, the principle that a neutral flag covers the property of an enemy, is relinquished, in pursuance of the example of the Russian Treaty,7 on which the article is modelled; the relinquishment however being connected with and conditioned on, the provision required in favor of the neutral right to the Colonial Trade. The importance of that principle to the security of neutral Commerce, and to the freedom of the Seas, has at all times been felt by the United States; and although they have not asserted it as the established law of Nations, they have ever been anxious to see it made a part of that law. It was with reluctance of course that a contrary stipulation was authorized, and merely as a mean of obtaining from Great Britain the recognition of a principle now become of more importance to neutral nations possessing mercantile Capital, than the principle of “free Ships free goods.” It is to be particularly kept in view therefore that such a contrary stipulation is to be avoided if possible; and, if unavoidable, that the stipulation be so modified as to interfere as little as possible with the spirit and policy of any provisions in favor of the principle which may be likely to be introduced into a treaty of peace among the present belligerent powers of Europe. Should it be known that Russia, as well as France, means to insist on such a provision, and that such a stipulation by the United States, however modified, will materially affect her confidence and good will towards them, the objection to the measure will acquire a force that can yield only to the consideration that without such a sacrifice the provisions for the security of our Seamen, and of our neutral commerce can not be obtained, and that the sacrifice will effectually answer those purposes. 2. The vast importance of the Colonial Trade, with the circumstances and the excitement which have taken place since the date of the original instructions to Mr. Monroe, will require that the neutral right on this subject be provided for in an appropriate article, and in terms more explicit than are used in the article under review. As the right in this case, turns on the general principle, that neutrals may lawfully trade, with the exceptions of blockades and contraband, to and between all ports of an enemy, and in all articles, although the trade shall not have been open to them in time of peace, particular care is to be taken, that no part of the principle be expressly or virtually abandoned, as being no part of the law of nations. On the contrary it is much to be desired that the general principle in its full extent, be laid down in the stipulation; but as this may not be attainable and as too much ought not to be risked by an inflexible pursuit of abstract right, especially, against the example and the sentiments of great powers having concurrent interests with the United States; you are left at liberty, if found necessary, to abridge the right in practice, as it is done in the supplement of October 1801, to the treaty of June of that year, between Russia and Great Britain; not omitting to provide that in case Great Britain should by her Treaties or instructions leave to any other nation the right in a greater extent than it is stipulated to the United States, they may claim the enjoyment of it in an equal extent.

The abuses which have been committed by Great Britain under the pretext that a neutral trade, from enemy Colonies, through neutral ports, was a direct trade, render it indispen[s]able to guard against such a pretext by some express declaration on that point. The most that can be conceded on the part of the United States is, that the landing of the goods, the securing the duties, and the change of the Ship, or preferably, the landing of the goods alone, or with the securing the duties, shall be requisite to destroy the identity of the voyage and the directness of the trade; and that the ordinary documents of the Custom House Officers, shall be sufficient evidence of the facts or fact.

A satisfactory provision on this subject of a trade with enemy Colonies, is deemed of so much consequence to the rights and interests of the United States, and is so well understood to have been contemplated along with a like provision against the impressment of Seamen, in the late act of Congress prohibiting the importation of certain classes of British manufactures, that, as was enjoined with respect to the provision against impressment, no stipulation is to be entered into not consistent with a continuance of that Act, unless the provision with respect to the Colonial trade be also obtained.

In remodelling the provision with respect to the Colonial Trade, you may with great propriety urge the distinction between the West India Colonies, and the very distant ones in the East Indies and elsewhere; and the reasonableness of limiting to the former, the exception of the direct trade with their parent Countries, out of the general neutral right. The distinction is supported by several considerations, particula[r]ly by the greater difficulty, in the case of the more distant Colonies, of previously knowing, and eventually proving, the regulations as they may have actually stood in time of peace, and by the ruinous delays and expences attending the judicial investigations. The British Courts have in fact admitted the distinction so far as to presume the lawfulness of the neutral trade with the East India Colonies, as being generally open in peace as well as war; whilst they reverse the presumption with respect to the West Indies.

In addition to what is proposed on the subject of blockades in VI and VII. articles, the perseverance of Great Britain in considering a notification of a blockade, even of an intended blockade, to a foreign Government, or its Minister at London, as a notice to its Citizens, and as rendering a Vessel wherever found, in a destination to the notified Port as liable to Capture, calls for a special remedy. The palpable injustice of the practice, is aggravated by the auxiliary rule prevailing in the British Courts, that the blockade is to be held in legal force, until the Governmental notification be expressly ⟨resc⟩inded, however certain the fact may be that the blockade was never formed or had ceased. You will be at no loss for topics to enforce the inconsistency of these innovations with the law of nations, with the nature of blockades, with the safety of neutral commerce; and particularly with the communication made to this Government, by order of the British Government in the year 1804;8 according to which the British Commanders and Vice Admiralty Courts were instructed, “not to consider any blockade of the Islands of Martinique and Guadaloupe as existing unless in respect of particular ports, which may be actually invested, and then not to capture Vessels bound to such ports, unless they shall previously have been warned not to enter them.”

The absurdity of substituting such Diplomatic notifications in place of a special warning from the blockading Ships, cannot be better illustrated than by the fact, that before the notification of a proposed blockade of Cadiz in the year 1805 was received here from our Minister at London, official information was received from Cadiz, that the blockade had actually been raised, by an enemy’s fleet.9

It may be worth your attention, that a distinction has been admitted, by the British prize Courts in consideration of the distance of the United States from the European blockades, between their Citizens and those of States less distant, the notice required for the former being more positive than is made necessary for the latter. You will be able to avail yourselves in the discussion, and perhaps in the modification of the article, of the reasons on which such a distinction rests.

The instructions in the hands of Mr. Monroe are silent with respect to convoys. If the footing on which the neutral right on that subject is placed by the Russian and British Treaty of 1801, can be turned to advantage in your negotiations, and should be understood to coincide with the present way of thinking of Russia and other maritime powers, an article corresponding with the regulations in that Treaty, may be admitted. But as the United States are not in the practice of convoying their trade, nor are likely to be so within the period of any stipulation now to be made, and as the progress of opinion is rather favorable than discouraging to the enlargement of neutral rights, it is not, in a general view, desireable that any stipulation, such as Great Britain will probably admit, should at this time be entered into. In whatever arrangement on the subject, limiting the protecting right of public Ships of war, may be deemed expedient, you will be careful so to express the limitation, that it may be applied to the exercise of the right, without affecting the abstract right itself.

There remains, as an object of great importance, some adequate provision against the insults and injuries committed by British Cruisers in the vicinity of our Shores and harbours. These have been heretofore a topic of remonstrance, and have in a late instance, been repeated with circumstances peculiarly provoking, as they include the murder of an American Seaman within the jurisdictional limits of the United States. Mr. Monroe is in full possession of the documents explaining a former instance. Herewith will be received, those relating to the late one.10 They not only support a just demand of an exemplary punishment of the Offenders, and of indemnity for the spoliations, but call for some stipulations guarding against such outrages in future. With this view it is proper that all armed belligerent Ships should be expressly and effectually restrained from making seizures or searches, within a certain distance from our Coasts, or taking stations near our harbours commodious for those purposes.

In defining the distance protected against belligerent proceedings, it would not perhaps be unreasonable, considering the extent of the United States; the shoalness of their coast, and the natural indication furnished by the well defined path of the Gulf stream, to expect an immunity for the space between that limit and the American Shore. But at least it may be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain, around her own territory. Without any particular enquiry into the extent of these, it may be observed, 1. that the British Act of Parliament in the year 1736. 9G. 2. C. 35. supposed to be that called the Hovering Act assumes for certain purposes of Trade, the distance of four leagues from the Shores,11 2. That it appears both in the Reign of James I. and of Charles II,12 the security of the Commerce with British Ports, was provided for by express prohibitions against the roving or hovering of belligerent ships so near the neutral harbours and Coasts of Great Britain as to disturb or threaten Vessels homeward or outward bound; as well as against belligerent proceedings, generally, within an inconvenient approach towards British Territory.

With this example, and with a view to what is suggested by our own experience, it may be expected that the British Government will not refuse to concur in an article to the following effect.

“It is agreed that all armed Vessels belonging to either of the parties engaged in war shall be effectually restrained by positive orders and penal provisions from seizing, searching or otherwise interrupting or disturbing vessels to whomsoever belonging & whether outward or inward bound, within the Harbours, or the chambers formed by head-lands, or any where at Sea within the distance of four leagues from the shore, or from a right line from one head land to another. It is further agreed that by like orders and provisions all armed Vessels shall be effectually restrained by the party to which they respectively belong, from stationing themselves, or from roving or hovering so near the entry of any of the harbours or Coasts of the other, as that Merchantmen shall apprehend their passage to be unsafe, or a danger of being set upon and surprized; and that in all cases where death shall be occasioned by any proceeding contrary to these stipulations, and the offender cannot be conveniently brought to trial and punishment under the laws of the party offended, he shall on demand made within   13 months be delivered up for that purpose.”

If the distance of four leagues cannot be obtained, any distance not less than one sea league may be substituted in the article. It will occur to you that the stipulation against the roving and hovering of armed Ships on our Coasts, so as to endanger or alarm trading Vessels, will acquire importance in proportion as the space entitled to immunity shall be narrowed.

Another object not comprehended in the instructions of 1804, to Mr. Monroe, is rendered important by the number of illegal captures and injuries, which have been committed by British Cruisers since that date. An indemnity for them is due on every consideration of justice and friendship, and is enforced by the example heretofore given by Great Britain herself, as well as by other nations which have provided by Treaty for repairing the spoliations practised under colour of their authority. You will press this as an object too reasonable not to be confidently expected by the United States. Many of the claims indeed for indemnification are so obviously just, that a refusal to satisfy them, can not be decently made, and ought not therefore to be presumed.

The two modes most readily presenting themselves for a comprehensive provision for the claims, are first the establishment of a Board analogous to that provided for in the 7th. Article of the Treaty of 1794:14 Secondly the substitution of a gross sum to be distributed among the claimants according to a liquidation to be made under the authority of the United States.

The second is the mode most eligible, if the gross sum to be allowed, be thought to approach the amount of losses to be indemnified. To assist you in estimating these the statements addressed to this Department by the Underwriters and others are herewith transmitted.15 These statements, with those furnished by Mr. Lyman to Novr. 1st.16 will be to be reduced according to the redress which shall have been judicially afforded; and on the other hand to be augmented by the addition of cases not reported here, and to be collected from the sources of information within your own reach.

If the first mode should be adopted, great care will be requisite in describing the cases, to employ such general terms as will comprehend all that are fairly entitled to redress. It will be well at the same time to secure, by specifying such of the cases, as can be specified, and as are least susceptible of objection. Under this head may be classed, 1. cases in which the Official communication made by Lord Hawksbury to Mr. King of the 11th. day of April 1801,17 has been violated. 2. cases in which the rules of blockade stated in Mr. Merry’s communication to the Department of State on the 12th. day of April 1804.18 have been violated, 3. cases where the Territorial jurisdiction of the United States has been violated. The list of neutral rights asserted in the report of the Secretary of State to the President on the 25th. day of Jany. 1806 will suggest other specifications which may be attempted. It may be worth recollecting that the British order of Council bearing date the 24th. June 1803, and subjecting to capture Vessels on a return Voyage, which had carried contraband in the outward voyage, was never promulged, nor was it known that such a rule was to be enforced until the summer of 1805. Could the rule be regarded otherwise than as it certainly is, an innovation on the law of Nations, all captures before it was made known, and contrary to antecedent practice, would be marked by an unjust surprize, fairly entitling them to redress.

The business to come before such a board may be much diminished by the reference of cases, particularly of costs and damages and such others whose description by common consent entitles them to redress, to the Kings Advocate and an advocate to be named on your part (Dr. Laurence for example) who may be authorized to report the sums due, subject to the approbation in each case of Mr. Lyman, our Agent. As far as the cases fall within the observation here made, a liquidation of them may be carried on during the period of negotiation.

Altho’ the subject of indemnifications for past wrongs is to be pressed as of great magnitude in a satisfactory adjustment of our differences with Great Britain, yet as the British Government may be inflexible in refusing an arrangement implying that her maritime principles of capture were contrary to the law of Nations, whilst she would not be inflexible in stipulating a future practice conformable to our wishes, it is not thought proper that a provision for indemnities should be an absolute condition of the repeal of the Act of Congress concerning British manufactures, provided satisfactory arrangements shall be made relative to impressments, and the trade with enemy’s Colonies. Still however it is to be kept in view, that there are claims founded on acts of British Cruisers violating the law of Nations, as recognized by Great Britain herself, and others founded on unexpected departures, without notice, from rules of practice deliberately settled and formally announced. Of these, examples have been referred to in the communications of Lord Hawksbury to Mr. King, and of Mr. Merry to the Department of State.

With respect to claims of these several Kinds, it is evident that provision is clearly due for them, and that it may be made without any implication which can alarm the pride or the caution which may be professed. You will not fail therefore, to bring, if necessary, these claims into view, as distinguished from others founded on controverted principles, and to let it be understood that a refusal of them will be a painful ingredient in the negotiations for extinguishing discontents on both sides, and consolidating and perpetuating the friendship between them. In case this distinction should operate in the adjustment, it will furnish an additional reason for preferring a gross sum, to the liquidations of a joint Board; first, because it will admit of a liberal sum, if the British Government should be liberally disposed, on presumptions not affecting her maritime principles; Secondly, because it will leave the United States free to apply the gross sum, in redressing claims according to our maritime principles. A precedent for such an expedient may be found in the Convention of January 1756,19 between Great Britain and Prussia; whereby a gross sum of £20.000 Stg. was paid to the latter, as an extinguishment of claims, on account of illegal captures, without reference to the precise rules by which it was to be applied. The Treaty of Pardo in January 1739,20 between Great Britain and Spain, is another precedent. In that Treaty the sum of £95.000 Stg was stipulated in the like general manner, to be paid to Great Britain by Spain, as a compromise for all reparations of maritime injuries.

If the United States succeed in making satisfactory arrangements on the principle points of impressment of Seamen, Colonial Trade, and still more, if provision be also made for indemnity for Spoliations, it may be naturally expected that Great Britain will require, not only the repeal of the prohibition Act of last Session, but also some security that the United States will not, by subsequent Acts of the same nature, place her on a worse footing than other nations. She may reasonably urge that demand on the double plea, of having yielded on these points which were the subjects of complaint on the part of the United States, and of her being now for want of a Commercial Treaty, placed in that respect at the discretion of the United States; whilst they are precluded by their Treaties with the enemies of Great Britain (Holland, France and Spain) from the power of laying prohibitions or restrictions particularly affecting those Nations.

The most natural arrangement in that respect will be simply to agree that the two parties shall enjoy in the Ports of each other, in regard to commerce & navigation, the privileges of the most favored Nation. But the Article should be framed so as to embrace, 1st. every privilege and particularly the exemption from higher duties of every description either on imports or exports and including convoy duties, that are paid by the most favored nation; 2dly. All the possessions of Great Britain in every part of the world; which will secure admission, at all times in both the East and West Indies, on the same terms as are now or may in future be enjoyed by the most favored Nation, whether it be a friend or an enemy.

The same clause of the footing of the most favored Nation may be extended not only to navigation and Commercial intercourse between the two nations, but to points which relate to the rights and duties of belligerents & neutrals: An arrangement which would secure to Great Britain the same rights in relation to the admission of her armed Vessels in our Ports and to the exclusion of her enemies privateers and of their prizes, which are now enjoyed by Holland, Spain and other most favored nations: Whilst it would place the rights of the United States as neutrals on the same footing with Russia or the most favored Nation, in respect to search, Convoys, blockades and contraband.

If it shall be thought eligible to place the reciprocal Commercial privileges of the two nations on a more definite basis, than they would be placed by the general expression of the most favored nation (a stipulation which is liable to the difficulty of ascertaining the equivalent to be given in cases where a privilege is granted by one of the contracting parties to another nation, in exchange for some favor, which the other contracting party cannot specially give) it may be done, either by abolishing all alien duties either on Vessels or Cargo or both, and reciprocally placing the Vessels of the other nation on the same footing with National Vessels conformably to the provision in which Great Britain concurred by an Act of parliament in the year 1802;21 or by fixing the maximum of alien duty which each nation shall have the right to impose on the Vessels or Cargoes of the other Nation. But should the last plan be adopted, care must be taken 1st. that in fixing the maximum of the alien duty to be levied on Vessels, all charges whatever, and under whatever name known, whether tonnage, light house money, port charges &c. shall be included—2ndly. that the maximum of the alien duty to be levied on merchandize imported in the Vessels of the other Nation (beyond the duties levied on similar articles imported in the National Vessels) shall be a per centage on the value of the merchandize itself and not on the original duty—3dly. that the right of imposing such maximum duties either on the Vessels, or merchandize shall never be exercised so as to contravene the other stipulation of enjoying the privileges of the most favored nation—4thly, that the stipulation shall not embrace Vessels & Cargoes coming from or going to ports from which the Vessels or Cargoes of the United States are excluded.

Should the expedient of a maximum be adopted it must not be overlooked that the productions of the United States exported to Great Britain employ a far greater tonnage than the exports from Great Britain to the United States; that the higher the maximum therefore the more favorable to Great Britain, who may avail herself according to the degree of it, to secure to her Vessels the carriage of our bulky productions, of which her duty on Tobacco imported in American Vessels is an example; leaving to the United States the opportunity only of securing to their Vessels, the carriage of her unbulky exports; and that consequently no maximum ought to be admitted more unfavorable to the United States, than the regulations likely to prevail, if uncontrouled by Treaty. A mutual abolition of alien duties would probably be favorable to the navigation of the United States, which would then have to contend on equal terms with British navigation, for which it may be expected to be at least a match at all times, and more than a match when Great Britain is at war, which is not less than half the time.

The only great branch of Commercial Intercourse which would remain unprovided for, is that of intercourse with the British Colonies and dependencies: and if nothing can be obtained on that ground, care also must be taken in framing the article for reciprocally enjoying the privileges of the most favored nation, not to deprive the United States of the right of making such regulations as they may think proper in relation to Vessels coming from Ports from which their own Vessels are excluded, or in relation generally to the intercourse with such ports.

As the United States confer no particular benefit on the British possessions in the East Indies by their intercourse with that Country, it can hardly be expected that Great Britain will grant any thing more than the general stipulation to be placed on the footing of the most favored nation; or possibly a stipulation to the United States of the privileges heretofore granted to foreigners, which in relation to the coasting trade, and the trade from India Ports to all foreign Countries, as well as that owning the Vessel, exceeded the privileges stipulated in the Treaty of 1794. But as relates to the West Indies and North American Colonies, it must be a permanent object of the policy of the United States, to have the intercourse with them made as free as that with Europe. The relative situation of the United States and of those Colonies, and particularly those wants which we can alone supply, must necessarily produce that effect at some not very distant period. And it should not be voluntarily retarded either by abandoning by Treaty the strong hold which our right of stopping the intercourse gives us, or by accepting any temporary or trifling privilege the exercise of which would diminish the probability of soon obtaining a perfectly free trade.

It is not probable that Great Britain will be disposed to open the intercourse to our Vessels with her North American Colonies; nor does it appear that any limitation or restriction can be offered by the United States, calculated to quiet the apprehensions of Great Britain, that to open that trade to our Vessels would destroy their own. It is not perceived that any thing else can be proposed but perfect reciprocity as is contemplated in relation to the intercourse between the United States and the British Dominions in Europe; such reciprocity to consist either of a total abolition of alien duties or of a fixed maximum as above stated; and the intercourse to be also either general or confined to articles of the growth, produce or manufacture of the United States and of the said Colonies respectively. It must not be forgotten, as relates to our Commerce with Nova Scotia and New Brunswick, that however advantageous to both parties, it is more beneficial to the United States than to those Colonies. The importance of not less than 30, perhaps 50 thousand tons of Plaister to our Agriculture needs no comment; and notwithstanding our exclusion from their Ports we have, in fact, as the trade has hitherto been carried on, a greater share of it than themselves. This however is the result of a connivance in practice; which may possibly be withdrawn. The produce of their fisheries is brought by them from Halifax to Boston, and by us from Boston carried to the West Indies. Their Plaister is brought by them from Fundy Bay to Maine, and by us from Maine to New York, Philadelphia and the Chesapeak. A strong jealousy seems to exist between the Shipping interest of Massachusetts and that of these Colonies. Hence the wish of their Legislative Assemblies to prohibit the exportation of Plaister in their own Vessels, to our Eastern Ports; and hence the law which Laid the Light House money tax and a high duty on their fish, taking away at the same time the drawback on the reexportation of such fish. An enlightened policy and a mutual wish to promote the real interest and welfare of the inhabitants on both sides, should induce both Governments to throw the trade perfectly open. But it cannot be denied that it will give us a very great share of their carrying trade.

The minimum which should be accepted in relation to the intercourse with the West Indies, will be the admission of our Vessels laden solely with articles of our growth, produce or manufacture, the importation of which in British Vessels is not prohibited, on the same terms as British Vessels solely laden with the Colonial Articles shall be admitted in our ports, that is to say, either without alien duties or with a fixed maximum of such alien duties, with the two following restrictions—1st. that Great Britain may prohibit our Vessels from exporting from the British West India Islands in Sugar and Coffee, more than one half of the proceeds of their inward Cargo—2ndly. That such Sugar and Coffee shall be exported only to the United States, or that the Vessels thus admitted in the West Indies shall be obliged to return and land their Cargoes in the United States, provided they may however, on their return touch at any other West India Island or the Bahamas to complete their Cargo. For it is usual to carry the specie, which proceeds from the sale of a Cargo in the West Indies to Turks Island or the Bahamas and there load with Salt for the United States. Although those restrictions and particularly the first be inconvenient, yet they may be acquiesced in. As respects the first restriction, the value of our average exportations to the British West India Islands, being Six Millions of Dollars, and our importations from thence in every article (sugar and Coffee excepted) being three millions of Dollars, the privilege of bringing in return in Sugar and Coffee one half of the Value of our exportations, will just complete the return Cargoes. But it would be desirable that the restriction should be altogether dispensed with, or that Great Britain should allow the exportation in these two articles to the amount of 2/3 or 3/4 of the value of our Cargoes. As relates to Great Britain, if she once yields the point of admission, the restrictions which are proposed seem to be amply sufficient to remove her minor objections. We now import notwithstanding the nominal prohibitions to some amount in American Vessels, about one million and half Dollars, being the whole amount imported from the British Islands in both American and British Vessels.

The value of our average importations from all the world is

in Sugar 7.800.000 } or more than Sixteen
Millions of Dollars
in Coffee 8.400.000

The value of our annual consumption exclusively of the New Orleans Sugar, is

in Sugar 4.000.000 } or 5½ Millions of Dollars.
in Coffee 1.500.000

To permit us therefore to import for 3 Millions cannot enable us to reexport. And three Millions of Dollars compared with the value of the Sugar and Coffee exported annually from the British West Indies which amounts to not less than   22 millions, cannot in any degree affect their own Commerce or navigation.

The second restriction is intended still more effectually to remove any apprehension that our Vessels might become carriers of British West India produce to any other Country than the United States. And it may even, if insisted on, be further agreed that no drawback shall be allowable on the reexportation of those articles imported from the British West Indies in American Vessels; provided, however, that on that condition the first mentioned restriction limiting the quantity which may be thus imported from the British West Indies in American Vessels; shall be dispensed with. The utmost care is to be taken in framing the restriction on reexporting from the United States, the produce of the British West Indies imported in American Vessels so to express it as to leave no possible pretext for applying the restriction to any similar articles whether produced within the United States, or imported from any other than British possessions.

It will be a reasonable Stipulation on the part of Great Britain, that at all times and places at which the trade of the United States is admitted generally or partially, the residence of Consuls and factors shall also be admitted. The duration of the Commercial part of the Treaty, and of any other parts which do not establish in their full extent, the rights of neutral nations, ought not to exceed the term of eight years; and an abridgment even of that term may perhaps be rendered expedient by the tenor of articles not inconsistent with these instructions. I have the honor to be, With great consideration Your most obed. servt.23

James Madison

RC (DLC: Monroe Papers); letterpress copy (DNA: RG 46, President’s Messages, 10B–B1); Tr (DNA: RG 233, President’s Messages, 10A–D1); letterbook copy (DNA: RG 59, IM, vol. 6; extract (DLC: Martin Van Buren Papers). RC in a clerk’s hand, with Wagner’s emendations, complimentary close, and address; signed by JM. Written at the bottom of the penultimate page of the RC following the discussion of imports of sugar and coffee is: “See the last Edition of Edwards W. Indies.” RC docketed by Monroe, with his note: “17. May 1806. Joint to Mr. P & myself to treat with British ministry, as to maritime wrongs, impressment & ca.”

1JM enclosed (1) Jefferson to George III introducing William Pinkney as minister plenipotentiary; (2) Jefferson to Pinkney conveying his powers to act; (3) Jefferson to Queen Charlotte introducing Pinkney as minister plenipotentiary; (4) Jefferson to George III appointing Monroe and Pinkney joint commissioners plenipotentiary and extraordinary for “settling all matters of difference” between the United States and Great Britain; (5) Jefferson to Queen Charlotte introducing Monroe and Pinkney as commissioners; (6) Jefferson to “Whom these presents shall concern” conveying Monroe and Pinkney’s powers to act; and (7) Jefferson to George III conveying Monroe’s permission to leave (DNA: RG 59, Credences; 8 pp. All are dated 12 May 1806).

2For the embargo on British goods, see JM to Monroe, 20 Mar. 1806, and n. 1.

3For JM’s earlier discussion of convoy duty, see PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 9:112, 115 n. 20.

4Ibid., 6:282–306.

5For Rufus King’s meeting with Lord St. Vincent and the latter’s objection to the inclusion of the narrow seas (English Channel and Irish Sea) in the convention, see ibid., 5:203.

6See ibid., 9:451 n. 2.

7For the 1801 Anglo-Russian treaty and the later explanatory declaration clarifying it, see ibid., 2:46 n. 1, 10:447 n. 5.

8See ibid., 7:37, 38 n. 2.

9For the official notification of the British blockade of Cádiz and its removal in the face of a French fleet, see ibid., 9:292 n. 1, 231, 248.

10The enclosures were De Witt Clinton to JM, 3 May, JM to Clinton, 3 May, JM to Anthony Merry, 6 May, and Merry to JM, 9 May 1806 and Jefferson’s 3 May 1806 proclamation. For earlier notifications of British misbehavior in New York harbor, see JM to Monroe, 20 July 1804, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 7:484–85.

11The 1736 British “Hovering Act” which extended British jurisdiction to four leagues from the coast disallowed the transshipment of foreign goods within those limits without the payment of duties (Henry Wheaton, Elements of International Law: With a Sketch of the History of the Science [2 vols.; London, 1836], 1:281).

12RC has an x here with “see L Jenkin⟨s,⟩ Vol. I” in the margin. The note referred to William Wynne, The Life of Sir Leoline Jenkins (2 vols.; London, 1724).

13Left blank in RC.

14See Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:252–53.

15See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 9:270–71, 352, 355, 456–59, 10:25, 548–49, 595, 634–37, 641–43, 647–52. See also 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, 2:760–73.

16William Lyman’s 7 Nov. 1805 letter regarding U.S. claims against Great Britain has not been found (see Lyman to JM, 14 Jan. 1806).

17For Lord Hawkesbury to King, 11 Apr. 1801, and the enclosed report of the king’s advocate general allowing the indirect neutral trade between a mother country and its colonies, see King, Life and Correspondence of Rufus King, 3:427–29.

18See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 7:37–38.

19For the 1756 agreement between Great Britain and Prussia, see Wenck, Codex juris gentium recentissimi, 3:84–87.

20For the Convention of Pardo, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 2:399–43.

21JM probably had in mind either 42 Geo. 3 c. 27, “An Act … to cause certain countervailing duties … to cease, or be suspended” or 42 Geo. 3 c. 80, “An Act … relating to the Admission of certain Articles of Merchandize in Neutral Ships. …” (Tomlins et al., Statutes of the United Kingdom, 1:299–300, 430–31).

22Left blank in RC.

23Written beneath the signature on the letterbook copy:

“Papers accompanying the above, Sent by Mr Pinkney.

“Passport for him.

“Duplicate of a letter about Russia of 23 April 1806 and the other letter of same date.

“Genl Allen’s letter to Mr Monroe” (On 25 Apr. 1806 Ira Allen wrote to Monroe requesting assistance in his claim against Great Britain [Preston, Catalogue of the Correspondence and Papers of James Monroe description begins Daniel Preston, A Comprehensive Catalogue of the Correspondence and Papers of James Monroe (2 vols.; Westport, Conn., 2001). description ends , 1:176]).

“12 Copies of the ‘Examination of the British Doctrine &c.’

“2 drafts of Passamaquoddy Islands, including Grand Menan.

“Copy of the letter of the Secretary of the Treasury about the latter.

“Letter of the Mayor of New York to the Secretary of State of the 3d May 1806 and its enclosures, of the latter to Mr Merry of the 6th May 1806. and his answer of the 9th. Letter of the Secretary of State to the Mayor of N York of 3d May and the Presidents proclamation of 3d May 1806.

“Letter to Mr Monroe of 15th May 1806

“2 Bundles of Papers from the Treasury.

“Joint power to Mr Pinkney & Mr Monroe

“Joint Credence to them.

“Credence to Mr Pinkney as Ordinary Minister.

“Power to him as such.

“Letter of leave for Mr. Monroe.

“Credences to the Queen for the joint and eventual New Mission

“The joint instructions of 17th. May 1806.

“Secretary of States’ report of 25 Jany 1806

“His letter to Mr Monroe of 15 April 1804.

“Extract of a letter from the same to the same 6th March 1805

“Mr Merry’s letter of 12th April 1804 about Blockades.

“Mr Lymans report of Captures between 1st May & 1st November 1805

“The printed Document containing the argument and decision in the case of the Sloop Falmouth.

“Private Letters to Mr Monroe from the President,” (see Jefferson to Monroe, 4 May 1806 [DLC: Thomas Jefferson Papers])

“Secretary of State, and other letters from Major Rogers, Mr Beckly and Mr Barlow.

“Report of the Secretary of the Treasury, at the opening of the Session of Congress” (ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Finance, 2:204–16.)

“Report of the same in obedience to the Resolutions of the House of Representatives of the 3d, 5th, & 7th February 1806” (ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Commerce and Navigation, 1:640–44).

“Letter from the Secretary of State accompanying statements of applications made to the British Governt. in cases of impressments in obedience to a Resolution of the House of R. of 6th Jany 1806.

“Copy of the Secret Journal of the House, which was made public” (“A Supplemental Journal,” in Journal of the House of Representatives of the United States, at the First Session of the Ninth Congress, in the Thirtieth Year of the Independence of the United States [Washington, D.C., 1805 (1806); 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 11585], second 1–54).

“Report of the Secretary of State on the privileges and restrictions on the commerce of the United States in foreign Countries—1793” (Report, by the Secretary of State, on the 16th Decem. 1793, Relative to the Privileges and Restrictions of the Commerce of the United States [(Washington, D.C.), 1803; 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 5476]).

“Letter & Report from the Secretary of the Treasury of 2d March 1806” (ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Commerce and Navigation, 1:640–44).

“Report of the Secretary of State dated 27 Jany 1806.

“Memorial of the Merchants of New York” (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, 2:737–39).

“Do from New Haven” (New Haven Connecticut Journal, 13 Feb. 1806).

“Resolutions of the Citizens of Norfolk & Portsmouth in Virginia” (PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 10:610–11).

“Resolutions of the inhabitants of Petersburg in Virginia” (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 9th Cong., 1st sess., 461–62).

“Message from the President transmitting to the House, a memorial of the Merchants of the City of Baltimore on the violation of our neutral rights” (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, 2:750–56).

“Memorial of the Merchants of the town of Boston” (Journal of the U.S. House of Representatives, 9th Cong., 1st sess., 5:256; 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 11629).

“Memorial of the Inhabitants of Salem, in Massts” (Salem Register, 23 Jan. 1806; 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 11319).

“Do from the Merchants of Philada” (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, 2:740–45).

“Message from the President transmitting sundry documents in relation to incursions by the Spanish troops into the Territory of Louisiana” (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 9th Cong., 1st sess., 18–19).

“Message from the President Supplementary to the one of the 6th Decr. 1805, communicating Documents respecting Louisiana” (ibid., 1156–1216).

“Documents accompanying a message of the President of the 6th Decr. 1805” (ibid.).

“Extract of a letter from the Secretary of State to Mr Monroe relative to impressments” (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, 2:730–32).

“Do from Mr Gore to Mr Madison dated 18 Novr. 1805 and the other documents bound up with it about belligerent aggressions.

“Message from the President to both Houses of Congress at the commencement of their last Session. 3d Decr. 1805” (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 9th Cong., 1st sess., 11–16).

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