James Madison Papers
Documents filtered by: Recipient="Merry, Anthony" AND Period="Jefferson Presidency"
sorted by: date (ascending)
Permanent link for this document:
https://founders.archives.gov/documents/Madison/02-11-02-0134

From James Madison to Anthony Merry, 29 January 1806

To Anthony Merry

Department of State January 29th. 1806

Sir,

I have been duly honored with your several letters, two of the 7th. another of the 8th. Instant.

In one of those of the 7th. a Claim is advanced in Behalf of British Subjects, under the third and the additional Articles of the Treaty of 1794,1 to extend their Commerce with the Indians, to the Tribes dwelling within the Territory lately acquired by the United States beyond the Mississippi.

As your Observations in Support of this Claim appear to have been founded on those particular articles, without taking into view the second article with which they are necessarily connected, it will be sufficient to remark that the Boundary of the United States, to which the stipulated Privilege of trading with the Indians is limited, is expressly stated to be the Boundary established by the Treaty of Peace in 1783, and consequen⟨tly⟩ that it excludes from the Stipulation all the Territory since acquired.

This Explanation being such as can not fail to be completely satisfactory, it would be superfluous to discuss the Subject in any other Point of view. It will merely be remarked, that as it cannot be presumed that the Territory bejond [sic] the Mississippi was within the Contemplation of either of the Parties to the Treaty, and as there would be no Equity in making so extensive an Addition in Favor of one of the Parties, without a reciprocal Addition in Favor of the other, your Government will perceive in an Adherence, on the Part of the United States, to the Tenor of the Compact no Diminution of their Desire to cultivate friendly Intercourse, and least of all any Departure from that Good Faith, which guarantees to British Subjects every Privilege actually stipulated to them.

I must be permitted to add, Sir, that you have been under a Misconception with Respect to the Conduct of Governor Wilkinson in the Case, which gave Rise to your Interposition. There is Reason for believing that the whole of the Merchandiz⟨es⟩ were permitted to proceed to their Destination; or if there were any Exception that it was limited to the Article of ardent Spirits, which, from obvious Motives of Benevolence, are laid under special Restrictions in the Trad⟨e⟩ of our own Citizens with the Indian Tribes.

The Indulgence shewn on this Occasion will doubtless be considered the more liberal, as the Receipt of the Duties on the Merchandize2 at Michilimakinac, could not be construed into an Assent even of the Collector to the proposed Destination, since there wa⟨s⟩ a legal Destination presumable, and as it is understood that the Route, given to the Expedition in this Instance, had never before been pursued even during the Spanish Possession of the Country. The Indulgence may therefore be justly expected to have some Effect in fostering a strict Attention to the Regulations which will in future exclude all, who are not Citizens of the United States, from trading with Indians within the acquired Territory of the United States.

Though the Complaint represented in your Letter of the 8th. might have been answered by a Reference of the Parties to the Judiciary Establishments of the United States, which being open alike to the Claimants3 and to the Collector, would, if properly applied to, correct the Delays of the latter4 and afford a Remedy for any Act of Oppression or Injustice of which he might be guilty towards them; yet as you are desirous of a summary Interposition, the Comptrol⟨ler⟩ of the Treasury will, if the Parties desire it, order Restitution of the Merchandize seized, on their giving Security for the Payment of the Forfeiture in Case of Condemnation. The Collector not having communicated to the Executive the Grounds of his Proceeding, a more compleat Relief cannot at present be extended to the Complainants, but you may be assured, Sir, that his Conduct, if found to have been improper, will not be passed over without the Animadversion it may deserve.

The Subjects of your Letter of the 7th. Instant, which have not been particularly noticed above, appearing to be nearly allied together, and the Explanations formerly entered into with you by the Secretary of the Treasury on one of them, not having proved satisfactory to you, some further Time will be taken in order to examine maturely the Grounds on which you have thought yourself justified in placing on the Treaty Constructions different from those adopted by this Government. I have the Honor to be &c

(Signed) James Madison

Letterbook copy (UkLPR: Foreign Office, ser. 115, 48:52–55); Tr (ibid., ser. 5, 15:25–27v); letterbook copy (DLC: Dispatches from the British Minister at Washington, vol. 1). Tr enclosed in Merry to Mulgrave, 31 Jan. 1806 (ibid., ser. 5, 48:25–29).

1For the articles of the Jay Treaty discussed here, see 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 , 2:246–48.

2Tr omits “on the merchandize.”

3Tr has “Complaints” here.

4Second letterbook copy omits “of the latter.”

Index Entries