James Madison Papers
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To James Madison from Robert Smith, [15 April] 1809

From Robert Smith

[15 April 1809]1


The enclosed sketch of my proposed answer to Mr Erskine2 I yesterday morning gave to Mr Gallatin for his consideration—And last Evening I gave him in a short note the intimation which Mr Erskine gave me yesterday at your house.3 Unexplained there is no understanding it. But I presume he means to say this morning, that he has authority to fix with us the day, when the orders in Council shall cease to Operate and that he will do this, with an understanding, that the taking off of the Non-intercourse will be simultaneous. This the Act of Congress provides for without the intervention of the Executive. I intended calling upon you with these papers but am prevented by engagements in the Office.

R S.


Friday evening [14 April 1809]


I return the intended answer to Mr Erskine, which agrees in substance with what I understood to be our general sentiment yesterday. Until we shall have seen Mr E.’s note in its definitive shape, the precise form to be given to the allusion to the object of the non-intercourse act cannot, I think, be determined; it is the most difficult part & must be modified so as to meet the ground which Mr E. will assume in that respect. Will it be best to be silent on Berkeley’s trial?4 or to conclude the note by intimating a confidence that it will take place? This is suggested only for consideration.

I do not understand the offer made on the subject of the orders of council. How can Mr Erskine promise that they will cease to operate next week? when that, by his own proposition, rests on a contingency vizt our taking off the non Intercourse. Does he only mean, that vessels taken under those orders, subsequent to the day agreed on, will be released, if we take off the non-intercourse on that day? We must wait for his explanations & understand what he intends by his suggested modifications. Is it possible that the orders are to be rescinded next week in England, and that he is trying to make the best bargain he can before we know the fact? That would be very little game. Respectfully,

Albert Gallatin

RC and enclosure (DLC: Rives Collection, Madison Papers). Robert Smith’s enclosed outline of a proposed letter to David Erskine has not been found. Enclosure docketed by JM at some later time: “Smith R. / May 1809 / Note to him from Mr. Gallatin.”

1Date determined by circumstances related to Smith’s proposed letter to Erskine, which Gallatin commented upon in his letter dated “Friday evening” (i.e., 14 Apr.). Smith wrote that he had given Gallatin his draft “yesterday.” Apparently the cabinet met on Saturday, 15 Apr., to discuss Erskine’s note and the president’s response as negotiations with the British envoy reached a climax on the weekend preceding JM’s 19 Apr. proclamation restoring commerce with Great Britain. These feverish activities were touched off by the arrival in Washington of a British special messenger carrying Foreign Secretary Canning’s letter to Erskine of 23 Jan. 1809 (Mayo, Instructions to British Ministers description begins Bernard Mayo, ed., Instructions to the British Ministers to the United States, 1791–1812, Annual Report of the American Historical Association for the Year 1936, vol. 3 (Washington, 1941). description ends , pp. 264–66; Perkins, Prologue to War, p. 212).

2This enclosure must have been a draft of Smith’s letter to Erskine dated 17 Apr. 1809 (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, 3:295–96). Obviously Erskine and Smith had discussed their exchange of correspondence, which was to result in Erskine’s letter to Smith bearing the same date when made public. This letter from Erskine became the basis for negotiations to provide for a solution of the Chesapeake incident and thus pave the way for implementing the Nonintercourse Act as it related to British-American trade.

3Erskine received his instructions from Canning on 7 Apr. and was soon in communication with Smith, for all parties agreed that hurried negotiations were justified by “the Circumstance of the Congress being about to assemble very shortly” (Erskine to Canning, 18 Apr. and 20 Apr. 1809, in Correspondence Relating to America, Presented to Parliament in 1810, pp. 46, 55). No doubt Erskine had access to the White House during the week of negotiating that followed. Clearly, JM intended to send the official correspondence to Congress when it convened in May and hoped that preliminary discussions, cabinet meetings, and carefully worded texts would prevent difficulties once a proclamation had been issued.

4Vice Admiral George Cranfield Berkeley had given the order from his Halifax station that led to the firing on the Chesapeake. The U.S. insisted that any settlement of the incident include Berkeley’s recall (Malone, Jefferson and His Time, 5:419–20, 567–68).

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