From James Madison to Charles Jared Ingersoll, 28 July 1814
To Charles Jared Ingersoll
Washington July 28. 1814
Dear Sir
I have recd. your favor of the 18th. instant, & delivered into the hands of Mr. Rush the interesting extract inclosed in it. The armed neutrality in 1780, forms an Epoch in the history of maritime law which makes it more than a point of mere curiosity, to trance it to its real source. You know perhaps that there is an American pretension to a share at least in bringing about that measure.1 The fact may not improperly enter into a general research.
On the question of “free ships free goods,” it has always appeared to me very clear that the principle was right in itself, and friendly to the general interest of nations. It is perhaps less clear, that the U.S. have a special interest in it; unless combined with another principle, of wch. an example is found in our Treaty with Prussia, and probably in no other; namely, that unarmed merchant vessels, like waggons or plows, the property of one belligerent, should be unmolested by the other. This principle has, I believe, an undisputed American father in Dr. Franklin.2
On the question, whether under the Law of Nations, as it stands de facto, “free ships make free Cargoes,” the U.S. at an early day, took the negative side;3 and although the acknowledgment of it has been shunned as much as possible since, it seems to have been generally understood, that the British doctrine was practically admitted.
Were the question to be regarded as unsettled, and open to fair discussion, I am persuaded, that the weight of authority furnished by reason, public good, treaties, and the luminaries of public Law, preponderates in favor of the principle “free ships free goods.”
The ablest defence of the opposite principle which I have seen, is in a Treatise by Croke4 the present vice-admiralty Judge, at Halifax, in answer to Schlegel. I am sorry I neither possess a copy, nor can refer you to any convenient depositary of one.
On the side of “free ships free goods” may be urged not only the intrinsic merit of the rule, and the number & character of distinguished Jurists, but the predominant authority of Treaties, even of treaties to which G.B. is a party. Prior to the Treaty of Utrecht, her treaties particularly with the Dutch, carefully inserted the stipulation. Sir W. Temple her ambassador, claimed great merit on one occasion, for his success in obtaining from them, an article to that effect.5 In the Treaty of Utrecht in 1713, to which the several great maritime powers were parties, the principle is stipulated in the most explicit form.6 In the successive Treaties, to which the great maritime powers were also parties, in 1748. 1763. 1783. the Treaty of Utrecht is renewed and made a part thereof. Perhaps no article in maritime law, can be found which at one time rested on such broad & solid evidence of that general consent of nations, which constitutes the positive law among them. To those Treaties, embracing so many parties, may be added the Treaty of 1786, between the two most important of them—G.B. & France. In the negociations at Amiens, at a still later date, the B. Govt. was desirous of again re-enacting the Treaty, tho’ probably with a view rather to the political balance, than to the maritime principles contained in it.
It has been unfortunate, that all the efforts of the Baltic powers to secure the interests of neutrals, have been frustrated by the want of a united and determined perseverence. Their leagues have been broken to pieces; and to finish the catastrophe, each of the parties has separately deserted itself. The latter Treaties of Russia, of Sweeden, & of Denmark with G.B. have all, in some form or other, let in the British Doctrines, and become authorities agst. the claims of neutrals.
If a purification of the maritime Code ever take place, the task seems to be reserved for the U.S. They can not fail to acquire rapidly more & more of respect from other nations, and of influence on those having a common interest with themselves. They will soon become, in the Canvas they spread, and in all the means of power, on the ocean, rivals of the nation wch. has in fact legislated on that element. Under such auspices truth, justice, humanity, and universal good, will be inculcated with an advantage which must gradually and peaceably enlist the civilized world agst. a Code which violates all those obligations; a code as noxious by the wars & calamities it produces, to its overbearing patron, as to the nations protesting agst. it.
As a preparation for such a result, it is of great moment that the subject of maritime law should appear in our public debates, in the judicial proceedings, and in individual disquisitions, to have been profoundly studied and understood; so as to attract favorable attention elsewhere; and by inspiring respect for the lights & the character of the nation, increase that for its power and importance. The Law of Nations has been made by the powerful nations; and these having been warlike in their dispositions & institutions, the law has been moulded to suit belligerent rather than peaceable nations. With the faculties for war, it is to be hoped, our Country will continue friendly to peace, and exert the influence belonging to it, in promoting a system favorable to nations cherishing peace & justice, rather than to those devoted to ambition & conquest.
The questions claiming more particularly research & elucidation, seem to be those relating to Contraband of war, blockades, the colonial & coasting trades, and the great question, “of free ships, free goods.[”] Accept assurances of my esteem & my friendly respects.
James Madison
RC (PHi: Charles Jared Ingersoll Papers); FC (DLC). FC in Edward Coles’s hand, with JM’s docket.
1. JM probably referred to speculations such as that published in the Alexandria Advertiser and Commercial Intelligencer on 3 Apr. 1801, crediting Benjamin Franklin with having originated the plan for the 1780 League of Armed Neutrality: “The best informed persons attribute the glory of this discovery to Dr. Franklin, who took care to have it indirectly communicated to the Empress of Russia, thro’ the medium of the French cabinet.” A different version of the story appeared on 22 Nov. 1805 in the Philadelphia Aurora General Advertiser, asserting that Franklin had sent the plan to Berlin via Arthur Lee, head of the U.S. mission there. This account was attributed to Stephen Sayre, Lee’s secretary, who had repeatedly petitioned Congress to compensate him for services performed as chargé d’affaires in Berlin following Lee’s departure—including, he claimed, having suggested the idea of a league of armed neutrals to the ministers of Frederick II and persuaded the Swedish and Danish governments to support the project. Congress was sufficiently dubious of Sayre’s story to delay final action until 1807, when a limited payment was authorized (Stephen Sayre, The Case of Stephen Sayre [Philadelphia, 1803; 5022], 3–12; 6:65). For additional opinions on Sayre’s claims and Franklin’s involvement in the genesis of the League, see the Federal Intelligencer, and Baltimore Daily Gazette, 22 Dec. 1794; the Alexandria Times; and District of Columbia Daily Advertiser, 30 Apr. 1801; and the New London, Conn., Bee, 19 Aug. 1801.
2. Article 23 of the 10 Sept. 1785 Treaty of Amity and Commerce between the United States and Prussia stipulated that “if war should arise between the two contracting parties … all merchant & trading Vessels employed in exchanging the products of different places, & thereby rendering the necessaries, Conveniencies & comforts of human life more easy to be obtained … shall be allowed to pass free & unmolested” ( 2:162, 178–79). Franklin and his fellow negotiators, John Adams and Thomas Jefferson, suggested adding this article to the treaty in a 10 Nov. 1784 letter to Prussian diplomat Friedrich Wilhelm von Thulemeier (Boyd, Papers of Thomas Jefferson, 7:490–92). JM’s belief that the idea originated with Franklin was probably based on early editions of Franklin’s writings by Benjamin Vaughan and William Duane, both of whom identified him as the contributor of a note advocating free wartime passage for merchant ships in a pamphlet entitled Principles of Trade, Fredom and Protection Are Its Best Suport … (London, 1774), published anonymously by Franklin’s friend George Whately. Further evidence of Franklin’s early advocacy of the concept may be found in his letters to Robert Morris and Charles Dumas of 3 and 5 June 1780 (Leonard W. Labaree et al., eds., The Papers of Benjamin Franklin [41 vols. to date; New Haven, 1959—], 1:xxv, 21:169–72, 32:466–67, 475–78; William Duane, The Works of Dr. Benjamin Franklin, in Philosophy, Politics, and Morals: Containing, beside All the Writings Published in Former Collections, His Diplomatic Correspondence, as Minister of the United States, at the Court of Versailles; A Variety of Literary Articles, and Epistolary Correspondence, Never Before Published; With Memoirs and Anecdotes of His Life [6 vols.; Philadelphia, 1808–18], 4:155, 158).
3. On the FC, JM inserted an asterisk here and wrote in the lower margin: “*See Jefferson’s correspondence with Genet.” He referred to then secretary of state Jefferson’s 24 July 1793 letter to Edmond Charles Genet, minister to the United States from France, who had complained in a 9 July letter about British privateers seizing French property from U.S. ships. In response, while acknowledging that the British practice was “vexatious,” Jefferson asserted that “by the general law of nations, … the goods of an enemy found in the vessel of a friend are lawful prize,” and that the rule of “friendly bottoms friendly goods” applied only when stipulated by treaty. Genet nevertheless sent documentation of more cases and an additional protest, which George Washington described as “another insulting letter … from the French Minister, respecting the treatment of french property on board American vessels, by the British privateers” (Boyd, Papers of Thomas Jefferson, 26:458–59, 557–59, 563–65).
4. FC has “Croker.” JM referred to Alexander Croke’s Remarks on Mr. Schlegel’s Work, upon the Visitation of Neutral Vessels under Convoy (London, 1801).
5. JM evidently referred to a 6 Nov. 1674 letter from Sir William Temple to Sir Joseph Williamson, English secretary of state for the Northern Department, reporting that Temple had persuaded a Dutch treaty negotiator to admit the English contention “that free ships made free goods in all cases, unless that of counterband” (The Works of Sir William Temple, Bart. . . . [4 vols.; London, 1770], 4:55–58). In his 1806 pamphlet on the Rule of 1756, JM had noted that the letter emphasized “the success of [Temple’s] efforts, made with the sanction of his government” (James Madison, An Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace [Washington, 1806; 10777], 55–59; 4:432 n. 1).
6. JM’s 1806 pamphlet quoted from article 17 of the 31 Mar. 1713 Utrecht treaty of navigation and commerce between Great Britain and France, as published in George Chalmers’s Collection of Treaties between Great Britain and Other Powers (2 vols.; London, 1790): subjects of the two countries might “sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandizes laden thereon.” The same article stated “that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either of their Majesties, contraband goods being always excepted” (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:390, 402–3; Madison, Examination of the British Doctrine [ 10777], 60).