From James Madison to James Monroe, 24 September 1805
To James Monroe
Philada. Sepr. 24. 1805
Dear Sir
The decision in the Admiralty Courts of G. B. disallowing the sufficiency of landing, and paying duties on, Colonial produce of belligerent Colonies, re-exported from ports of the U.S., to protect the produce agst. the British Cruisers & Courts,1 has spread great alarm among merchants & has had a grievous effect on the rate of insurance. From the great amt. of property afloat subject to this new & shameful depredation, a dreadful scene of distress may ensue to our Commerce. The subject was brought to attention by the case of the Aurora, which gave rise to the observations & instructions contained in my letter of 12 April last.2 I omitted in that letter to refer you to a case in Blackstone’s reports, where Ld. Mansfield says, that it was a rule settled by the Lords of appeal, that a transhipment off a neutral port, was equivalent to the landing, of goods from an enemy’s colony, and that in the case of a landing there could be no color for seizure.3 As Mr. King’s correspondence may not be in London I think it not amiss to remind you of what passed with the British Govt. in 180⟨1⟩;, in consequence of such seizures as are now sanctioned. A copy of the doctrine transmitted by the Govt. to the vice admy. Courts as the law for their guidance is inclosed.4 If such a condemnation out of their own mouths has no effect, all reasonings will be lost; and absolute submission, or some other resort in vindication of our neutral rights, will be the only alternative left.5
I hope you will have recd. the instructions above referr⟨e⟩;d to, and that your interposition will have had a good effect. I am engaged in a pretty thorough investigation of the original principle, to which so many shapes are given, namely, that “a trade not open in peace is not lawful in war,” and shall furnish you with the result as soon ⟨as⟩; my resea⟨r⟩;ches are digested. If I am not greatly deceived, it will appear that, the principle is not only agst. the law of nations, but one which G. B. is precluded from assuming by the most conclusive facts & arguments derived from herself. It is wonderful that so much silence has prevailed among the neutral authors on this subject. I find scarcely one that has touched on it; even since the predatory effects have been known to the world. If you can collect any publications which can aid in detecting & exposing the imposture, be so good as to send them.
I have been here eight weeks with Mrs. Madison, who was brought hither in order to have the assistance of Dr. Physic in curing a complaint near her knee; which from a very slight tumor had ulcerated into a very obstinate sore. I believe the cure is at length effected, and that I shall be able to set out in a few days for Washington. The Presidt. is to be there on the 2d. of Ocr. I postpone all reflections of a public nature, untill I can communicate the result of his Cabinet consultations. Mrs. M. presents her affece. respects to Mrs. Monroe. Yours sincerly [sic]
James Madison
RC (DLC); letterbook copy (DNA: RG 59, IM, vol. 5). RC cover sheet bears a note in an unidentified hand: “[…] Monticello ⟨C⟩;apt Wilson to care of J. Maury Esq Consul USA Liverpool”; docketed by Monroe. Words and parts of words in angle brackets in the RC have been supplied from the letterbook copy. Minor differences between the copies have not been noted. Cover sheet extensively damaged; docketed by Monroe; docketed at a later date by JM.
1. For the decision, see George Joy to JM, 26 July 1805, and n. 3, and Thomas Auldjo to JM, 22 Sept. 1805, and n. 1.
3. JM referred to the decision of William Murray, Lord Mansfield, in the 1761 case of Berens v. Rucker. A Dutch ship had taken on a cargo of French produce at the Dutch island of Saint Eustatius, partly from on shore and partly from ships afloat. Mansfield decreed that because the cargo had not been taken in at a French port it was not good prize (Lester H. Woolsey, “Early Cases on the Doctrine of Continuous Voyages,” American Journal of International Law 4 [1910]: 838).
4. For the enclosure, see Rufus King to JM, 1 June 1801, 1:251–52 and n. 1.
5. A letterbook copy of Wagner’s 28 Sept. 1805 transmittal letter (DNA: RG 59, IM, vol. 5; 1 p.) covering this letter reads: “The preceding is a copy of a private letter addressed to you by Mr Madison, which he entrusted to me in order that I might multiply the copies and furnish the envelopes. At the time of writing it he had not a copy of Mr Kings letter before him, or he might have noticed the consent of Lord Hawkesbury to the publication of the enclosures, as binding them in an official manner not to change the rule they contain without giving sufficient notice to prevent those who might act upon it from being entrapped, if indeed they were competent to make the alteration they have.”