James Madison Papers

To James Madison from James Monroe, 8 September 1795

From James Monroe

Paris Sept. 8th. 1795.

Dear Sir

Yours of the 2d. of May1 is the last with which I have been favd., tho most probably this is owing to the seizure of our vessels by the British & the free use I hear they make of my correspondence.

Since my last to you Mr. Masons copy of the treaty with such proceedings of the senate upon it as were published up to the 3. of July have arrived here: and since which we have seen the discussions at charleston, Boston & New York, & which comprize all that I have seen on it.

Comments upon this instrument from me will I know be useless to you; but as they can do no harm I will suggest those that have occurred, beginning with the 9th. article2 & which not only relaxes or cheapens the character of citizenship among us & introduces a new & contradictory (at least with the existing law) principle in our law of descents, but tends in the degree to incorporate the two countries together & to the benefit of Engld. only; for I presume we have little land there & shall have less daily, whereas by the stock jobbing measures of many individuals among us they have much with us. The 10th.3 disarms us of a principal weapon of our defense, & perhaps the best security we have in peace agnt. the commission of those outrages heretofore practic’d upon us: we have no fleet or other means of preventing the Bh. from robbing us at sea, than by retaliating upon land; but this deprives us of that resource: in the principle there is no difference, indeed most people had rather be robbed on land than sea, the former being a civil operation carried on like any other civil process & the latter a hostile one. Besides when plundered at sea the parties, priviteers or others, as this treaty acknowledges & provides agnst, may become insolvent; & which most probably wod. not be the case with a state. The 12th.4 was still more extry, for by it we shod. be associated with the coaliscd powers in the plan of starving this nation & likewise give a deep stroke to our own navigation, for it is a fact that at the present moment we are the principal carriers of W. India produce not only for France but for Holland and all the countries depending upon Hamburg & which you know are of great extent: indeed if this article was in force not a ship of ours cod. cross the ocean without submitting to a search from the Bh. cruisers. The 13th.5 gives nothing we do not now enjoy, & which of course it is to be presumed their interest prompts them to grant. The 14.6 15.7 & 16.8 fetter us without a motive. The 17.9 confirms by positive stipulation the old law of nations, & is the more odious at present on acct. of the opposit principles contained in our treaty with France & which is completely in force or rather activity. The 18.10 enlarges I think in the 1st. paragraph the scale of contraband & in the 2d. by admitting the law of nations to be doubtful when provisions were so, & providing for payment of such as are seized on that principle, and of course for such as are seized agnst that principle, for it was not intended to put the latter on a worse footing than the former, and provision being made in no case agnst. seizure, it seems as if the point insisted on by Engld. was fairly yeilded, and that she was authorized to seize when she pleased, paving us “a reasonable mercantile profit, with the freight &ca”; at least I think it wod. be difficult to resist the argument wh. this article furnishes her in favr. of that right. It may be said, it is true, that this article authorizes seizure only according to “the existing law of nations”; but from a view of the whole, ought not this phrase to be considered as inserted rather as a palliative to silence complaints agnst the true import of the stipulation & which it required little sagacity to forsee wod. be raised in America & here, than as controuling or forming the import itself: for if it was not intended to give the complete controul of this business to the Bh. govt. with right to seize at pleasure, & for the consideration stipulated, wod. it not have been more correct to have begun with a specification of those cases, in which provisions either were or were not contraband, providing for such payment in cases where they were, & leaving out of the provision cases where they were not. The 19th.11 is not worth mentioning either way. The 20.12 serves to introduce the 21.13 which is another stroke at France & derogates from the rights of our citizens. The 22d.14 is like the 10th., as it gives Engld. time after seizing all our vessels to withdraw her property from the U S. while we are negotiating for reimbursement. It will not be easy to point out any benefit we are to get from the 23. 24. & 25. articles,15 whilst the two latter are certainly calculated to irritate if not to injure France. The priviledge given British subjects to remain with us in case of war by the 26.16 is calculated to keep alive in that state the British party, whose influence in peace was perhaps the principal cause of the war; the 27.17 is not worth a remark & the 28.18 merits one only on acct. of the limitation given by it to the 12. & which proves that the construction insisted on above of it, was properly conceived. You will observe that in the above comments I began with the 9th. article, but I will likewise add something now on those which precede. The permission to hold the posts till June 1796.19 and as it was to be presumed till the pressure of the present war was over was a great attainment for Engld., for it not only secured her from any trouble on our part & on that acct. during that time, but enabled her to refuse to surrender them afterwards upon the slightest pretext & especially if the experiment made by the other articles to weaken our connection with France shod. prove unsuccessful. The cession of the free use of our portages to the British of Canada &ca20 are sacrifices on our part without any consideration on theirs. I was in Canada in 178421 & assured by the merchants of Montreal that if the treaty was executed & we were admitted to free use of the Lakes, they wod. abandon the former & move within our jurisdiction, for comparatively between a commerce thro’ the Hudson & the St. Lawrence the difference was at least 25. pr. cent: & wh. they wod: not encounter. You will observe that this opinion was founded upon the idea each country was to enjoy exclusively the benefits of its own situation, & to turn them to the best acct. for its citizens alone: for at that time all intercourse between Canada & the States was prohibited & so it was expected it wod. remain afterwards, especially in the respect above mentioned. But by this stipulation that difficulty wod. be at an end, & enjoying all the advantages of our situation, the Bh. govt. wod. easily be enabled to make up for the difference to their merchants by bounties &ca which the mere circumstance of residence in Canada might occasion. Indeed to the province of Canada tis difficult to estimate at present the extent of the benefit wh. wod. be hereby gained: it wod. however certainly be great. The extension of the line from the lake of the wood,22 so as to admit the Bh. into the Missisippi is calculated to admit her into the carriage of the immense export from our western country, by means whereof as by extending her settlements westward upon that line, she wod. encircle us almost completely & thus communicate in some degree to our western settlements the same influence wh. she now enjoys upon our eastern. The concession in the 6th.23 that we had violated the treaty of peace & the assumption to pay for the injuries supposed to result there-from by delay &ca to be assessed by comrs. whilst the violation on her part in detaining the posts & carrying off the negroes, was unprovided for & unnotic’d was still more extraordinary. The only remaining trait to be notic’d in this project is, that by omitting to adjust principles by wh. the courts of admiralty were to be govd., if indeed a submission to such courts was to be tolerated at all, all reparation for spoliations seems to be abandoned. Had Mr Jay been promised that those cts. shod. decide as he wished, yet accepting a treaty without such stipulation gave it up, or precluded in case the decision was otherwise any complt.—and even if the decision shod. be according to his views yet the omission to stipulate it, sacrific’d our honor to preserve that of Engld. In examining therefore this project from the beginning to the end & impartially, I do not find one single stipulation in our favor, or which certainly improves our condition from what it was before: whilst on the other hand it most certainly contains a series of stipulations, many of which are extremely unfavorable & disgraceful, and others at best indifferent. When therefore I consider the circumstances under which the negotiation commenc’d, sometime after the battle of Fleurus24 when the preponderance of the French arms was established, & the troops of the coaliscd powers flying in every quarter before those of the republick; when the dominion of the sea was contested by the French,25 and after a severe contest in wh. proofs of prowess were given by the latter that struck terror into their enemies, tho’ rather the superior in that contest, and when every day to the moment of the close of this negotiation, improved the fortunes of France, I must confess I think this treaty in which it terminated, one of the most extraordinary transactions of modern times. No body will I presume, attempt to vindicate the head which dictated it: the heart however may be free from taint or that pollution which is too often found among political agents: of this however the people of America, who are a just & a benevolent people, ought to be satisfied; and I doubt not will be satisfied.

If this treaty had parted us from France the views of Engld. wod. have been completely answered: and believe me there were moments when I had the most disquieting apprehensions upon that point, for the opinion of its contents, with a variety of other circumstances, which inspired here a belief we were about to abandon this republick for a connection with Engld., excited at different times a degree of irritation or rather indignation in their councils of a very menacing aspect. A single unfriendly act being committed by this govt. towards us wod. have led to others: this wod. have producd recrimination from our quarter, & which might have ended in we know not what. Govts. too in a course of revolution as they act much from the heart of those who fill them, are susceptible of more sensibility than in other times; this made the danger under existing circumstances the greater. Believe me that since the reports of that treaty transpired I have rested on a bed of thorns: I was often fearful the subject wod. be taken up in the Convention, & thus progress from one thing to another. I am however happy to inform you that none of these evils have happened—on the contrary the storm appears to have passed, leaving us the prospect of a fair & durable calm. This republick has not only refrained from degenerating into the unfriendly policy formerly practic’d agnst us, but has in this interval done us some acts of service, one in particular is just on the point of being plac’d in a train hence, & which if it succeeds will be sensibly felt by all our countrymen. As this has been discussed & arranged, I mean26 the business of Algiers27 since the intelligence above referrd to from Phila. arrived, it furnishes cause to hope (that notwithstanding the extreme dislike they have of the treaty) they will continue to observe the same friendly policy towards us, in the hope we will sooner or later return it.

I consider this treaty as forming an important epoch in the history of our country. It fully explains the views of its author and his political associates; views which were long known to many & charged upon him & them but denied, & by one artifice or other discredited: but this is an act which speaks for itself, & fortunately it is one in which not he alone is compromitted. This however is not the only benefit resulting from it, for having the sanction of the Senate & being presented for ratification to the President, whilst by Mr. Mason it was submitted to the people at large, the opinion of the latter will be before him at the same time, whereby he will be enabled to act as the voice of his countrymen admonishes, assisted too in his reflections by the light they may throw on it. If he rejects it & which I conclude he will, the publick opinion will afterwards perhaps be pronounc’d with still greater decision on that side. This therefore will form a basis upon wh. our republican system & connection with France may not only rest with safety, but hereafter, in the latter instance, be greatly improved. This is a reflection which will naturally occur to you & wh. will doubtless be held in view in the measures of the ensuing Session.

You have seen by my past communications that the affair of the Missisipi was lost or rather taken from this government by the mission of Pinkney—that before he past here the French minister was instructed to secure it in the treaty with Spain & which has been since confirmed to me by the Minister himself. But as P. passed thro here without mentioning the subject and which he could not do without shewing the treaty above mentioned it was concluded their interference would28 be deemed impertinent & so givin up to his care. The friendship shewn in the other instance proves it would have been in this if asked. Indeed the manner in which this Algerine business is conducted is calculated to take the aid of France without giving her the credit of it—for altho’ we pursue her plan in everything and our agent goes hence with her passport and under her patronage and I am authorised to declare and have declared in my communications that without her aid we have no prospect of success within ourresources, yet our agent Mr Hichburn takes his commission from our29 minister at Portugal30 (now here) and to whom at Portugal he will render an account of his mission if it succeeds to be ratified conditionally by that minister there subject to the approbation of the president and Senate. Thus it will appear as if the whole proceeded from him at Portugal and France will appear to have had as little to do with it, even by circumstances as if it had proceeded from the moon. This however is a piece with all our other European transactions: we strive to filch the aid of this government in all cases where we can without letting the world know it deceiving the latter by pompous missions which appear to rest on ourselves alone. The above fact however if it succeeds with respect to Algiers ought to be made known in America. You will agree with me that to ask a favour under existing circumstances and without being able to explain the contents of a certain treaty is not a very dignified system of policy.

What course will be taken with respect to England under existing circumstances it is difficult to forsee. I have long since made it known that in case the treaty was disapproved it wod. be easy to secure the aid of this government in support of our demands upon England. Nay I am convinced that if our deportment was such in regard to England as to inspire confidence in France she wod. make no peace which did not go hand in hand with a proved31 ground for our claims and injuries. The negociation however should be in the hands of a person in whom this government can confide and be conducted where the French negociation was conducted either here or at Basle. Suitable measures too shod. be taken at home by laying hold of their property vessels &ca and by taking the posts if not invading Canada. This wod. be acting like a nation and we should then be respected as such here and in England. Nor wod. such a measure in my opinion lead to war. On the contrary I think they would promote a general peace by forming a seasonable diversion in favor of and which cod. not be resisted at present. If the president would adopt measures of this kind seperating himself completely from the advocates of the treaty everything might yet be retrieved.

The constitution reported by the committee of 11. is finally adopted & on the principles of the report. It is now before the primary assemblies which were opened three days past & will be closed to morrow. It will pass with almost an unanimous vote. The Convention in a decree subsequent to the constitution required that ⅔ ds. of the existing convention shod. be reelected, a principle incorporated in the constitution for the future. Tis probable this injunction will be disregarded & that in consequence some difficulty & delay may take place before the constn. is put in force: for if some adopt that plan and others do not it will take sometime so to arrange matters as to get them in the same line agn.—& wh. I presume will be that wh. the majority approve. The deliberations in Paris are conducted with calmness & perfect good temper—and every circumstance that I have heard of promises the happiest result, tho the royalists have looked to this epoch as one from which they were to hope a revolution in their favor.

The negotiation with the empire is going on & which perhaps is the cause Pichegru does not cross the Rhine. A peace is made with the Prince of Hesse whereby his troops, 6000, in Engh. pay are withdrawn from the army of the Emperor.32 Very sincerely I am dear sir yr friend & servant

Jas. Monroe.33

RC (DLC); duplicate (DLC: Rives Collection, Madison Papers); partial draft (DLC: Monroe Papers). RC docketed by JM, with his notation: “see Duplicate decyphered.” Italicized words are those encoded by Monroe using the code that Jefferson had sent JM on 11 May 1785. RC not decoded. Duplicate in a clerk’s hand except for emendations, signature, and postscript (see n. 33) in Monroe’s hand; docketed and decoded interlinearly by JM. RC was revised considerably from the draft; differences between those two versions have not been noted.

1Letter not found.

2The Jay treaty’s article 9 confirmed the title of “British Subjects who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty,” and declared that “neither they nor their Heirs or assigns shall, so far as may respect the said Lands, and the legal remedies incident thereto, be regarded as Aliens” (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 , 2:253–54).

3Article 10 prohibited the confiscation of assets belonging to subjects of Great Britain or citizens of the U.S. (ibid., 2:254; see also George Joy to JM, 10 Aug. 1795, n. 5).

4Article 12 in part prohibited U.S. ships from carrying American or British West Indian molasses, sugar, coffee, cocoa, or cotton to countries other than the U.S. (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 , 2:255; see also Pierce Butler to JM, 26 June 1795, n. 1).

5Article 13 admitted U.S. ships to British East Indian ports (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 , 2:255–56).

6Article 14 generally permitted trade between Great Britain and the U.S. (ibid., 2:257).

7Article 15 prohibited discriminatory tariffs (ibid., 2:257–58).

8Article 16 provided for the appointment of consuls (ibid., 2:258).

9Article 17 recognized enemy property in neutral ships as lawful prize (ibid., 2:258).

10Article 18 defined contraband (ibid., 2:258–59).

11Article 19 provided for compensation for damages inflicted by ships of war or privateers (ibid., 2:259–60).

12Article 20 required that pirates be punished and excluded from British and American ports (ibid., 2:260).

13Article 21 made citizens of the U.S. and subjects of Great Britain who accepted military commissions or letters of marque from enemy countries punishable as pirates (ibid., 2:260–61).

14Article 22 prohibited Great Britain and the U.S. from authorizing acts of reprisal for damages until the injured party “shall first have presented to the other a Statement thereof, verified by competent proof and Evidence, and demanded Justice and Satisfaction, and the same shall either have been refused or unreasonably delayed” (ibid., 2:261).

15Article 23 provided that warships of Great Britain and the U.S. “shall at all times be hospitably received in the Ports of the other”; article 24 prohibited the arming of enemy privateers and the sale of prizes captured from one of the signatory powers in the ports of the other; article 25 admitted warships, privateers, and prizes of Great Britain and the U.S. to each other’s ports and denied refuge to those of their enemies (ibid., 2:261–63).

16Article 26 allowed that, in case of any future war between Great Britain and the U.S., merchants of one country resident in the other could not be expelled for a year after the outbreak of hostilities (ibid., 2:263).

17Article 27 provided for extradition (ibid., 2:263).

18Article 28 declared that the first ten articles were permanent, article 12 would be in effect for two years after the conclusion of the present war, and the remaining articles would be in effect for twelve years after the Jay treaty’s ratification (ibid., 2:264).

19Article 2 provided for the British evacuation of posts in U.S. western territories (ibid., 2:246).

20Article 3 allowed British subjects and American citizens free navigation of North American “Lakes, Rivers, and waters” but excluded U.S. ships from the Hudson’s Bay Company’s territory and “the Sea Ports, Harbours, Bays, or Creeks” in other British territories (ibid., 2:246–47).

21Monroe described this visit to Canada in his letter to Jefferson, 1 Nov. 1784 (Hamilton, Writings of Monroe description begins Stanislaus Murray Hamilton, ed., The Writings of James Monroe … (7 vols.; New York and London, 1898–1903). description ends , 1:41–44).

22The Treaty of Paris of 1783 declared the boundary between U.S. and British territory to run from the northwestern point of the Lake of the Woods “on a due West Course to the River Mississippi.” Since the source of the Mississippi lay south of that line, the Jay treaty’s article 4 in effect provided for the adjustment of the boundary to provide access to the Mississippi River from British territory (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 , 2:153, 248).

23Article 6 provided for the compensation of British creditors for pre-Revolutionary debts owed by U.S. citizens, which a commission established by the treaty determined to have been delayed by “lawful Impediments since the Peace” (ibid., 2:249–50).

24The French victory at Fleurus on 26 June 1794 had forced the allies to evacuate the Austrian Netherlands.

25Monroe was probably referring to the difficulties of the Royal Navy in maintaining a blockade at Toulon in 1794 and to the engagements off Brest between Admirals Richard Lord Howe and Louis Thomas Villaret-Joyeuse on 26 and 29 May and 1 June 1794 (Lefebvre, French Revolution, 2:19–20).

26Monroe miscoded, and JM decoded, “nom.”

28Monroe miscoded, and JM decoded, “contest.”

29In the duplicate Monroe’s clerk skipped a line, omitting the words and numbers for the coded words in angle brackets; thus, JM did not decode this line.

30Benjamin Hichborn (1746–1817), a prominent Boston lawyer and ardent Republican, had been in France since 1794. He was involved in business ventures with James Swan and had negotiated sales for the Commission des Subsistences of France. He declined the mission to Algiers, and Monroe appointed Joel Barlow in his stead. U.S. minister to Portugal David Humphreys, however, had also authorized Joseph Donaldson to negotiate with Algiers. Without any assistance from France, Donaldson concluded a treaty with the dey, Hasan Pasha, on 5 Sept. 1795 (Paul Goodman, The Democratic-Republicans of Massachusetts: Politics in a Young Republic [Cambridge, Mass., 1964], p. 107; Monroe to Timothy Pickering, 4 Oct. 1795, Hamilton, Writings of Monroe description begins Stanislaus Murray Hamilton, ed., The Writings of James Monroe … (7 vols.; New York and London, 1898–1903). description ends , 2:370–75; Ray W. Irwin, The Diplomatic Relations of the United States with the Barbary Powers, 1776–1816 [Chapel Hill, N.C., 1931], pp. 70–73).

31Monroe miscoded, and JM decoded, “pro cap.”

32The Treaty of Basel was concluded between France and Hesse-Cassel on 28 Aug. 1795 (de Clercq, Recueil des traités de la France description begins Alexandre de Clercq, ed., Recueil des traités de la France (23 vols.; Paris, 1880–1917). description ends , 1:264–66).

33In the duplicate Monroe added a postscript: “The articles of furniture requested are ready & will leave this for Havre in a few days. I will have them insured if possible. I shall send an invoice in dolrs. so that you will know what duty to pay. Remember me to Mr. Beckley, Majr. Bulter [sic], our senators[,] Giles & all friends.”

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