James Madison Papers

To James Madison from George W. Erving, 29 January 1804

From George W. Erving

Private (No 18)

London Jany 29. 1804.

Dear Sir

Since the arrival of Mr Monroe, the frequency of his dispatches to you & the view he is known to possess of all our interests; render it unnecessary for me to trouble you as formerly with frequent, & probably what were very tedious letters: Perhaps too at this crisis it woud on all other accounts be proper to leave wholly to his more matured & exercised judgement & discretion, the treatment of European affairs; confining myself rather to those things which fall immediately within the department of my public duties. I beleive that I have some time since acknowledged the receipt of your (private) letter of June 15th,1 in which I congratulate myself to find a feeling with respect to our seamen, not reprehending the tone which I have been used to take on this interesting subject; soon after the arrival of Mr Monroe I addressed a statement to him as the ground of representation to this government,2 in which he suggested all those alterations both in substance & stile, which have given it a character of moderation & forbearance, not perhaps comporting with the temper of my letters to Sir Evan Nepean (copies of which were forwarded to you,) but which certainly form a better foundation for any subsequent measures of accommodation. Mr M. will inform you that his note to this government tho delivered long since, has not yet produced attention, or any modification of their system: Perhaps the dignity & independence of our national character, & the justice & protection due from governments to individuals are more involved in this question, than any pressing commercial interests; the delay of satisfaction will at least have the Effect of strengthening that general sentiment which seems to have taken place in our country & which cannot but be productive of good.

Upon the important question whether the government of any country is to indemnify the neutral for the loss which he may sustain by capture of authorized cruisers, beyond the responsibility of the Captor; no certain & fixed principles seem to be acknowledged here: The Court of Admiralty not being a court of justice regulating itself by statutes, or having a common law, can only be considered as a mere political tribunal, forming its decisions indeed upon public law, but as that law may be from time to time construed or modified by the policy or the Exigencies of the government: Ordinarily then the Captor3 must be satisfied with what he can obtain from the Captors; but in particular cases where the claimant has been the subject of a government whose favor it was important to court, & who has moved in his behalf, immediate compensation has been granted from the Treasury; not however by the interference or Agency of the Court of Admy. Such cases have occurred frequently, & very lately some Russian claims have been settled in this manner, as little publicity as possible is given to these arrangements & they are never suffered to be introduced or mentioned in the Court as grounds of decision. I cannot find that any tracts have been published on the theory, but certainly the opinions of the best civilians are clearly in favor of the claim of the captured on the government of the Captor, & that as a mere principle of right & justice nothing is more clear in the public law; Yet, in the British Courts of Admy the government does not make itself a party, of course no decision of the court can affect it. It is said that if the government was to consent to place itself quoad4 under the jurisdiction of the Court, that the enormities committed by privateers woud be greater, the Captor woud most commonly Escape, & even a door woud be opened for most extensive frauds & collusions between the neutral & the captor: the question of good prize or not is only tried, if the decision is favorable the claimant is left by compulsory processes to recover of the captor as he may; for the rest he must depend upon the interference of his own government, the success of which will of course depend upon existing circumstances. No compensation then may be expected from government but by treaty stipulations. By Mr Jays treaty perhaps we may be considered as having very materially injured the public right; a concession made (& which indeed we were called upon by no rules of justice to make) as an Equivalent for compensation due to us under the law of nations, seems to be an admission that we have no pure right. In Jays treaty the law of nations in this respect is not adverted to, & we are made to appear before the tribunal of British justice almost in formâ pauperis.5 The late Swedish convention6 has a vast advantage of us & is upon this subject an important document; you have doubtless seen it in the papers, but lest not, I will Endeavour to procure a copy & forward it if possible by this opportunity. The security Exacted here from the owners of privateers is shamefully small. Two bail & the commander & owner in 1500£ for a small Vessel, & in 3000£ for one of large force. In fact they consider the privateers as “primary schools” for the seamen, as well as a saving in Convoys. The neutral surely has not the same interest in these objects, & every principle of justice, independant of the law of nations, seems to require that the government shoud Exact higher bonds, or consider itself responsible for deficiencies. The Official letter which accompanies this7 refers to a subject (the verification of Cargoes) which may be thought of some consequence; perhaps I do not see all the objections to similar regulations; but it does appear to me an object of importance to give to the “American trade” an honorable, & [(]if anything belonging to trade can be so) a dignified character; to lop off all those speculating eccentricities of desperate adventurers, & half naturalized citizens, who in every quarter of the world are degrading the American name, interfering with its fair & legitimate commerce, & sometimes jeopardizing its peace. Our country may derive strength and importance from a substantial trade on its own capital, but does it require these factitious aids? Its commerce & its agriculture shoud go hand in hand Extend & improve themselves together: Trade upon foreign capitals & a very extensive carrying trade may be important to some small states, & may have brought such into being; have we not better means of subsistence, & more profitable objects of pursuit in the cultivation of our rich territories? From these alone can we derive national strength & importance, & unassailable independance; by correcting this insatiable money getting spirit we shall become less vulnerable from without, our manners less adulterated & more dignified, & we shall get rid of those nests of foreign factors & Agents by which the country is at present infested. Whether or not this is a proper time for an alteration of system I am unable to judge, but it woud appear that infinite advantages may be derived from a strict maritime & commercial code, which shoud confine the profits of our trade to our own citizens, & as much as possible to our own capitals, which shoud prevent the Establishment of foreign Merchants in our Towns or the possibility of their owning Vessels under our flag, or having any partnership in the Ships or commercial profits of the United States. These & a long string of similar reflections which I will not trouble you with, have been excited by what I have had occasion to observe in the course of my duties here. I have been told by more than one Merchant, who seem to consider that the United States are indebted to them for their partnerships & the use of their capitals, that several ships out of Charleston particularly, are partly owned in this Town, these are generally Scotch Houses, & the Masters of the ships Scotchmen; a most pernicious clan. There is a certain Captain McNiel for instance who appears to own two ships—The “Ruby” & the “Two freinds[”] the latter of which he commands himself! As to the former, Simon McCormack a black man, but very intelligent, & I believe honest, made an affidavit before me, which merely as a matter of curiosity I enclose.8 I questioned Mr Boyd (of the house of Caldeleugh Boyd & Reed whom McC. said were the owners) upon the subject, his mode of treating the business was not calculated to remove any suspicions which McCormacks Evidence might have suggested, but on the contrary rather to confirm them; for he said that there was no doubt that many ships from Charleston were owned in whole or in part by Merchants of this place! He endeavoured also to procure the impressment of McCormack, either to get him out of the way, or from motives of revenge.

I am not able by this conveyance to forward my consular Accts for the last half year as the Accounts of the Consuls are not yet all settled; with respect to the Agency account, as a great part of the 1st Instalment remains yet undrawn for, it woud be more convenient to keep it open till June, this I will do unless you direct otherwise. I am Dear Sir Very faithy truly & respecty yr. Obt

George W Erving

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