To James Monroe
Department of State April 12th 1805
The papers herewith inclosed explain particularly the case of the Brig Aurora.1
The sum of the case is, that whilst Spain was at War with Great Britain, this vessel, owned by a citizen of the United States, brought a cargo of Spanish produce purchased at the Havana, from that place to Charleston, where the cargo was landed, except an insignificant portion of it, and the duties paid or secured according to law, in like manner as they are required to be paid or secured, on a like cargo from whatever port, meant for home consumption; that the cargo remained on land about three weeks when it was reshipped for Barcelona in Old Spain, and the duties drawn back, with a deduction of three and a half Cent as is permitted to imported articles in all cases, at any time within one year under certain regulations which were pursued in this case; that the vessel was taken on her voyage by a British cruizer and sent for trial to Newfoundland where the cargo was condemned by the Court of Vice Admiralty; and that the cause was carried thence by appeal to Great Britain where it was apprehended that the sentence below would not be reversed.
The ground of this sentence was, and that of its confirmation if such be the result, must be, that the trade in which the vessel was engaged was unlawful, and this unlawfulness must rest, first on the general principle assumed by Great Britain, that a trade from a Colony to its parent Country, being a trade not permitted to other nations in time of peace, cannot be made lawful to them in time of war; Secondly, on the allegation that the continuity of the voyage from the Havana to Barcelona was not broken by landing the cargo in the United States paying the duties thereon and thus fulfilling the legal pre-requisites to a home consumption, and therefore that the cargo was subject to condemnation, even under the British regulation of Jany 1798 which so far relaxes the general principle as to allow a direct trade between a belligerent Colony and a neutral Country carrying on such a trade.2
With respect to the general principle which disallows to neutral nations in time of War, a trade not allowed to them in time of peace, it may be observed;
First, that the principle is of modern date, that it is maintained, as is believed by no other nation but Great Britain; and that it was assumed by her under the auspices of a maritime ascendency, which rendered such a principle subservient to her particular interest. The History of her regulations on this subject shews that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the 4th vol of Robinsons Admiralty Reports.3
Secondly, that the principle is manifestly contrary to the general interest of commercial Nations, as well as to the law of Nations settled by the most approved authorities, which recognizes no restraints on the trade of nations not at war, with nations at War, other than that it shall be impartial between the latter, that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.
Thirdly, that the principle is the more contrary to reason and to right, inasmuch as the admission of neutrals into a Colonial Trade shut against them in times of peace, may, and often does result from considerations which open to neutrals direct channels of trade with the parent state shut to them, in times of peace, the legality of which latter relaxation is not known to have been contested; and inasmuch as a commerce may be, and frequently is opened in time of war, between a Colony and other Countries, from considerations which are not incident to the war, and which would produce the same effect in a time of peace; such, for example as a failure or diminution of the ordinary sources of necessary supplies, or new turns in the course of profitable interchanges.
Fourthly, That it is not only contrary to the principles and practice of other Nations; but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace; and particularly to open her Colonial trade both to Neutral vessels and supplies, to which it is shut in times of peace; and that one at least of her objects, in these relaxations is to give to her trade an immunity from capture, to which in her own hands it would be subjected by the war.
Fifthly, the practice, which has prevailed in the British dominions, sanctioned by orders of Council and an Act of Parliament (39 G.3 C.98)4 authorizing for British subjects a direct trade with the enemy, still further diminishes the force of her pretensions for depriving us of the Colonial trade. Thus we see in Robinson’s Admiralty reports passim, that during the last War a licenced Commercial intercourse prevailed between Great Britain and her enemies, France, Spain & Holland, because it comprehended articles necessary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself as to particular objects of trade beneficial to herself, whilst she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favour of Neutrals. But the injustice and inconsistency of her attempt to press a strict rule on neutrals is more forcibly displayed by the nature of the trade which is openly carried on between the Colonies of Great Britain and Spain in the West Indies. The mode of it is detailed in the inclosed copy of a letter from a Mr Billings,5 wherein it will be seen that american vessels and cargoes, after being condemned in British Courts under pretence of illicit commerce, are sent on British account to the enemies of Great Britain, if not to the very port of the destination interrupted when they were american property. What respect can be claimed from others to a doctrine not only of so recent an origin and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the Nation itself, which stands alone in contending for it?
Sixthly—It is particularly worthy of attention that the Board of Commissioners jointly constituted by the British and American Governments under the 7th article of the Treaty of 1794,6 by reversing condemnations of the British Courts founded on the British instructions of Novemr. 1793,7 condemned the principle, that a trade forbidden to neutrals in time of peace, could not be opened to them in time of war; on which precise principle these instructions were founded. And as the reversal could be justified by no other authority than the law of Nations, by which they were to be guided, the law of Nations according to that joint Tribunal, condemns the principle here combatted. Whether the British Commissioners concurred in these reversals, does not appear: but whether they did, or did not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both Nations in like questions recurring between them.
On these grounds the United States may justly regard the British captures and condemnations of neutral trade with Colonies of the enemies of Great Britain as violations of right; and if reason, consistency or that sound policy which cannot be at variance with either, be allowed the weight which they ought to have, the British Government will feel sufficient motives to repair the wrongs done in such cases by its cruizers and Courts.
But, apart from this general view of the subject, a refusal to indemnify the sufferers, in the particular case of the Aurora, is destitute of every pretext, because, in the second place, the continuity of her voyage was clearly and palpably broken, and the trade converted into a new character.
It has been already noted that the British regulation of 1798 admits a direct trade in time of War, between a belligerent Colony and a neutral Country carrying on the trade; and admits consequently the legality of the importation by the Aurora from the Havana to Charleston. Nor has it ever been pretended that a neutral Nation has not a right to reexport to any belligerent Country whatever foreign productions, not contraband of war, which may have been duly incorporated and naturalized, as a part of the Commercial stock of the Country re-exporting it.
The question then to be decided under the British regulation itself, is whether in landing the cargo, paying the duties, and thus as effectually qualifying the articles for the legal consumption of the Country, as if they had been its native productions, they were not at the same time equally qualified with native productions for exportation to a foreign Market. That such ought to be the decision results irresistably from the following considerations:
1st. From the respect which is due to the internal regulations of every Country, where they cannot be charged with a temporizing partiality towards particular belligerent parties, or with fraudulent views towards all of them. The regulations of the United States on this subject, must be free from every possible imputation, being not only fair in their appearance, but just in their principles, and having continued the same during the periods of war, as they were in those of peace. It may be added that they probably correspond, in every essential feature relating to re-exportations, with the laws of other Commercial Countries, and particularly with those of Great Britain. The annexed outline of them, by the Secretary of the Treasury,8 will at once explain their character, and shew that, in the case of the Aurora, every legal requisite was duly complied with.
2d. From the impossibility of substituting any other admissible criterion, than that of landing the articles, and otherwise qualifying them for the use of the Country. If this regular and customary proceeding, be not a barrier against further enquiries, where it may be asked are the enquiries to stop? By what evidence are particular articles to be indentified on the high seas, or before a foreign Tribunal? If identified, how is it to be ascertained, whether they were imported with a view to the market at home, or to a foreign Market, or as ought always to be presumed to the one or the other as it should happen to invite; or if to a foreign Market, whether to one forbidden or permitted by the British regulations; for it is to be recollected, that among the modifications which her policy has given to the general principle asserted by her, a direct trade is permitted to a neutral carrier, from a belligerent Colony to her ports as well as to those of his own Country. If, again, the landing of the goods, and the payment of the duties be not sufficient to break the continuity of the voyage, what it may be asked, is the degree of internal change or alienation, which will have that effect? May not a claim be set up to trace the articles from hand to hand, from ship to ship in the same port, and even from one port to another port, as long as they remain in the Country? In a word in departing from the simple criterion provided by the Country itself, for its own legitimate and permanent objects, it is obvious, that besides the defalcations which might be committed on our carrying trade, pretexts will be given to cruizers for endless vexations on our commerce at large, and that a latitude and delays will accrue in the distant proceedings of Admiralty Courts, still more ruinous and intolerable:
3d From the decision in the British high Court of Admiralty itself, given in the case of the Polly, Lasky, Master,9 by a Judge deservedly celebrated for a profound judgment, which cannot be suspected of leaning toward doctrines unjust or injurious to the rights of his own Country. On that occasion he expressly declares “It is not my business to say what is universally the test of a bona fide importation: it is argued, that it would not be sufficient that the duties should be paid and that the cargo should be landed. If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold, that it would be sufficient, that the goods should be landed and the duties paid.” 2 Rob. Reports P: 368-9.
The President has thought it proper that you should be furnished with such a view of the subject, as is here sketched; that you may make the use of it best suited to the occasion. If the trial of the Aurora should not be over it is questionable whether the Government will interfere with its Courts. Should the trial be over and the sentence of the Vice Admiralty Court at St John’s have been confirmed, you are to lose no time in presenting to the British Government a representation corresponding with the scope of these observations; and in urging that redress in the case, which is equally due to private justice, to the reasonable expectation of the United States, and to that confidence and harmony which ought to be cherished between the two Nations.10
The effect of the doctrine involved in the sentence of the Court in Newfoundland, on our carrying trade, will at once be seen by you. The average amount of our re-exportations for three years ending 30th Sept 1803 has been 32,003,921 dollars. Besides the mercantile and Navigation profits, the average revenue from drawbacks on goods re-exported for three years ending 31st Decr. 1803 is 184,271 dollars;11 to which is to be added an uncertain but considerable sum consisting of duties paid on articles reexported after having lost thro’ neglect or lapse of time, the privilege of drawback. A very considerable portion of this branch of trade with all its advantages, will be cut off, if the formalities heretofore respected, are not to protect our re-exportations. Indeed it is difficult to see the extent to which the apprehended innovation may be carried in theory; or to estimate the mischief which it may produce in practice. If Great Britain disregarding the precepts of Justice, suffers herself to calculate the interest she has in spoliating or abridging our commerce, by the value of it to the United States, she ought, certainly not to forget that the United States must in that case, calculate by the same standard, the measures which the stake will afford, for counteracting her unjust and unfriendly policy. I have the honor to be &c.
Letterbook copy (DNA: RG 59, IM, vol. 6); extract (DNA: RG 233, President’s Messages, 9A-D1); letterpress copy of extract (DNA: RG 46, President’s Messages, 9A-E3); Tr (DNA: RG 233, President’s Messages, 10A-D1); Tr (DNA: RG 46, President’s Messages, 10B-B1). Extracts enclosed in Jefferson’s 17 Jan. 1806 message to Congress. Extract and letterpress copy of extract marked by Wagner: “Extract from Mr. Madison’s letter to Mr. Monroe of the 12 April 1805. respecting the Colonial Trade.” Extract printed in ASP, Foreign Relations, 2:732–34. Minor differences between the copies have not been noted.
1. The enclosures (25 pp.; DNA: RG 76, Preliminary Inventory 177, Great Britain, Treaty of 1794 [Art. VII], entry 180, British Spoliations, ca. 1794–1824, box 8) are printed copies, dated 1804, of the appellant’s case, the respondents’ case, and an appendix. The Aurora, George Bowers, master, Christopher Fitzsimons of Charleston, South Carolina, owner of the ship and cargo, was seized on 19 May 1801 near the Grand Banks of Newfoundland by the British sloops of war Pluto, Commander Harry Folkes Edgell, and Voltigeur, Commander Lenox Thompson. Bowers and the Aurora had traded several times between Havana and Barcelona and were, when seized, en route to Barcelona with a cargo of sugar, hides, logwood, and coffee, the greater part of which belonged to Fitzsimons. Bowers, Mrs. Fitzsimons, and a crewmember had individual investments of sugar, turtle shells, the coffee, and tobacco aboard. The ship and cargo were condemned at St. John’s, Newfoundland, on 30 June 1801 on the grounds that “the Voyage was illegal, and the Property insufficiently proved.” The decision was upheld by the Admiralty Court. The condemnation of the Aurora was an early indication of the trend in the Admiralty away from the loosening of British regulations implied in the case of the Polly, and toward the narrowing of them imposed in the case of the Essex (Perkins, “Sir William Scott and the Essex,” WMQ, description begins William and Mary Quarterly. description ends 3d ser., 13:179 and n. 22).
2. The 25 Jan. 1798 order in council exempted from seizure neutral ships that were trading between the West Indian colonies of France, Spain, and the Netherlands, and any ports of the country of the neutral vessels, provided the produce shipped did not belong to citizens of France, Spain, and the Netherlands (ASP, Foreign Relations, 3:264–65).
3. The cited appendix traced the history of British and international regulations on trade with colonies, analyzed the effect of the establishment of the United States on these regulations, and listed various changes imposed and removed since 1756 (Robinson, Admiralty Reports [Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 6412], 4:first appendix A, 3–13).
4. The 12 July 1799 British act allowed “any Person or Persons to import into this Kingdom, Spanish Wool from any Port or Place whatever in Foreign Parts, in any Ship or Vessel belonging to any Kingdom or State in Amity with his Majesty” (Ruffhead, Statutes at Large, 18:185).
5. JM presumably enclosed a copy of William Billings’s letter of 21 May 1801 (PJM-SS, description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (9 vols. to date; Charlottesville, Va., 1986–). description ends 1:215–16). The Trs and extracts omit his name.
6. For article 7 of the Jay treaty, see Miller, Treaties, description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, D.C., 1930–48). description ends 2:252–53.
7. The 6 Nov. 1793 order in council instructed the commanders of British warships and privateers to bring in for adjudication all ships carrying the produce of any French colony or carrying provisions or supplies to such a colony (ASP, Foreign Relations, 3:264).
8. The enclosure was a copy of Albert Gallatin to JM, 11 Jan. 1805, PJM-SS, description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (9 vols. to date; Charlottesville, Va., 1986–). description ends 8:466–67.
9. For the case of the Polly, Lasky, see ibid., 5:38 n. 7.
10. The extracts end here.
11. For the source of JM’s figures, see Joseph Nourse to JM, ca. 10 Apr. 1805.