From Jacob Wagner
Department of State 9 Octr. 1805
I have received your favor of the 5th.1 and now enclose the papers accumulated since I suspended communicating them.
The two enclosures with Mr. Monroe’s letter of 6 Augt. were not received with the copy you have read. I have sent to Genl. Smith the extract from Blakeley’s letter marked by crotchets, that the fraud may be repelled.2
The answer to Messrs. McKims’ complaint may perhaps be a reference of their correspondent to Mr. Monroe for his aid, which he will afford as of course. Johnson’s case requires the judicial remedy to be attempted, though it may not be amiss to send a copy of the deposition to Mr. Merry, that he may find a balance against the prize taken by Com. Preble and used as a cruiser before condemnation:3 the long detention of the super-cargo and crew on board the ship of war is another grievance. I suppose Mr. Coffin may be advised to prosecute his appeal in the case of the Penman and informed that the principle assumed by the judge will be opposed in London by our Minister. You may recollect that Sir Wm. Scott makes a distinction between the oriental and western colonies of belligerents as to neutral trade. With respect to the latter, he says, the illegality is decided upon the general presumption that it was not permitted in time of peace; but with respect to the other no presumption is regarded but the fact must be proved.
I have spent some of my vacant time in tracing the three points you desired: 1st. the rule of coasting & colony trade as deducible from the practise of Sir James Marriott: 2d. examples of Acts of parliament relaxing the commercial and navigation laws of G. Britain in time of war: & 3rd. treaties stipulating expressly or impliedly such an universal free trade as would be incomptable with the existence of the British restrictive rule. Of the 1st. I have collected all the cases in the vol. we have4 and abstracted the material facts; of the 2d. I have added a few to a series, given in Reeves with the history and effects of the relaxations,5 as calculated to answer the temporary exigencies of war and literally limited to its duration; and I have also collected a number of references to treaties, though not to such an host of them as would be possible. I have the honor to remain, Dr sir, With respectful attachment Your most obed. servt.
1. The letter has not been found, but like JM’s 5 Oct. 1805 letter to Jefferson, it probably informed Wagner that JM would not be returning to Washington as soon as he had expected.
3. Wagner probably referred to the case of the Hannah Maria (see Christopher Johnston, Mark Pringle, and John Sherlock to JM, 1 Oct. 1805). For the case of the Transfer, see Anthony Merry to JM, 9 July 1805 (first letter), and n. 1.
5. Wagner may have referred to John Reeves’s History of the Law of Shipping and Navigation published in London and Dublin in 1792.