James Madison Papers

To James Madison from John Armstrong, 26 November 1805

From John Armstrong

Paris 26 November 1805.


I had the honor, within the last week, of receiving your letter of the 25th. of August—expressing the Sollicitude of the parties interested in the Ship New Jersey and Cargo,1 least “their claim should be rejected on the idea, that the rights of the insured, did not pass to the insurers;” and communicating also the opinion of the President, that “American underwriters, who had paid the loss to the original owners, citizens of the United States, were entitled to the benefits of the treaty of 1803.”

In my next dispatch I shall furnish you with documents, from which you will see, that the difficulties in this case, have in no Stage of it, arisen from the causes to which they have been ascribed; that it’s admission by the American board was long suspended under Colo. Mercer’s objection, that, “no evidence had been produced of the insolvency of the captors”; that its rejection, by the Council General of liquidation, proceeded from the belief, that “the Ship and Cargo were partially, or altogether, British property; and from certain other causes”—and that when this belief concerning the national character of the property was done away by the production of certain policies of insurance, which had been effected in different parts of the United States, (but which till then had been carefully kept out of sight) the claim, so far from being opposed on the principle that “the rights of the insured did not vest in the insurers” as indeed on any other principle, was, on my suggestion, sent back to the council, relieved from the first and apparently the principal objecti[o]n, and left subject only to the “other causes” mentioned in the rejecting Arrete of the 28 of Frimaire. These “other causes” are fully exhibited in the report of the Director of the 4th. Division, dated on the 15 Germinal, and may be digested into the following heads—

1st. that the judgment of the 17 Prairial year ⟨6⟩;. pronouncing the confiscation of the N. Jersey & cargo is still subsisting—inasmuch as it has not been annulled by the decree of the Council of Prizes, which directs only, the restitution of the sum deposited by the owners with Gen. Hedouville.

2d. that the claimants having neglected to prosecute their appeal within six years after the capture, were precluded, by the laws of France, from a right of appealing.

3d. that the New Jersey, not having a role d’Equipage, as provided by the treaty of 1778, was excluded from the provisions of the 4th. Article of the treaty of 1800.

4th. that the Capt and Agent of the Privateer, not having been heard in their defense, nor even summoned to appear before the Tribunal, the decree of the Council of Prizes was illegal.

5th. that no evidence having been produced of the abandonment of the Ship and Cargo to the Underwriters, and the Agents having even denied the right of either Government to question them with regard to an abandonment of the property, and having besides acknowledged, that the original owners, or a part of them, had acquired the N. Jersey by a new title; by yielding to the Underwriters “Un droit convenable de reprise dans le depot”2—it may be fairly inferred, that the loss never was paid by the insurers, & that the receits (which by the way do not correspond in number with the policies), are merely fictitious.

& 6th. that were it in proof that the owners had abandoned, and that the under-writers had paid, still the Claim of the latter could not be admitted—inasmuch as it could not now be liquidated under the rules prescribed by the Treaty—the American Commission having no longer an existence.

You will readily perceive that in all this, there is not a single syllable pointed at the rights of insurers “who have paid the loss of the original owner.” It only remains for me therefore to shew, that in no after act either of the Council or of Mr Marbois & myself, was the broad principle which has given So much alarm to our under-writing Citizens, or even the qualified one to be found in the President’s opinion, adopted or applied to the case of the N.J. The report, of which I have already given you the Substance, not having been agreed to by all the members of the Council, and the Liquidator Genl. not choosing to decide the difference, transmitted the case a second time to the Treasury with a wish, that Mr. Marbois & myself might determine it. We complied with this wish—we did determine it, and admitted it for its’ full proportion of the Marginal fund. It is true, that Mr. Marbois & I differed somewhat concerning this proportion. He, would have given 333,000 francs, whereas I, thought that 300,000 were quite as many as fell to its share; and that you will think as I did, I have no doubt, when I inform you, that there are claims amounting to more than Three Millions, as sound in point of principle, less objectionable in point of form & better recommended by the pecuniary circumstan[c]es of the Claimants, for which I have not yet got a Single sous. In my last letter I gave you the commencement of the war, and in this, you will find its conclusion. The two events are worthy of each other. They certainly have never had a parralel. Bavaria restored to its Sovereign—a French functionary residing in Vienna and exercising dominion over Austria—the house of Lorraine flying to the most remote of its provinces—Hungary withdrawing itself from the fortunes of Austria—Germany preparing to receive a foreign Master—the Coalition at an end—the Russian Columns offering to capitulate and seeking no better or other condition than that of being permitted to go home—the German army driven into Ci-devant Poland, and Poland itself about to rise from the dead! These are the miracles of a Campaign of 64 days.

Prussia has begun her agency where it ought to have ended, and without yielding any assistance to the Allies, has unmasked herself with regard to France. The basis she took for negociation, was little different from that of which the Russian Minister, Novolitzoff, was the bearer. But she is now of no consequence, and her propositions will probably be accomodated to her humiliation.

These events cannot fail to have their effect on the British Councils. If they are not mad, they will abandon the absurd & wicked system they have adopted towards us. With the highest consideration, I am, Sir, Your most Obed. hum. Servt.

John Armstrong.

RC (DNA: RG 59, DD, France, vol. 10); RC (DNA: RG 59, Preliminary Inventory 15, entry 98, Misc. Duplicate Consular and Diplomatic Dispatches, 1791–1906); extract (DNA: RG 46, President’s Messages, 9B–B3). First RC in a clerk’s hand, signed by Armstrong. Extract printed in the National Intelligencer, 3 Mar. 1806.

1For the case of the New Jersey, see Philip Nicklin and Robert Eaglesfield Griffith to JM, 25 July 1805, and n. 7.

2“Un droit convenable de reprise dans le depot”: an appropriate right of recovery in the deposit.

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