From Robert Smith
Washn. July 31. 1809.
I have received your favor of the 27h. It would seem that Mr Erskine has taken great liberties with his instructions. Of this I had not the slightest suspicion when I was writing my two last letters. And a knowledge of this diminishes the necessity of your return or of the Call of Congress. One of his reasons for not Communicating in Extenso this instruction is now apparent. It was a Consciousness that in his Communications to Mr Canning he had attributed to you, Mr Gallatin & Myself sentiments which our Conversations with him could not possibly have justified. A call of Congress at such a juncture would, it is true, excite a belief that war was the Object and therefore ought not to be made but with that view. But the question occurs—how is the equality in the Commercial relations of the U. States with the two Belligerents to be restored? Can the proclamation of the 19 of April be revoked? The Non-intercourse Act gave the President a special power. The case had occurred for the exercise of this power. The proclamation was the complete execution of it. The effect produced was the renewal of our trade with G. Britain. But no power was reserved or remained in the President, expressly or impliedly to revoke or defeat the Operation of this act, or to revive the provisions of law, that had suspended our Commercial intercourse with G. Britain. This proclamation could not, besides, be declared void by any Executive-Act, which would not, at the same time, shew, that it was in itself a Nullity ab initio.1 The law of the last session moreover distinctly provides, “that nothing therein Contained shall be construed to prohibit any trade which has been permitted in Conformity with the provisions of the Eleventh section of the said Act.”
I find from Mr Erskine who is now here that Mr Jackson is coming out merely as his Successor and that the proposed Special Envoy is not to be expected. Canning, it seems, is in great wrath and especially at the last sentence of my letter of the 17h. April.
A letter goes by this days Mail to Mr Adams authorising him, in case he cannot get a passage, as at first proposed, in a private vessel, to proceed in the frigate Essex now lying at Boston. There is no sloop of war at Boston, and if there was, her Cabin &c. &c. are upon too contracted a scale to accomodate a family.
Since writing the above Mr Gallatin has called upon me and upon full Consideration we are both of the Opinion that your presence is necessary and that indeed we cannot take even one step without you. Mr Erskine has remained so long with me as to leave me time only to suggest this idea. The Mail is waiting for me. Affy. & Respectfy
RC (DLC: Rives Collection, Madison Papers). Docketed by JM.
1. Smith’s legalistic interpretation of the situation left JM in an awkward position, as a newspaper report from Boston revealed: “We had been led to believe from a cursory perusal of the law of June last … that the non-intercourse law, as far as it respected England, could not be renewed except by an act of Congress. We are now willing to believe we were misinformed … for we do not think the President would have issued his proclamation of the 9th, without due consideration and consultation; or that he would authorize the Secretary of the Treasury to issue a circular, by which the intercourse with England is prohibited, without being authorized by law to do so” (quoted in National Intelligencer, 28 Aug. 1809).