To Edward Everett
Montpellier Feby. 18. 1823.
I have received your favour of the 9th. inst:1 and with it the little pamphlet entitled “Notes &c.”2 forwarded at the request of your brother; for which you will please to accept and to make my acknowledgments.
The pamphlet appears to have very ably & successfully vindicated the construction given in the Book on “Europe,” to the provision article in Mr Jay’s Treaty. History, if it should notice the subject,3 will assuredly view it in the light in which the “Notes” have placed it; and as affording to England a ground for intercepting American supplies of provisions to her Enemy; and to her enemy, a ground for charging on America a collusion with England for the purpose. That the British Government meant to surrender gratuitously a maritime right of confiscation, and to encourage a Neutral in illegal supplies of provisions to the Enemy, by adding to chances of gain an ensurance against loss, will never be believed. The necessary comment will be that Mr. Jay, tho’ a man of great ability & perfect integrity,4 was diverted by a zeal for the object of his Mission, from a critical attention to the terms on which it was accomplished. The Treaty was fortunate in the sanction it obtained & in the turn which circumstances gave to its fate.
Nor was this the only instance of its good fortune. In two others it was saved from mortifying results; in one by the integrity of the British Courts of Justice, in the other by a cast of the die.
The value of the article opening our trade with India depended much on the question whether it authorised an indirect trade thither. The question was carried into the Court of King’s Bench, where it was decided in our favour;5 the Judges stating at the same time, that the decision was forced upon them by the particular structure of the Article, agst. their private conviction as to what was intended. The decision was confirmed by the twelve Judges.
In the other instance, the question was, whether the Board of Com[m] issioners for deciding on spoliations could take cognizance of American claims which had been rejected by the British Tribunal in the last resort. The two British Commissioners contended that G. Britain could never be understood to submit to any extraneous Tribunal a revision of cases decided by the highest of her own. The American Comrs. Mr. Pinkney and Mr. Gore, argued with great & just force against a construction; which, as the Treaty confined the jurisdiction of the Board to cases where redress was not attainable in the ordinary course of Judicial proceedings, would have been fatal, not only to the claims which had been rejected by the Tribunal in the last resort, but to the residue, which it would be necessary to carry thither through the ordinary course of Justice. The 4 Comrs. being equally divided, the lot for the 5th. provided by the Treaty for such a contingency fell on Mr. Trumbull, whose casting vote obtained for the American sufferers the large indemnity at stake.6
I speak on these points from memory alone. There may be therefore, if no substantial error, inaccuracies, which a sight of the Archives at Washington or the Reports of adjudged Cases in England would have prevented.
The remarks on the principle “free ships—free goods,” I take to be fair & well considered. The extravagance of Genet drove our Secretary of State to the ground of the British Doctrine: and the Government finding that it could not depart from that ground, witht. collision or rather war with G. Britain, and doubting at least, whether the old law of nations on that subject did not remain in force, never contested the practice under it.7 The U. States in their Treaties however have sufficiently thrown their weight into the opposite scale: and such is the number & character of like weights now in it, from other powers, that it must preponderate; unless it be admitted that no authority of that kind, tho’ co-inciding with the dictates of reason, the feelings of humanity, and the interests of the civilized world, can make or expound a law of nations.
With regard to the rule of 17568 it is to be recollected that its original import was very different from the subsequent extensions & adaptations given to it by the belligerent policy of its parent. The rule commenced with confiscating neutral vessels trading between another belligerent nation and its colonies, on the inference that they were hostile vessels in neutral disguise; and it ended in spoliations on neutrals trading to any ports or in any productions of belligerents, who had not permitted such a trade in time of peace. The author of the “notes” is not wrong in stating that the U.S. did in some sort acquiesce in the exercise of the rule agst. them; that they did not make it a cause of war; and that they were willing, on considerations of expediency, to accede to a compromise on the subject. To judge correctly of the course taken by the Governmt. a historical view of the whole of it would be necessary. In a glancing search over the “State papers” for the document from which the extract in the pamphlet was made (it is referred to in a wrong volume & page, being found in Vol VI p. 240; the extract itself being not free from one typographical change of phrase) my eye caught a short letter of Instructions to Mr. Monroe (Vol VI p. 180–1)9 in which the stand taken by the Government is distinctly marked out. The illegality of the British principle is there asserted; nothing declaratory in its favor, as applied even against a neutral trade direct between a belligerent country & its colonies is permitted; and a stipulated concession on the basis of compromise, is limited by a reference to a former instruction of Jany: 1804 (See Vol. VI p. 160-1-2) to that in the Russian Treaty of 1781;10 which protects all colonial produce converted into neutral property. This was in practice all that was essential: the American Capital being at the time adequate and actually applied to the purchase of the Colonial produce transported in American vessels.
“The Examination &c” referred to in the letter to Mr. Monroe as being forwarded, was a stout pamphlet drawn up by the Secretary of State.11 It was undertaken in consequence of the heavy losses and loud complaints of the Merchants in all our large seaports, under the predatory operations of the extended rule of 1756. The pamphlet went into a pretty ample & minute investigation of the subject, which terminated in a confirmed conviction both of the heresy of the British doctrine, and of the enormity of the practice growing out of it. I must add that it detracted much also from the admiration I had been led to bestow on the distinguished Judge of the High Court of Admiralty:12 not from any discovery of defect in his intellectual powers or Judicial eloquence; but on account of his shifting decisions and abandonment of his Independent principles. After setting out with the lofty profession of abiding by the same rules of public law when sitting in London, as if a Judge at Stockholm, he was not ashamed to acknowledge that in expounding that law he should regard the orders in Council of his own Gover[n]ment as his authoritative Guide. Those are not his words, but do him, I believe no injustice. The acknowledgment ought to banish him as “Authority” from every prize Court in the world.
I ought to have premised to any remarks on the controversy into which your brother has been drawn, that I have never seen either the review in which his book is criticized, or the pamphlet in which it is combated. Having just directed the Brit: Quart: Review now sent me, to be discontinued, and the North A. Review to be substituted, with the back numbers for the last year, I may soon be able to do a fuller justice to his reply.
On adverting to the length of this letter I fear that my pen has received an impulse from awakened recollections, which I ought more to have controuled. The best now to be done is not to add a word more than an assurance of my cordial respect & esteem
RC (MHi); draft (DLC). RC docketed by Everett. Minor differences between the copies have not been noted.
1. Letter not found.
2. Alexander Hill Everett, A Few Notes on Certain Passages Respecting the Law of Nations, Contained in an Article in the July No. of the North American Review, upon the Work Entitled “Europe, By a Citizen of the United States.” By the Author of That Work (Boston, 1823; Shoemaker 12481). JM’s inscribed copy is in the Madison Collection, Special Collections, University of Virginia Library.
3. The draft has “fact” in place of “subject” here.
4. The draft has “rectitude” in place of “integrity” here.
5. JM referred to article 13 of the Jay Treaty (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:255–56). For the 1798 decision in Wilson v. Marryat, which gave the widest possible construction to the article, see Holden Furber, “The Beginnings of American Trade with India, 1784–1812,” New England Quarterly 11 (1938): 249–50.
6. According to John Trumbull, the fifth commissioner, this question was submitted to the Lord Chancellor, who ruled in favor of the American position. See John Bassett Moore, ed., International Adjudications, Ancient and Modern, History and Documents … (6 vols.; New York, 1929–33), 4:81–87.
7. For Secretary of State Jefferson’s 1793 comments on contraband, see the review of Everett’s A Few Notes (see n. 2 above) in the North American Review 17 (1823): 165–67.
8. The rule of 1756 denied neutral ships permission to trade with foreign colonies in times of war, if that trade had been denied them in times of peace (Bemis, John Quincy Adams and the Foundations of American Foreign Policy, 43).
9. JM to James Monroe, 13 Jan. 1806, State Papers and Publick Documents of the United States, from the Accession of George Washington to the Presidency, Exhibiting a Complete View of Our Foreign Relations since That Time, 2d ed. (10 vols.; Boston, 1817), 6:180–81.
10. JM to James Monroe, 5 Jan. 1804, ibid., 160–62. These observations and instructions on article 4 of the proposed convention between the United States and Great Britain are printed and annotated in 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 6:300–301. For the Russian Treaty of 1781, in particular, see ibid., 307 n. 15.
11. [James Madison], A Memoir, Containing an Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace ([Washington, 1806]; 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 10777).
12. William Scott, Baron Stowell (1745–1836) was the judge of the High Court of Admiralty from 1798–1828, and as such, his decisions profoundly affected U.S. commerce and the rules of neutral trade (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 3:414 n. 2).