London 20th. April 1806
I hand you herein the Report of a decision lately made in the Court of Appeals; and the Copy, with correction of typographical Errors, of a letter that I sent on the following day to the Editor of the Chronicle. I also Subjoin a few lines written in Consequence of his not inserting it; and, by way of Comment on the freedom of the Press, I must tell you that the Newspapers in London are so much attached to individuals and particular Interests, that it is often impossible to procure the admission of a piece opposed to either. I found it necessary therefore after some days, and some personal intercourse with the Editor of the Oracle⟨Chronicle⟩ to have recourse to that Paper; but he did not choose to insert anything more than the first ⟨Note⟩ so modified as to fit himself. I felt it useful, on this particular occasion, to cast the public attention to the Documents referred to; because I could not find that recourse had been had to them in any judicial Reasonings, or even in the Arguments of Counsel, on the cases to which they applied. I had taken care to inculcate this right arising from Compact, in another quarter; and I am assured that the Judgement in the Case of the William was not a measure of the Cabinet. I have since noted what is said in the Pamphlet attributed to you on the Constitution of this Court which no doubt is faulty:-- in practice, however, ’tis the Jurists that bear Sway; and in most Cases there are no other Members present. I have been the more desirous of impressing the Provisions of this Correspondence on the public Mind, and the minds of public Men; because I think it the strongest ground we have. As to the principle so much contended for here; I confess it is too deep-rooted for me to eradicate, without tearing up with it the foundation of belligerent rights. This I would gladly do; being as I said before a Quaker; but while it is admitted that a nation at War has the right to reduce it’s Enemy to reasonable terms of peace, and to be the Judge of those terms; with the single exception respecting Neutrals that She must do them no injury; it does not appear to me that She is under any obligation to let the property of her Enemy escape from her grasp, by an Avenue which he has opened for the purpose, merely because the Neutral is benefited by it. I speak of the abstract principle, and it’s application to a trade growing evidently out of the war:-- as to what is said in the Pamphlet on the Subject of doubtful cases:-- the difficulty of distinguishing between Cases growing out of the War, and those that might have occurred in time of peace; which by the way, I think not so difficult as the Pamphlet sets forth; and which always ought to be clearly and positively ascertained before Confiscation;)-- and as to the modification to which the neutral is entitled as an equivalent for the loss of his trade;-- in what shall have become contraband of war;-- to Ports blockaded;-- by interruptions at Sea; and the like;-- and as to what is said of the Doctrine of "Quod Quis Sibi Sumit hostibus tribuendum est " without the Text, and how far it is applicable or rather inapplicable to the present question;-- on all those Subjects I have noted largely in the Margin of the Pamphlet, as is my practice in reading polemic writings. -- With these Notes I shall take the liberty to trouble you as soon as I have leisure to transcribe them; or that my Nephew-- a young Oxonian, and the only person hereabouts that understands my short hand, shall be in the way. As to the Policy of applying the Principle on the part of this Country it has always appeared to me to be destroying the Goose of the Golden Egg; nor can I foresee an occasion in which this would not be the Case. This however is a Seperate Consideration from the Principle itself: but combined with the Latitude that the neutral Merchant had a right to assume from the Correspondance referred to; it has, as I have Special reason to believe, led to a determination on the part of the Administration here, to allow the Trade Subject only to the Restriction therein enjoined-- vizt: that of Landing the Cargoes and paying the Duties in the neutral Country. And as the members had a right to conclude that the Accumulation of Expence thus incurred by the Enemy;-- the Pressure at both Ends, as Sir Wm. Scott calls it;-- was all that was exacted by the Belligerent, I should hope that Restitution would be obtained for the Cargoes already condemned.
Here is a Pamphlet entitled an Enquiry into the State of the Nation-- 1st. ascribed to Lord Holland, then denied to be his, but which, on perusal this morning of the part relating to neutral Powers page 176 to 205, I am inclined to give him the Credit of; observing in it some sentiments, which seem to have resulted from certain manuscript notes on War in Disguise, which I know to have been perused by Mr. Fox. The inference is not certain, but from the Complexion of the thing not improbable. I will ascertain this fact and advise you; tho’ it would be of no other use than as Shewing the feelings of the present administration. I shall also avail myself of the first good opportunity to Send you the Book, which, however, will probably find its way to you before this. I rest, very truly, Dear Sir, Your very hble. Servt:
DLC: Papers of James Madison.