James Madison Papers

From James Madison to David Erskine, 20 March 1807

Department of State, March 20th: 1807.


I have laid before the President your letter of the 12th: instant, communicating the views of His Britannic Majesty in relation to the French decree of Novr: 21st: 1806, and the principle of retaliation, through the commerce of Neutrals; who may submit to the operation of that decree; as also the measure actually taken, of prohibiting all Neutral commerce from port to port of his enemies, not only the ports of France, but those of such other Nations, as either in alliance with France, or subject to her dominion, have by measures of active offence, or by the exclusion of British Ships, taken a part in the present war.

The President cannot be insensible, Sir, to the friendship & confidence towards the United States, which are signified by His Britannic Majesty in this communication. In making this acknowledgment, however, the President considers it not less incumbent on him, to reserve for a state of things which it is hoped may never occur, the right of discussing the legality of any particular measures to which resort may be had, on a ground of retaliation. At this time, it would suffice to observe, that it remains to be more fully ascertained, in what sense the decree in question will be explained, and to what extent it will be carried into execution; and consequently, whether in any case, the United States, can be involved in questions concerning measures of retaliation supposed to accrue to one bellegerent from such a proceeding by another. But it is worthy the justice and the liberality of the British Government to recollect, that within the period of those great events which continue to agitate Europe, instances have occurred, in which the commerce of neutral nations more especially of the United States, has experienced the severest distresses from its own orders & measures manifestly unauthorized by the law of Nations. The respect which the United States owe to their neutral rights, and the interests they have in maintaining them, will always be sufficient pledges, that no culpable acquiescence on their part, will render them accessary to the proceedings of one bellegerent nation, through their rights of neutrality, against the commerce of its adversary.

With regard to the particular order issued against the trade of neutrals from one port to another of the enemies of Great Britain, no fair objection can lie against it, provided it be founded on and enforced by, actual blockades as authorized by the law of Nations. If on the other hand, the order has reference, not to such a blockade, but to a supposed illegality of the Neutral trade from one to another of the described ports, the remark is obvious, that on that supposition, the order is superfluous; the trade being, as interdicted by the law of Nations, liable at all times, without any such order, to the capture of British Cruizers and the condemnation of British Courts; and if not interdicted as such by the law of Nations, it can⟨unclear⟩ otherwise be made illegal, than by a legal blockade of the ports comprehended in the order. This inference is applicable even to the case of a neutral trade between the ports of France herself; since it is not a principle of the acknowledged law of Nations, that neutrals may not trade from one to another port of the same bellegerent Nation. And it would be an innovation on that law, not before attempted, to extend the principle to a neutral trade between ports of different Countries confessedly open in times of peace as well as of war.

If the British order refers for its basis, to the principle of retaliation against the French decree, it falls under the observations already made on that subject, and which need not be repeated. I am &c:

(Signed) James Madison.


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