Department of State, 29th March 1807.
FURTHER Reflection on the Tenor and Tendency of the Order of His Britannick Majesty, communicated by your Letter of the 16th Instant, which was answered by mine of the 24th, induces me to resume that important Subject.
From the Difficulty of supposing that the Order can have for its Basis either a legal Blockade, impossible to be extended to all the Ports described in the Order, or a supposed Illegality of the Trade between those Ports, an Illegality which has never been applied by the British Government or its Admiralty Courts, to use accustomed Trade even between Ports of a belligerent Nation, and is utterly at Variance with the Conduct of both, in reference to a Trade between a Belligerent Nation and its Allies; a Necessity seems to result of ascribing the Order to the Policy of countervailing, through the Commerce of Neutrals, the French Decree of the 21st of November last.
In this View of the Order, it demands, on the Part of the United States, the most serious Attention both to its Principle and to its Operation.
With respect to its Principle, it will not be contested, that a Retaliation by one Nation on its Enemy, which is to operate through the Interest of a Nation not its Enemy, essentially requires, not only that the Injury inflicted should be limited by the Measure of Injury sustained, but that every retaliating Step in such a Case should be preceded by an unreasonable Failure of the Neutral Party, in some Mode or other to put an End to the Inequality wrongfully produced. Were it certain, therefore, that the French Decree is to be enforced in the Sense in which it is taken, and that, in Violation of the Treaty between France and the United States, the Commerce of the latter will not be exempted; the British Order being peremptory in its Import and immediate in its Execution, might justly be regarded by the United States as a Proceeding equally premature and unfriendly. But in the Uncertainty as to the real Meaning of that Decree, and whilst a Presumption offered itself, that the Decree, if avowed and executed in an unlawful Extent, might not embrace the Commerce of the United States; they are bound by Justice to their Interests, as well as by Respect for their Rights, to consider the British Order as a Ground for serious Complaint and Remonstrance. Should it prove that the Decree had not the Meaning ascribed to it, and particularly, should the Respect of France for her Treaties with the United States, except their Trade from the Operation of the Decree, the Order of the British Government will stand exposed to still severer Comments. It will take the Character of an original Aggression, will furnish to the French Government a like Ground with that assumed by itself, for retaliating Measures, and will derive a very unfavourable Feature from the Consideration that it was a palpable Infraction of a Treaty just signed on the Part of the British Government, and expected, at the Date of the Order, to be speedily ratified on the Part of the United States.
The Necessity of presenting the Subject in its true light, is strengthened by the Operation which the British Order will have, on a vast Proportion of the entire Commerce of the United States, not to dwell on the carrying Branch of the Commerce between our Ports and Countries of Europe, and which the Immunity given by our Flag, in consequence of Treaties with the Enemies of Great Britain, to British Property, and not enjoyed by the Property of her Enemies, has hitherto been advantageous to Great Britain; and without inquiring into the Effect of an Application of the Interdict to the other Quarters of the Globe, all of which are evidently within the comprehensive Terms of the Order, it cannot be overlooked, that the Character and Course of nearly the Whole of the American Commerce with the Ports of Europe, other than of Great Britain, will fall under the destructive Operation of the Order; it is well known that the Cargoes exported from the United States frequently require that they may be disposed of partly at one Market and partly at another. The Return Cargoes are still more frequently collected at different Ports, and not unfrequently at Ports different from those receiving the outward Cargoes.
In this circuitous Voyage, generally consisting of several Links, the Interest of the Undertakers materially requires also, either a Trade or a Freightage between the Ports visited in the Circuit. To restrain the Vessels of the United States, therefore, from this legitimate and customary Mode of trading with the Continent of Europe, as is contemplated by the Order, and to compel them, on one Hand, to dispose of the whole of their Cargoes at a Port which may want but a Part; and on the other Hand, to seek the Whole of their Returns at the same Port, which may furnish but a Part, or perhaps no Part of the Articles wanted, would be a Proceeding as ruinous to our Commerce as contrary to our essential Rights.
These Observations, which are made in conformity with the Sentiments of the President, cannot fail, Sir, to have all the Weight with an enlightened and friendly Government to which they are entitled, and the President persuades himself, that the good Effect of Truths which they disclose, will be seen in such Measures as will remove all Grounds for Dissatisfaction, and demonstrate on that Side, the same sincere Disposition to cultivate Harmony and beneficial Intercourse, as is felt and evinced by the United States and their Government. I have the Honour to be, &c.
(Signed) James Madison.