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amicable disposition towards them, mitigated the authorized rigour it might have given to its measures, by certain exceptions peculiarly favourable to the commercial interests of the United States.
I forbear, sir, to express all the emotions with which such a language, on such an occasion, is calculated to inspire a nation which cannot for a moment be unconscious of its rights, nor mistake, for an alleviation of wrongs, regulations, to admit the validity of which would be to assume badges of humiliation never worn by an independent power.
The first of these indulgences is a commercial intercourse with the dependencies of the enemies of Great Britain, and it is considered as enhanced by its being a devi. ation in favour of the United States, from the ancient and established principle of maritime law, prohibiting altogether such an intercourse in time of war.
Surely, sir, your government, in assuming this principle, in such terms, in relation to the United States, must have forgotten their repeated and formal protests against it, as these are to be found in the discussions and communications of their minister at London, as well as in explanations occasionally made on that subject to the British representative here. But permit me to ask more particularly, how it could have happened, that the principle is characterized as an ancient and established one? I put the question the more freely, because it has never been denied that the principle, as asserted by your government, was for the first time introduced during the war of 1750. It is, in fact, invariably cited and described, in all judicial and other official transactions, as the rule of 1750." It can have no pretension, therefore, to the title of an ancient rule.
And instead of being an established rule or principle, it is well known that Great Britain is the only nation that has acted upon, or otherwise given a sanction to it. Nay, it is not even an established principle in the practice of Great Britain herself. When first applied in the war of 1756, the legality of a neutral trade with enemies' colonies was not contested by it. In certain cases only of the colonial trade the allegation was, that the presumptive evidence arising from circumstances, against the bona fide neutrality of the ownership, justified the condemnation as of enemy's property. If the rule of condemnation was afterwards, during that war, converted into the principle now asserted, it could not possibly have been in operation, in its new shape, more than a very few years. During the succeeding war of 1778, it is admitted by every British authority, that the principle was never brought into operation. It may be regarded, in fact, as having been silently abandoned. And within the period of war, since its commencement in 1793, the manner in which the principle has been alternately contracted and extended, explained sometimes in one way, sometimes in another, rested now on this foundation, now on that, is no secret to those who have attended to its history and progress in the British orders of council, and the British courts of admiralty.
With the exception, therefore, of a period, the last in modern times from which authentick precedents of maritime law will be drawn, and throughout which the United States, more interested in the question than any other nation, have uniformly combated the innovation, the principle has not in the British tribunals been in operation for a longer term than three, four, or five years, whilst in no others has it ever made its appearance but to receive a decision protesting against it.
Such is the antiquity, and such the authority of a principle, the deviations from which are held out as so many favours consoling the United States for the wide spread destruction of their legitimate commerce.
What must be said as to the other exceptions which seem to have been viewed as claims on the gratitude of the United States? Is it an indulgence to them in carrying on their trade with the whole continent of Europe, to be laid under the necessity of going first to a British port, to accept a British license, and to pay a tribute to the British exchequer, as if we had been reduced to the colonial situation which once imposed these monopolising restraints ?
What again must be said as to the other features which we see blended on the face of these regulations ? If the policy of them be to subject an enemy to privations, why are channels opened for a British trade with them which are shut to a neutral trade? If, in other cases, the real object be to admit a neutral trade with the enemy, why is it required that neutral vessels shall perform the ceremony of passing through a British port, when it can have no imaginable effect but the known and inevitable one of prohibiting the admission of the trade into the port of destination ?
I will not ask why a primary article of our productions and exports, cotton wool, is to be distinguished, in its transit, by a heavy impost, not imposed on other articles, because it is frankly avowed, in your explanation of the orders, to be intended as an encouragement to British manufactures, and a check to the rival ones of France. I suppress, also, though without the same reason for it, the inquiry, why less rigorous restrictions are applied to the trade of the Barbary powers, than are enforced against that of a nation, such as the United States, and in relations, such as have existed between them and Great Britain.
I cannot, however, pass without notice the very unwarrantable innovations contained in the two last of the orders. In one of them, a certificate of the local origin of a cargo, although permitted in the port of departure, and required in the port of destination, by regulations purely domestick in both, and strictly analogous in principle to regulations in the commercial code of Great Britain, is made a cause of capture on the high seas, and of condemnation in her maritime courts. In the other order, the sale of a merchant ship, by a belligerent owner to a neutral, although a transaction as legal, when fair, as a dealing in any other article, is condemned by a general rule, without an atom of proof, or of presumption, that the transfer in the particular case, is fraudulent, and the property, therefore, left in an enemy.
In fine, sir, the President sees in the edicts communicated by you, facts assumed which did not exist; principles asserted which never can be admitted ; and, under the name of retaliation, measures transcending the limits reconcileable with the facts and the principles, as if both were as correct as they are unfounded. He sees, moreover, in the modifications of this system, regulations, violating equally our neutral rights and our national sovereignty. He persuades himself
, therefore, that your government will see, in the justice of the observations now made, in addition to those I had the honour, verbally, to state to you in the first instance, that the United States are well warranted in looking for a speedy revocation
of a system, which is every day augmenting the mass of injury for which the United States have the best of claims to redress. I have the honour to be, &c.
JAMES MADISON. The Hon. David M. Erskine, &c. &c.
From Mr. Madison to Mr. Erskine. Department of State,
March 29, 1807. Sir,--Further reflection on the tenour and tendency of the order of his Britannick majesty, communicated by your letter of the 12th instant, which was answered by mine of the 20th, 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 an accustomed trade, even between the ports of the same 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 io 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 an 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 to put an end, in some mode or other, 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 exempt 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 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 the 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 Ameriuin 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 be disposed of, partly at one market, and VOL. VII.