course of events, and the sentiments of the Maritime Nations in friendship with Great Britain may have in producing a reform on this subject. The last paragraph tho' subjecting persons in Civil as well as military service of an enemy, to capture, in our vessels, may prove a valuable safeguard to ordinary passengers and Mariners, against the wrongs which they now frequently experience, and which affect the vessel as well as themselves. I have [etc.] 53 JAMES MADISON The Secretary of State (Madison) to the British Minister (Erskine)1 SIR: WASHINGTON, March 25, 1808. I touch, sir, with reluctance, the question on which of the belligerent sides the invasion of neutral rights had its origin. As the United States do not acquiesce in these invasions by either, there could be no plea for involving them in the controversy. But as the British orders have made the decree of France, declaring, contrary to the law of nations, the British islands in a state of blockade, the immediate foundation of their destructive warfare on our commerce, it belongs to the subject to remind your Government of the illegal interruptions and spoliations suffered, previous to that decree, by the neutral commerce of the United States, under the proceedings of British cruisers and courts, and, for the most part, in consequence of express orders of the Government itself. Omitting proofs of inferior note, I refer to the extensive aggressions on the trade of the United States, founded on the plea of blockades, never legally established according to recognised definitions, to the still more extensive violations of our commerce with ports of her enemies not pretended to be in a state of blockade, and to the British order of council issued near the commencement of the existing war. This order, besides its general interpolation against the established law of nations, is distinguished by a special ingredient, violating that law as recognised by the course of decisions in the British courts. It subjects to capture and condemnation all neutral vessels returning with lawful cargoes, on the sole consideration that they had in their outward voyage deposited contraband of war at a hostile port. 1 1 Ms. copy missing from Department files; printed in American State Papers, Foreign Relations, vol. III, pp. 210-213. If the commerce of the United States could, therefore, in any case, be reasonably made the victim and the sport of mutual charges and reproaches between belligerent parties, with respect to the priority of their aggressions on neutral commerce, Great Britain must look beyond the epoch she has chosen for illegal acts of her adversary, in support of the allegation on which she founds her re taliating edicts against our commerce. But the United States are given to understand that the British Government has, as a proof of its indulgent and amicable disposition towards them, mitigated the authorized rigor it might have given to its measures, by certain exceptions peculiarly favorable 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 indulgencies is a commercial intercourse with the dependencies of the enemies of Great Britain, and it is considered as enhanced by its being a deviation, in favor 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 1756. It is, in fact, invariably cited and described in all judicial and other official transactions, "as the rule of 1756." 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 enemies' 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 authentic 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 favors consoling the United States for the wide spread destruction of their legitimate commerce.1 I have [etc.] 54 JAMES MADISON The Secretary of State (Smith) to the Minister to the Portuguese Court in Brazil (Sumter)2 WASHINGTON, August 1, 1809. SIR: Your Commission as Minister Plenipotentiary to His Royal Highness the Prince Regent of Portugal having already been sent to you, I have now the honor to forward to you your letter of credence. That you may be full apprized of the situation of our affairs in the Brazils, it is proper to mention that as soon as it was understood that the Prince Regent had arrived in his american dominions, the late President of the United States, anxious to preserve the friendly 1 For a further exposition of Madison's view on this principle see An Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, not Open in Time of Peace, which he published anonymously in 1806. 2 MS., Instructions to United States Ministers, vol. VII, pp. 50-54. 42179-34- -19 relations which had so long and so advantageously existed between the two Governments, sent Henry Hill Esq' to Rio Janeiro, to deliver a letter which he had written to the Prince, congratulating him on his arrival in our Western Hemisphere, and assuring him of the most friendly dispositions on the part of this Government. It will be your duty while you remain in Brazil to cultivate the good dispositions of the Prince Regent towards the United States by assuring him of their sensibility to all the marks of his friendship and of the value they place on it; by explaining to him the pacific and just principles which form the basis of their policy; and by developing their ideas in relation to national rights. As it is considered of importance that the Government of Brazil should be brought to think and act with us on the subject of neutral rights, the President desires that you will on fit occasions bring the subject before them in such a way as to let them see the deep interest which they have in it. To enable you to enter into the necessary explanations, you are furnished with-copies of the documents which from time to time have been laid before Congress, and to these are added a few copies of a printed examination of the doctrine asserted by Great Britain as the basis of her warfare on neutral commerce. It may not however, be improper here to observe that the neutral right having the first place in the wishes of the United States is that which is violated by the British principle subjecting to capture every trade opened by a belligerent to a neutral nation during War. It will be recollected that this right stands foremost in the list comprized in the two plans of armed neutrality in 1780 & 1800. In general it is to be understood that the United States are friendly to the principles of those Conventions, and would see with pleasure all of them effectually and permanently recognized as principles of the established law of nations. The ideas of this Government would extend even further in relation at least to contraband of War; the list of which, as retained by those Conventions and as limited by the generality of modern Treaties, is a source and a pretext for much vexation to the commerce of neutrals, whilst it is of little real importance to the belligerent parties. The reason is obvious. In the present state of the Arts throughout Europe every nation possesses or may easily possess within itself the faculty of supplying all the ordinary munitions of War. Originally the case was different and for that reason only, it would seem, that the articles in question were placed on the contraband list. The articles which alone fall within the original reason are naval stores, and if these are expunged from the list of contraband, it is obvious that an abolition of the list altogether would be a change in the law of nations to which little objection ought to be made. On the subject of free ships free goods, the United States cannot with the same consistency as some other nations maintain the principle as already a part of the law of nations, having on one occasion admitted and on another stipulated the contrary. They have however invariably maintained the utility of the principle and whilst as a pacific and neutral nation they have as great an interest in the due establishment of it as any nation whatever, they may with perfect consistency promote such an extension of neutral rights. The United States cannot but befriend as favorable to the interest and security of neutral Commerce, the claim in relation to Convoys, advanced by the Armed neutrality of 1800. Yet the plausible objections made to it, in its indefinite extent by Great Britain, and her probable inflexibility in the objections, would induce them to adopt the modification admitted by Russia in the Treaty of June 1801. I have [etc.] 55 R. SMITH The Secretary of State (Smith) to the Minister in Russia (J. Q. Adams)1 WASHINGTON, February, 1811. SIR: The suggestion of the propriety of forming at this time a Commercial Treaty between the United States and Russia, contained in your despatch of the has drawn the particular atten tion of the President to the subject, and he authorizes you to concert with the Russian Government such a Treaty accordingly. A formal power for the purpose will hereafter be forwarded. Your general power will suffice for all the steps preparatory to a final and formal signature. At the commencement of your negotiation with the Minister whom the Emperor of Russia may appoint to confer with you upon the occasion, you are to explain, with frankness and sincerity the liberal sentiments with which this Government is truly animated in relation to commerce, seeking in its arrangements with foreign powers on that head nothing more than a just reciprocity, such as will open a fair field for honest industry and enterprize. You will be able to collect, from the accompanying heads of a Treaty (which are to be considered as part of your instructions) the 1MS., Instructions to United States Ministers, vol. VII, pp. 149-154. |