University of Virginia Library

TO EDWARD EVERETT.

Dr Sir I have recd. your favor of the 9th, and
with it the little pamphlet forwarded at the request
of your Brother, for which you will please to accept
& to make my acknowledgments.[42]

The pamphlet appears to have very ably & successfully
vindicated the construction in the Book

on "Europe," to the provision[al] article in Mr. Jay's
Treaty. History, if it shd. notice the subject, will
assuredly view it in the light in which the "Notes"
have placed it; and as affording to England a ground
for intercepting American supplies of provisions
to her Enemy, and to her Enemy a ground for
charging on America a collusion with England for
the purpose. That the B. Govt. meant to surrender
gratuitously a maritime right of confiscation & to
encourage a neutral in illegal supplies of provisions
to an Enemy, by adding to their chance of gain an
insurance agst. loss, will never be believed. The
necessary comment will be that Mr. Jay tho' a man
of great ability & perfect rectitude was diverted by
a zeal for the object of his Mission, from a critical
attention to the terms on which it was accomplished.
The Treaty was fortunate in the sanction it obtained,
and in the turn which circumstances gave to its
fate.

Nor was this the only instance of its good fortune.
In two others it was saved from mortifying results:
in one by the Integrity of the British Courts of
Justice, in the other by a cast of the die.

The value of the Article opening our trade with
India, depended much on the question whether it
authorized an indirect trade thither. The question
was carried into the Court of King's Bench, where
it was decided in our favor; the Judges stating at the
same time that the decision was forced upon them
by the particular structure of the article against their
private conviction as to what was intended. And

this decision of that Court was confirmed by the 12
Judges.

In the other instance the question was, whether
the Board of Commissioners for deciding on spoliations
could take cognizance of American claims,
which had been rejected by the British Tribunal
in the last resort. The two British Comrs. contended
that G. B. could never be understood to submit
to any extraneous Tribunal a revision of cases decided
by the highest of her own. The American
Comrrs. Mr. Pinkney & Mr. Gore, argued with great
& just force against a construction, which as the
Treaty confined the Jurisdiction of the Board to
cases where redress was unattainable in the ordinary
course of Judicial proceedings would have been
fatal not only to the claims which had been rejected
by the Tribunal in the last resort but to the residue,
which it would be necessary to carry thither through
the ordinary course of Justice. The four Comrs.
being equally divided; the lot for the 5th., provided
by the Treaty for such a contingency, fell on Mr.
Trumbull whose casting vote obtained for the
American sufferers the large indemnity at stake.

I speak on these points from Memory alone.
There may be therefore if no substantial error,
inaccuracies which a sight of the Archives at Washington,
or the reports of adjudged Cases in England,
would have prevented.

The remarks on the principle, "free ships, free
Goods," I take to be fair & well considered. The
extravagance of Genet drove our Secy. of State to the

ground of the British doctrine. And the Govt. finding
it could not depart from that ground without
a collision or rather war with G. B. and doubting
at least whether the old law of Nations on that
subject did not remain in force, never contested
the practice under it. The U. S. however in their
Treaties have sufficiently thrown their weight into
the opposite scale. And such is the number &
character of like weights now in it from other powers,
that it must preponderate; unless it be admitted
that no authority of that kind, tho' coinciding with
the dictates of reason, the feelings of humanity &
the interest of the civilized world can make or
expound a Law of Nations.

With regard to the rule of 1756, it is to be recollected
that its original import was very different
from the subsequent extensions & adaptations given
to it by the belligerent policy of its parent. The
rule commenced with confiscating neutral vessels
trading between another Belligerent nation & its
colonies, on the inference that they were hostile
vessels in neutral disguise; and it ended in spoliations
on neutrals trading to any ports or in any productions,
of belligerents, who had not permitted
such a trade in time of peace. The Author of the
"Notes" is not wrong in stating that the U.S. did
in some sort acquiesce in the exercise of the rule
agst. them, that they did not make it a cause of
war, and that they were willing on considerations
of expediency, to accede to a compromise on the
subject. To judge correctly of the Course taken

by the Govt. a historical view of the whole of it
would be necessary. In a glancing search over the
State papers, for the document from which the
extract in the pamphlet was made, (it is referred to in
a wrong vol: & page, being found in Vol. VI p. 240,
& the extract itself not being one free from typographical
change of phrase,) my eye caught a short
letter of intructions to Mr. Monroe, (vol. VI, p.
180–1,) in which the stand taken by the Government
is distinctly marked out. The illegality of the
British principle is there asserted, nothing declaratory
in its favor as applied even agst. a neutral trade
direct between a belligerent Country & its colonies,
is permitted; and a stipulated concession on the
basis of compromise, is limited by a reference to a
former instruction of Jany., 1804, to that of the
Russian Treaty of 1781 which protects all colonial
produce converted into neutral property. This
was in practice all that was essential; the American
Capital being then adequate and actually applied
to the purchase of the colonial produce transported
in American vessels.

"The Examination of the subject &c" referred to
in the letter of instruction as being forwarded to
Mr Monroe, was a stout pamphlet drawn up by the
Secretary of State.[43] It was undertaken in consequence
of the heavy losses & complaints of Merchants
in all our large sea ports under the predatory operation
of the extended Rule of 1756. The pamphlet
went into a pretty ample & minute investigation

of the subject, wch. terminated in a confirmed conviction
both of the heresy of the doctrine, and of the
enormity of the practice growing out of it. I must
add that it detracted much also from the admiration
I had been led to bestow on the distinguished
Judge of the High Court of Admiralty; not from
any discovery of defect in his intellectual Powers,
or Judicial Eloquence; but on account of his shifting
decisions and abandonment of his independent
principles. After setting out wth. the lofty profession
of abiding by the same rules of Pub: Law
when sitting in London as if a Judge at Stockholm,
he was not ashamed to acknowledge that, in expounding
that law he shd. regard the Orders in Council
of his own Govt. as his Authoritative Guide.
These are not his words but do him I believe no
injustice. The acknowledgment ought to banish
him as "Authority" from every Prize Court in
the World.

I ought to have premised to any remarks on the
controversy into which your brother has been drawn,
that I have never seen either the Review in wch.
his book is criticised, or the pamphlet in wch. it is
combated. Having just directed the British Quarterly
Review now sent me, to be discontinued, and
the N. Amer: Review substituted with the back Nos.
for the last year, I may soon be able to do a fuller
justice to his reply.

On adverting to the length of this letter, I fear
that my pen has recd. an impulse from awakened
recollections which I ought more to have controuled.

The best now to be done is to add not a word, more
than an assurance of my cordial respect & esteem.