The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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 | TO JAMES MONROE AND WILLIAM PINKNEY. |
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 | The writings of James Madison, |  |
TO JAMES MONROE AND WILLIAM PINKNEY.
The triplicate of your communications of Nov. 11th has
just been received. Those of Sept. 12th had been previously
received in due time.
The turn which the negotiation has taken, was not expected,
and excites as much of regret as of disappointment.
The conciliatory spirit manifested on both sides, with the apparent
consistency of the interest of Great Britain, with the
right of the American flag, touching impressment, seemed to
promise as much success to your efforts on the subject as on
the others, and, notwithstanding the perseverance of the
British Cabinet in resisting your reasonable propositions, the
hope is not abandoned that a more enlightened and enlarged
policy will finally overcome scruples which doubtless proceed
more from habits of opinion and official caution, than from
an unbiased regard to all the considerations which enter
into the true merits of the question.
In the meantime the President has with all those friendly
and pervade your instructions, weighed the arrangement held
out in your last letter which contemplates a formal adjustment
of the other topics under discussion, and an informal understanding
only, on that of impressment. The result of his
deliberations, which I am now to state to you, is, that it does
not comport with his views of the national Sentiment or the
Legislative policy, that any Treaty should be entered into
with the British Government which, whilst on every other
point it is either limited to, or short of strict right, would include
no article providing for a case which both in principle
and in practice is so feelingly connected with the honor and
sovereignty of the Nation, as well as with its fair interests;
and indeed with the peace of both nations. The President
thinks it more eligible under all circumstances that if no
satisfactory or formal stipulation on the subject of impressment
be attainable the negotiation should be made to terminate
without any formal compact whatever, but with a
mutual understanding, founded on friendly and liberal discussions
and explanations, that in practice each party will
entirely conform to what may be thus informally settled.
And you are authorized, in case an arrangement of this kind
shall be satisfactory in its substance, to give assurances that
as long as it shall be duly respected in practice by the other
party more particularly on the subjects of neutral trade and
impressment, it will be earnestly, and probably, successfully
recommended to Congress by the President not to permit
the non-importation act to go into operation. You are also
authorized to inform the British Government that the President,
adhering to the sentiments which led him to recommend
to Congress at the commencement of the Session, a suspension
of the act, and trusting to the influence of mutual dispositions
and interests in giving an amicable issue to the negotiations,
will, if no intervening intelligence forbid, exercise the authority
vested in him by the Act, of continuing its suspension from
the 1st day of July to the time limited by the Act, and which
of making due provision for the case.
You will perceive that this explanation of the views of
the President, requires, that if previous to the receipt of it,
a Treaty not including an article relating to impressments
should have been concluded and be on the way, the British
Commissioners should be candidly apprized of the reason
for not expecting ratification, and that on this ground they
be invited to enter anew on the business, with an eye to such
a result as has just been explained and authorized.
Having thus communicated the outline assigned by the
President as your guide in the important and delicate task on
your hands, I proceed to make a few observations which are
suggested by the contents of your last dispatch, and which
may be of use in your further discussions and your final
arrangements.
IMPRESSMENTS.
The British Government is under an egregious mistake
in supposing that "no recent causes of complaint have occurred,"
on this subject. How far the language of Mr. Lyman's
books may countenance this error I cannot say, but
I think it probable that even there the means of correcting
it may be found. In the American Seas, including the West
Indies, the impressments have perhaps at no time been more
numerous or vexatious. It is equally a mistake therefore
to suppose "that no probable inconvenience can result from
the postponement of an Article" for this case.
The remedy proposed in the Note from the British Commissioners,
however well intended, does not inspire the
confidence here which gave it so much value in their judgment.
They see the favorable side only, of the character of
their naval Commanders. The spirit which vexes neutrals
in their maritime rights, is fully understood by neutrals
only. The habits generated by naval command, and the
and impressments, render inadequate every provision
which does not put an end to all discretionary power in the
commanders. As long as the British navy has so complete
an ascendency on the high seas, its commanders have not
only an interest in violating the rights of neutrals within the
limits of neutral patience, especially of those whose commerce
and mariners are unguarded by fleets: they feel moreover
the strongest temptation, as is well known from the occasional
language of some of them, to covet the full range for spoliation
opened by a state of War. The rich harvest promised by the
commerce of the United States, gives to this cupidity all its
force. Whatever general injuries might accrue to their nation,
or whatever surplus of reprisals might result to American
Cruizers, the fortunes of British Cruizers would not be
the less certain in the event of hostilities between the two
nations.
Whilst all these considerations require in our behalf the
most precise and peremptory security against the propensities
of British naval commanders, and, on the tender subject of
impressments more than any other, it is impossible to find
equivalent or even important motives on the British side for
declining a security. The proposition which you have made,
aided by the internal regulations which the British Government
is always free to make, closes all the considerable avenues
through which its seamen can find their way into our service.
The only loss consequently which could remain, would be
in the number at present in this service; with a deduction of
those who might from time to time voluntarily leave it,
or be found within the limits of Great Britain or of her possessions;
and in the proportion of this reduced number who
might otherwise be gained by impressment. The smallness
of this loss appears from the annual amount of impressments,
which has not exceeded a few hundred British seamen, the
great mass consisting of real Americans and of subjects
of other neutral powers. And even from the few British
ports, where it is agreed that the proceeding is clearly
unlawful.
Under this view of the subject the sacrifice which Great
Britain would make dwindles to the merest trifle; or rather,
there is just reason to believe that instead of a loss, she
would find an actual gain, in the excess of the deserters who
would be surrendered by the United States, over the number
actually recoverable by impressment.
In practice, therefore Great Britain would make no sacrifice
by acceding to our terms; and her principle, if not expressly
saved by a recital as it easily might be, would in effect be so
by the tenor of the arrangement; inasmuch as she would obtain
for her forbearance to exercise what she deems a right,
a right to measures on our part which we have a right to
refuse. She would consequently merely exchange one right
for another. She would also, by such forbearance, violate
no personal right of individuals under her protection. The
United States on the other hand in yielding to the claims of
Great Britain, on this subject, would necessarily surrender
what they deem an essential right of their flag and of their
Sovereignty, without even acquiring any new right; would
violate the right of the individuals under the protection of both;
and expose their native Citizens to all the calamitous mistakes
voluntary and involuntary, of which experience gives such
forcible warning.
I take for granted that you have not failed to make due use
of the arrangement concerted by Mr. King with Lord Hawksbury
in the year 1802 for settling the question of impressments.
On that occasion, and under that administration,
the British principle was fairly renounced in favor of the
right of our flag; Lord Hawksbury having agreed to prohibit
impressments altogether on the High seas; and Lord
St. Vincent requiring nothing more than an exception of the
narrow seas, an exception resting on the obsolete claim of Great
Britain to some peculiar dominion over them. I have thought
giving an account of that transaction.
In the Note of Novr 8th from the British Commissioners,
the Security held out to the crews of our vessels is that instructions
have been given, and will be repeated, for enforcing
the greatest caution &c. If the future instructions are to be
repetitions of the past, we well know the inefficacy of them.
Any instructions which are to answer the purpose, must
differ essentially from the past, both in their tenor and their
sanctions. In case an informal arrangement should be substituted
for a regular stipulation, it may reasonably be expected
from the candor of the British Government, that the
instructions on which we are to rely, should be communicated
to you.
COLONIAL TRADE.
It may reasonably be expected that on this subject the
British Government will not persist in attempting to place
the United States on a worse footing than Russia. In
agreeing to consider the storing for a month, and changing
the ship, as a naturalization of the property, the concession
would be on our side, not on theirs; and in making this a condition
on which alone we could trade with enemy Colonies
even directly to and from our own ports, beyond the amount
of our own consumption, we should make every sacrifice
short of a complete abandonment of our principle, while
they would retain as much of their pretension as is compatible
with any sacrifice whatever, a pretension too, which they
have in so many ways fairly precluded themselves from now
maintaining. In addition to the many authorities for this
remark, already known to you, you will find one of the highest
grade in 5th vol. of Tomlin's edition of Brown's cases in
Parliament, p. 328—Hendricks and others against Cunningham
& others, where it was expressly admitted by the
House of Lords, in a war case before them, "it is now established
cargoes, the property of subjects of neutral powers, either
going to trade at or coming from the French West India
Islands, with cargoes purchased there, are liable to capture:
and therefore when a ship and cargo so circumstanced are
seized and condemned, the seizure and condemnation shall
be reversed and the value of the ship and cargo accounted
for and paid to the owners by the captors."
As it has generally happened that the British instructions
issued to the Vice Admiralty Courts, and naval Commanders
have not come first to light in British prints, I
inclose one of Novr 14, which has just made its appearance in
ours. As it relates to the present subject, it claims attention
as a proof that all questions as to the legality of the voyage,
in a Russian Trade with the enemies of Great Britain is excluded,
by limiting the right of capture to cases where innocence
or ownership of the Articles, are questioned. The
instruction may at least be considered as coextensive in its
favorable import with the Article in the Russian Treaty, which
you have been authorized to admit into your arrangements;
and in that view, as well as on account of its date, the instruction
may furnish a convenient topic of argument or
expostulation.
If the British Government once consent that the United
States may make their ports a medium of trade between the
Colonies of its enemies and other Countries belligerent as
well as neutral, why should there be a wish to clog it with
the regulations suggested? Why not in fact consent to a
direct trade by our merchants, between those Colonies and
all other Countries? Is it that the price may be a little
raised on the consumers by the circuit of the voyage, and
the charges incident to the port regulations? This cannot
be presumed. With respect to the enemies of Great Britain
the object would be unimportant. With respect to her
neutral friends, it would not be a legitimate object. Must
not the answer then be sought in the mere policy of lessening
British and other Colonial productions reexported by British
Merchants, from British ports; and sought consequently not
in a belligerent right, or even in a policy merely belligerent;
but in one which has no origin or plea but those of commercial
jealousy and monopoly.
BLOCKADES.
On this subject, it is fortunate that Great Britain has
already in a formal communication, admitted the principle
for which we contend. It will be only necessary therefore, to
hold to the true sense of her own act. The words of the
communication are "that vessels must be warned not to enter."
The term warn technically imports a distinction between an
individual notice to vessels; and a general notice by proclamation
or diplomatic communication; and the terms not to enter
equally distinguishes a notice at or very near the blockaded
port; from a notice directed against the original destination,
or the apparent intention of a vessel, nowise approaching
such a port.
MARGINAL JURISDICTION ON THE HIGH SEAS.
There could surely be no pretext for allowing less than a
marine league from the shore; that being the narrowest allowance
found in any authorities on the law of nations. If
any nation can fairly claim a greater extent, the United
States have pleas which cannot be rejected; and if any nation
is more particularly bound by its own example not to contest
our claim, Great Britain must be so by the extent of her own
claims to jurisdiction on the seas which surround her. It
is hoped at least that within the extent of one league you will
be able to obtain an effectual prohibition of British ships of
War, from repeating the irregularities which have so much
vexed our commerce and provoked the public resentment;
and against which an Article in your instructions emphatically
Government, that in applying the remedy copied from
regulations heretofore enforced against a violation of the
neutral rights of British harbours and Coasts, nothing will
be done than what is essential to the preservation of harmony
between the two Nations. In no case is the temptation or
the facility greater to ships of War, for annoying our commerce
than in their hovering on our coasts, and about our harbours;
nor is the natural sensibility in any case more justly or more
highly excited than by such insults. The communications
lately made to Mr. Monroe, with respect to the conduct of
British Commanders even within our own waters, will
strengthen the claim for such an arrangement on this subject,
and for such new orders, from the British Government,
as will be satisfactory security against future causes of
complaint.
EAST AND WEST INDIA TRADES.
If the West India Trade cannot be put on some such
footing as is authorized by your instructions, it will be evidently
best, to leave it as it is; and of course, with a freedom
to either party to make such regulations as may be justified
by those of the other.
With respect to the East India Trade, you will find a very
useful light thrown on it, in the remarks of Mr. Crowninshield
of which several copies were forwarded in October. They
will confirm to you the impolicy, as explained in your instructions
admitted into the Treaty of 1794. The general
footing of other nations in peace with Great Britain, will
be clearly more advantageous; and on this footing it will
be well to leave or place it, if no peculiar advantages of which
there are intimations in Mr. Crowninshield's remarks, can
be obtained.
INDEMNIFICATIONS.
The justice of these ought to be admitted by Great Britain,
as they may be recognized in any new arrangement or understanding
between the parties. But in cases, of which there
are many examples, where the claim is supported by principles
which she never contested, the British Government ought to
have too much respect for its professions and its reputation,
to hesitate at concurring in a provision analogous to that
heretofore adopted.
It is not satisfactory to allege that in all such cases, redress
may be obtained in the ordinary course of judicial proceedings.
If this were true, there would be sound policy as well as
true equity and economy in transferring the complaints from
partial tribunals occupied with a great mass of other cases,
to a joint tribunal exclusively charged with this special trust.
But it is not true that redress is attainable in the ordinary
course of justice, and under the actual constitution and rules
of the tribunals which administer it in cases of captures.
Of this, the facts within your knowledge and particularly
some which have been lately transmitted to Mr. Monroe are
ample and striking proofs; and will doubtless derive from
the manner of your presenting them, all the force with which
they can appeal to the sentiments and principles which ought
to guide the policy of an enlightened nation.
| The writings of James Madison, | |