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 |
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 | The writings of James Madison, |  |
TO JAMES MONROE
The papers herewith inclosed explain particularly the case
of the Brig Aurora.
The sum of the case is, that whilst Spain was at War with
Great Britain, this vessel, owned by a citizen of the United
States, brought a cargo of Spanish produce purchased at the
Havana, from that place to Charleston, where the cargo was
landed, except an insignificant portion of it, and the duties
paid or secured, on a like cargo from whatever port, meant
for home consumption; that the cargo remained on land about
three weeks when it was reshipped for Barcelona in old Spain,
and the duties drawn back, with a deduction of three and a
half p cent as is permitted to imported articles in all cases,
at any time within one year under certain regulations which
were pursued in this case; that the vessel was taken on her
voyage by a British cruizer and sent for trial to Newfoundland
where the cargo was condemned by the Court of Vice Admiralty;
and that the cause was carried thence by appeal to
Great Britain where it was apprehended that the sentence
below would not be reversed.
The ground of this sentence was, and that of its confirmation
if such be the result, must be, that the trade in which
the vessel was engaged was unlawful; and this unlawfulness
must rest, first on the general principle assumed by Great
Britain, that a trade from a Colony to its parent Country,
being a trade not permitted to other Nations in time of peace,
cannot be made lawful to them in time of war; secondly, on
Havana to Barcelona was not broken by landing the cargo
in the United States paying the duties thereon and thus
fulfilling the legal pre-requisites to a home consumption; and
therefore that the cargo was subject to condemnation, even
under the British regulation of Jany 1798 which so far relaxes
the general principle as to allow a direct trade between a
belligerent Colony and a neutral Country carrying on such
a trade.
With respect to the general principle which disallows to
neutral Nations in time of War, a trade not allowed to them
in time of peace, it may be observed;
First, that the principle is of modern date, that it is maintained,
as is believed by no other nation but Great Britain;
and that it was assumed by her under the auspices of a maritime
ascendency, which rendered such a principle subservient
to her particular interest. The History of her regulations on
this subject shows that they have been constantly modified
under the influence of that consideration. The course of
these modifications will be seen in an appendix to the 4th Vol
of Robinsons Admiralty Reports.
Secondly, that the principle is manifestly contrary to the
general interest of commercial Nations, as well as to the law
of Nations, settled by the most approved authorities, which
recognizes no restraints on the trade of nations not at war,
with nations at war, other than that it shall be impartial
between the latter, that it shall not extend to certain military
articles, nor to the transportation of persons in military
service, nor to places actually blockaded or besieged.
Thirdly, that the principle is the more contrary to reason
and to right, inasmuch as the admission of neutrals into a
Colonial Trade shut against them in times of peace, may, and
often does result from considerations which open to neutrals
direct channels of trade with the parent state shut to them,
in times of peace, the legality of which latter relaxation is not
known to have been contested; and inasmuch as a commerce
Colony and other Countries, from considerations which are
not incident to the war, and which would produce the same
effect in a time of peace; such, for example as a failure or
diminution of the ordinary sources of necessary supplies, or
new turns in the course of profitable interchanges.
Fourthly, That it is not only contrary to the principles and
practice of other Nations; but to the practice of Great Britain
herself. It is well known to be her invariable practice in
time of war, by relaxations in her navigation laws, to admit
neutrals to trade in channels forbidden to them in times of
peace; and particularly to open her Colonial trade both to
Neutral vessels and supplies, to which it is shut in times of
peace; and that one at least of her objects, in these relaxations
is to give to her trade an immunity from capture, to which in
her own lands it would be subjected by the war.
Fifthly, the practice, which has prevailed in the British
dominions, sanctioned by orders of Council and an Act of
Parliament (39 G. 3 C. 98) authorizing for British subjects
a direct trade with the enemy, still further diminishes the
force of her pretensions for depriving us of the Colonial trade.
Thus we see in Robinson's Admiralty reports passim, that
during the last war a licenced Commercial intercourse prevailed
between Great Britain and her enemies, France, Spain
& Holland, because it comprehended articles necessary for her
manufactures and agriculture, notwithstanding the effect
it had in opening a vent to the surplus productions of the
others. In this manner she assumes to suspend the war
itself as to particular objects of trade beneficial to herself
whilst she denies the right of the other belligerents to suspend
their accustomed commercial restrictions in favour of Neutrals.
But the injustice and inconsistency of her attempt
to press a strict rule on neutrals is more forcibly displayed
by the nature of the trade which is openly carried on between
the Colonies of Great Britain and Spain in the West Indies.
The mode of it is detailed in the inclosed copy of a letter from
and cargoes, after being condemned in British Courts under
pretence of illicit commerce, are sent on British account to
the enemies of Great Britain, if not to the very port of the
destination interrupted when they were American property.
What respect can be claimed from others to a doctrine not
only of so recent an origin and enforced with so little uniformity,
but which is so conspicuously disregarded in practice
by the Nation itself, which stands alone in contending for it?
Sixthly—It is particularly worthy of attention that the
Board of Commissioners jointly constituted by the British
and American Governments under the 7th Article of the
Treaty of 1794, by reversing condemnations of the British
Courts founded on the British instructions of Novem. 1793,
condemned the principles that a trade forbidden to neutrals
in time of peace, could not be opened to them in time of war;
on which precise principle these instructions were founded.
And as the reversal could be justified by no other authority
than the law of nations, by which they were to be guided, the
law of Nations according to that joint Tribunal, condemns
the principle here combatted. Whether the British Commissioners
concurred in these reversals, does not appear; but
whether they did, or did not, the decision was equally binding,
and affords a precedent which could not be disrespected by
a like succeeding tribunal, and ought not to be without great
weight with both Nations in like questions recurring between
them.
On these grounds the United States may justly regard the
British captures and condemnations of neutral trade with
Colonies of the enemies of Great Britain as violations of right;
and if reason, consistency or that sound policy which cannot
be at variance with either, be allowed the weight which they
ought to have, the British Government will feel sufficient
motives to repair the wrongs done in such cases by its cruizers
and Courts.
But, apart from this general view of the subject, a refusal
is destitute of every pretext; because in the second place, the
continuity of her voyage was clearly and palpably broken,
and the trade converted into a new character.
It has been already noted that the British regulation of
1798, admits a direct trade in time of War, between a belligerent
Colony and a neutral Country carrying on the trade;
and admits consequently the legality of the importation by
the Aurora from the Havana to Charleston. Nor has it ever
been pretended that a neutral Nation has not a right to reexport
to any belligerent Country whatever foreign productions,
not contraband of war, which may have been duly
incorporated and naturalized, as a part of the Commercial
stock of the Country re-exporting it.
The question then to be decided under the British regulation
itself, is whether in landing the cargo, paying the duties,
and thus as effectually qualifying the articles for the legal
consumption of the Country, as if they had been its native
production, they were not at the same time equally qualified
with native productions, for exportation to a foreign market.
That such ought to be the decision results irrestably from
the following considerations:
1st From the respect which is due to the internal regulations
of every Country, where they cannot be charged with
a temporizing partiality towards particular belligerent parties,
or with fraudulent views towards all of them. The regulations
of the United States on this subject, must be free from
every possible imputation; being not only fair in their appearance,
but just in their principles, and having continued the
same during the periods of war, as they were in those of peace.
It may be added that they probably correspond, in every
essential feature relating to re-exportations, with the laws
of other Commercial Countries, and particularly with those
of Great Britain. The annexed outline of them by the Secretary
of the Treasury, will at once explain their character, and
duly complied with.
2d From the impossibility of substituting any other
admissible criterion, than that of landing the Articles, and
otherwise qualifying them for the use of the Country. If
this regular and customary proceeding, be not a barrier against
further enquiries, where it may be asked are the enquiries
to stop? By what evidence are particular articles to be
identified on the high seas, or before a foreign Tribunal? If
identified, how is it to be ascertained, whether they were imported
with a view to the market whether to one forbidden or
permitted by the British regulations; for it is to be recollected,
that among the modifications which her policy has given to the
general principle assented by her, a direct trade is permitted to
a neutral carrier, from a belligerent Colony to her ports, as
well as to those of his own Country. If, again, the landing
of the goods, and the payment of the duties be not sufficient
to break the continuity of the voyage, what it may be asked,
is the degree of internal change or alienation, which will have
that effect? May not a claim be set up to trace the articles
from hand to hand, from ship to ship in the same port, and
even from one port to another port, as long as they remain
in the Country? In a word in departing from the simple
criterion provided by the Country itself, for its own legitimate
and permanent objects, it is obvious, that besides the defalcations
which might be committed on our carrying trade,
pretexts will be given to cruizers for endless vexations on our
commerce at large, and that a latitude and delays will accrue
in the distant proceedings of Admiralty Courts, still more
ruinous and intolerable.
3d From the decision in the British high Court of Admiralty
itself, given in the case of the Polly, Lasky, Master,
by a Judge deservedly celebrated for a profound judgment,
which cannot be suspected of leaning towards doctrines unjust
or injurious to the rights of his own Country. On that
occasion he expressly declares "It is not my business to say
argued, that it would not be sufficient that the duties should
be paid and that the cargo should be landed. If these criterias
are not to be resorted to, I should be at a loss to know
what should be the test; and I am strongly disposed to hold,
that it would be sufficient, that the goods should be landed
and the duties paid." 2 Rob. Reports P. 368–9.
The President has thought it proper that you should be
furnished with such a view of the subject, as is here sketched;
that you may make the use of it best suited to the occasion.
If the trial of the Aurora should not be over it is questionable
whether the Government will interfere with its Courts.
Should the trial be over and the sentence of the Vice Admiralty
Court at St. John's have been confirmed, you are to
lose no time in presenting to the British Government a representation
corresponding with the scope of these observations;
and in urging that redress in the case, which is equally due
to private justice, to the reasonable expectation of the United
States, and to that confidence and harmony which ought
to be cherished between the two Nations.
The effect of the doctrine involved in the sentence of the
Court in Newfoundland, on our carrying trade, will at once
be seen by you. The average amount of our re-exportations
for three years ending 30th Sept. 1803, has been 32,003,921
dollars. Besides the mercantile and Navigation profits, the
average revenue from drawbacks on goods re-exported for
three years ending 31st Dec. 1803 is 184,271 dollars; to which
is to be added an uncertain but considerable sum consisting
of duties paid on articles re-exported after having lost thro'
neglect or lapse of time, the privilege of drawback. A very
considerable portion of this branch of trade with all its advantages,
will be cut off, if the formalities heretofore respected
are not to protect our re-exportations. Indeed it is difficult
to see the extent to which the apprehended innovation may
be carried in theory; or to estimate the mischief which it may
produce in practice. If Great Britain disregarding the precepts
in spoliating or abridging our commerce, by the value of it
to the United States, she ought, certainly not to forget that
the United States must in that case, calculate by the same
standard, the measures which the stake will afford, for counteracting
her unjust and unfriendly policy.
| The writings of James Madison, | |