University of Virginia Library

TO THOMAS JEFFERSON.

Dear Sir,—I got home from my trip to Washington
on Saturday last, having remained there three
days only.[10] You will have seen in the Procln
issued the result of our consultation on the effect
of what has passed on our commercial relation with
G. B. The enforcement of the non-intercourse act
agst her will probably be criticized by some friends,
and generally assailed by our adversaries, on the
ground that the power given to the Ex., being special,
was exhausted by the first exercise of it; and that
the power having put out of force the laws to which
it related, could, under no possible construction,
restore their operation. In opposition to this reasoning,
it was considered that the act of the last
session continuing the non-intercourse no otherwise
excepted G. B. than by a proviso that it should not
affect any trade which had been or might be permitted,
in conformity with the section of the original
act authorising a proclamation in favor of the nation
revoking its Edicts; and that the proclamation in
favor of G. B. was not conformable to that section.

It was not so in substance, because the indispensable
pre-requisite, a repeal of the Orders in Council, did not
take place. It was not so even in form; the law requiring
a past and not a future fact to be proclaimed,
and the proclamation, on its face, pointing to a future,
not to a past fact. This difficulty was felt at the time
of issuing the first proclamation; but it yielded to the
impossibility of otherwise obtaining, without great
delay, the coveted trade with G. B, and an example
that might be followed by France; to the idea that the
mode in which the repeal, though future, of the
orders and of the law, was coupled by the proclamation,
might, on the occurrence of the former, give
a constructive validity to the latter; and to the opportunity
afforded by an intervening session of Congs
for curing any defect in the proceeding. In one respect,
it would have been clearly proper for Congress
to have interposed its authority, as was frequently
intimated to members; that is, to provide for the
contingency, not so much of a disavowal by G. B,
which was never suspected, as of her not receiving
the act of her Minister till after the 10th of June.
Congress, however, never could be brought to attend
to the subject, although it was pressed by several
members, I believe, certainly by Gardenier,[11] on the
general ground, that the Procln, however acceptable,
was not in a form, nor under the circumstances, contemplated
by law. In some of the instructions
given by Mr. Gallatin's circular, a liberty has been

taken having no plea but manifest necessity, and as
such will be before Congress.

Erskine is in a ticklish situation with his Govt. I
suspect he will not be able to defend himself against
the charge of exceeding his instructions, notwithstanding
the appeal he makes to sundry others not
published. But he will make out a strong case agst
Canning, and be able to avail himself much of the
absurdity and evident inadmissibility of the articles
disregarded by him. He can plead, also, that the
difference between his arrangemt and the spontaneous
orders of Apl 26 is too slight to justify the
disavowal of him. This difference seems, indeed, to
limit its importance to the case of Holland, and to
consist in the direct trade admitted by the arrangement,
and an indirect one through the adjoining ports
required by the orders. To give importance to this
distinction, the Ministry must avow, what, if they
were not shameless, they never wd avow, that their
object is not to retaliate injury to an enemy; but
to prevent the legitimate trade of the U. S. from
interfering with the London smugglers of sugar and
coffee.

We are looking out for Mr. and Mrs. Gallatin
every day. Untill they arrive, and we learn also
the periods of your being at and absent from Home,
we do not venture to fix a time for our proposed visit
to Monticello.

Accept my most affectionate respects.

Capt: Coles has been with us since Sunday. I refer
to him for the state of our foreign affairs, with

which he is especially acquainted, to say more than
I cou'd well put on paper.