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necusly assumed could have been
fully sustained. ,
» Kctaliaiio-. is a specific or equiv
alent return of injury for injury re
ceived ; & where it is to operate
through the interest of a third par
t.v, having no voluntary participa
tion in the injury received, the re
turn ought, ns already observed,
to be infected with the most for.
bearing hand.
This is the language of com.
nion fenfc and the cleared cqni
iy. As the light to retaliate rc
fultsmerely from the wrong fuf.
*frreci, it cannot in the narure of
things extend beyond the ex
tent of the differing. There may
often he a dilhculty in applying
this rule with exattnefs, and a
rcafonable latitude may he al
lowable on that consideration.
Bui a manifell and extravagant
departure from the tulc and
find no apology.
What then is the extent of
the injury experienced by G.
Britain from the mealures of
her enemies (o far as the opera
tion of thole measures through
the Li. States can render them
in any sense tcfponlible ?
A mere declaration by a bel*
ligerent, without the intention
or the means to carry it into es.
left, agautil the righs and obli
gations of a neutral nation, and
thence againfl the intered of an
other belligerent, could afford
no pretext to the latter to retal
iate at the expence of the neu
tral. Ihe declaration might give
just offence to the neutral, but
it would belong to him alone to
decide on the coutfe preferibed
by the refpett he owed to him.
lelf. No real damage having ac.
crued to the belligerent, no in.
demnity could accrue.
for the latnc rcafon, a de
claration of a belligerent while
he is known to be either not in
a situation, or not to attend, to
carry but partially into cxccu
tion againd a neutral, to ihe
injury of another belligerent,
could never give more ihan a
right to a com men lu rate red refs
againit the neutral. All remain
ing unexecuted and evidently
not to he executed, is merely
oftenOble, working no injury to
any, unlels it he in the difrefpett
to the neutral, to whom alone
it belongs to relent or dilic
gard it.
Bring the case before us to
this plain equitable ted. The
Ftench decree of Nov. 1806,
undertook to declare the Britilh
ides in a Hate of blockade, to
be inforced if you plcaie againd
the neutral c< inmcrce of the U.
S. on jhe high leas, according
to the faculty poflefled for the
purpose. As lar as it was actu
ally enforced, or an edrfcl refill
ting from an apprehenlion that
it could anil would be enforced,
it was an injury to G. Britain,
for which let it be supposed the
U. States wcie anlwtrable. On
the other hand, as lai as it was
not enforced, and evidently ei
ther would not 01 could not be
enforced, no injury was expe
rienced hy G. Britain, and no
remedy could lie againd the U.
States. Now, !i;, it never was
pretended that, at the date of
the fi llt B 1 it.Hi »order, iflued in
January 1807, any injury had
acc.ned to, or was appiehendcd
by G. Britain, fiom an exccu.
tion ol the French decree againll
the couimeue of the L'. States,
on the tbeaiie of their ncutra
lights : so tar from it, that the
ord>*r ll.md\ sets condemned a:
a meaiure ot retaliation, by ex
prtlsly liating that the fleets o
France and her aiiie>, mficad ol
being abtc to enforce the block
adc ol the Bn ilh dies, were
themiclves conbr.ed to their owr
pcits, by the entire iupeiioiu N
of the Britdh navy: convenin’
*
thus, by the lliangcit of ieaio n
\ i
ings, the feciiritv of G. Britain
againd injury from the French
decree, into a title to commit
injury on a oeutral party. In
the Nov. orders also, whild it
is admitted ibat the French de
cree could not he but unperfed
ly executed, for want of mea is,
it is averted that the intention
of the French decree, and not
she injury accruing from its
operation thro’ the commerce
ot the United States, is the (calc
by which the retaliating injury
againd them is to be mealured.
Such are the pretexts, and
such the principles, on whtch
one great htanch of the lawful
commerce of this country be
came a victim to the fird Britilh
order, and on which the lad or
ders are no v Iweeping from the
ocean all its molt valuable re
mains.
Againd such an unprecedent
ed fyltem of warfare on neutral
rights & national independence,
ihe common judgment & com
mon feelings of mankind mud
forever proted.
I touch, fir, with rclu&ancc,
the qucltion, on which of the
belligerent lidcs the invasion of
neutral rights had its origin. A»
the U. States do not aiquiefce
in these invaiions by either,
there could be no plea for in
volving them in the controver.
fy. But as the Biitifh orders
ha,ve made the decree of France
declaring, contrary to the law'
of nations, the Btitifh iHands in
a date of blockade, the imnrc |
dtate foundation of their deltruc. I
live warfare on our commerce,
it belongs to the fubjed to re
mind your government of the
illegal interruptions and Ipoiia
lions differed, previous to that
decree, hy the neutral commerce
of the U. S. under the proceed'
ings of Britifli ciuizers 6c courts
and for the mod part, in conle
qutnee of express orders of the
government itfelf. Omitting
piool3 ot interior note, 1 icicf
to the exteniive aggrtHions on
the Hade of the U. States, foun
ded on the plea of blockades
never legally tllablilhed accor
ding to recognized definitions;
to the dill more extcnlivc vio
lations of our commerce, with
ports of her enemies not pre
tended to be in a date of block
ade j and to the Britilh order of
council iflued near the com
mencement of the existing war.
This order, besides its general
interpolation against the estab*
billed law of nations, is distin
gudhed by a Ipecial ingrediant,
violat.ng that law as lecognized
by the course of decilion* in the
Britilh courts.
It lubjectsto capture and con
dcmnation all neutral veflels,
returning \vith lawful cargoes,
on the lole conlidcration, that
thiy had in their outward voy
age, depoiited contraband of
war at a hodtie port. If the
commcice of the United States
could therefore in any cale be
rcaionably made the viftim and
the Ipoit of mutual chaiges and
reproaches between belligerent
parties, with refpcct to the prior
ity of their aggrefhons on neu
trtd commerce, Great Britain
mult look beyond the epoch she
I has cholen tor illegal ads of her
I adversary, in support of the al-
I legation on which she founds
, htr retaliating edicts agamiiour
I commerce.
: 1
j But the United States are given
i to understand that the Bt itoh gov
ernment has, as a proof of its in
dulgent and amicable disposition
tow aid* them, mitigated die au
thored rigor it mignt have given
; toil* measures, by certain exc*p
! lions peculiarly lavorvblc to ihe
commercial interests of ihe LT. S.
1 forbear,sir, to express all the
► t motions w ith which such a lan
- j guugc, on sued an occasion, is cal-
I
cnlatrd to inspire a ration wh’ch
cannot for a rn*>*nent be nncnn
kt inus of if* right*, *«r (tiixttke
•or an alleviation • f wrong* regu
lations to admit the validity of
which would be to assume badges
of humiliation rrver worn by an
independent power.
The first of these indulgenries
is a commercia! intercourse with
the dependencies of the enemies
of Great-Britain, and it is consi
di red as enhanced by its being
a deviation in favor of the U- S.
from the ancient ard established
principles of maritime law, pro
hilnting altogether such an inter
course in time of war.
Surely, sir, your government
in assuming this principle in such
terms in relation to the United
States must have foigotten their
repeated and formal protests a
gainst it as these are to be found
in the ditcust-icns and communi
cations of their minister at Lon
don, as well as in explanations
occasionally made on that subject
to the British representative here.
But permit me to a-k more par
ticularly, how it cou'd have hap.
prned that the principle is char
acter iaed as an ancient and estab
lished one. I put the question the
more frerly because it has never
been denied that the principle, as
asserted by our government, was
for the first time introduced dur
ing the war of 1750. It is in
fact invariably cited and described
in all judicial and other official
transactions “ as the rule of 1 750.”
It can have no pretension there
fore to the title of an ancient rule.
And instead of being an estab
lished rule or principle, it is Well
known that Great Britain is the
only nation that has acted upon,
or othrr wise given a sanction to
it. Nay, it is not even an estab
lished pi inciple in the practice of
Great Britain herself. When
fir>t applied in the war of 175 ft,
the legality of a neutral trade with
enemy’s colonies was not contes
ted by it. In certain cases only
of the colonial trade, the allega
tion, was that the presumptive
evidence arriving from circum
stances against the bona fide neu
trality of the ownership justified
the condemnation as of enemy’s
, ~»• %. } .1 me r,.i r i
.. ‘ UIC Ol ■"r
tjon was afterward*, during that
war, converted into the principle
now asserted, it could not possi
bly 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 princi
ple was uever brought into opera
tion. It may be regarded, in tact,
as having been silently abandon
ed ; and within the peiiod of war
since its commencement in 1793,
the manner in which the principle
has been alternately contraitid
and extended explained sometimes
in one v ay, sometimes in another,
rested now on this foundation, now
oil tnat, is no secret to those who
have attended to its history and
progress in tlx British orders of
council and the British courts ol
admiralty.
W ith t|»e exception, therefore,
o! a peiiod, ihe last in modern
times from winch autetitic prece
dents of maritime law will be drawn
and throughout which the United
States more n terested in the ques
tion than any other nation, have
uniformly combated the inovation,
rile principle has not in the British
ti ibunals been in operation for a
longei ttrm than three, four or
live years, whilst in no others has
it ever mad* its appearance but to
receive a decision protesting a
gainst it.
Such is tie antiquity and such
the authority of a principle, the
deviations Iroin which are held out
as so many favors consoling tire
| United States lor the wide spread
destruction ol their legitimate coni’
mercc.
What must he said as to the
other exceptions, which seem to
have been viewed claims on the
gratitude of the United States ? Is
it an indulgence to them in carry
ing on their trad.* with the whole
continent of Liu ope, to be laid un
der the necessity of going first to
a British port, to accept a bniish
licence and to pay a tribute to the
British exchequer, as if we had
been reduced to the colonial situa
tion wnich once imposed these
monopolizing restraints !
"’ha* again mud be said as to
• other features which we see bltn
«'ed on the face of these regula
• liens ? If tbc policy of them be to
subject an enemy to privations,
' why arc channels opened for a
British ttadr with them which are
shut to a neutral trade ? If in oth
er cases, the real object he to ad
init«* neutral trade wul. the enemy,
why is it requirej that nrutral ves
sels shall perform the ceremony of
passirg through a British port,
when it can have no imrigirrable
effect but the known Ik inevitable
one of prohibiting the admission
of the trade m.o the port of dcsti
nation ?
I will not ask why a primary arti
cle of our productions & exports,
cotton wool, is to be distinguished
in its transit, by a heavy’ impost
not imposed on other articles, be
cause it is frankly avowed, in your
explanation of the orders, to be in
tended as an encouragement to Bri
tish manufactures, and a check to
the rival ones of France i I sup
press also, thouch without the
same reason for it, the trqu •T>
why less rigorous restriction are
applied to the trade of the Barbary
powers than are enforced against
that of a nation, such as the U.
States and j n relations such as have
existed between them and Great
Britain ?
I cannot however pass without
; notice the very unwan notable in
novation contained in the two last
; l^ c orders. In one of them, a
certifi CiUc G s the local origin of a
c * r go, although permitted in the
P°ii of departure and required in
tiie port of destination, by regula
i UOn “ Purely domestic in both,
I a °d stricily anaiagous in principle
; «o regulations irvthe commercial
code ot G. Britain is made a cause
of capture on the high seas, and
cf condemnation in her maritime
courts. In the othev, order the
sale of a merchant ship by a belli
gerent owner to a neutral, altho’
a transaction as legal when fair,
a3 a dealing in any other article,
as condemned by a general rule,
without an atom of proof or of
presumption, that the transfer in
the paiiicular case is fraudulent
and the property therefore Iclt in
an enemy.
In p ,t * | uent sees
m the edicts communicated by
you facts assumed which did not
exist; principles asserted which
never can be admitted ; and, un
der the namo of retaliation, mea
sures transcending the limits re
concileable w ith the facts and the
principles, as if both were as cor
rect as they are unfounded. He
sees moreover in the modifications
of this system, regulations viola
ting equally our neutral rights and
our uaiioual sovereignty. He per
suades himself therefore that your
government will see in the justice
ot the observations now made, in
auduiun to those I had the honor
vcroally to state to you in the first
instance, that the United States
are well warranted in looking for
a speedy revocation of a, system
which is every day augmenting
the mass of injury for which the
U. States have ihe best of claims
to redress.
I have the honor to be, &c. &c.
James Madison
The hon. David M. £rsiine > esq.
i&c. U?c. c?V.
EXTRACT
From “ the Critical Review, ”
published in London, in
the present year, vol. 2, page
54 2 34*
“ That reciprocity of deadly
rancor which exilts between the
court of Great Britain and that
of Fra icc, has mitigated them
to itnpoleone rellriction on the
trade of neutrals after another,
to harrals them by fucceHive
vexations, and to load them
with repeated indignities; every
neutral power, that might miti
gate the evils of war, seems like
ly to be precipitated into that
ahyfs of deltruttion, which is
prepared by the unrelenting furv
ol the belligerents. If any
neutral veHei which has touched
at a Brittfh port, though only
from fltels of weather, lhould !
, enter the harbours of France,!
her cargo is to be confifcatej
and her crew imprisoned. And
on the com?ary, Great Britain
declares thatevery neutral vessel
which is found entering a f rench
port without having come im.
medially from G. Britain, (hall
be liable to capture as lawful
prize. In such a (late of things,
neutrals are reduSed to what
may. bt called a dilemma of dc
druftion, Whatever course they
adopt, spoliation and captivity
(fare them in the face. Under
the confining prohibitions of
England and France the com
merce of thole powers, who are
in a (late of amity with the
belligerents, is placed under an
interdict of examination. No
neutral can any longer experi
ence either relpefl or security
on the ocean, which, if the
prelent (late of barbarian war*
(are continues, will soon be
covered with piratical instead
of neutral flijps. Emerprifing
robbery will be (übllituted for
mercantile (peculation. I’he lea
will Iwarm with marauders, as it
did belore the relation of juflice
ware ackowlcdged among na«
tions. Os that fyflem of unlimi
ted outrage which had begun
to be practiced on the ocean,
the guih, though not inclusively
confined to England, mult at
leall be thought to belong-a»
much to England as to France.!
1 he reitricltions which we have!
(rom the beginning imposed onl
the intercourse of neutrals with!
the enemy, have caused diverlel
modes of retaliation on the parti
of f ranee, which have again en-1
gendered a (pirit of more infu-i
riated animosity in the councils!
of Great Britain. We hav*l
always been of opinion, that then
commerce of neutrals ougt to bol
I nfettered with reflriClions. Thdfj
c alamities of war arc great en* i
ough of themselves, and whjwj
f b°.Vl4.jjnerea(c them by
be laid, will you allow a n cut rail
Hate to supply your enemy wit|H
military (tores ? We will answer .
this question by asking in return*
when, in all the wars which havf |
occurred between France St En*j
gland, did France ever makofl
peace (or want of steel for
Iwords, iron for muskets, or off
gun-powder or ammunition
If notwithllanding all the accu*
mulated wrongs which we have
committed in our endeavor toJ
prevent neutrals from fupplyingff
our enemy with what we cals/
contraband of war, that enem)B
can always obtain a luihcient
supply not withllanding oufj|
utmoil prohibitions, why fhould|
we did refs the trade of ouf
friends in order to a fancied iikS
jury to our foes ?
It appears to us, that the
tercourfe which fubftds betweejfl
neutrals and other dates in liraiM
ot peace, ought to experienciW
no interference in time of war*
For the relation between a netuE
tral and any two belligerently, j
is not altered by their reciprocal |
hodiiities. A neutral cor.tintu®
friendly to both ; and if htf I
trade in particular t
(hould be more
to one of the parties than tljH
other, yet neither is excluded 1
from the the benefits; the vertfj
idea of neutrality is oppodte ta 1
that of preference ; and if M l
neutral (hows no undue prdojlM
ence to our enemy we have no I
realon to complain. W hpi
(hould not America, or are!
other neutral, be allowed to few J
her produce where it will fetiH
ihehighelt price? Iftwo iAd>v£.|
tiuaU disagree, are they judiftflf
in rendering th. quarrel
to a third, who is no part in
uilpute, but who is willing 1© J
carry on a friendly correfpu#P|
uence with both ?* The occaal