Madison, On British Policy

[James Madison, secretary of state during the presidency of Thomas Jefferson,  was very critical of British foreign policy. Madison made an exhaustive study of seventeenth- and eighteenth-century international law and, in 1806, published An Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace. Madison drew upon treaties, international law practice in admiralty courts, and the treatises of such writers as Grotius, Pufendorf, Vattel, and Martens to set forward the concept of the freedom of the seas. He demonstrated that international law held that if a ship was neutral during a war, the goods on board were also neutral--in other words, "free ships make free goods." Against this, Britain had issued its Rule of 1756, which stated that a neutral could not during wartime engage in a trade that was prohibited during peacetime. The Rule of 1756 was enforced by the British Navy and Admiralty Courts but, Madison demonstrated, it was unilateral and had not become part of international law.

Madison, as secretary of state, was expressing his concerns in the following letter, 29 March 1807, to David Erskine, the British minister to the U.S.]

[The British policy] demands on the part of the United States the most serious attention, both to its principle, and to its operation.

With respect to its principle, it will not be contested that a retaliation by one nation, on its enemy, which is to operate through the interest of a nation not an enemy essentially require not only that the injury inflicted should be limited by the measure of injury sustained, but ... should be preceded by an unreasonable failure of the neutral party, in some mode or other, to put an end to the inequality wrongfully produced.

The United States are bound by justice to their interests, as well as by respect for their rights, to consider the British order as a ground for serious complaint and remonstrance.

The necessity of presenting the subject in its true light, is strengthened by the operation which the British order will have on a vast proportion of the entire commerce of the United States.

It cannot be overlooked that the character and course of nearly the whole of the American commerce, with the ports of Europe, other than of Great Britain, will fall under the destructive operation of the order. It is well known that the cargoes exported from the United States frequently require that they be disposed of partly, at one market, and partly at another. The return Cargoes are still more frequently collected at different ports, and not infrequently at ports different from those receiving the outward Cargoes. In this circuitous voyage, generally consisting of several links, the interest of the undertakers materially requires also either a trade or a freightage, between the ports visited in the circuit. To restrain the vessels of the United States therefore from their legitimate and customary mode of trading with the Continent of Europe, as is contemplated by the order, and to compel them, on one hand, to dispose of the whole of their cargo at a port which may want but a part, and on the other hand to seek the whole of their returns at the same port, which may furnish but a part, or perhaps no part of the articles wanted, would be a proceeding as ruinous to our commerce, as contrary to our essential rights.