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Classics Review: Grading Madison's Examination

By: Patrick J. Garrity
November 12, 2012

On January 16, 1806, Massachusetts Senator John Quincy Adams, upon entering the Senate chamber, found that copies of a pamphlet had been placed on the members' desks. The document, An Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace, offered a detailed legal and historical argument against predatory British maritime practices and a defense of the neutral carrying trade. No author was listed but it soon became known that the secretary of state, James Madison, was the responsible party.

Adams's initial reaction was that "he appears to me, to undertake proving rather too much; and not confine himself to the single question in controversy." The document, in truth, was sprawling, unreadable to all but the most dedicated student of the arcane features of the shipping industry and maritime law. It took Adams, who was such a student, nearly a week to work through it. On reflection, he decided that Madison was on to something—"I am, upon the whole, much pleased." Adams had never been particularly well-disposed to the taciturn Virginian who, after all, had been Thomas Jefferson's right-hand man in ousting his father from the presidency and whose approach to international relations, in Adams's view, was suspiciously theoretical and subject to the fashions of the French Revolution. Adams now began to take Madison much more seriously as a defender of the American national interest, rightly understood.

We cite Madison's Examination as a classic of American strategy and diplomacy because it set the stage for one of the last, and in the end unsuccessful, efforts of the Jeffersonian Republicans to realize one of the principal goals of the Revolution in international affairs (see the November 2012 Note on Strategy and Statesmanship, "The Founding and the Law of Nations"). The founders—including Adams's father—had hoped that entrance of the United States into the Euro-Atlantic state system would bring about a new configuration of international power, one favorable to liberty and reformist domestic politics. This more peaceful and republican world would be underwritten by norms of international behavior that followed an increasingly liberal law of nations. The United States, although politically non-aligned, would simultaneously promote the law of nations and American commerce. American diplomacy was to promote free trade along both axes—in peacetime (trade as free as possible) and in wartime (ideally following the principle of "free ships make free goods"). The American approach was formulated in conscious opposition to the highly restrictive Navigation Laws of Britain (which had their counterparts in other nations) and to London's hostility to any sort of neutral maritime commerce in wartime.


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The American revolutionaries believed that by promoting law-governed international commerce, particularly the rights of neutral commerce, they would not only enhance national prosperity, they would also promote moderate relations among nations and strengthen the forces of liberalism within regimes of all types. The old warlike international system, by contrast, retarded progress because it strengthened interests most inimical to liberty and reform. War led to the accumulation of power by the government at the expense of the people. The Americans hoped that once neutrality was widely seen by the nations of Europe as being more profitable than belligerency, a virtuous circle would develop that reinforced neutral rights and that restricted the size and frequency of wars. They would also come to see that expansive trade with the United States was part of this virtuous circle. Even belligerents would find that the advantages of expansive trade with the United States would exceed the perceived disadvantages of American commerce with the enemy (excepting a narrow category of contraband that was clearly intended for military purposes, such as musketry and gunpowder), especially if the enemy failed to liberalize its own commerce.


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Or so the theory went. The experience of the 1790s, when the United States had suffered from the maritime seizures of both Britain and Revolutionary France, was less promising. The original American party system emerged in large part because of a disagreement among political leaders over which belligerent nation was primarily at fault, and over the best way to maintain American security in light of a war where neutral rights were under general assault. The nascent Republican interest led by Jefferson and Madison fingered Britain as the principal culprit. Jefferson focused on the ideological threat: he regarded the English Constitution as a "half-way house" between monarchy and republican government that would seduce his countrymen to abandon their experiment in liberty. Both men feared that continued English domination of the American economy would provide the closet monarchists—the Federalists—with the means to subvert the new government. In Congress, Madison had proposed unsuccessfully a series of measures that would have discriminated against British trade, both as a means to free the United States from the moneymen of England but also to provide the United States with the means to coerce the British into abandoning their reactionary view of the law of nations.

The alternative, Federalist point of view held that strong commercial connections with the world's leading economic power, England, were necessary in the short-term to see that the new federal government had the resources to succeed. They also believed that French Jacobinism was much the greater ideological threat to ordered liberty. The Federalists insisted that England was not truly vulnerable to economic coercion and that, if push came to shove, the United States lacked the military means to enforce its view of neutral rights. Although President Washington was not unsympathetic to Jefferson and Madison's point of view about English perfidy, he concluded reluctantly that some temporary accommodation must be made to the British position concerning trade and neutral right. The result was the Jay Treaty (1794), much despised by the Republicans as a sell-out to London and as an abandonment of future means of economic coercion. The Jay Treaty also served as a pretext for France to go after American trade in retaliation. The French had pressed things to the point where President Adams and the Federalist-led Congress engaged in a Quasi-War with the Directory, often in tacit cooperation with the Royal Navy.

As part of this Anglo-American rapprochement, the British treated American commerce relatively well. For instance, in the 1800 Polly case, a British maritime court allowed for "broken" or "indirect" voyages by neutral (American) ships. Commercial vessels of non-belligerent powers were allowed to carry non-contraband cargo between the French and Spanish West Indian colonies and non-blockaded ports in Europe, if they first entered neutral (American) ports and off-loaded their cargo. The voyage was legally "broken" if the cargo was inspected and subject to duties, even if some or all of it was eventually reloaded and shipped to its final destination on the continent. (The details of maritime law are many and complicated, and I trust the reader will forgive my oversimplification of the cases involved, in order to move the story along.) As far as the Americans were concerned, this practice was an improvement on the law of nations as well as a profitable avenue for merchants and for the U.S. government.


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Britain and France (now ruled by Napoleon) observed an uneasy truce from 1801-1803. When their struggle broke out again, the American carrying trade prospered. The newly-elected Republican administration, with Madison as secretary of state, did not adopt an anti-British policy despite his well-known Anglophobia. President Jefferson sent word to Paris warning that the United States might be forced into an alliance with Great Britain if Napoleon occupied New Orleans as part of an agreement with Spain to return the province of Louisiana to France. The Louisiana Purchase solved the immediate problem but Jefferson and Madison still toyed with the idea of a new treaty of amity and commerce with Britain, which they expected would provide them with leverage to resolve outstanding issues with Spain should France fail to press its Spanish ally to cooperate with the United States. The Republicans were perfectly willing to apply Realpolitik to their relations with Europe, but they insisted that they were still operating within the accepted bounds of the law of nations and national honor, as well as the principle of non-alignment.

The relatively good times were not to last. Britain, under the weight of French successes on the continent, started again to exert pressure on American maritime commerce. In 1805 Britain began to seize American ships sailing from the West Indies on the grounds that they carried contraband on the outward voyage. The British had a long habit of suddenly seizing neutral commerce on the basis of secret Orders in Council, and often discovering legal justifications after the fact. (For their part, American shippers, going back before the Revolution, had developed a well-earned reputation for ingeniously finding licit and illicit ways to work around British attempts to restrict commerce.) About this time, the impressments of American seamen also increased.


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Madison protested to the British minister in Washington, Anthony Merry, and sent detailed instructions along the same lines to the American minister in Britain, James Monroe. Madison soon learned of a British maritime court decision, theEssex case (1805), which (with some qualifications) made "broken voyages" illegal. The Court found that these voyages under neutral flags were not protected because they were direct in intent, if not in fact. Colonial goods could enter the United States for domestic consumption only. Ships found to be violating this rule were liable to capture and confiscation without compensation. What was worse, the decision was based on the infamous (to the Americans) Rule of 1756, which held that trade closed to neutrals in time of peace was also closed to them in time of war. Given the formally restrictive colonial systems of France and Spain, if the Rule was ever strictly enforced by the Royal Navy, it would mean the end of the American wartime carrying trade (subject to whatever work-arounds the ingenious Americans could come up with). For men like Madison, the Rule of 1756 was an abnegation of the American vision of a commercial world in which free ships made free goods. The Rule was seen as the foreign policy equivalent of the Declaratory Act of 1766, which claimed Parliament's supreme authority to make laws binding on the American colonies.

Madison decided it was necessary to take on the Rule of 1756 directly. From the Library of Congress, and from his own files, he assembled a collection of works by recognized international law theorists (such as Martens and Vattel), treaties, admiralty court decisions, and volumes of the Annual Register from 1758-1797. He spent three months over the summer of 1805 developing an attack on the "predatory" doctrine "that a trade not open in peace is not lawful in war." (This intense period of study was reminiscent of Madison's research and writing in 1786-1787, which prepared him for what became the Constitutional Convention.) His findings, he wrote to Jefferson in October, "will I think fully establish the heresy of the British doctrine and present her selfishness and inconsistency in a light which would be prudent for her to retreat from." Jefferson agreed—he told a correspondent that Madison had "pulverized" the Rule of 1756, "by a logic not to be controverted."


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The result was the aforementioned 204-page pamphlet (70,000 words), An Examination of the British Doctrine, which found itself on the senators' desks. Madison originally intended it to be sent to Congress by the president but decided later that it would be issued anonymously. The pamphlet was widely circulated throughout the country and Europe, including in England, where Monroe saw that it reached Parliament, the Ministry, and influential figures. Madison aimed to convince Americans of the need to stand firm on moral and practical grounds, and to persuade fair-minded Britons and other Europeans (whether acting from enlightened or self-interested motives) of the superiority of the American position on neutral rights.

Madison began with the basic assumption of the American Revolution that any interpretation of international law should favor peace and free trade. As to the matter at hand:

First. The general rule being, that the trade between a neutral and belligerent nation is as free as if the latter were at peace with all nations, and the cases in which it is not as free being exceptions to the general rule, the exceptions, according to a received maxim of interpretation, are to be taken strictly, against those claiming the benefit of the exceptions, and favorably for those claiming the benefit of the general rule.

Secondly. The exceptions being founded on a principle of necessity, in opposition to ordinary right, the necessity ought to be evident and urgent. In proportion as the necessity may be doubtful, and still more, in proportion as the sacrifice of neutral interests would exceed the advantage to the belligerent, the exception fails.

Thirdly. The progress of the law of nations, under the influence of science and humanity, is mitigating the evils of war, and diminishing the motives to it, by favoring the rights of those remaining at peace, rather than of those who enter into war. Not only are the laws of war tempered between the parties at war, but much also in relation to those at peace.

 

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The general rule, according to Madison, being that of freedom of commerce, the onus was on the belligerent seeking to close down trade to make a compelling case otherwise, not on the neutral power seeking to protect its rights. Madison asked whether Britain could make such a case on behalf of the Rule of 1756. He surveyed five areas that could decide the issue one way or the other (and here entered the fray in mind-numbing detail): "Firstly—by the writings most generally received as the depositories and oracles of the law of nations." None of these, according to Madison, gave any support to the principles behind the Rule of 1756. "Secondly—by the evidence of treaties." Madison's research concluded that Britain herself had signed 32 treaties since the peace of Westphalia that repudiated the Rule, at least by implication. "Thirdly—by the judgment of nations, other than Great Britain." Madison pointed out that no admiralty court elsewhere had ever attempted to apply the Rule of 1756. "Fourthly—by the conduct of Great Britain herself." Many British courts had repeatedly ruled against it, including those presided over by influential jurists such as Lord Mansfield and Sir William Scott. "Fifthly—by the reasoning employed in favor of the principle." Here, Madison identified and challenged the operative assumption of Britain in the Rule of 1756, that of might makes right.

And thus we are arrived at the true foundation of the principle which has so often varied its attitudes of defence, and when driven from one stand, has been so ready to occupy another. Finding no asylum elsewhere, it at length boldly asserts, as its true foundation, a mere superiority of force. It is right in Great Britain to capture and condemn a neutral trade with her enemies, disallowed by her enemies in time of peace, for the sole reason that her force is predominant at sea. And it is wrong in her enemies to capture and condemn a neutral trade with British colonies, because their maritime force is inferior to hers. The question no longer is, whether the trade be right or wrong in itself, but on which side the superiority of force lies? The law of nations, the rights of neutrals, the freedom of the seas, the commerce of the world, are to depend, not on any fixt principle of justice, but on the comparative state of naval armaments, which itself may change at every moment, may depend on the event of a battle, on the skill of an admiral, on the tack of the wind; on one of those thousand casualties which verify the admonition, that the battle is not always given to the strong, any more than the race to the swift.

 

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What the British were actually about, Madison concluded, was to use the excuse of military necessity to gain a virtual monopoly on the colonial trade—indeed, all trade—going forward, including in peacetime. This meant destroying the American maritime industry. The Essex decision and the Rule of 1756 was "a mere project for extending the field of maritime capture, and multiplying the sources of commercial aggrandizement; a warfare, in fact, against the commerce of her own friends, and a monopolizing grasp at that of her enemies." Madison cited two practices to this end:

1st. Whilst Great Britain denies to her enemies a right to relax their laws in favor of neural commerce, she relaxes her own....

2nd. Whilst she denies to neutrals the right to trade with the colonies of her enemies, she trades herself with her enemies, and invites them to trade with her colonies.

 

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At about the same time that senators and other interested parties were perusing Madison's monograph, they would have seen a tract from a British attorney with strong ties to William Pitt's Ministry, James Stephen. The War in Disguise; or, The Frauds of the Neutral Flags, was, as the title suggested a diatribe against neutral commerce.

The date of The War in Disguise (October 1805) might suggest that Madison's Examination was written as an answer to Stephen, but in fact it was the other way around. Stephen had been tipped off to the contents of Madison's original protest of April 1805, made to the British government through Monroe. It was therefore not unreasonable for leaders on both sides of the Atlantic to read The War in Disguise as reflecting, or prefiguring, British policy towards the United States. Stephen later denied that his tract had been written with the knowledge or guidance of the British government; but in fact both Sir William Scott, Judge of the High Court of the Admiralty, and Prime Minister William Pitt saw it in draft form and encouraged its publication. It staked out Britain's line of policy without the government having to take an official position, at least for the moment.

Stephen argued for vigorous enforcement of the Rule of 1756. The neutral carrying trade, he contended, benefited only the neutrals—and Napoleon. The French flag had been swept from the sea, yet the French economy prospered because French commerce now flew under foreign, principally American, flags. British sea power was an essential part of the nation's defense; it distressed the enemy and provided military advantages. Britain (or any nation controlling the seas) had the power and right to establish one rule for neutral trade with its own colonies, and the opposite rule for its enemies, and to enforce that prohibition at its own discretion. If Britain chose to relax the rule and did not enforce its rights in particular instances, that was a matter of policy exercised by a superior power, but not the recognition of the rights of neutrals. Britain was always entitled to adopt new rules (such as the Essex decision) to allow for the confiscation of neutral ships that adopted evasive tactics like the "broken voyage." Stephen dismissed the possibility of any sort of effective resistance by neutral powers, specifically the Americans. "Should, however, the neutral powers be insane enough to go to war with us for the sake of the colonial trade," or should the United States attempt to coerce the British through an embargo or commercial restrictions, Britain held the trump cards—it could license British trade with enemy countries, and smuggle British manufactures into the United States.

Stephen went further: the suppression of neutral trade would help restore British maritime preeminence after the war. The enforcement of the Rule of 1756 would shift the carrying trade from the United States to Britain.


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The erratic and acerbic John Randolph, once the leader of the Jeffersonian Republicans in the House of Representatives but now an opponent, also did not think well of Madison's arguments. He theatrically flung An Examination of the British Doctrine down on the floor of the House, calling it "a shilling pamphlet hurled against eight hundred ships of war." Might, in the case, did make right. Or at least resistance to might was extremely bad policy when might, contrary to Madison, had the better case. The neutral carrying trade with the West Indies was an artificial, temporary creation—"a mushroom, a fungus of war," not worth defending. It was unlike the honest, healthy peacetime trade of shipping American produce, primarily agricultural, to Europe, and receiving European products in return. Further, Randolph declared that Napoleon was the real enemy of America and that England's treatment of neutral commerce reflected the dictates of necessity. In 1776 and 1793 (when England declared war on Revolutionary France), England indeed had been the aggressor and true enemy of America, but things had since changed—"she is the sole bulwark of the human race against universal dominion."

John Quincy Adams had a rather different reaction to the pamphlet war. When he read The War in Disguise, he was outraged. It confirmed what he had always believed lay behind British naval policy—the desire to destroy American commerce and restore the United States to a position of colonial dependency. When his cousin William Shaw published an even-handed review of Stephen's pamphlet in the Monthly Anthology, Adams complained loudly. "A Reviewer of the British Pamphlet ought to have been able to refute its sophistries, and detect its injustice under all the splendor of its diction, and the fascinations of its style." Napoleon's grandiose plans to conquer Europe, Adams believed, were doomed to failure on their own merits; the universal dominion to fear was that of British maritime hegemony.

Both Randolph and Adams identified one fundamental gap in Madison's argument—he suggested no course of action. "After all, what does it contain?" Randolph asked. "A remedy for the evil? No; a formal declaration that we are diseased! Sir, we wanted no ghost to tell us that."

The Jefferson Administration clearly did not want to use force; that would place in jeopardy its plans to limit government and retire the national debt. War militarized society. The administration wanted to build gunboats and coastal defenses, not ships of the line. But Jefferson and his secretary of state also rejected the pacific Federalist solution: that of protests for the record, followed by accommodation and working around British maritime policy through various licit and illicit means, a time-honored American tradition. (The Federalists, generally speaking, represented the views of the merchant interests most affected). That left Madison's long-standing preferred course, commercial coercion: selective or comprehensive restrictions on imports, embargoes, and the like. Even here, the Jefferson Administration tread lightly. It allowed Congress to set the agenda, although making its preferences known indirectly and tilting, at least initially, towards the least aggressive means.


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As Britain and France became engaged in all-out economic warfare, with a series of competing decrees, orders-in-council, and blockades, Americans found themselves caught between the hammer and the anvil. The administration, following its legal and strategic logic, found itself forced to support ever-more draconian measures to control American trade in order to use it as a weapon of diplomacy. This included the disastrous total Embargo of 1808-09, which sent the American economy into a tailspin and which put the country on the verge of a civil war. Jefferson and Madison insisted that the Embargo would have succeeded in time had traitorous Federalists not sabotaged the attempt; but the arguments in theExamination, and similar forms of advocacy by the administration, lacked sufficient persuasive power to convince Americans to endure indefinite economic hardship in the defense of the Republican theory of national security and neutral rights. This was true in part because the Examination and its counterparts lacked a comprehensive, geopolitical assessment of America's position in the world as it was, not as it would like to be.

The wars of the French Revolution and Napoleon, and the resulting political reaction throughout Europe, destroyed the possibility of a liberal, enlightened republic of nations to which sophisticated American arguments about the law of nations (and about enlightened self-interest) could appeal successfully. And so the War of 1812 came, under President Madison, as the only way out of the box created by Republican policy and circumstances. The distinguished diplomatic historian Bradford Perkins concluded that "An Examination of the British Doctrine, the chef-d'oeuvre of Madison's secretaryship, properly reflected his strengths and weaknesses."