Mr. Jefferson named his own successor. Of the three Democratic candidates, Madison, Monroe, and George Clinton, he preferred Madison now, and urged Monroe to wait patiently as next in succession. Beyond two lives he did not, perhaps, think proper to dictate; and, besides, Clinton was not a Virginian. What little opposition there was to Madison in his own party came from those who feared that he was too thoroughly identified with Jefferson's policy to untie the knot in which the foreign relations of the country had become entangled. Of the 175 electoral votes, however, he received 122; but that was fewer by 39 than had been cast for Jefferson four years before. Of the New England States, Vermont alone gave him its votes, changing places with Rhode Island, which had wheeled into line again with the Federalists.

During the winter of 1808-9, after Madison's election but before his inauguration, he had quietly conferred with Erskine, the British minister at Washington, upon the condition of affairs. Much was hoped from these conferences; but the end which they helped to bring about was the reverse of what was hoped for. Could Madison have had his way, he would probably have preferred that Congress should have left untouched at that session the questions of embargo and non-intercourse; for the tone of the debates and the tendency of legislation naturally led the English ministry to doubt the assurances which Erskine gave that these proceedings did not truly represent the friendly disposition of the incoming President. In answer to those representations, however, there came in April from Canning, the foreign secretary, certain propositions which were so presented by Erskine, and so received by the administration, as to promise a settlement of all differences between the two governments. Erskine was a young man, anxious very likely for distinction; but a laudable ambition to be of service in a good cause made him over-zealous. He exceeded the letter of his instructions, while keeping, as he thought, to their spirit. Probably he mistook their spirit in assuming that his government cared more to secure a settlement of existing difficulties than for the precise terms and minor details by which it should be reached. At any rate, he agreed that Great Britain would withdraw her orders in council provided the United States would maintain the non-intercourse acts against France so long as the Berlin and Milan decrees remained in force. This being secured, he did not insist upon two other conditions—partly because it was represented to him that they would need some action by Congress, and partly because he believed that the essential point was gained by an agreement on the part of the United States to enforce non-intercourse against France while her decrees were unrepealed. These other conditions were, first, that the United States should cease to insist upon the right to carry on in time of war the colonial trade of a belligerent which had not been open in time of peace to neutrals; and, second, the acknowledgment that British men-of-war might rightfully seize American merchant vessels when transgressing the non-intercourse laws against France. He also proposed a settlement of the Chesapeake question, but omitted to say, as Canning had instructed him to say, that some provision would be made, as an act of generosity and not of right, for the wives and children of the men who were killed on board that ship. But when that settlement was accepted by the administration, he failed to resent some reflections from Robert Smith, the secretary of state, on the conduct of Great Britain in that affair, which Canning, when he heard of them, thought should have been resented and their recall demanded, or the negotiation stopped.

On the terms, however, as Erskine chose to present them, an agreement was reached, and the President issued a proclamation repealing the acts of embargo and non-intercourse as against Great Britain and her colonies after June 10. On that day more than a thousand ships, loaded and riding at anchor in all the principal ports in anxious readiness for the signal for flight, spread their wings, like a flock of long-imprisoned birds, and flew out to sea. There was an almost universal shout of gratitude to the new President, who, in the first three months of his administration, had banished the fear of war abroad, and at home was sweeping away involuntary idleness, want, and ominous discontent. Madison had known something of popularity during his long career; but never before had he felt the exultation of riding upon the very crest of a mighty wave of popular applause. But it was one of those waves that collapse suddenly into a surprising flatness. Canning repudiated all that Erskine had done and immediately recalled him. The ships that had gone to sea, under the sanction of the President's proclamation, were permitted by an order in council to complete their voyages unmolested; but otherwise all commerce was once more brought to a standstill. It would have been easier to bear some fresh misfortune than to be compelled to struggle again with calamities so well understood and which it was hoped had been left behind forever. Gallatin had been retained in the Treasury Department and was the President's chief adviser, and the two were now accused of having been either imbecile or treacherous. It was openly said that they had led the young minister to agree to an arrangement which they knew his government would not sanction. But they could hardly have been so foolish as to make a bargain with the certainty that it would stand only so long as a ship could go and come across the Atlantic. Nobody understood better than Madison how grateful a reconciliation with England would be to a large proportion of the people, and nobody was more disappointed that the negotiations came to worse than nothing, inasmuch as their failure led to new embarrassments.

He said with some bitterness, in a letter to Jefferson, early in August: "You will see by the instructions to Erskine, as published by Canning, that the latter was as much determined that there should be no adjustment as the former was that there should be one." He was unjust to Canning; the real fault was with Erskine, and with him only because his zeal outran his judgment. In another letter to Jefferson, the President says: "Erskine is in a ticklish situation with his government. I suspect he will not be able to defend himself against the charges of exceeding his instructions, notwithstanding the appeal he makes to sundry others not published. But he will make out a strong case against Canning, and be able to avail himself much of the absurdity and evident inadmissibility of the articles disregarded by him." Possibly Mr. Erskine considered that his government would approve of his not urging these points too earnestly, inasmuch as the other side refrained from insisting upon the abandonment of impressment of seamen on board American ships. But Mr. Madison's indignation must have covered up a good deal of mortification. He could hardly have been without the sensation of one hoisted by his own petard. It was only two years since Mr. Jefferson, with his approval, had rejected the Monroe-Pinkney treaty because instructions had not been literally complied with. Mr. Canning, in following that example, could have pleaded, had he chosen, much the stronger justification, under the circumstances of the two cases; and Mr. Madison could not fail to remember, without being reminded of it, when this agreement was thrown back in his face, that he had been willing to accept it without any protection of the rights of American seamen, the want of which was the ostensible reason for rejecting the Monroe-Pinkney treaty.

However, the administration was now compelled to meet anew the old difficulties which the Erskine agreement had failed to dispose of. The President's first duty was to issue a second proclamation, recalling the previous one which had sent to sea every American ship in port. They could all come back, if they would, to be made fast again at their wharves, till the recurrent tides at last should ripple in and out of their open seams, and their yards and masts drop piecemeal upon the rotting decks. But many never came back, preferring rather the risk of being sunk or burned at sea, which happened to not a few, or of capture and confiscation by the belligerents whose laws they defied. Erskine was followed by a new ambassador from England, Mr. Jackson. His mission, however, had no other result than to widen the breach between the two nations. A controversy almost immediately arose between the minister and Mr. Smith, the secretary of state,—or rather Mr. Madison himself, who, as he complained at a later period, did most of Smith's work as well as his own,—touching the arrangement with Erskine. Jackson intimated, or was understood as intimating, that the administration must have known the precise terms on which Erskine was empowered to treat with the government of the United States; and when a denial was made with a good deal of emphasis on the part of the administration, the insinuation was repeated almost as a direct charge. Of course there could be but one conclusion to correspondence of this sort; further communication with Jackson was declined and his recall asked for.

It was plain enough in the latter months of Jefferson's administration, to himself as well as to everybody else, that the embargo had not only failed to bring the belligerents to terms abroad, but that it had added greatly to the distress at home. That the measure was a failure, Madison himself acknowledged in one of his retrospective letters written in the retirement of Montpellier, sixteen years afterward. It was meant, he said in that letter, as an experimental measure, preferable to naked submission or to war at a time when war was inexpedient. It failed, he added, "because the government did not sufficiently distrust those in a certain quarter whose successful violation of the law led to the general discontent, which called for its repeal." That is to say, the government relied too confidently upon the submission of New England; was too ready to believe that her merchants would not let their ships slip quietly out to sea whenever they could evade the officers of the customs, nor slip in to land a cargo at some unfrequented place where there was no custom-house. "The patriotic fishermen of Marblehead," he says, "at one time offered their services;" and he regrets they were not sent out as privateers to seize these contraband ships as prizes, and to "carry them into ports where the tribunals would enforce the law." Apparently there was not a reasonable doubt in his mind whether such tribunals could be found in any port along the coast of New England. It is also rather more than doubtful—even assuming that there was much of the kind of patriotism which he says existed in Marblehead—how long, had the government offered commissions to private citizens to prey upon their neighbors, the embargo would have been respected at all east of Long Island Sound. But this was the afterthought of 1826. Madison's policy in 1809-10 was rather to conciliate than provoke "those in a certain quarter." He could not command entire unanimity even in his own party. Congress passed the winter in vain efforts to find some common ground, not merely for Democrats and Federalists, but for the Democrats alone. Various measures were proposed to meet the critical condition of the country. Some were too radical; some not radical enough; and none were so acceptable that it was not easy to form combinations for their defeat. All were agreed that the non-importation act must be got rid of; but the difficulty was to find a way to be rid of it so that the nation should at once maintain its dignity, assert its rights, and escape a war. The President would have preferred that all British and French ships be excluded from American ports, and that importations from both countries should be prohibited except in American vessels; and a bill to this effect was one of several that was defeated in the course of the session. But at last, in May (1810), an act was passed excluding only the men-of-war of both nations, but suspending the non-importation act for three months after the adjournment of Congress. The President was then authorized, when the three months were passed, to declare the act again in force against either Great Britain or France, should the commercial orders or decrees of either nation be continued in force while those of the other were repealed.

If the aim of the dominant party had been to devise a scheme sure to lead to fresh complications more difficult to manage than any that had gone before, it could not have hit upon a better one than this. Hitherto, in all the perplexities and anxieties of the situation, the government had, at least, kept its relations to other powers in its own hands, to conduct them, whether wisely or unwisely, in its own way. It could resent or submit to encroachments upon the commerce of the country, as seemed most prudent; it could close or open the ports, as seemed most judicious; or it could join forces with that one of its two enemies whose alliance promised to secure respect on the one hand, and compel it on the other. But now it had tied itself up in a knot of provisos. It would do something if England would do something else, or if France would do something else. If the proposition was accepted by England and was not accepted by France, then the United States would remain in friendly relations with England, and assume by comparison an unfriendly attitude toward France; and if France accepted the condition and England declined it, then the situation would be reversed. Nothing would be gained in either case that might not have been gained by direct negotiation, and, no doubt, on better terms. But if the proposition now offered should be disregarded by both powers, the situation would be worse than before. This evidently was Madison's view of the question. He wrote to Pinkney, the minister at the Court of St. James, a month after the act was passed: "At the next meeting of Congress, it will be found, according to present appearances, that instead of an adjustment with either of the belligerents, there is an increasing obstinacy in both; and that the inconveniences of embargo and non-intercourse have been exchanged for the greater sacrifices, as well as disgrace, resulting from a submission to the predatory system in force." Not that he wanted war; his faith in passive resistance was still unshaken; embargo and non-intercourse he was still confident would, if persisted in long enough, surely bring the belligerents to terms. But as to this act, he weighs the chances as in a balance. In England some impression may be made by the prices of cotton and tobacco,—"cotton down at ten or eleven cents in Georgia; and the great mass of tobacco in the same situation." He has, however, no "very favorable expectations." But as to France, he evidently is not without hope that she will be wise enough to see that "she ought at once to embrace the arrangement held out by Congress, the renewal of a non-intercourse with Great Britain being the very species of resistance most analogous to her professed views." But he was clearly not sanguine.

If that was his wish, however, it was gratified. Napoleon did take advantage of the act, but in such a way as to reverse the relative positions of the two nations by seizing for France and taking from the United States the power or the will to dictate terms. The French minister, Champagny, announced in a letter merely, in August, the revocation of the Berlin and Milan decrees from the 1st of the following November; and, a day or two after, such new restrictions were imposed upon American trade, by prohibitory duties and a navigation act, as pretty much to ruin what little there was left of it. The revocation of the edicts, moreover, was coupled with the conditions that Great Britain should not only recall her order in council, but renounce her "new principles of blockade," or that the United States should "cause their rights to be respected by the English." Napoleon had in this three ends to gain, and he gained them all: First, to secure France against a renewal of the non-importation act of the United States, if the President should accept this conditional recall of the decrees as satisfactory; second, to leave those decrees virtually unrepealed, by making their recall depend upon the action of England, who, he well knew, would not listen to the proposed conditions; and, third, to involve the United States and England in new disputes, which might lead to war. Everything turned out as the emperor wished. The President accepted the conditional withdrawal of the French decrees, as in accordance with the act of Congress; England refused to recognize a contingent withdrawal as a withdrawal at all; and the result at length was war between England and the United States.

The acquiescence of the President in the decision of Napoleon was the more significant inasmuch as Mr. Smith, the secretary of state, had assured the French government, when a copy of the act of May was sent to it, that there could be no negotiation under the act until another matter was disposed of. A decree, issued at Rambouillet in March, 1810, and enforced in May, ordered the confiscation of all American ships then detained in the ports of France, and in Spanish, Dutch, and Neapolitan ports under the control of France. The loss to American merchants, including ships and cargoes, was estimated to be about forty million dollars. This decree was ostensibly in retaliation of that act of non-intercourse passed by Congress more than a year before, and was, therefore, a retrospective law. The non-intercourse act, moreover, had expired by its own limitation months before many of these ships were seized; but all, nevertheless, were confiscated, though some of them had entered the ports merely for shelter. By order of the President, Smith wrote to Armstrong, the American minister at Paris, that "a satisfactory provision for restoring the property lately surprised and seized, by the order or at the instance of the French government, must be combined with a repeal of the French edicts, with a view to a non-intercourse with Great Britain; such a provision being an indispensable evidence of the just purpose of France toward the United States." The injunction was repeated a few weeks later; but when the emperor's decision upon the decrees was announced, in August, the "indispensable" was dispensed with, and a few months later an absolute refusal of any compensation for the spoliation under the Rambouillet decree was quietly submitted to.

But meanwhile the President, in November, issued a proclamation announcing that France had complied with the act of the previous May and revoked the decrees, while the English orders in council remained unrepealed. But England still had three months, according to the act, in which to make her choice between a recall of her orders in council or the alternative of seeing the American non-intercourse act revived against her. But, it is to be observed, the French minister's announcement of the acceptance of the act of May was not made till August, and then the revocation of the decrees was not to take effect till November. November came bringing with it the President's proclamation, when it soon appeared that there was still to be "tarrying in the eating of the cake." The decrees were to remain in force at least three months longer, till it should be known whether Great Britain would comply with those terms which France—not the United States—made the condition of revoking the orders in council; and if Great Britain did not comply, then the French decrees were not revoked. The legality of the President's proclamation, of course, was questioned. There was, as Josiah Quincy said in debate in the House, the following February (1811), "a continued seizure of all the vessels which came within the grasp of the French custom-house, from the 1st of November down to the date of our last accounts." Other members, not more earnest, were less temperate in the expression of their indignation at what, one of them said, would be called swindling in the conduct of private affairs; while another declared that the President was throwing the people "into the embrace of that monster at whose perfidy Lucifer blushed and hell stands astonished." France knew all this while what England's decision would be. She was ready to rescind the orders in council when the French edicts were revoked, but she did not recognize a mere letter from the French minister, Champagny, to the American ambassador as such revocation. The second French condition, that England should abandon her "new principles of blockade" and accept in their place a new French principle, was peremptorily rejected by the English ministry. That proposition opened a question not properly belonging to an agreement touching the decrees and orders,—a question of what was a blockade, and what could properly be subject to it. Napoleon's doctrine was, not only that a paper blockade was not permissible by the law of nations, but that there could be no right of blockade "to ports not fortified, to harbors and mouths of rivers, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified places." Mr. Emott, a member of the House from New York, said in debate that the United States might well be grateful to both England and France, if they would agree upon this doctrine as good international law; since in that case, as there were no fortified places in the United States, she would never be in peril of a blockade. But it was precisely what England would not admit nor even discuss as relevant to an agreement to revoke the orders and decrees.

To "this curious gallamatry," as Quincy called it, "of time present and time future, of doing and refraining to do, of declaration and understanding of English duties and American duties," was added another ingredient of Madison's own devising. The American ministers in England and France were instructed that Great Britain would be expected to include in the revocation of her orders in council the blockade of a portion of the coast of France, declared in May, 1806; and the President offered, unasked, a pledge to the French emperor, that this should be insisted upon. Whether he meant to make it easier for Napoleon and harder for Great Britain to respond to the act of May is a question impossible to answer; but the opponents of the policy he was pursuing were careful to point out that the act of May said nothing whatever, either of this or any other blockade; that when, the year before, the agreement was made with Erskine, the President did not pretend that the orders in council included blockades; and that it was remarkable that he should forget his own declaration regarding the monstrous spoliation of a few months before by the French, under the Rambouillet decree, and yet remember this British order of blockade of four years before, which everybody else had forgotten. Indeed, so completely had it passed out of mind, that the American minister in London, Mr. Pinkney, was obliged to ask the British foreign secretary whether that order had been revoked or was still considered as in force. It had never been formally withdrawn, was the answer, though it had been comprehended in the subsequent order in council of January, 1807. England refused, however, to recall specifically this blockade of 1806, for that would have been construed as a recognition of Napoleon's right to demand an abandonment of her "new principles of blockade;" but in fact—as the British minister in Washington afterward acknowledged—the recall of the order in council of 1807 would have annulled the order of blockade of 1806, which it had absorbed.

The truth is, the whole negotiation was a trial of skill at diplomatic fence, in which England would not yield an inch to the United States or to France. Madison and his party were more than willing to aid Napoleon; and Napoleon hoped to defeat both his antagonists by turning their swords against each other. A quite different result would have followed had France been as willing as England apparently was that the commercial edicts should be considered without regard to other questions; or if the American Executive had insisted that it would accept their unconditional revocation, pure and simple and not otherwise, from either power, as was contemplated in the act of May, 1810. But instead, when Congress rose in March, 1811, it left behind it an act renewing non-intercourse with England, in accordance with Napoleon's demand that the United States should "cause their rights to be respected by the English." This meant war.