From James Madison to William C. C. Claiborne, 15 December 1804
To William C. C. Claiborne
Department of State, Decr. 15th. 1804.
Sir.
I have received your several letters dated the 16th., two of 21, 23, 25 Sepr.—2, 3, 5, 8, 16, 19, 20, 22, 26, 27 Octr.—two of 3, 5, 8 & 10th. Novr.—and now inclose your Commission as Governor, with the approbation of the Senate, and sundry other Commissions for Officers of the Territory of Orleans.1 Your letters now acknowledged present two subjects on which the instructions of the Executive seem necessary. 1st. the case of the Barque Hero,2 and 2d. the introduction of slaves into the Mississippi. The Hero, is considered in relation to our neutral obligations as resembling a privateer. The British Treaty except the first ten articles being expired,3 does not effect them in this instance; but the 25th. Art. of the Convention with France of 30th. Septr. 18004 contemplates certain restrictions, respecting privateers belonging to her enemies and their prizes, is required by an impartial neutrality to be extended to her own. Nothing however in the Treaties of the U: States, or the law of Nations makes it our duty to prevent the landing and dispersion of the persons on board the Hero, if they are inclined to do so. With respect to the British persons on board, who may in their turn have become prisoners to the French, it must be observed, that their entrance into our jurisdiction works their liberation and that it would be illegal to continue their detention either on shore or on board the Vessel. The Treaty ceding Louisiana to the United States, gives to Spain no right to introduce Slaves into the Mississippi,5 and she can have the less p[r]etence to it under her present slender relation to the Mississippi, considering that she always maintained a contrary doctrine against the U: States when they had such extensive possessions on that river, and that She has not even yet opened the Mobille to us, notwithstanding the extent of it running through our territories. With respect to the Citizens of Orleans & Louisiana the prohibitions particularly imposed on them will be found in the act instituting their Government.6 I am &c.
James Madison.
Letterbook copy (DNA: RG 59, DL, vol. 14).
1. JM presumably enclosed commissions dated 11 Dec. 1804 for judges Dominick A. Hall and John B. Prevost and 12 Dec. 1804 for Claiborne and John Graham as governor and secretary of the Orleans Territory (Carter, Territorial Papers, Orleans, 9:349–50, 350–51, 351, 352; , 1:476, 477).
3. For the permanence of the first ten articles of the Jay treaty and the expiration date of the following articles, see , 7:573 n. 2.
4. See ibid., 2:477–78.
5. JM apparently referred here to the situation discussed in Claiborne’s letter of 28 Oct. 1804, which was received at the State Department on 5 Dec.
6. The 26 Mar. 1804 “Act erecting Louisiana into two territories, and providing for the temporary government thereof,” which became effective on 1 Oct. 1804, forbade the importation of slaves into the territory except for those already belonging to U.S. citizens coming to settle in the region (, 2:283, 286, 289).