James Madison Papers

To James Madison from William Bingham, 12 September 1802

From William Bingham

London Septemr 12th 1802


I had the Honor of addressing you under Date of the 19 July1 & having then wrote you a very long Letter, must apologize for again troubling you on the Same Subject.

I therein mentioned that the Plaintiffs in the Action in Massachusetts concerning the Brig Hope & her Cargo, had produced on the Trial, Proof that the Cargo was British Property. But however natural, Such an Inference, knowing that they were in Possession of Such Proof, yet I find I was mistaken.

By their Exertions in procuring every Species of Intelligence in Europe (after they had commenced their Action in 1793) which could benefit their Cause, they had obtained in August 1793 of the Same Year, ample Testimony to that Effect. But, on inspecting a Copy of the records of the Trial, before Judge Cushing in June 1794, it is found they made no Use of this Proof.

The Reason for their Suppressing this important Evidence, would appear inexplicable, if there was not a Clue, which unravels the Mystery.

From the Enquiries which have been made on this Subject, there is reason to Suppose, that the Destination of these Funds, being known to the Owners of the Cargo in Europe, an Application will be made for their Surrender, Supported by the Proof which the Owners of the Vessel will produce, of her being Danish Property—about which there is no doubt.

It will be observed that by the Proclamation of Congress of May 9. 1778,2 as well from the Policy of conciliating the Good Will of the maritime Neutral Nations of Europe, as with a View of curbing those licentious & flagrant Aggressions on the rights of Neutral Nations, as had been recently committed, the United States very early adopted the Principle of free Ships making free Goods, which afterwards became Part of the maritime Code of Europe. They in this Proclamation, prohibited their Cruizers from molesting any Neutral Vessels on the high Seas, except they were laden with Contraband Goods, or were carrying Soldiers to the Enemy.

The Commission of this Privateer was not granted untill Sept 1778, as will appear by the records of the Trial.

It is therefore on the Plea of having placed implicit Faith on the Ordinances of Congress, that this Claim will be Supported. The Danish Vessel in Consequence thereof having loaded with British Property—& the Underwriters who are the Representatives of the Owners, as far as the Cargo was insured, having in the Same Confidence made the Insurance proportionably low.

It will be found that the Plaintiffs, aware of the Force of this Plea, had instituted a Suit for the recovery of the Vessel likewise (for which the United States are equally responsible) claiming her as Prize, & therefore, not Neutral.

By Mr Davis’s Letter to the Secretary of State, as late as Nov 1 1796, it will be Seen that the action for the recovery of this Vessel Still continued.3

Now long before this Period, they were in Possession of a Document, which afforded incontrovertable Proof of the Vessel being Danish, derived from the Same Authority, which had informed them that the Cargo was British, as you will observe by the enclosed Copy of the Answers to their Queries, which they had (thro their Correspondent) put to the Shippers of the Cargo at Cork.4

And there is no doubt that this Testimony obtained in Augt 1793, was the only Proof they have ever acquired of the Cargo being British.

But on consulting the records of this very extraordinary Suit in the Circuit Court in 1794, it will be found that this important Proof of the Cargo being British, So calculated to make an Impression, was never produced to the Court or Jury.

The Reason is evident. It would have altogether defeated their Hopes—as well with respect to a Judgment for the Vessel, which was the Object of our Suit, as for the Value of the Cargo, which was the other Point in View—for it will be observed, that the Same Document, that proved the Cargo British, contained the fullest & most unequivocal Testimony that the Vessel was Danish.

Now, Under the Authorities they derived from their Commission, they had no right to molest or capture this Cargo, Sailing under the Protection of a Neutral Danish Flag. On the Contrary there was a Strict Prohibition against it.

In order therefore to obtain Judgment, in the Suit for the Cargo, they relied Solely on the Evidence of a Witness who deposed, that whilst acting in a public Character, I had been in possession of this Property, which their Privateer had Captured, & that I refused to deliver the Same, when he was authorized to receive it from me—& on this Exhibition of Evidence, without any Proof of Prize, was the Verdict of the Jury, under the Direction of the Court, founded. All Testimony to prove by what Authority it came into my Possession, the Destination of the Proceeds, after it was Sold, by order of the General, the release of the Vessel being Neutral, by the Same Orders, & the Papers found on board which ascertained this Point, were all offered by the Council & rejected by the Court.

With Such feeble & unsubstantial Testimony, & a Court & Jury Similarly constituted, & the Same Prejudices excited, they will likewise recover from the United States, the Value of the Vessel—for She too had been captured, & She had been in my Possession. But it is unnecessary to dwell on these Points at present, as they will probably form a Subject of Serious Enquiry.

It is not unlikely that Application from the Claimants of the Proceeds of this Cargo may be made in the first Instance to me, after they have heard of the Destination of these Funds. To be prepared for Such an Event, I must request that you would be So obliging as to enclose to me an authenticated Copy of the Certificate of the Marquis de Bouille,5 which will exhibit the Conditions of the Trust, & will authorize me in referring the Parties to Congress, who will after an Investigation of the respective Claims of the Parties, before a competent Tribunal, form their Decision, & give their Orders for the Delivery of the Balance, (according to the Words of the Trust) to whomsoever they may of right belong.

For my own part, I am most anxious to disburthen myself of these funds, which it is evident I accepted with reluctance, & which have been, Since they were brought back into my Possession, a Source of great Trouble & Vexation. I have the honor to be respectfully sir Your obedt hbe ser

Wm Bingham

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