James Madison Papers

From James Madison to George W. Erving, 27 April 1803

To George W. Erving

Department of State, April 27th. 1803.


The enclosed statement contains the case of Mr. Hunter of Philadelphia, whose Vessel, called the Mary Ann, being on a voyage from Cape Francois to Havana, was captured by the Lark British Sloop of War, carried to Jamaica and there acquitted. On her clearing from the latter place, she was provided with a passport by Capt. Loring of the capturing Vessel, notwithstanding which she was again captured by a privateer of New Providence, and ordered thither; but on the passage the Americans who had been left on board, by securing the arms of the prize-crew peaceably obtained re-possession. Being however captured a third time, she was carried to New Providence and condemned with her Cargo, and the owner obliged to pay costs. The sole pretext for the condemnation is stated to be the rescue from the possession of the first privateer. Mr. Hunter had directed Messrs. David Fowler & Son of London to prosecute an appeal, which they commenced but afterwards abandoned without his sanction. Having been much from home and subjected to a variety of misadventures in the interval, he is to make an affidavit, accounting for the abandonment of the appeal, and the omission till now of reviving his claim for redress. This will be forwarded to you. Two aspects of the affair are discouraging. 1st. The rescue, if it be supposed equivalent to a resistance to making the capture, would by the practice of the British Admiralty subject to condemnation, and 2d. The loss of the appeal both by the abandonment and by the lapse of the time limited for its prosecution in ordinary cases. As to the first, it may be said to be the duty of the captors after a peaceable surrender is made to them to use due vigilance in preserving the capture; that the principle appealed to in support of the condemnation if not indispensably applicable ought not to be extended to a case in which the original captor so far misbehaved himself as to disregard a clearance from a British port, and the passport of a British naval commander; that the seizure was made obviously without probable cause and therefore the neutral might be excusable for doing himself right without a resort to actual violence, more especially as the misconduct of the captors was such as to raise a presumption of their being pirates. It is not known whether the form of withdrawing the appeal was such as to operate as a bar to another, or whether in any case a second appeal is admissible after the first is abandoned. If neither of these circumstances are adverse or irremediable, the statute 38 George 3d..c.38.531 sanctioning an application to the King in Council for leave to appeal though the oridinary [sic] time is expired.2 When Mr. Hunter shall have made provision for the expences of the appeal, you will be pleased to consult with the American Minister whether it be advisable to make the attempt to institute one. In that case he can probably by official or other representations contribute much to promote a decision, such as is desirable, both upon the right to appeal, and the question of reversing the condemnation. In what proportion the condemnation has benefited the first capturing privateer, Mr. Hunter has not furnished the means of ascertaining, but it is believed, that the British Government would not approve of their receiving such a compensation for their irregularity in seizing the American; nor is there more merit in the privateers which captured her after the rescue. I am &c.

James Madison.

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