To Anthony Merry
Department of State June 25th. 1804.
I have had the honor to receive and have laid before the President your letter dated on yesterday, complaining of the steps taken at New York for detaining certain British Ships of War, until 24 hours should have succeeded the departure of certain French Ships; notwithstanding the desire of the British Commander to proceed to Sea, before the time notified by the French Commander for the Departure of the French Ships.
The rule established by the United States, in conformity to general usage, is that no armed Vessel of a belligerent power, shall proceed to Sea within less than 24 hours after the departure from the same Port of vessels armed or unarmed belonging to an adversary power. We readily concur therefore in the general position, that Vessels hostile to each other in the same Port at the same time, are equally free to proceed to Sea in the order of time they may deem proper; the restraint of the rule falling on the armed vessels which may happen to be the followers. You are equally well founded, Sir, in the justice you do to the disposition of the U States to maintain the rule with a sincere impartiality. They will be equally impartial in protecting within their jurisdiction the hostile vessels, each against the other; and in maintaining the rights of their own jurisdiction against either. And the communications which will be made to the proper Officers at New York will not lose sight of these just principles.
Having premised these observations I am to subjoin that the real course of the proceedings of which you complain, does not warrant the inferences into which you have been led.
It appears that on the 17th instant prior to the outrage committed by the British Commander in the American jurisdiction, the Mayor of the City of New York; on the application of the French Consul there, requested of the British Consul, that the British Ships of War might not sail until the expiration of 24 hours after the departure of the French Vessels, which according to the notification given was to take place with the first fair wind. It does not appear, or rather the contrary may be inferred, that the Mayor had either notice or knowledge of any intention in the British Commander to proceed immediately to Sea.
On the morning of the 18th. the Mayor became Officially acquainted with the violent proceedings of the British Commander, within the Port of New York, and suspecting that he would be as ready to insult the authority of the laws in one case, as he had been in another and that he actually meditated a violation of1 the rule of 24 hours, addressed on the same day a request to the Wardens of the Port, that the Pilots might be prohibited from conducting the British Ships out of the Port, until the French Ships should have had the benefit of the rule. This request is founded expressly on his suspicion that the British Ships would follow the French Ships within less than 24 hours after the departure of the latter. And it cannot be d[o]ubted, that after what had passed, he was fully justified in such a suspicion.
It cannot be improper to add, Sir, that whether the measure taken to prevent the departure of the British Ships had or had not any other object, than that of enforcing the rule of 24 hours, it is certain that those who had so flagrantly violated our laws, might well be suspected of an intention to elude the punishment to which they had subjected themselves; and that in that point of view also, every regular step which might contribute to secure the execution of the laws against the Offenders was strictly justifiable. I am &
signed J. Madison.
FC (DNA: RG 59, Notes to Foreign Ministers and Consuls); Tr (PRO: Foreign Office, ser. 5, 42:53–55); Tr (PRO: Nicholls Papers). Second Tr incomplete.
1. Second Tr ends here; the remaining page or pages have not been found.