To Anthony Merry
Department of State July 3d. 1804
I have had the honor of receiving your letter of the 28th. Ult with the several papers under the same cover.
On a recurrence to mine of the 25 to which it replies you will find that you have erred in supposing me to have said that the Mayor of New York, at the time of the order concerning the Pilots, had neither notice nor knowledge of any intention in the British Commander to proceed immediately to Sea. The context shews that this want of notice or knowledge necessarily referred to the time of his application at the request of the French Consul to the British Consul for the detention of the British Ships, not to the time of the order concerning the Pilots, and was considered as a justification not of that order, but of that application. The letter of the British Consul to the Mayor1 signifying, tho’ in terms not a little inexplicit that the British Commander intended to proceed to Sea immediately (a copy of which letter, dated on the same day with the order of the Mayor, you had been pleased to transmit to me) was admitted to have been received before the order was issued. The justification of the order was accordingly rested on a previous knowledge by the Mayor of the gross misbehaviour of the British Commander and on his suspicion justified by that misbehaviour alone, that if not deprived of Pilotage, he would avail himself of it, not only to proceed to Sea immediately; but to follow the French Ships from a convenient station, before his so doing would be lawful.
I shall not controvert your observation, that a mere suspicion would not justify a municipal Officer in detaining the Ship of war of a friendly power, but that surely can never be admitted to be a mere suspicion which is supported by such a proof of audacity and contempt for law, as had been given by Captain Bradley.
Still less can it be admitted to be more proper to claim (I will not permit myself to cite the term “solicit”) justice on the Offenders against the laws of the UStates: from the Government of the offenders to employ against them the precautions and punishments which the laws themselves have provided. Nor will I dissemble Sir my surprise at your suggestion of the former course as in any manner due to the harmony and friendship happily subsisting between the two Nations. I need not remind you that there is but one class of foreign Officers which is unameanable [sic] to the Municipal laws.2 Naval and Military Commanders, notwithstanding certain courtesies arising from respect to their stations and to their Sovereigns, and warranted by a presumption of their voluntary obedience to the laws, are like all others within the Municipal jurisdiction subject to it; and in all cases more especially where those courtesies have been justly forfeited, the independence and honor of a Nation require that the laws should be their own avengers. And I feel a pleasure Sir, in doing justice to your Government by inferring from the sanction which its own practice gives to this principle, that the U. S. by enforcing the principle will command its esteem instead of losing any portion of its friendship.
A resort in the first instance by the Offended Government to the Government of the Offenders, belongs to cases only where they may escape from the penalties of the laws which they have violated, or where a part of the just satisfaction depends necessarily on their own Government. And it is not improper Sir, here to repeat what I had the honor of intimating in conversation, that in every event, it will be expected from the justice of your Government, from the respect which it owes to itself, and from its friendship for the UStates, that an exemplary and unequivocal mark of its displeasure will be experienced by the Officer who has shewn himself so unworthy of the authority committed to him.3
The outrage committed in the harbour of New York divides itself into three Offences 1. a violation of the health regulations of the Port, including a resistance to the Officer of the state in the execution of his duty. 2. a violation of the revenue laws of the U States, including a like resistance with insulting language to their Officer in the execution of his duty. 3. The taking by force, from a ship within the jurisdiction of the US. of a number of Persons under the protection of the laws, and with a view to strengthen a hostile armament to be used against a Nation in amity with the UStates.
With respect to the first Offence, you consider the explanation and apology offered by Captain Bradley to the health Officer to be such as ought to be satisfactory. The explanation, Sir, not only differs widely from that given on oath by the health Officer, but is contradicted by other testimony, as you will find by the documents annexed No. .4 And what is the apology? that the Ship Pitt was boarded before he was apprized of the health laws. Another document annexed5 cont[ai⟨ns⟩ positive Proof on Oath, not only that he had bee⟨n⟩ apprized of those Laws, but that he avowed his Determination to proceed in Defiance of them. Were it possible however to indulge him with this Plea of Ignorance as to the local Regulations, what Plea can be offered for violating the familiar Principle of universal Law, that Persons and Property, within the acknowledged Limits of an independent Nation, are within the exclusive Jurisdiction, and under the inviolable Protection, of its Sovereignty and its Laws?
With respect to the second Offence, you consider it as disproved by the Declaration of the British Officers, of which you have been pleased to forward me a Copy.6 Without dwelling on the obvious Remark that the Declaration of Persons charged with an Offence can never be received as Proof of their Innocence, especially against the unexceptionable Testimony of others, as contained in the annexed Documents Nos. 4, 5 and 6;7 and without inquiring whether no other Officers than those making the Declaration were on board the Pitt, or whether they were all constantly in a Situation to hear every Thing that was said on the Occasion, I cannot suppress my Belief that the slightest Review of that Declaration will satisfy you that, with every favorable Constructi⟨on,⟩ it does not even meet the Charge which it is cited to repel. The Charge is that the Ship was unlawfully boarded, and the Revenue Officer prevented from executing his Duty, with an Aggravation of the Offence by Insults and Mena⟨ces.⟩ The Officers subscribing the Document declare merely that no such Insults or Menaces were u⟨sed.⟩ They consequently deny merely the Aggravation ⟨of⟩ the Offence, whilst, by not denying, they admit that the Officer was prevented from executing h⟨is⟩ Duty, as might well be done, or rather is necessari⟨ly⟩ implied, by the unlawful Occupancy of the Ship by a foreign Armed Force, and whilst they express⟨ly⟩ admit that they had boarded the Ship, which it was unlawful for them to do.
The Third Offence, though comprehending other illegal Ingredients, consists principally of the Impressment, for hostile Servi⟨ce,⟩ of Persons within the Jurisdiction, and, consequently, under the Protection, of the United States. This Protection, as you well know, Sir, is equally due to them, whether the Tie of their Allegiance be of a temporary or of a permanent Nature, whether it be of long Continuance or of recent Date, and whether their Situation be near the Boundary or at the Centre of the Country. To be within the United States, is to be within their Protection, and to violate that Protection by a foreign armed Force is one of the greatest Indignities that can be offered to any Nation, and one for which ample Satisfaction may most reasonably be required and expected.
The Offence may be regarded in its Relation—1st. to the Individuals to whose personal Rights the Violence has been offered, 2nd. to the public Peace, and the municipal Regulations, which have been violated, 3rd. to the Law of Nations which forbid the United States, as a neutral Party, to permit a belligerent Party to augment the Force of their Vessels within the neutral Limits. In each of these Views the Case demands Attention. But ⟨in⟩ the last it has an Importance which it is the m⟨ore⟩ necessary to press on your serious Consideration ⟨as⟩ it has already been made the Subject of a formal Representation by the Chargé d’Affaires of the French Republic. You will be sensible that your Government is responsible to the United States in ⟨the⟩ same Degree in which they are responsible to the ot⟨her⟩ belligerent Party, that without an immediate Discharge of the Men impressed the Responsibility of the United States cannot be properly satisfied, a⟨nd⟩ that consequently the Interest, not less than the Justice and Honor, of your Government, requires the Interposition which I have the Honor to claim fro⟨m⟩ you in the Mode most likely to be effectual. I am not unaware, Sir, that you may have no direct Authority over the British Officer in question, no⟨r⟩ do I forget what you have stated that he has refu⟨sed⟩ to restore the Men on the Pretence that the Ship from which the Men were impressed had but just come within the United States. But I am unwilling to believe that he will not abandon a Fallacy which you can so easily point out to him, or that however little disposed he may be to repair the Wrong he has committed he will be dead to those national Considerations which may be addressed to his Prudence and his Responsibility. It would be more than superfluous to enter into Proofs or Reasonings to shew that an Impressment of Mariners for the Service of War within the Jurisdiction of the United States is as inconsistent with their neutral Obligations as it is with their national Rights. But I will take the Liberty of remarking, that, as one of their Laws has, with a Liberality beyond the Rights of belligerent Nations, permitted them to fill up their Crews8 by voluntary Enlistments of their respective Citizens and Subjects, there is the]9 stronger claim on a strict observance of the prohibitions which cannot be dispensed with. And I venture to say, that of the parties to the present War, Great Britain is not the one to which this reflection appeals with least force.
The Chargé des Affairs of the French Republic has addressed the Government of the U States on another subject of importance. He complains of the unfair use made of our Ports by British Ships of war, for pursuing more advantageously hostilities and captures against the Vessels of his Nation. The fact Sir, cannot be denied that armed Ships of your Nation have heretofore perverted the hospitality of our Ports into opportunities of making more successful warfare on their enemy. The difficulty of distinguishing in some cases, the use from the abuse, and in others of proving the abuse, have rendered it less an object of animadversion, than it has merited. But the abuse has existed, and circumstances are in proof that it is an irregularity to be added to those committed [by] the British frigates which lately arrived at New York. In every point of view, it is my duty to remind you, that armed Ships of whatever denomination belonging to a belligerent power, cannot be permitted to visit our Ports, or anchor within our limits, or hover alternately within and without them, not for the purpose of procuring necessary and legitimate supplies, but for that of gaining intelligence, of watching the approach or departure of enemy vessels, and of seizing them on the confines of our jurisdiction. Such a practice however modified or masked, is in effect to convert our harbours into hostile stations; and a privilege of entering them, required neither by Treaty nor the law of Nations, but granted by a friendly confidence that it will not be abused, into a source of vexation to commerce as well our own as that of our friends, of insult to our Government, and of embarrassment to our neutrality.
I proceed now, Sir, to the reproach which you have thought it not improper to bestow on the disposition of the Mayor of New York, and to your request concerning the admission of the Ship Pitt to an entry at the Custom House.
With respect to the Mayor, it is but justice to say, that as far as his proceedings on the present occasion can attest his disposition [he] appears to have been guided by one very different from that which your letter imputed to him.
On being apprized by the French Consul of the intention of the French Ships to sail with the first fair wind, he was led by his respect to the law of 24 hours, to request of the British Consul, a detention of the British Ships, as he had heretofore applied at the request of the British Consul for the detention of French Ships, of which application, and of its successful result, you will find proofs in the papers No. .10 When afterwards informed of the intention of the British Ships to proceed to sea immediately, it was made his duty to take the legal step he did for preventing it, by intervening occurrences which justified a suspicion, that the intention was not to proceed to sea, but to pursue the French Ships before they should have the benefit of the rule of 24 hours. That the intention to proceed to sea was not real, is now confirmed by the fact, that the frigate Cambrian had not proceeded to sea on the first instant, that is to say ten days after the Pilot, who had been withdrawn but a single day, had returned on board. As soon as the Mayor received notice that the French Ships had relinquished their purpose of going to Sea with the first fair wind, he revoked the measure taken for detaining them, notwithstanding the uncertainty at the time, how far they had discharged or would discharge the Men impressed, and notwithstanding the liability of those in command to prosecutions for what they had done. Your candour will surely find in this course of proceeding no appearance of that ill disposition to which you have ascribed it. The blame if there be room for any, belongs only to an excess of lenity and liberality manifested by the step last mentioned.
As to the formality obstructing the entry of the Ship at the custom House, it is presumed to be a legal regulation which neither the Mayor nor the Executive of the U. States may have authority to dispense with, and which is put into force by the refusal of Captain Bradley to repair a wrong committed by him. The Mayor may justly reflect also, that it will not be the innocent who will ultimately suffer, since it is not to be doubted that those who have put it out of the power of the Ship to comply with the laws will be made responsible for the damages ensuing from their unlawful acts.
I cannot close this letter, lengthy as it is without recommending to your serious consideration the dilemma to which the U States must be reduced by a repetition of the occurrences which have been reviewed, a dilemma between the duty which on one hand they owe to their character and to the laws of neutrality, not less than to their rights and their interests, and on the other, their desire to strengthen their friendship with your Nation by every reasonable token of its cordiality. But, Sir, if their friendship on their part instead of producing the returns which it merits, is to be repaid by such scenes as have lately been witnessed; if our harbours are to become the rendezvous of an armed force bidding defiance to our laws, insulting the Officers in the duty of executing them, committing violence on persons within their protection; and by violating the neutral regulations of the United States exposing them to a just responsibility to other friendly powers, if our harbours are moreover to be made directly or indirectly stations for expeditions and cruises on our coasts, equally insulting to our neutral and National Character; if in fine the attention of the Government to necessary and proper objects is to be thus interrupted and harrassed by aggressions on the tranquillity of our Ports and by the discussions and interpositions to which they lead: You will see, Sir, that the UStates must be driven by the most imperious circumstances into precautions as disagreeable to themselves, as they may be inconvenient to those who fail to render such measures unnecessary.
The repeated assurances and recent marks of friendly disposition on your Government towards the United States give due confidence to the President that ample satisfaction will be rendered for the flagrant enormity, committed by its officers, and effectual measures taken to prevent a repetition of like irregularities, and that the harmony so valuable to both Nations may be the more firmly established by such just proofs of regard to it. May I not add, Sir, my own persuasion, that the tenor of your communications to your Government will contribute to so favourable a result; and that in the mean time no steps will be omitted which can mitigate the injury which is to be repaired. I am &.
Signed James Madison
FC (DNA: RG 59, Notes to Foreign Ministers and Consuls, vol. 1); Tr and Tr of enclosures (PRO: Foreign Office, ser. 5, 42:89–109); Tr (PRO: Nicholls Papers). FC incomplete (see n. 9). Words omitted by the clerk in copying have been supplied within square brackets from the Trs. For enclosures (21 pp.), see nn. 4, 5, 7, and 10.
2. JM referred here to members of the diplomatic corps.
4. Left blank in FC; first Tr reads “No. 1, 2.” Enclosures nos. 1 and 2 are copies of (1) John R. B. Rodgers to Clinton, 18 June 1804 (see Clinton to JM, 23 June 1804, and n. 1); and (2) an extract of a second letter of 18 June 1804 from Rodgers to Clinton, with an annexed copy of Rodgers to William Bradley of the same date (see Clinton to JM, 19 June 1804, and n. 9).
7. Enclosures nos. 4–6 are copies of (4) a deposition of John Squire, 18 June 1804 (see Clinton to JM, 19 June 1804, and n. 3); (5) a deposition of Allen McLean and others, 21 June 1804 (see Clinton to JM, 22 June 1804, and n. 2); and (6) a deposition of Alexander Wilson, 21 June 1804 (see ibid.).
8. The second Tr includes “within the United States” here.
9. Several pages of the FC are missing. The text within square brackets is supplied from the first Tr, but words and parts of words within angle brackets, obscured by binding in the first Tr, are supplied from the second Tr.
10. Left blank in FC; the first Tr reads “Nos. 7 to 12.” Enclosures nos. 7–12 are copies of (7) Richard J. Tucker to Clinton, 26 Dec. 1803; (8) Clinton to Louis Arcambal, 26 Dec. 1803; (9) Arcambal to Clinton, 26 Dec. 1803; (10) Barclay to Clinton, 19 Jan. 1804; (11) Clinton to Arcambal, 20 Jan. 1804; and (12) Arcambal to Clinton, 20 Jan. 1804. For these enclosures, see Clinton to JM, 1 July 1804, and n. 9.