To Anthony Merry
Department of State April 9th. 1805
I have the Honor to enclose Copies of the respective Depositions of John Gilpin1 and Benjamin M. Smith,2 concerning the Impressment of Martin George from the Schooner Henrietta of Alexandria, and of Elisha Morris and Peter Douglass from the Brig Traveller of Providence, by the British Sloop of War Busy, Captain Byam; both cases being attended with Circumstances of high Aggravation. The Busy, as you may know, Sir, lately arrived and anchored nearly opposite the City of New York;3 and Information having been given on oath to the Deputy Mayor,4 in the Absence of the Mayor, that she had on board a number of impressed Men, who were Citizens of the United States, being the greater Part of the Crew of the Ship Manhattan of New York, which had been previously captured and sent to Bermuda by the Busy, the Correspondence, Copies of which are enclosed, took Place between the Deputy Mayor and the British Consul General Mr. Barclay.5
That the Courtesy of an Application to the Consul General was used, considering the number of our Citizens Known to be detained on board the Busy, and her Position at the Time, cannot fail to prove to you, how habitually none but the mildest Measures are resorted to against those who hold the Commissions of His Britannic Majesty, and the Reluctance with which such a Course would be changed when it is compelled. But, Sir, this Forbearance was certainly carried to the utmost Limit after the unsatisfactory Letter of Mr Barclay of the 7th. of March, and after the Deputy Mayor had received Intelligence, that the Busy was about to sail without releasing the Men. In that Letter, you will be surprized to find Mr. Barclay the Medium of an overture to commute the forcible Detention of Citizens of the United States in their own Country, by a foreign Officer, for a Release of the Consequences of a Capture which both himself and the officer must have been aware had been rashly made by the latter; and this Surprize will not admit of a Diminution, when their Detention is in the same Letter attempted to be justified by the Request of the Charterers of the Manhattan, and by the Consideration that the impressed Men were obligated to return in her, added to the alleged Responsability of Captain Byam to enable them to do so. It would be obvious, that if, as is admitted, there was no Room for the Detention of the Manhattan, after her Arrival at Bermuda, and that the only Portion of the Adventure deemed suspicious is Part of the Cargo, and as the Capture was made “a little to the Northward of Bermuda” a greater Respect for the Interest of the Concern would have been manifested by not bringing the Men away from their Ship. It is equally evident that if the Charterers of the Manhattan could have authorized Captn. Byam to Keep them on board the Busy, in order to their being hereafter put on board their own Ship, the Period of the constrained Service would have been doubled, or the Hope of Release from the Busy altogether frustrated, so far as might depend upon Captain Byam, whose Sense of Justice neither restrained him from taking the Men from the Henrietta and Traveller, with their Protections in their Hands, and doubtless others also as his sailing Master avowed to Captn. Gilpin, was the Case; nor induced him to put them on shore with the Crew of the Manhattan, at New York. How far the Disposition of such an officer to comply with what was represented to be intended with Respect to the Crew of the Manhattan could be relied upon, must be evident: and considering the Incompatibility of such a Conduct as his has been, with the Spirit of Amity between the Two Nations, and its Tendency to exasperate the public Feelings in the United States, always alive on the Subject of Impressments, it might be deemed no more than Justice, that his Government should, by animadverting upon it in the Manner it merits, secure us from a Repetition.
The Principles, laid down by Mr. Barclay, are in other Respects, such, as if admitted, would exceedingly derogate from the Respect, which every Independant Government owes to itself. The United States cannot accede to the Claim of any Nation to take from their Vessels, on the high Seas, any Description of Persons excepting Soldiers in the actual Service of an Enemy; their Seamen are not bound to have written or other Evidence of their being Citizens, when at Sea in their own Vessels, any more than those of Great Britain are bound to have it or actually provide themselves with it: much less is it necessary to prove a Person to be a Citizen of the United States, who having been impressed at Sea out an American Vessel, happens to be brought back in a foreign Ship of War: and still less is it necessary to prove that he is not a British Subject, which, besides shifting the Burden of Proof from those on whom, according to general Principles, it ought to rest, and implying the Proof of a Negative, would authorize the general Practice of Impressment and the inadmissible Pretention that British Seamen, voluntarily engaging on board our Merchant Vessels, might not be as much kept to their Engagements, as American Seamen engaging on board British Ships of War are constantly held to their’s, with the acknowledged Sanction of the British Government, tho the Citizens of the United States cannot enter into foreign belligerent Service without violating the Laws of their Country.
But the Reverse of all this is deducible from the Observations of Mr. Barclay; and it was the more necessary to state with Precision how far they were opposed by the Sentiments of this Government, as the Deputy Mayor, who from the Emergency of the Case could not act under express Instructions from the National Executive, has given Occasion for an Inference, which was drawn by Mr. Barclay, of a Concession of the double Right in British Commanders, first to decide who are British Subjects on board American Vessels, and then to transfer them by Force to their own.6
I am sorry to be obliged, before I close this Letter, to notice a very unexpected and unwarranted assertion made by Mr. Barclay, that there are as many British Subjects cloathed with Certificates from our Custom Houses as Americans; an Assertion in itself so manifestly incredible and disrespectful, that it may be safely left for its Comment to your own Candor. I have the Honor to be &ca. &a.
(Signed) James Madison
Tr (UkLPR: Foreign Office, ser. 5, 45:166–70); letterbook copy and letterbook copy of enclosures (ibid., ser. 115, 14:61–74). Tr enclosed in Merry to Mulgrave, 27 Apr. 1805 (ibid., ser. 5, 45:164–65). For enclosures, see nn. 1–2, 4–5.
1. JM enclosed a copy of the 28 Feb. 1805 deposition of Henrietta captain John Gilpin (3 pp.), stating that on 19 Feb., while bound from St. Bartholomew to Alexandria, he fell in with the Busy whose captain, William Henry Byam, impressed Martin George of Wicomico, Virginia, who had a protection from the collector at Alexandria. Gilpin added that the boarding officer said “they had received orders from the Admiralty to impress all Seamen claimed to be Americans their [sic] Protections were dated after May 1804—That he was satisfied that the said Martin George was an American but that there were Eighteen or Twenty others Whom they had taken from American Vessels in the same Situation; and that it was intended as a Retaliation of the Ill Treatment experienced by the Commanders of British Frigates at New York from the Magistrates of that City.”
2. The enclosure is a copy of the 25 Feb. 1805 deposition (4 pp.) of Capt. Benjamin M. Smith of the Traveller stating that on 11 Feb. a boarding crew from the Busy seized seaman Elisha Morris of Philadelphia and “Peter Douglass, (a Mulatto) the Cook of the said Brig” of Plainfield, Connecticut, both of whom had protections. When Smith went on board the Busy to retrieve the men he was “grossly and repeatedly insulted and abused by” Byam who threatened “to tye him [Smith]… to the Gangway and flog him, [and] called him ‘a damned Yankee Rascal.’ “ Byam also threatened to fire on the Traveller unless the men’s sea chests were sent to the Busy.
3. See JM to David Gelston, 23 Mar. 1805.
4. Also enclosed is a copy (3 pp.) of seaman Daniel Connel’s 7 Mar. 1805 deposition that on about 10 Feb. near Bermuda, the Manhattan, which was sailing from Batavia to New York, was stopped by the Busy, and a boarding crew impressed six men, five of whom were “native Americans.” All six men had protections, which were seized by the boarding officer. Byam later took the supercargo and the ship’s papers on board the Busy, after which he sent on board “Fifteen armed Men” who seized the ship and took it into Bermuda. He impressed the remainder of the Manhattan crew into the Busy, among them Connel, who was allowed ashore in New York because he was ill and unable to work.
5. JM enclosed copies of the correspondence (11 pp.) between Thomas Barclay and James Fairlie. On 7 Mar. 1805 Fairlie notified Barclay that several men were said to have been impressed from the Manhattan and were detained on the Busy in New York harbor. On the same date Barclay replied that it was contrary to Admiralty law to impress, and to the wishes of British commanders to detain, U.S. seamen, adding: “it is a Fact too notorious to have escaped your Knowledge that many of His Majestys Subjects are furnished with American Protections to which they have no Right or Title”; he stated further that thirteen Manhattan seamen were on the Busy because Messrs. Mintern and Champlin, the charterers of the Manhattan, had asked Byam to carry the men to Bermuda to sail the ship home should it be released by the admiralty court. He added that if Byam could get a release from the charterers, the shipowners, and the insurance companies, he would discharge the men who were “bonâ fide” Americans. On 8 Mar. Fairlie replied that a request by Mintern and Champlin that Byam take the men to Bermuda was not a sufficient reason for him to detain them, and he asked for their immediate release. On 9 Mar. Barclay said he would send a copy of Fairlie’s letter to Byam, who had already landed four men, two who were sick and two who were being pursued for debt. He could not recommend that Byam release the rest “until he is furnished with substantial Proof that they are not Subjects of His Majesty.” On 9 Mar. Fairlie replied that although Byam might have the right to detain British citizens, the Manhattan was an American ship, the men had American protections and were under the sanction of the American flag, and were prima facie U.S. citizens who could not be required to prove that they were not British citizens. He added that it was his “duty to take all proper Measures in [his] Power to claim and protect our Citizens.” On 9 Mar. Barclay replied, agreeing that British commanders must surrender U.S. citizens and stating his satisfaction that Fairlie agreed that they could detain British citizens. He commented: “I forbear touching on the tender Subject of Certificates of American Citizens issued from the Custom Houses of the United States with this single Remark, that there are as many British Subjects cloathed with them as Americans” and said he would send Fairlie’s letter and Connel’s deposition (see n. 4 above) to Byam and ask him to release “the Americans he may have on board.” On 1 Apr. Fairlie stated that nine men were released from the Busy on 10 Mar., one of whom appeared before Fairlie on 11 Mar. offering to swear that Martin George was still held, but because he seemed “intoxicated” Fairlie declined his oath. The Busy sailed on 12 Mar. and since then, nothing further had occurred.
6. In his 27 Apr. 1805 letter to Lord Mulgrave, Merry commented: “Mr. Madison has now thought proper to declare in it (for the first Time in writing) that the United States cannot accede to the Claim of any Nation to take from their Vessels, on the high Seas, any Descripton of Persons except Soldiers in the actual Service of an Enemy, as well as to imply other Principles little conducive to a good Understanding on this Subject between His Majesty’s Government and that of the United States” (UkLPR: Foreign Office, ser. 5, 45:164–65).