James Madison Papers

To James Madison from John Elmslie, 29 September 1805 (Abstract)

From John Elmslie, 29 September 1805 (Abstract)

§ From John Elmslie. 29 September 1805, Cape of Good Hope. “I am sorry to observe, that from a general neglect in Masters of Vessels for these six months past of not reporting their vessels and in departing from the ports of the Cape without exhibiting their marine Papers, have not only prevented me from inspecting Registers &c. but also forwarding the usual semi annual List of vessels which have entered this district. As soon as the Custom house Book of reports comes from Simons Bay where entries are made from April to September I shall endeavour to procure a correct list in order to show to Government who have been so remiss in their duty. The delinquents may make a plea of a late Custom house regulation at the Cape, detaining Ships papers till clearing—though this regulation prevents Masters of vessels from fulfilling that part of the Act which requires them to deposite their Registers &c. with the Consuls—They can have no excuse after having received their clearances and papers in not exhibiting them for inspection before their departure—I now beg leave to mention a practice which I have remarked some Masters of Vessels to be guilty of, by procuring their vessels to be condemned as unseaworthy when they were notoriously otherwise. The Brig Molly of Nantuckett David Joy Master is a recent instance of this kind & which diserves particular animadversion.

“The Molly arrived here in March last, having received some triffling damage in a gale of wind off the Cap*—Capt. Joy in consequence had a survey held & by the report made the Molly was declared not seaworth[y], accordingly the Capt. had her condemned and sold at public Auction. John Clements a Citizen of the United States & Agent for Wm. II Bordman & Thos. Clements junr residing in Boston Massachusetts, purchas⟨ed⟩; said Vessel for their account and in order to show to his Principals, th⟨e⟩; situation of the Molly before any repairs were done to her; order⟨ed⟩; a very full survey to be held, copy of the report made being deposited in my Office I herewith enclose the same for your information.2 The Molly after undergoing some small repairs, was loaded here by Mr. Clements & sent on a voyage to the Eastward. Respecting the Mollys marine papers whic⟨h⟩; were left in my Office by Capt. Joy to be forwarded to the U.S. in order to cancel his bond passed at the Customhouse for the faithful use of the same—I was at a considerable loss how to Act, Capt. Clements having demanded them when the Molly was ready to proceed to Sea in consequence of the vessel being owned by American Citizens & navigated according to Law, and even threatened in case of my not delivering then to protest agains⟨t⟩; me for all loss which should happen to the Vessel & cargo for want of her marine papers. This being the first Case of the kind that had come before me, and the clause in the Registry Act respecting the faithful use of Certificates of Registry &c. being to my apprehension not sufficently clear, I deliver⟨ed⟩; over the Mollys papers to the Master first taking the usual Oaths administered in cases of granting Registers with the enclos⟨e⟩;d Bond which I hope will justify me to Government if I hav⟨e⟩; erred in delivering up the Mollys papers to Capt. Clements.3 Respecting the delivery up of Registers, Sea Letters &c. I have known some masters of Vessels even doubt the propriety of delivering over vessels papers to lawful Owners when transfers were made in foreign ports. This however I take to be a mistake. A similar miscomprehension of a like clause in the British Registry Act by some British masters, no doubt occasioned the succeeding Act of Parliament 28th. Geo: III. Chap 34 Sec: 13. inflicting a penalty on masters of Vessels withholding Registers from the lawful Owners.

“I shall now beg leave to suggest for the consideration of Government the following regulations in order to check unprincipled Masters from committing similar malpractices as before noticed.

1st. That no Surveys shall be held on Vessels belonging to Citizens of the U.States coming in distress into ports where Consuls reside or upon Goods damaged belonging to Citizens without fi rst making a report in writing to the Consul.
2nd. That the Consuls of the U.S. be empowered to nominate one or more of the surveyors & the Capt. or Supercargo the others & that before any survey on vessels or Goods shall be taken, the surveyors shall take an Oath before the Consul, that they will examine the same with such strictness & integrity as their judgement is capable of and report accordingly which report to be authenticated by the Consul.
3rd. That all accounts respecting disbursements for repairing of Vessels in foreign ports shall be certifi ed by two reputable Merchants of the place that the charges are at the market prices, said certifi cate to be authenticated by the Consul if any there be at such port.4
4th. That all protests against sea damages, made in ports where Consuls reside, shall be confi rmed by the affi davits of the Master & two other offi cers belonging to the vessel & authenticated as aforesaid. And that none other coming from ports where Consuls reside shall be held valid in Law.

I have only now to beg your excuse for troubling you wi⟨th⟩; so long a letter.”5

RC, two copies, and enclosures (DNA: RG 59, CD, Cape Town, vol. 1). First RC 4 pp. Second RC marked “Duplicate,” with note: “Or⟨ig.⟩;per the Betsy via N York.” Both RCs docketed by Wagner. Minor differences between the copies have not been noted. For enclosures, see nn. 1, 3, and 5.

1This note is omitted from the second RC.

2The second RC has an asterisk here, with a note at the bottom of the page: “*Notarial copy of Survey forwarded in the Origl.” Elmslie enclosed a copy (2 pp.; docketed by Wagner) of the “Certificate of Survey of Brig Molly of Nantucket,” signed by John Osmond and H. Phillips on 18 May 1805, stating that they had examined the Molly and found it to be “a Strong and well Built vessel,” that all parts of the ship were “perfectly good the Vessel tight and Sea worthy and fit to proceed on a voyage to any part of the world.” Written at the bottom of this is a second certification, signed on 20 May by James Callander and Thomas Nevill⟨e⟩;, also testifying to the seaworthiness of the Molly.

3Filed with this dispatch are two copies (2 pp. each; both certified by Elmslie: the first on 29 Sept. 1805; the second copy, marked “Duplicate,” on 20 Nov. 1805) of the 20 May 1805 bond of Capt. Robert Inott and John Clements, agent, pledging to pay the U.S. Treasury 1,200 “Spanish milled Dollars” if they failed to return the brig’s papers to the collector of the port of the United States at which Inott or any other person with command of the ship should arrive in the United States. The second copy contains a stipulation that the papers would also be delivered to the said collector should any foreigner obtain an interest in the vessel.

4“If any there be at such port” is omitted from the second RC.

5On the verso of the brig Molly’s certificate (see n. 1 above) is a note in Albert Gallatin’s hand, initialed and addressed by him: “For the Secretary of State. The Consul is certainly mistaken in supposing that he has a right to detain Registers, particularly where the vessel is transferred to citizens; but it is to the former owners or captain that they should be returned by the Consul. It is the business of the purchasers to obtain them from those who sell.” Elmslie wrote to Gallatin on 7 Oct. 1805 (DNA: RG 59, CD, Cape Town, vol. 1), enclosing his accounts of funds collected and dispersed, and explaining the problems he was having collecting from ships’ captains the funds required by law. On the verso of the last page is a note in an unidentified hand: “Referred to the Secretary of State, that he may reply to the same in case he should think proper” (ibid.).

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* *sec 4 “Regulations proposed.” Many Caps. are not overnice in making such representation.1

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