Washington 4th: April 1806.
The inexpediency of acceding to my request that the United States should defend the Henrick and Cargo in an Action to be instituted to try the Merits, Is placed by the letter you have been pleased to honor me with of the 3th: Instant, on four Grounds. The presence of the Captor-- His Solvency: that the injury did not proceed from any act or instruction of the Government; And the non-concurrence of one Branch of this Government in payment of the loss alledged.
You high Sence of Justice will excuse me, while in protecting the interests confided to my care, I endeavour to Call you attention to the Conduct of the U:S: in cases precisely Similar.
The Capture of the Charming Betzy was defended by the U:S:, althoug Capt: Murray, the Captore, was present, was Solvent, and in all respect Competent to protect his Interests.
The Marcator, Captn: Malay, was defended also in the different Courts by the highest law officers of the Government. In this instance, the Captor was absen⟨t⟩ and insolvent. These two Cases demonstrate tha⟨t⟩ it was considered wholly immaterial whether the Captor was present, or absent, whether Solvent or Insolvent. In each Case the Circumstances of the Captors were diamitically opposed; Yet the Govern. defended each on the Great Principle of eventual liability.
As to the injury not proceeding from any Act or Instruction of the Government, permit me to obser⟨ve⟩ that the Government defended Murray, and paid the damages assessed, Altho’ the Captor was adjudged Illigal, and the conduct of the Officer in violation (unintentionally) of his instruction.
The Cases of the Charming Betzy and Marcator, were Captuers by Officers of the U:S:, Commandi⟨ng⟩ armed Ships of the United States, mistaking or contr⟨a⟩vening the Acts and instructions of the Government ⟨to⟩ the injury of neutral Commerce. Both Commanded National armed Ships, both were commissioned by and placed in a Situation to do the injury, under, the Authority of the U:S:, who by the Clearest principles of the law of nations, whatever conduct they may pursue as to the Officers, become liable to make reparations to the injured neutral. Government might for ever be Screened from Violation of neutral Rights, by employing Officers of more merit than money, and then, alledging the responsibility of the individual, Shift the Burthen from themselves. The consequences of this doctrine exhibit an alarming Picture to neutral Commerce, and flatly Violate the great rule in Ethics that he who by placing Confidence in another, puts him in a Situation to injure a third person, must take the responsibility on himself. These observations are unnecessary to your Clear perceptions, and high sense of moral and national rights, but the are forced on me by an anxious Zeal for those whose Interests are confided to my exertions.
As to one Branch of the Government, not concuring in provision for the alledged loss, I am led to believe, that had an Judicial decision taken place in favor of my Constituents, the Objections which proved fatal to their Interests in that Branch, would have been wholly done away. To attain this point, to have the Sanction of a Judgement of the Supreme Cour⟨t⟩ in the form of action I propose, on the real merits, unfettered by form and unretarded by delay, is my Sole object in the request I have made.
I pray you to reconsider it, and be assured tha⟨t⟩ I have no wish in any manner to Commit the U:⟨S:⟩ by the measure proposed, or in any degree to Creat⟨e⟩ a liability not imposed on them by the law of Nations, their own usage on Similar occasion⟨s⟩ and what the sacred principles of Justice demand. I have the honor to be Sir with Sentiments of great respect Your most Obd: Hble. Sert:
DNA: RG 59—NFC—Notes from Foreign Consuls.