James Madison Papers

From James Madison to James Monroe, 25 November 1806

Department of State November 25th. 1806


In the month of September last, the French ship of War L’Impetueux of 74 guns, being disabled by a gale of wind, and making for an asylum, was fired upon and afterwards burnt by the British ship Melampus and two others, on the coast of North Carolina, within the limits of our jurisdiction. The inclosed communication from the Navy Department, which had instituted an enquiry through Capt. Barron, into the circumstances of the case, proves that this outrage on the Sovereignty and neutrality of the United States, was committed so near to the shore, that neither ignorance, nor even doubt, can be pleaded by the British Commander. I inclose also a letter on the subject from Genl. Turreau, the French Minister Plenipotentiary near the United States.

You will observe, that in the report of Capt. Barron no mention is made of the distance from the shore, at which the firing and pursuit by the British ships, commenced. Should it be alleged, or even, contrary to probability, be ascertained, that the distance was more than a marine league, and the authority of Bynkershook be cited, as justifying the continuance of a combat or pursuit, begun without, into the waters of a neutral jurisdiction: you will be able to reply; lst. That he alone seems to countenance such a doctrine*; no preceding or succeeding authority on public law, being found which ma⟨kes⟩ any such exception to the general immunity of neutral territory 2d. That if the first attack was not within the neutral limi⟨ts⟩ it was pretty certainly so near to them, that the continued hostility must be regarded as premeditated, and not as resulting from the heat of the pursuit, a condition, tho’ not the only one, required by Bynkershook, in favor of the assailant; 3d. That the destruction of the French ship, whilst aground at so small a distance from the shore, must have been executed with a deliberation wholly inconsistent with the plea countenanced by that writer; 4th. You will be able particularly to oppose to Bynkershook, the authority of the Judge of the British High Court of Admiralty Sir William Scott, in his decision 20 Novr. 1805 on the case of the Schooner Anna, which was captured within the territorial limits of the United States. His words, according to a report authenticated by the Proctors, are, "It is said the pursuit began before, and that altho’ you may not begin within the neutral territory, you may pursue there, and I should be inclined to coincide with that, if the captor had been out on a legal cruize, and had legally summoned the vessel to surrender, and the capture had been made without violence." You will find also by what succeeds, that no distinction was admitted by the Judge between a ship of War and a privateer.

* Quest Jur: Pub L.I.C. VIII

The President instructs you to represent this case to the British Government, which cannot fail at once to perceive the insult and injury which have been committed; and he will not permit himself to doubt, that its justice and its friendly respect for the United States, will be manifested by exemplary proceedings against the offenders, and by enabling this Government, oth⟨er⟩wise to fulfil the responsibility under which it has been broug⟨ht⟩ to that of a nation in Amity. These just expectations of the President are not a little strengthened, by the tenor of the letter from the British Board of Admiralty to Admiral Buckley, written in consequence of your representation on the subject of Capt Whitby, and communicated in your dispatch of Sepr. 13th. last, which has just been received. I have the honor to remain with great respect & consideration Sir, your most Obt. Sert.

James Madison

DLC: Papers of James Madison, Rives Collection.

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