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From James Madison to Richard Peters, 5 September 1807

Orange Court House Sepr. 5. 1807

Dear Sir

I feel myself much indebted for the friendly sentiments expressed in your favor of the 9th. Ulto. and particularly for the volumes of admiralty decisions accompanying it.

A good deal of public business having followed me into my retreat from the Seat of it, and rather more than usual of private being added, I have not been able to gratify myself with more than a glance into this Record of precedents on admiralty subjects. As far as this glance can decide, I doubt not that the work will do honor to the Court, and be of use in a Public view. I sincerely wish that your example may be followed, and that this Country may contribute its due share of authorities towards settling the code by which, in common with other nations, it is to be bound. If a just system of Public Law is ever to prevail on the Ocean it must, in analogy to the Municipal System, result from decisions and reasonings appealing thro’ the press to the Common judgment of the Civilized World. Heretofore Admiralty proceedings have been conducted with too little publicity, and without disclosing the principles on which they were founded. Latterly they have been seen, substituting for principles the capricious mandates of power and of belligerent policy; and, in the case of one nation, avowing to the world that such is the course pursued. It seems to be peculiarly necessary therefore that neutral Tribunals should be heard on subjects in which neutral nations are equally concerned; and considering the manner in which our Admiralty Courts are constituted, the habits which preside over their decisions & reasonings, and the maritime importance which the nation is acquiring, I think it not a vain expectation, that a general practice pursuing your example, will not be without a beneficial influence on the conduct of all nations on the high seas.

I wish you had been led to a more thorough developement of the principles which enter into the subject now engaging the public attention, I mean the desertion of seamen. Altho’ the question produced between this & a foreign nation by the late outrage agst. one of our frigates, does not turn on that point; there would be an advantage in several views, in placing the questions incident to the desertion of seamen on the true ground. Judging from what is seen & heard, few subjects of importance, stand more in need of elucidation; altho’ few one would suppose could less require it.

Desertions from Merchant men are merely breaches of private contract; and when the parties & the contract are wholly alien, it may or may not be enforced within our jurisdiction, as the policy of the Country may dictate. As an encouragement to commerce, and as a claim to reciprocity, there is sound policy in enforcing the contract; and there are special considerations for enforcing it specifically here, even where this would not be done in the Country to which the parties belong. Still the Law of Nations leaves us free to provide or omit the means necessary for the purpose. In G. B. no such provision has been made. In several cases applications have been made in vain for the restoration of seamen deserting our merchant vessels in British ports; the Magistrates alledging that it was not authorized by law. I recollect particularly that on the late renewal of the war with Spain, by the seizure of the Spanish Treasure, so many of our Seamen at Liverpool were tempted to desert, & enlist on board B. Privateers, that our trade was seriously embarrassed, in consequence of which the Consul thought it his duty to appeal to the Magistracy. He received for answer that the law afforded no relief in such cases.

Desertions from Ships of war are of a character essentially different. The deserters in such cases, are on the common footing of exiles liable to punishment, even to Capital punishment, for violating the law. It is well understood, that no nation is bound to surrender them to the Angry Sovereign, unless by some positive stipulation. G. B. never does it otherwise. Her laws do not authorize it, nor is the Prerogative of the King competent to it. It is perhaps sometimes done indirectly & covertly by the instrumentality of impressments, & the Courtesy of Naval Commanders; but always then, of favor, not of duty. With us there is not only no obligation, but less than with other nations the policy of inviting a reciprocity, our navy being so small and so little resorting to foreign parts. It is rather our policy to discourage the resort of foreign Ships of war to our ports; and as far as humanity can be justly consulted it does not plead for the surrender of men to vengeance for leaving a situation such as that of a British ship of war, into which they had been engaged by a mode such as that of impressment. All these considerations however amount to no more, than that a gratuitous surrender of such deserters ought not to be expected. There are certainly views of the subject, which would authorize an article for the purpose, in a convention, combining with it other articles providing for objects desireable to this Country.

The only distinctions between deserters from National ships, and other fugitive offenders, is 1. that in the former case, the flight itself constitutes the offence, in the latter it is the consequence of a preceding offence. This being a circumstantial distinction does not affect the sameness of the principle. 2. The offence committed by deserters from Ships of war generally takes place within the Country affording a refuge, whereas the offences of other fugitives generally take place in their own Country. But this again is a distinction not affecting the principle. Ships of war in a Country not their own, are, with respect to the discipline on board, a part of their own Country, not of the foreign Country where they happen to be; desertions violate the laws of the former, not of the latter; and tribunals deriving authority from the former, not the latter, inflict the punishment incurred.

Begging pardon for wandering into observations, which if entitled to attention must be so familiar to yours, I remain very truly, & respectfully Your friend & Servt

James Madison


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