In Council March 10. 1781
I received your favour of the 8th. instant and am sorry to find that this distressing flag is not yet off our Hands. I sincerely wish that by the perplexities she has introduced, she may not be more effectually working for our Enemies than if she had pursued their original Purpose.
This can only be avoided by candid explanation and dispassionate Judgment. The line of Conduct which the Executive meant to pursue as to this Flag cannot be more pointedly declared than in the Letter of the 20th of1 Feby. which I had the Honour of writing you, a Copy of which I take the liberty of inclosing. They considered her from the Beginning as within the military Line; they never proposed to make nor ever did make a single order on the Subject, or come to a Resolution except that which is declared in my Letter of Feby. 22d.2 a Copy of which is also inclosed whereby they laid down a general Rule that Compensations for plunder shall not be received from the Enemy.
In the Conversation which I had with Captain Walker wherein he mentioned your Sentiments and Purposes as to the person of Mr. Hare and his vessel, I declared to him my Sense of the extreme impropriety of Mr. Hare’s Conduct: That had I been [the] Officer to whom he had come I would have refused to do Business with him and have sent him back his Purposes uneffected, but that I would not for such a Cause have brought the sacred rights of the flag into Question, and that I concurred with you in Opinion that they should be dismissed.
The officers immediately connected with her did make some Reports to the Executive but they were in every instance and immediately transmitted and referred to you for Orders, one instance only excepted, which was the following. Some few Days ago, I received a letter from Colo. Innes desiring my opinion as to what should be done with Mr. Hare and the vessel; This conveyed to me the first notice that your order had not been obeyed, and that the vessel was drawn into a Court of Justice. I wrote in answer to Colo. Innes, as well as I can recollect for I write this from memory, that whatever Powers the Executive might have possessed over these Subjects, they had delegated them to you, that I doubted whether the Delegation had added any Thing to your power as I conceived them before competent to the Subject, that as to Mr. Hare particularly whether considered as a Conductor of a Flag a Prisoner of War or a Spy he was subject to your order. That indeed as to the vessel since she was withdrawn into the possession of a Court being much unacquainted with the Subject, I would take the Attorney Generals Opinion on it and transmit it to him. I did so.
I did not send these papers to you because I knew or believed you to be on the road to Williamsburg where I took for granted the whole matter would be laid before you.
As to Mr. Hare’s Person therefore the Executive can with Truth disclaim having ever given an order on the Subject and if you had supposed, as we are afraid from your Letter you do, that any Thing which has been done was in Consequence of an order, advice or Recommendation from us we do affirm that it was not; As little has the Detention of the vessel proceeded from the Executive. She is indeed in the Hands of the State, but it is of the judiciary branch of Government, which is as independent of them as is the supreme Court of any other Country.
We are sorry the officers who transacted Business with Mr. Hare should have failed in obedience to your orders, and would do any Thing in our Power to support and manifest your authority, were any Thing wanting, but nothing can be added to the provision which the military Institutions have made to enforce Obedience and it would be presumption in us to say what is that Provision1 to you. These put into your own Hands the Satisfaction which you desire government to procure you. Even your Letter to Mr. Hare which we must suppose Major Turberville to have so improperly retained, it is not in our Power to require authoritatively: to such an order no obedience would be exacted by the Laws. Nevertheless he shall be written to on the subject as we cannot conceive but that, sensible of the Impropriety of such a detention, he will not need Compulsion to return it.
I must again express my uneasiness at the unfortunate Consequences which may flow from the Conduct of the Gentlemen who have managed this Business; however zealous may have been their Intentions, I fear I foresee evils more lasting and weighty than the good which will result from them.
I trust I shall not fail of having your Concurrence in endeavouring to avoid them as far as shall depend on us. I have the honor to be with great respect Sir your most obedt. & most humble sert.,
1. Preceding two words in TJ’s hand.
2. Date is in TJ’s hand.