Monticello Aug. 7. 07.
Your letters of July 31. & Aug. 5. were recieved yesterday. the ground taken, in conformity with the act of Congress, of considering, as public enemies, British armed vessels in, or entering, our waters, gives us the benefit of a system of rules, sanctioned by the practice of nations in a state of war, and consequently enabling us with certainty & satisfaction to solve the different cases which may occur in the present state of things. with these rules most officers are acquainted, & especially those old enough to have borne a part in the revolutionary war.
1. as to the enemy within our waters, intercourse, according to the usages of war, can only be by flag; and the ceremonies respecting that are usually a matter of arrangement between the adverse officers commanding in the neighborhood of each other. if no arrangement is agreed on, still the right of sending a flag is inherent in each party whose discretion will direct him to address it to the proper adverse authority, as, otherwise, it would be subject to delay or rejection. letters addressed by flag to persons in authority with the adverse power may be sent sealed, & should be delivered. but, if to others, or to their own friends happening to be within the limits of the adversary, they must be open. if innocent in the judgment of the recieving officer, courtesy requires their delivery: if otherwise, they may be destroyed or returned by him: but in a case of only suspended amity, as ours, they should be returned. letters sent from the interdicted vessels to their Consul in Norfolk must be open; and the propriety of delivering them judged of by our officer, tempering his judgment however with liberality and urbanity. those to their Minister Plenipoty. here, sealed or unsealed, should be sent to the Secretary of state without any delay. As to the demand of fugitive slaves, it was the custom during the late war, for the owner to apply to our commander for a flag, & to go himself with that, to exhibit his claim & recieve the fugitive. and with respect to Americans detained on board their ships, the application should be still, as heretofore, made through the Secretary of State, to whom proper documents are to be furnished. but without waiting for his application; the British officer, knowing them to be Americans, & freemen, cannot but feel it a duty to restore them to their liberty on their own demand.
2. As to the residue of the British nation, with whom we are as yet in peace, their persons, & vessels, unarmed, are free to come into our country without question or molestation. and even armed vessels, in distress, or charged, under due authority, with dispatches addressed to the government of the US. or it’s authorised agents, are, by a Proviso in the Proclamation, to be recieved. this exception was meant to cover the British packets coming to New York, which are generally armed, as well as to keep open, through other channels, the communication between the governments. such a vessel (as the Columbine) needs no flag, because she is not included in the interdict. her repairs & supplies are to be regulated by the collector of the port, who may permit them liberally (if no abuse be justly suspected) so far as wanted to carry her back to the port from whence she came. the articles of intercourse, stay & departure are to be specially superintended by such person as the government shall authorise and instruct.
I have thus far, in compliance with your request, stated the practice of nations so generally as to meet the cases which may arise in the neighborhood of Norfolk. in doing this, I may, in some cases, have mistaken the practice. where I have done so, I mean that my opinion shall be subject to correction from that practice. on determining that the militia should be disbanded, except so small a portion as would require only a Major to command, we concluded that so long as Capt. Decatur should remain in his present station, he should be the officer to recieve, authorize & regulate intercourse by flag, with the British squadron in the Chesapeake. he has accordingly, I expect, recieved instructions to that effect, from the Secretary of the navy; and I shall communicate to him a copy of this letter to assist him in that duty.
The Secretary at war, I presume has written to you on the appointment of a Major to command the militia retained. in your selection of the officer, I have no doubt you will be sensible of the importance of naming one of intelligence & activity, as on him we are to rely for daily information from that interesting quarter.
I salute you with friendship & respect.