To Anthony Merry
Department of State May 22nd. 1804.
It is remarked in your Letter with which I was yesterday honoured,1 “that since the general Law of Nations with Respect to the Case in Question (notwithstanding that the Law of the United States by which it is established, in speaking of the Servants of public Ministers, expresses no Exception in Regard to Persons of Colour) is not considered by the American Government as paramount to the local Laws of this State, and since Circumstances at this Place, where, as being the Seat of Government, Foreign Ministers must necessarily reside, render it, I may say, impracticable for them to keep themselves constantly provided with white Servants for every Purpose, but on the Contrary obliges them to make Use of People of Colour for all Purposes, it necessarily follows that it is impossible for them to enjoy that absolute Security and Independence as to the Objects which regard their Service, which are requisite in their Situation, and which are so forcibly pointed out by the Law of Nations according to the most received Authors who have treated upon this Subject.”
Finding from this Mode of Expression, that the Sentiments of the Government have not been accurately comprehended, I ⟨must?⟩ take the Liberty of observing that the Law of Nations is considered as paramount to the local Laws in all Cases to which the former is applicable; but that it was considered as no⟨t⟩ applicable to the Case in Question; the Municip⟨al⟩ Law every where being left free by the Law of Nations to define by general Rules the Qualifications of Witnesses, and the legal Capacities of different Descriptions of Persons, from the Effects of which public Ministers are not more exempt than others. And you will with⟨out⟩ Doubt, Sir, find this Opinion equally supported by the most received Authorities on public Law, an⟨d⟩ by the Practice of the most respectable Nations.
As it seems to have been also conceived that the Act of Congress has yielded to the local Law on this Occasion, it will not be improper to add, that the Statutes of the United States are considered equally with the Law of Nations as paramount to the State Laws; but that the Act to which you allude was considered as inapplicable to the Case in Question; inasmuch as it provides for the Privileges of Servants of foreign Ministers without declaring who may or may not become such, or in what Cases Persons of Colour may or may not be competent Witnesses; and consequently without superseding Regulations of the local Authority on these Points.
This Explanation, Sir, was thought to be required by the Misconception, which seems to have taken Place with Regard to the Principles of the American Government on a Subject of Importance; and I pray you to accept it as such.
It is sincerely regretted that any Circumstances should have led to a Conclusion, “that it is impossible for Foreign Ministers near the Government of the United States, to enjoy that absolute Security and Independence as to the Objects which regard their Service, which are required by their Situation and are due to them by the Law of Nations.” It is admitted that Difficulties connected with a State of Things very favorable in some other Respects, are incident in this Country to the procuring and prolonging of the Service of white Persons; and that the Substitution of Persons of Colour whether free or not free, is subject also to certain Inconvenien⟨ces.⟩ But without enquiring how far these Peculiarities may find a Balance in peculiar Advantages of any Sort, there cannot be much Hazard in remarking that there are few, if any Countries in which Foreign Ministers are not subjected to Inconveniences equivalent in Deg⟨ree⟩ however they may otherwise be different.
In white Persons, foreign and of the Country, in the Persons of Colour who are fr⟨ee⟩ and in such as are not so, if the Employment of such be found eligible, there are Resources from which I allow myself to presume, that th⟨e⟩ Service of Foreign Ministers may be sufficiently supplied. I particularly flatter myself that your Apprehensions of Insecurity in any Respect will yield to the Considerations which Experience will furnish. This may the more confidently be expected, as the Case, which produced this Correspondence, is the first that has occurred since the Establishment of the Government at this Seat; and as that might not have occurred but for the Want of Regularity in the Manner in which the Hireling in Question entered into your Service. I have the Honour to be, Sir, with great Consideration and Respect, &c
(signed) James Madison.
Tr (PRO: Foreign Office, ser. 5, 41:295–97). Enclosed in Merry to Hawkesbury, 1 June 1804 (ibid., 41:277–83). Words and parts of words in angle brackets are obscured by binding.