Department of State Jany. 14th. 1807
I have just received a letter from Mr. Monroe, dated 24th. October last, in which he intimates that on account of a deficiency of evidence of the fact of John Pierce having been killed by a shot from the Leander, and respecting the position of the Vessel in which he was shot, Captn. Whitby’s trial by a Court Martial had been postponed until the lst. of March next, to give the American Government an opportunity of collecting & sending evidence to England. Though the time is short, it is nevertheless thought expedient to use every just and practicable means of supporting the charges preferred against Capt. Whitby.
As it appears that the rules of evidence in Courts Martial are precisely those of the Common law, and it will be necessary to send the witnesses themselves to England. Accordingly I shall this day instruct the Collector of the Customs at Phila. to apply to the Brother of Peirce to attend the trial, to advance him what reasonable expenses may be necessary, and to promise him a suitable reimbursement. Beyond this it is conceived improper to go in offering a pecuniary inducement to witnesses.
Should Captn. Pierce be willing to undertake the voyage, he will be able to prove the two points above stated, as far as his credibility will go; but it will be expedient to corrobate his testimony by that of Pilots, masters of vessels, and other credible persons, who are to be sought for at New York. I am therefore under the necessity of asking your assistance, as the Chief Magistrate of that City, to trace the witnesses, to induce such as may appear necessary to go by an advance of expenses, and promise of further reimbursement as above mentioned, and to facilitate their prompt departure. It is understood that Capt Whitby denies his presence on board of the Leander at the time of Pierce’s death; but it is suggested that it took place when all the vessels, British as well as American, were within the jurisdiction of the United States, that the British fired from all their ships concurrently and even as if by concert, and that Captain Whitby might have restrained the firing from either of them. In selecting the testimony it will be useful to keep these circumstances in view, as well as the consideration that if Capt. Whitby should be found unamenable for the offence, the officer commanding in his place, ought if possible to be brought to justice, according to his degree of criminality.
The letter Capt Whitby wrote you on the 30th. of April will also be material evidence on account of the avowal it makes of his orders to board everything, in order to collect such information from the coasting vessels as they ⟨ ⟩ might be possessed of. You will therefore be pleased to forward the original to Mr. Monroe by a safe hand with an explanation of the object.
For the money you may advance, you may draw upon me in favor of the Collector, whose cooperation you will be pleased to ask, if necessary for any of your arrangements. I shall likewise desire the Collector of Philadelphia to inform you of the time of sailing of the first Vessel bound to England from his Port, and I beg you in return to communicate to him without delay the means of passage you may fix upon for the witnesses, in order that he may forward Captain Pierce in season, if you should prefer a vessel from New York.
It is proper to observe that I have desired Mr. Monroe to prepare the British Government for a disappointment in the arrival of our evidence by the first of March, and to endeavor to postpone the trial till it can be on the spot.
Among the witnesses, whom it may be desirable to send, are Captain Thomas Pemberton of the Brig Mars of New York, who was on board the Leander when Pierce was killed, Capt Manning of the Schooner Nimrod of the same port, and Capt Fairchild of the Ship Aurora also of that port, both of whom were in the same fleet with Pierce’s vessel, who were equally fired upon and who were captured and taken on board the Leander at about the same time.
Mr. Henry Hill of N. York, who is now here but who is immediately to return, possesses much information respecting this subject and will probably be able to render you some assistance in tracing the witnesses and judging of the importance and applicability of their testimony.
I have desired the District Attorney to render you all the aid in his power. I have the honor to be Sir, With very great respect Your most obed. Servt.
P.S. Be pleased to inform me of the probable time of the witnesses sailing, after you can fix it; so that the opportunity may be used for transmitting my dispatches.