James Madison Papers

From James Madison to David Montague Erskine, 21 August 1807

Dept of State August 21. 1807.


I had the honor to receive your letter of the 7th. instant and at the same time one of the two dated on the 12th. The other of this Date has also been since received.

I am glad to find by the Postcript to that of the 7th: that the Dispatches which had been delayed, had got safe to hand; and I cannot doubt that as far as General Matthews may have been a party to the Delay, your candour will find a sufficient explanation in the peculiarity of the Case, and in the Circumstances which produced it.

On the subject of Intercourse between the Naval Commanders, and the Minister and Consuls of His Britannic Majesty, I have only to repeat, what I had the honor to communicate verbally from the President, that all dispatches to and from the Ships of War, continuing and coming within our Waters, in hostile Opposition to the public Authority, must pass under a Flag of Truce; the Dispatches to, or from Consuls unsealed, those from or to the Legation, sealed or unsealed as they may be presented. With Ships of War off the Coasts, that is to say, without the Jurisdiction of the United States, the intercourse will not require a Flag of Truce; provided such Ships shall not have violated the Proclamation of the President, and particularly shall not be of the Squadron alternately within and without that limit; and justly suspected, therefore of evasive purposes. Armed Vessels with dispatches, falling under the exception of the Proclamation, are excepted also from the necessity of Flags of Truce. Vessels unarmed, and not employed by Ships of War, subjected to Flags of Truce, are free from that, as well as the other restrictions applied to armed Vessels.

Enquiry will be made into the fact stated in the Document, which you have been pleased to transmit, as one to which a Sergeant Fordham, of the British Royal Marines, is ready to make oath, namely, that certain deserters from the Marines belonging to the Ship of War, the Chichester, had been enlisted into the American Service. In the mean time, overlooking the apparent delay of the Sergeant in giving the information, the Circumstances that an enlistment of this sort, among the troops of the United States has never before happened, or been heard of authorises a doubt as to the reality of the enlistment, or the allegiance of the deserters. Be this as it may, orders will be given by the Secretary at War, similar to those given, in the Navy Department, against receiving British Deserters into the service of the United States.

The exemplary conduct of Captain Stopford, in restoring from his Ship, the American Soldiers, liable to arrest for desertion, is of a nature to cherish the laudable courtesy, which presuming in Naval Commanders, within the Jurisdiction of a foreign Country, a voluntary respect for the laws, affords them the first opportunity of manifesting it. And Captn. Stopford appears to have yielded to the just reflection, that his good disposition could not be controuled by any doubt or opinion with respect to the allegiance of the deserters; in as much as, that, was a point to be decided by the Authority of the Country within which the case arose.

The Interest which all Nations have in bringing Pirates to the punishment due to the enormity of their guilt, is felt by none more, than by the United States; and if in the case reported to you, the particular Laws of this Country have, at the same time been transgressed; this interest is strengthened by a further motive. But you will be aware, Sir, that, until it be ascertained where and under what Circumstances, the persons held on board the Sloop of War, The Driver, as pirates, are to be legally tried, the American Government cannot decide on the course proper to be taken by it.

I have the Honor to acquaint you that orders were forwarded to the Collector of Norfolk, to allow to the Ship Columbine the supplies of provisions specified in your Letter of the 12th. But I may be permitted to remark the inaccuracy which supposed, that a compleat supply for four months, could be necessary in her case; as the stock for that period with which, according to the rule, she must have left Halifax, could not have been reduced, during her passage hither, but by the consumption of a few weeks. With sentiments of great consideration & Respect I remain Sir Your most obed humble Servant

James Madison

DNA: RG 59—Notes from Foreign Counsels and Ministers.

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