Department of State, October 9. 1807.
I have duly received your letter of Sep: 14, in which you inform me that Thomas Wilson, one of the men taken by force from the American frigate Chesapeake has been tried by a Court Martial at Halifax, and having been adjudged to be a British born subject, and a deserter from H. B. Majesty’s Ship of War Halifax, had received sentence of death.
I cannot acknowledge this Communication, Sir, without expressing the extreme pain and surprise which it has excited. The insult offered to the Sovereignty of the United States in the violence committed on the American frigate, and the reparation due for it, cannot, as you must be well aware, be permitted to depend on any question concerning the allegiance of the individuals wrested from the authority of the National flag. The great and essential principle which renders the flag of a national Ship inviolable could not be impaired by the Circumstance, that it covered Individuals, who in other situations might be amenable to another sovereignty; and it must have been obvious that among the reparations due in the case, a restoration of the seamen to the situation from which they were forced could not fail to be indispensably required. Previous to a Compliance with this dictate of honor & justice, it is impossible that any question should be admitted, with respect to the allegiance or Character of the Individual Seamen, however certain it might be that the Result would establish the Allegiance to be American. In proceeding therefore to the Trial of Thomas Wilson, & to a sentence which wilfully renders a satisfaction due to the U. S. impossible; during an interval too in which their moderation had appealed to the voluntary justice of G B. the offending officer has aggravated in the worst form the enormity first committed by him. Were it possible to believe that in this extraordinary proceeding, he did not contradict the purposes of his Government, the U. S could not be justified in the confidence they have not ceased to indulge, that the earliest moment would be embraced for making them an honorable atonement. But it would be improper not to remark that the conduct of the responsible officer cannot be so explained, without supposing him capable of a presumption & temerity which call for a still more exemplary punishment than had been provoked by his original guilt; and that this new insult added to the persevering defiance of the public authority by the Ships of War forbidden the use of our waters, must necessarily form topics for redress distinct from all those heretofore presented.
I pass over the residue of your letter as well because there does not appear any present necessity of discussing the Circumstances stated in it, as because it would seem that the case of mutinous deserters from the Halifax is confounded with that of the deserters from the Melampus.
Your recollection will suggest that the latter alone were within the application, which brought them to the notice of this Government.
I take this occasion of acknowledging also your letter of Sep: 18. with the document inclosed relating to a seaman alleged to be a British subject, who having deserted from the service of the U. States, and joined the Crew of a British Merchant Ship lying in the Waters of the United States had been arrested on board the latter, by order of the officer commanding a Gun Boat of the U. States.
On this Transaction you are pleased to remark that as the Government of the U. States contends that there is no right existing in His Britannic Majesty’s naval Commanders to take even British subjects from neutral ships you cannot suppose that the officer of the Gun Boat could be justified in acting as he did, and that steps ought to be taken to prevent the recurrence of similar aggressions.
Without enquiring whether the Seaman in question, though a native of Great Britain, might not, by naturalization, have become a Citizen of the United States, it will be sufficient to remind you of the distinction between a search and seizure on board a merchant vessel within the limits of the United States, & such a proceeding on the High Seas. It is in the latter situation that the U. S. deny the right of British naval Commanders to violate the neutral flag. Within the municipal jurisdiction of G Britain, the ordinary course of the laws, where uncontrouled by Treaty, has not been contested. I am persuaded, Sir, that the principles on which this distinction is founded will be fully recognized by your own reflections, & that you will be sensible that the Interposition you suggest, however it might be requested on the score of liberality, or expected on that of example, cannot be required of right.
The remaining letter with which you have honored me, not heretofore acknowledged, is that of Sep:. 8, in which Information is given of a meeting on board H. B. Majesty’s Schooner Vesta, and the escape of a number of seamen concerned in it, whose names & descriptions are inclosed.
I have nothing to add, Sir, to the observations contained in my answers to former letters, with respect to the surrender of British deserters, and my communication of the orders issued against the enlistment of them into the service of the United States. You will not be surprised however at my notice of the fact; which cannot have escaped your own, that of the twenty five seamen on the list furnished eight are named as Americans, with Blanks for the national Character of three others, presumably not British, and not improbably Americans also.
I beg pardon, Sir, for the delay in the attention now given to your several communications. It has proceeded from Circumstances incident to an absence from the Seat of Government; and the recency of my return to it. I have the honor &ca.
(signed) James Madison.
DNA: RG 59—Notes from Foreign Counsels and Ministers.