James Madison Papers

From James Madison to David Erskine, 28 October 1807

Department of State Octr. 28th. 1807


I have had the Honor to receive your Letter of the 18th. Instant, complaining of a Violation of the Law of Nations, in the Interruption of certain Dispatches from Vice Admiral Berkeley to yourself, and requesting that a Prosecution may be instituted against William Duane of the City of Philadelphia, on whom the Offence is charged.

Having in my Letter of the l9th: Inst, inclosing the Dispatches in Question, which had not been received by you at the Date of yours, intimated the Circumstances under which the Introduction of those Dispatches took Place, you will have seen in these Circumstances and in the hostile relation in which certain armed Vessels of His Britannick Majesty have placed themselves to the Publick Authority of this Country, sufficient Grounds for distrusting the Mode in which the Dispatches were introduced, and for a vigilant Attention to the Regulations made on that Subject.

I must be permitted to add, Sir, that apart from this Explanation of the occurrence, the Measure you claim from the Government, whatever Motives to it may be found, on Inquiry, to result from the Respect due in such Cases to the Authority of the Laws, cannot be pressed as of Right on Behalf of a Foreign Government, whose Officers and Subjects have, in sundry known Instances, been unpunished, and unprosecuted for Violations of publick Dispatches and particularly, in certain Instances by the breaking of their Seals, the publick Exhibition of their Contents, and the Detention of them for a Period of Time very disproportionate to the few Days, which merely suspended the Receipt of the Dispatches lately addressed to you. I will take the Liberty of pointing at two Instances, on the extreme Indecorum of which no Comments need be made.

In one, an important and Confidential Dispatch from the Chargé d’Affaires of the United States at Madrid, sealed with the Official Seal, and endorsed by that Functionary with his Name annexed, as being from the Legation there to this Department, was intercepted by the Commander of the Cambrian Frigate, Sent with the vessel in which it was found to Bermuda, and after being used in the Vice Admiralty Court there, was thrown into the Register Office, where it lay for several Months, till it was by Permission, forwarded hither, the Seals being in their violated State.

In the Second Instance, an Answer from the President to the King of Holland, with the Seal of the United States externally impressed, was intercepted on the High Seas, by one of His Britannick Majesty’s Naval Commanders, and a Copy, as appears, taken and transmitted to England, where it was published in the Gazettes; and although by the fairest Presumption therefore, the Transaction must have been brought to the knowledge of the British Government, yet no Punishment has been inflicted on the Offenders; nor any Explanation even tendered to this Government.

It would have been improper, Sir, on this occasion to have left unnoticed such serious Topics of Complaint on the Part of the United States; as it would be not to express, at the same Time, their high Respect for the Rights of publick Ministers, and for the Sacredness of publick Dispatches and their Solicitude to be behind no Nation in manifesting both, on every proper Occasion. I have the Honor &c

(signed) James Madison

Library and Archives Canada, Ottawa, Ontario, Canada.

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