To Thomas Jefferson from James Madison, 21 February 1803
From James Madison
[21 Feb. 1803]
The inclosed report as altered is acquiesced in by Mr. L. In two instances recurred to Congs have already interposed; one of them the Paoli—at last Session. The judgmt. of the Court agst Capt. Maley was pd. by Congs—Several Dutch & British precedts. can also be cited. The 7 Art: of the British Treaty & 21 of the Span: go on the responsibility of those Govts. for irregular acts of Officers under their authy. or colour of it—our instructions relative to Spanish Spoliations have the same implication. If the principle be tenable, it is evidently & greatly in favor of the U.S. in a general view. Two correct copies will be sent to the P. in the Morning—The present one is sent that if approved, he may accomodate his message to it without further delay—
RC (DLC); in pencil on verso of an address sheet with remnant text: “of the U. States”; undated; endorsed by TJ as received from the State Department on 21 Feb. and “Danish Brig Henrich. from Hambg to Cape François” and so recorded in SJL. Enclosure: Dft, not found, of Madison’s report on the Hendrick case (see enclosure to TJ to the Senate and the House of Representatives, 23 Feb.).
acquiesced in by mr. l.: for Levi Lincoln’s opinion on the Hendrick question, see Topics for Consultation with Heads of Departments at 10 Feb.
pd. by congs: Peder Blicher Olsen had contacted Madison on 17 Feb., urging action by Congress in the case of the Hendrick and observing that the session would end soon. In April 1802, Congress authorized a payment to Paolo Paoly, the master of a Danish merchant ship that had been captured by a U.S. armed schooner under the command of William Maley. A U.S. district court condemned the Danish ship as a French armed vessel and lawful prize, but the circuit court overturned the decision and Congress agreed to award Paoly more than $7,000 in damages (, Sec. of State Ser., 3:46–7; 4:326–7, 335; , 6:47).
Article 7 of the 1794 treaty with Great Britain established a process for compensation to U.S. citizens for “irregular or illegal Captures or Condemnations of their vessels and other property under Colour of authority or Commissions from His Majesty.” Article 21 of the 1795 treaty with Spain concerned compensation to Americans for captures of ships and cargoes by subjects of the Spanish crown. The treaty with Spain did not use the phrase “color of authority,” but in instructions to Charles Pinckney in June 1801 and February 1802, Madison referred to losses “for which Spain is held responsible” and to captures that had been made “under colour of authority from his Catholic Majesty” (, 2:252, 335; , Sec. of State Ser., 1:274; 2:441–2).