1. The enclosure was a draft of Pickering’s eventual letter to Virginia lieutenant governor James Wood with this date: “I received your letter of the 23d Ulto covering a copy of one from the Collector of Norfolk and the deposition of George G. Hussey, master of the ship Eliza, which had been taken by the British frigate Thetis and carried into Hampton Road.

“The object of the communication to the Executive of Virginia is not expressed; but I presume it was made in the expectation of its interference to demand of the commander of the Thetis a restitution of the captured Ship: and the insufficiency of the facts stated, to enable the Executive to decide whether it would or would not be proper to interfere probably occasioned the transmission of the papers to the Executive of the United States.

“The two questions arising on the case are first, Whether the capture was made within the jurisdiction of the united States? secondly, whether the legal situation of the Eliza in Holland where it is supposed Captain Hussey purchased her, admitted of his acquiring her in full property?

“As to the first question, the distance of the place of capture from the shore of the united States is mentioned only by the Captain himself, who claims the vessel and Cargo as his own; and he States it to be about three miles. If his mate and crew and especially if his pilot, had formed and sworn to the same estimate of the distance, a presumption would arise, that the capture was made within our jurisdiction; which has been fixed (at least for the purpose of regulating the conduct of the Government in regard to any events arising out of the present European war) to extend three geographical miles (or nearly three and a half English miles) from our Shores; with the exception of any waters or bays which are so land locked as to be unquestionably within the jurisdiction of the United States, be their extent what they may. Now from the difficulty of judging precisely of such a distance on the water, it is probable there will in the present case be a diversity of opinion; and perhaps no man can pronounce decisively upon it: but beyond a doubt what Captain Hussey estimates to be about three miles Captain Cochran and his officers will estimate at about four miles. On this ground then the Executive of the United States cannot authoritatively interfere, without further evidence of the fact.

“The defect of information on the Second question must also forbid such interposition on the part of the Executive. Captain Hussey does not say how he acquired the property of the Eliza, and we can only gather from his recital of Captain Cochran’s observations that she was originally an English vessel, had been captured by the French, carried into Holland and there not regularly condemned. But, if, on the contrary, a trial and sentence of condemnation were had and passed in the Admiralty of Holland, doubtless the recapture by Captain Cochran is unlawful; and it will be immaterial in what place the recapture was made: or if the recapture were clearly within the jurisdiction of the United States, then it will be immaterial whether the Eliza was or was not regularly tried and condemned before she was purchased by Captain Hussey.

“In this state of uncertainty about the facts, the President does not deem it proper to interfere farther than to cause the papers to be exhibited to the British Minister Mr Liston. This has been done; and he will write to Captain Cochran on the subject. But for the same reason that the President can take no decided steps in the case, the British minister can only suppose facts on which to express his opinion; and add those cautionary observations which may influence a prudent commander to abstain from proceedings the legality of which may be questionable, and which excite much irritation on the part of the United States: and on every occasion mr Liston has manifested a disposition both friendly and just” (DNA: RG 59, Domestic Letters).

Wood had written Pickering from Richmond on 23 Aug., enclosing a letter from Norfolk collector William Lindsay to Virginia governor Robert Brooke, dated 20 Aug., and a deposition of George G. Hussey, dated 18 Aug. (all DNA: RG 59, Miscellaneous Letters). The substance of Hussey’s deposition reads: “That he is a native of the State of Massachussetts and a Citizen of the United States of America; that he took in a Cargo of salt at the Isle of May with which he was bound for Norfolk, the said Ship and Cargo being bona fide his property, that on the 16th of August when about three miles distant from Cape Henry several Guns were fired at him by the British frigate Thetis, He shortened Sail, the frigate came up, he was hailed, when it was said on board the Frigate that a boat should be Sent along side the Eliza; that a boat was accordingly sent when the deponent was desired to go to the Frigate with his papers. He did so. After Captain Cochrane had examined the papers, he observed that he found the deponent had bought her in Holland, that She had been a prize Ship illegally taken, and that as Great Britain did not acknowledge the French Republic he should consider her a prize to him; that he accordingly ordered the Crew from the Eliza to be brought to the Frigate and sent a Crew with a prize Master on board the Eliza permitting the deponent to remain on board; that the Said frigate Thetis and the Ship Eliza are now in Hampton Road. He having been thus deprived of his property.”