Norfolk gazette and publick ledger (Norfolk [Va.]), 1808-06-09 00:00:00

HAMPTON, June 3d, 1808.
Mr. COWPER, Sir,
The charges preferred against me at my late trial, with the sentence of the court, have been published in most of the newspapers; I regret that the evidence given at the trial has not also found its way into the publick prints. Those who take any interest in the result, and who are anxious to form a correct opinion on the subject, would certainly prefer having the direct and original sources of information and judgment laid open to their inspection—The great bulk of this evidence, will I fear, always prevent its publication.
Having contributed by your paper to disseminate the accusation and sentence against me, I cannot doubt but that you will willingly assist, by the same means, to distribute my vindication—I have therefore sent a copy of my defence before the court martial, and request you to publish it in your paper.
Respectfully, I am, Sir, your ob't serv't. JAMES BARRON.
Mr. President, and Gentlemen of the Court,
After serving in the navy of the United States, (I may be permitted to say usefully, and with the approbation of the government) for ten years; it is now my fortune to be brought before you, on charges implicating my honour and life—However humiliating such a situation might be under ordinary circumstances, I hail this moment as fortunate and happy. For six months the silent victim of misrepresentation, I shall have, on this day, an opportunity of vindicating my honour, before an intelligent and impartial tribunal—Conscious of my own innocence, and assured of the justice and honour of my judges, I enter on my defence with the proud, and confident anticipation of rescuing my reputation, from unmerited reproach. In this defence you shall find no unmanly attempt to interest your feelings or your generosity. It shall be such as an officer may make, without reproach; and officers receive, without a blush. It shall be directed wholly to your judgment and reason.
The first charge against me, is—"For negligently performing the duty assigned me."—Under this general imputation, two specific offences are stated—1st, "that I did not visit the frigate Chesapeake during the period she remained in Hampton Roads, and before she proceeded to sea, as often as I was in duty bound to do." 2ndly, "that when I did visit her, I did not, as it was my bounden duty to do, examine particularly into her state and condition."
On this charge I ought perhaps to say nothing—I would make no comment on it, if my defence was designed solely for this court. It is my happiness and consolation to know that you are intimately acquainted with the distribution, as well as the details of naval duties; and on that knowledge I would entirely rely. But a reviewing power must be exercised on your decision, by those of whom I may say, without designing a censure, that they have not enjoyed the same opportunities of being informed on naval subjects—My country too, may deign to examine the details of a transaction so interesting to her honour and happiness.—If a solicitude to justify my conduct to the world, mingling itself with my other feelings, leads me to details not essential to your information; I indulge a hope that you will find my apology, in the generous sympathies of your own honour.
The charge explained by these two specifications, presents two propositions; the one of principle, the other of fact—it presupposes and assumes the principle, that it was my duty, often to visit, often to visit the ship; personally to superintend her equipments, and examine into her condition, while she remained in Hampton Roads. The fact to be established is, that I did not perform this duty—You will readily discern, sirs, that a failure, on the part of the United States, to support either of their propositions absolves me from all censure, on this head. It will not be sufficient to show that I have not made these examinations—it must be also shown that it was my duty to have done so. For there can be no guilt in omitting to perform that, which no duty enjoins; I persuade myself that I shall convince you, that the charge is bottomed on a misconception both of principle, and fact.
In examining the principle of this charge, I will show that the duties, which it presupposes to have been attached to me, were not within my province, but peculiarly and exclusively devolved on another officer—If they were attached to me; they must either have resulted from the general nature of my command, or have been enjoined by particular instructions. My instructions you will see are silent on this subject. Did they grow out of the general nature of my command?
You will bear in memory, sirs, that the Chesapeake was lying dismantled at Washington, when she was put in commission, on her intended voyage to the Mediterranean—It was designed, that I should proceed in her to take command of the squadron, in that sea. At Washington, in February last, capt. Gordon was appointed to act as captain of that ship—But little progress was made in her equipment, when I went to Hampton, by permission of the secretary of the navy; and continued to reside there, till we sailed. Capt. Gordon, meanwhile, continued in command at Washington; superintended her equipment; conducted her from thence to Hampton Roads, and has continued in that station till the day of his arrest. By that gentleman was forwarded my letter of instructions; and I received it on the day after his arrival in Hampton Roads. The letter
appointed me "commanding officer of the vessels of war of the United States, destined for the Mediterranean."
My defence is, that, in the relative situations of capt. Gordon and me, as just detailed, the duties, attached to me by the charge, exclusively pertained to him, as captain and commander; and not to me, holding the rank which had been conferred on me. There are but two tests, by which we can ascertain, by whom these duties were to be performed. The positive and express regulations of the navy constitute one, and that the most infallible, and decisive, in all cases to which their provisions extend—The usage and practice of the navy, constitute another, less definite and unerring, indeed than the former; but still worthy of regard, in those numerous cases, in which positive regulations do not exist, or are ambiguous—to both I appeal.
The President of the United States has established certain rules and regulations for the government of the navy—a copy are furnished to every officer.—They are systematick, comprehensive, and minute; they embrace all ranks, from the commander of a squadron to the cook; define the respective powers, and prescribe the relative and minutest duties of each station, in successive chapters. The first chapter is entitled, "Of the duties of a commander in chief, or commodore of a squadron," and its precepts apply to me, as I held that station. The second chapter is entitled, "Of the duties of a captain or commander." Capt. Gordon held that rank; his duties therefore are prescribed by the provisions under this head. From this 2d chapter, I select, as explanatory of the duties attached to capt. Gordon, the following rules:
1st. "When a captain or commander is appointed to command one of the United States' ships, he is immediately to repair on board and visit her throughout."
2d. "To give his constant attendance on board, and quicken the dispatch of the work, and to send to the navy department weekly accounts, or oftener if necessary, of the condition and circumstances she is in, and the progress made in fitting her out."
3d. "To take inventories of all the stores committed to the charge of his officers respectively, and to require from his boatswain, gunner, sailmaker, carpenter and purser, counterparts of their respective inventories."
7th. "When the ships company is completed, they shall be divided into messes and guards; and he shall order, without delay, the partition of the people for an engagement, to the end that, before they sail, every one may know his post."
9th. "At all times, whether sailing alone or in a squadron, he shall have his ship ready for an immediate engagement, to which purpose he shall not permit any thing to be on deck that may embarrass the management of the guns and not be readily cleared away."
15th. "Himself to muster the ship's company at least once a week, in port or at sea, and to be very exact in his duty; and if any person shall absent himself from his duty without leave, for three successive meetings, he is to be marked as a runaway on the ship's books."
32d. "Before the ship proceeds to sea, he is, without any partiality or favour to examine and rate the ships company, according to their abilities, and to take care that every person in the ship, without distinction, do actually perform the duty for which he is rated."
33d. "Before the ship sails he is to make a regulation for quartering the officers and men, and distributing them to the great guns, small arms, rigging, &c. and a list of such order and distribution is to be fixed up in the most publick place of the ship. He is also frequently to exercise the ship's company in the use of the great guns and small arms, and to set down in his journal the times he exercises them."
35th. "If any officers are absent from their duty when the ship is under sailing orders, he is to send their names to the navy officer with the cause of their absence."
53d. "He is responsible for the whole conduct and good government of the ship, and for the due execution of all regulations which concern the several duties of the officers and company of the ship, who are to obey him in all things which he shall direct them for the service of the United States."
It cannot be denied that these regulations consider capt. Gordon as "responsible for the whole conduct and good government of the ship, and for the due execution of all regulations which concern the several duties of the officers and company of the ship." His was the duty "to repair on board, to visit her throughout, and to give his constant attendance on board." On him was the obligation of "stationing and mustering the crew," and regulating all the internal operations of the ship, "so as to have her constantly prepared for immediate action." Yet it is imputed to me as a crime, that I have not performed these duties thus expressly imposed upon another officer—With the same justice I might be arraigned for the omissions of the lowest officer in the ship, in what related to his department.—The commanding officer of a squadron, on this principle, would be inevitably borne down, and overwhelmed, by the united pressure of his own peculiar and appropriate duties, and those of all the officers in his squadron.
Possibly it may be said, that these regulations do not apply to a captain or commander, on board whose ship a commodore hoists his flag. To this I reply, that the appointment of a commodore does not reduce the captains or commanders rank—He does not thereby become a lieutenant: and there is no intermediate grade between a commander, and a lieutenant. He still remains a captain or commander. To this station certain powers and duties are inseparably annexed—They constitute its essence and soul: His
appointment invests him with these powers; and while that exists, they exist; whether he holds a separate command, or is subject to a superior officer. It cannot be doubted, that these regulations apply to every other captain sailing in a squadron: Yet the commodore of a squadron has precisely the same authority over every other ship and every other captain in his squadron; as over his immediate captain and the ship in which his flag is hoisted. The occasions of exercising this power would probably less frequently occur, as to the arrangements of other ships, than as to that in which he sailed; because they would not be so immediately under his observation—Yet his right and power would still be the same.
But if it be still insisted, that these regulations do not apply to a captain on board the commodore's ship, I ask what regulations do apply to him? There are none others prescribed to captains and commanders, but those contained in the 2d chapter, to which I have referred. Will it be said to be a casus omissus ? It would be a poor compliment to the intelligence of the navy department to believe, that this case, of daily occurrence, has not been provided for by their regulations. But this supposition is disproved, not only by the preceding chapter, defining the duties of a commodore; but by several articles of the regulations for captains, in which the commander of the squadron is expressly named and referred to. The case of a captain, under the orders of a commodore, was therefore within the contemplation of the government when prescribing the duties of captains. If it had been designed to discriminate, as to duty and power, between the captain of the commodore's ship, and the captains of other ships in his squadron, it would have been done by express provisions. No such provisions exist.—The conclusion is inevitable—all captains were intended to be bound, by the same regulations.
Allow me to pursue this topic somewhat farther, and expose the consequences of the principle assumed by this first charge. If captain Gordon was absolved from these regulations by my appointment, the duties enjoined by them, must either have become extinct; or have been translated to another officer. No rational man will adopt the first alternative. The secretary of the navy has adopted the latter; and transferred them to me, as commodore. But will it not be readily perceived by all intelligent men, that this transfer is equally opposed to the spirit of all naval and military institutions; and to the tenor of our own regulations.
In the military and naval institutions of all countries, the duties are progressively generalized, as the rank progresses. To a superior officer is necessarily confided general subjects; while all the minutiae and details of duty, are intrusted to subordinate officers. It is in this harmony of objects, this progressive distribution of duties, this adaptation of service to the station of different officers, that discipline consists—From it is derived the effect and value of such institutions. That army would be incapable of any great achievements, requiring studied arrangements; complicated and concerted movements; combined though distant operations; in which it was required of the commander in chief to superintend the formation of a platoon, or instruct in the use of the musket. These and similar operations, as well from policy as necessity, are confided to inferior agents. The principle is as true in naval, as in military science.
Our naval regulations are framed on this principle—They contemplate the commodore, not as the commander of any particular ship; but as the chief of a squadron—They prescribe his duties with a view to that station—There is not one provision, similar to those prescribed to the captain. To convict me on this charge, you must therefore exercise a twofold legislative power. You must annul the existing regulations, and enact new ones; you must first declare that the existing regulations do not apply to captain Gordon, though they are expressly prescribed for captains; you must then supply their omissions, and say they shall extend to me, though a commodore is not named in them. And when this shall be done; I ask, what duties remain to captain Gordon, if those prescribed by the regulations did not attach to him? I answer—no. His place was a mere sinecure, without duty or responsibility—It will be useless to say, that some of these duties remained with him, while others were transferred to me. They cannot be separated; they are all comprehended in the same chapter, regulating the duties of captains or commanders. If he was a captain or commander, within the meaning of these regulations, they all attached to him; if he was not, none were obligatory. The sole reason for annexing a captain to a commodore's ship, is that all the details on board that ship may be under his inspection; while the commodore gives a general superintendence to the squadron.
Should it be urged, that captain Gordon's rank in the navy, was that of a master and commander, I reply that the regulations are prescribed not solely to captains, but to captains or commanders disjunctively; and that the term "commander" is there used, as descriptive of that particular rank of master and commander, in the navy, as distinguished from captain; and not as expressive of a captain, having no superior officer on board.
Captain Gordon has, however, settled the application of these regulations to himself. For the first appointment of the secretary was deemed inexplicit, in not settling his rank in the ship, and was returned; he afterwards received his second appointment; to "act as captain on board the Chesapeake," and has since executed many of the duties prescribed by the regulations to captains or commanders. These duties he would not have performed, but from a conviction of the application of the regulations to him.
I will not detain you, sirs, by a particular recital
of the regulations prescribed to the commodore of a squadron. I rely on your recollection of their general scope and tendency—They prescribe duties to the commodore, in his character of chief of a squadron; and not as the commander of a particular ship. I will, however, notice three; because they alone have any apparent bearing on the present part of the enquiry—They are the 3d, 14th, and 15th.
The 3d section provides, that "he shall inform himself of the properties of the vessels in his squadron, that he may make use of them to advantage as the case may require." This obligation to inform himself of the properties of the different ships in his squadron, is certainly with a view, that he may appreciate their respective qualities; and be enabled to apply each to the object, for which it is best adapted: as for example, that he might not, for want of this information, send a dull sailer in chase. That he "may know the properties of the ships," however, it cannot be expected, that he is to examine into the minute arrangements of their interior, as is assumed by the first specification.
The 14th is in these words—"When he is at sea, he is frequently to exercise the ships under his command, and draw them into lines of battle, when the weather is fair, and the same can be done consistently with his cruising orders and without interruption to the voyage."
On this I shall make but two remarks: It prescribes this duty to be performed at sea; leaving the inevitable implication, that, in port, the captains are to exercise their respective ships as prescribed by the regulations for captains. The exercise prescribed, is of the squadron, to accustom them to the evolutions of combination, forming and attack, and not to instruct the crews of individual ships in the use of their guns.
The 15th is in these words: "He is to visit the ships of his squadron or division, and view the men on board, and see them mustered as often as he shall think necessary." He is to judge of the necessity of the visit, when he pays it; he is not enjoined to rummage the store rooms, overhaul the rigging, inspect the mountings of each gun, and pry into the magazine, (as some of the witnesses have supposed necessary,) but merely "to view the men and see them mustered."
The express regulations do not then, I conceive, prescribe the duty attached to me by this charge.
Neither does the usage of the navy. I speak with more confidence on this head; because it was my fortune to be twice placed, under most valuable officers, in the same station, which captain Gordon held under me. I speak of Commodore Barry and Dale. It was never thought by them, that the duties supposed by this charge to have appertained to the commodore, were within their province; nor did they perform them: they were executed wholly by me. Your own experience and observation, however, will best settle what this usage is.
The usage of the British navy corresponds with the opinion I have advanced.
On lieutenant Crane's opinion on this subject, I shall only observe: that opinions are not evidence; and if they were, whatever may be his merits, his opinions will not outweigh the express regulations, and the constant usage of the navy.
Before I quit this part of the charge, I cannot forbear observing; that it displays, in its frame, either a want of clear and definite conception of the relative duties of captain Gordon and myself; or a most anxious desire to supply, by the number of his charges, they want of individual force.
If these duties really appertained to me, I alone am responsible for the injury sustained by the United States for their non-performance. Yet by a strange perversion, either of judgment or feeling, the omission is, in general terms, imputed to me as an offence; while all the details of omission, from specific subjects of accusation against captain Gordon on his approaching trial.
Should it be said, that these remarks, (however correct in the abstract,) are not true in this particular instance, as there was no other ship but the Chesapeake under my command; the reply is obvious. My duty and authority as commodore were the result of that rank & appointment, and did not depend on the number of ships in my squadron. It will be perceived too—from the instructions themselves; that the Wasp was designed to accompany me; and on my arrival in the Mediterranean, several vessels were to be under my command. It will require a wonderful perception to discover, that my duties, as commodore, would have been fewer, on my arrival in the Mediterranean, than they were, before we sailed. Yet this must be the case, on the supposition that, while the Chesapeake alone was under my command I was to perform the duties of the captain: from which, on taking command of the squadron there, I should have been discharged. The truth is, that the nature of my powers and duties would, in both cases, have been the same: although, after my arrival in that sea, there were more objects on which they were to operate; than while I had the Chesapeake alone under my command.
I have been thus particular in examining the relative duties of capt. G. and myself, not because I feel the pressure of this charge. The subsequent disaster was however very materially connected with the want of previous arrangement and discipline in the ship. It was essential to that part of my defence that the enquiry should be made; that it might be known whose province it was, to see that the ship "was at all times prepared for immediate action."
If I have been correct in my remarks, the assumed principle on which the specifications of the first charge are bottomed is incorrect; and the charge must fall.
It will not escape your observation, sirs, that the court of enquiry have entirely overlooked this important branch of your examination. It cannot be a

ven inferred from their report, that such an officer as captain Gordon was on board the ship—The effect, which this consideration, alone (if it had been presented to them), would have produced on their report, must be obvious to every intelligent mind. The decision on this principle in my favour acquits me of many of the imputations, which they attribute to me.
The fact of omission is equally unwarranted. It appears that, between the 6th of June and the 21st, (the day on which I finally went on board,) I paid two visits to the ship. Admitting the application of the regulation, which I have cited from the chapter prescribing the duties of a commander in chief; it made me the judge of the frequency of visits necessary to be made. Was it necessary I should have gone more frequently? I say nothing of the pressure of those domestic arrangements, essential to a meditated absence of 2 or 3 years; ought I to have supposed that a ship, equipped under the superintendence of a captain of the navy; at a public yard; under the very eyes of the government; and for a distant voyage, could have been deficient in any of the material arrangements essential to her defence. Yet I did not entirely confide in this. On my first visit the crew were mustered and reviewed; which was all that the regulation required of me. I did more—I examined all her decks, and into the state of the store rooms; I made such enquiries into her state and condition as I deemed essential; and gave such instructions as seemed proper. I appeal to your candour, could I have done more, consistently with the respect and confidence due to captain Gordon? Would it not have displayed a suspicion either of his intelligence or attention; a suspicion justly offensive to his feelings, to have pryed into his most minute details? I will not condescend to answer the allegation that I did not examine the rigging: The proof of this neglect is that I did not handle the ropes, or clamber on the yards. A nautical eye could as well decide from the deck as by any other mode; I found nothing in her rigging to complain of; nor has my judgment, in that particular, been disproved by subsequent events.
My second visit was shorter than I designed. The reason I will state: I found that captain Gordon expected a party on board to a ball, and I was unwilling to interrupt his arrangements; although I had previously expressed my disapprobation. As gentlemen, you will say, the reason was sufficient. I remained, however, long enough to give instructions, and personally superintended the mounting of one of the quarter deck gun-carriages. On the day before we sailed, (besides a general examination of the ship,) I ordered the crew to be mustered; I did not go into minute details. Captain Gordon had reported his ship ready for sea; ought I to have doubted the truth of his report?
I proceed to the second charge—"For neglecting on the probability of an engagement, to clear the ship for action." Under this head there are six specifications, containing an enumeration of the various facts from which it is inferred that an engagement was at that time probable.
1st. "In that the said ship Leopard did fire upon the said frigate Chesapeake, and the said James Barron did fail suitably to repel said attack."
2d. "In that the said frigate Chesapeake was by order of the said James Barron surrendered to the said ship Leopard, at a time when the injuries sustained either on the frigate or her crew did not make such surrender then necessary."
3d. "In that the flag of the said frigate Chesapeake was by order of the said James Barron struck to the said ship Leopard, when the guns of the said frigate Chesapeake were loaded."
4th. "In that the flag of the said frigate Chesapeake was by order of the said James Barron struck to the said ship Leopard, at a time when the main deck battery of the said frigate Chesapeake was in a situation which would have enabled the return of a broadside in a very short time."
5th. "In that the flag of the said frigate Chesapeake was by order of the said James Barron struck to the said ship Leopard, without the said James Barron's having consulted any of his officers, as to whether the flag ought to be struck or not."
6th. "In that the flag of the said frigate Chesapeake was by order of the said James Barron struck to the said ship Leopard, before a single gun of any kind was fired from the said frigate Chesapeake."
The guilt imputed to me consists in my not drawing this inference; and omitting to make those preparations for battle, which such an inference required. I wish to answer each specification separately, and in the order in which they stand. The facts, are however, so intimately blended, both in the charges and in the evidence; their effect consists so much more in their combined result, than in their separate force, that I am constrained to depart somewhat from the course which I had prescribed to myself—I promise, you, however, that none of the facts shall pass unnoticed. It has presented itself to me as the most natural and perspicuous order, to separate the occurrences into two eras. The first will terminate at the period when I received the letter of captain Humphries; it will include all the circumstances antecedent to that period; which are the subjects of the four first specifications. The second will embrace the period of time, during which the British officer remained on board the Chesapeake; and will comprehend the two remaining specifications.
Before I proceed to details, I beg permission to offer a preliminary remark—This part of your enquiry, Sirs, is attended with a difficulty of a peculiar sort, which it will require your ceaseless vigilance over your own minds—entirely to surmount—And you must surmount it, to decide correctly on this charge. One of the most difficult operations of the human mind, is to review, after an event has occurred, the prognosticks which foretold it; and to give to each that exact degree of weight, to which it was entitled, when first presented to the view. In such an operation, the mind is incessantly carried forward from the cause to the effect.—The premises, and the result being completely within our view, we almost inevitably attach a weight and importance to antecedent circumstances; which they would not have had in our estimation, at the moment of their existence. Occurrences which then by the prudent and reflecting would have been either viewed with indifference; or noticed without conviction; are easily discovered to bear a connection obvious and intimate with a subsequent event; when that event actually has occurred. A feeble mind will readily connect a known effect with its prior cause; when it would have defied the prudent intellect to have foretold the event, by any system of a priori reasoning from these causes.
The question presented to you by this charge, is not, whether these circumstances appear now to you to have prognosticated the subsequent attack: but whether they ought then to have convinced me.—On this subject, you have the benefit of history; I could only speculate—That which is now fact to you, was only inference to me; you judge from experience; I reasoned only from probabilities. In judging of my conduct, it would be therefore the most cruel injustice to expect; that I should have arrived, by any process of reasoning at the subsequent event; with the same certainty; with which you, with the knowledge of that event, can now explain its connection with the antecedent circumstances. To judge me fairly on this charge, you must therefore abstract your minds wholly from the subsequent attack: you must go back from the present moment to the morning of the 22d of June; you must place yourselves in the situation in which I was, when these events occurred; and ask of your own minds, whether these circumstances would then have led you to conclude, that the attack was probable.
During the first of these eras, that is, till the Leopard's officer came on board, I admit that no preparations were made for battle. During this period, I solemnly affirm, I had no suspicion of attack. I will now endeavour to shew, that there were no circumstances which ought to have excited it.
The first circumstance, from which it is alleged, that I ought to have inferred the probability of attack, is the fact, that there were several persons on board, said to be deserters from the British navy. That I knew three men of that description were on board is true. But I had investigated their cases, by the directions of the navy department; and that inquiry resulted in my own entire conviction, and in that of our government, that these men were native American citizens. The result of this inquiry, I also knew, had been communicated to the British minister; and I had good reason to believe, that all pretensions to these men had, by him, been abandoned.
Captain Gordon has indeed stated, that the conversation which I held with him at Washington, not only satisfied him that these men would be demanded by the captain, from whose ship they had fled, but also convinced him, that I too entertained that opinion. It has been incontestably proved by Mr. Tazewell, that on his examination before the court of enquiry, he explicitly denied that any part of the conversation led him to conclude that I entertained such a belief—He then too for himself disclaimed all such expectation. I have not, sirrs, studied the chart of the human mind—I know nothing of its eddies and its currents, its ebbings and its flowings—It may therefore be in the natural course of mental operations, that a circumstance not recollected soon after its alleged date, should be wafted back at a remote period on the full tide of returning memory. Plain men have however heretofore thought that the memory did not, like wine, improve by time; they have believed that its pictures of past transactions become daily more faint, till their colourings are entirely lost in one oblivious blank—I leave it however to the disciples of Locke to decide this matter. I cannot think that my denial ought to be disregarded, while the witness continues in conflict with himself.
But it is said a menace had been thrown out by the captain of the Melampus, that he would take these men by force; and that this menace, being known to me, ought to have excited my suspicion. It is not at all wonderful, that the witnesses looking back on events, should now attach importance to this reported menace; and consider it as the test, by which all subsequent events are to be explained—It is only the natural result of that mental error, against which I have entreated you to defend your own minds—They give to that circumstance the importance with which they now see it, in connexion with the event; and not that weight, which they themselves attached to it, prior to the attack. That this is the case, is incontestibly proved by themselves. These men were known by them to be on board, before the Chesapeake sailed from Washington. The threats were also known to them. On their way from Washington they passed a British squadron, one of them the very ship to whose captain the threat was ascribed, at the very anchorage from which the Leopard got under weigh, and within a few miles of the place of her attack. They cannot shelter themselves by saying they waited my orders to prepare for battle; because, sirrs, I was not then on board—What weight did they then attach to these reports? Did they prepare for battle? Did they examine the British ships with scrutinizing eyes, to catch at every little circumstance which might either quiet or confirm those suspicions? Did they then believe that an attack was probable? No, sirrs; they say that no preparations were made; no suspicions excited; no scrutiny was held on the British squadron—the deserters and the menace were both forgotten. Yet gentlemen have now magnified this circumstance into colossal importance. An attack has taken place, and they now consider it such an index, as could not have failed to point me to the intentions of the Leopard. One of the witnesses, indeed, has endeavoured to obviate this remark, by stating that the British squadron was then within our waters—That gentleman ought to have recollected, that British officers are very little in the habit of respecting territorial boundaries; and it required not more audacity to commit this outrage, two miles within the Capes; than at the distance of two leagues, without them; the indignity to our sovereignty is the same, whether committed at the one place or the other.—If I ought to have expected an attack at the latter place; he should not so far have confided in their respect for our sovereignty as to have been entirely unprepared at the former—Mistake me not, sirrs. I mean to cast no censure on these officers for not then making preparations to resist. In the relative situation of the two countries, the report was very properly disregarded. All that I ask is; that they will not insist, that the same circumstances which did not then create even a suspicion of hostility in their minds; ought to have rendered it probable in mine; and that too, at a period when the force of that probability was greatly diminished, by their passing unnoticed.
But, sirrs, if this menace, connected with the fact of these persons being on board, was of such decisive force as to make an attack on the Chesapeake at that time probable; I fear that persons of higher rank than myself will be involved in the censure.—These circumstances were known to the secretary of the navy, prior to the departure of the Chesapeake from the Potomack. He could not have been
ignorant of what was notorious to the whole American nation; that a British squadron was constantly hovering on our coast; and that part of them had for many months, been stationed a few miles within the capes. Yet the Chesapeake was sent from Washington with only a small part of her guns on board; although she must of necessity pass within a mile or two of those ships, from whom the charge supposes an attack probable. Not warned by the late of Pierce, he possibly confided in the implicit respect paid by British officers to our jurisdiction. Be it so—Yet if these circumstances, in the opinion of the secretary, made an attack probable, as soon as the Chesapeake passed these limits, was it not his duty to have admonished me of it?—Yet, so far from putting me on my guard, his instructions, written after his knowledge of the circumstances , were calculated to disarm me of every suspicion which might have existed in my mind. I quote from them the following sentence:
"Being at peace with all the world, our principal objects in sending publick vessels of war into the Mediterranean, are to protect our commerce from the predatory disposition of the Barbary powers to keep them at peace with us by a conciliatory deportment, and by displaying a force at all times prepared to protect our commerce; and to exercise our young officers in the practical duties of their profession—These are justly considered interesting national objects, and to your vigilance, patriotism and skill, they are with confidence committed."
"Our interest, as well as good faith requires that we should strictly preserve our neutral relations and that we should cautiously avoid whatever may have a tendency to bring us into collision with any other power."
It may answer the present views of my accusers to represent these circumstances, as of sufficient force to have convinced me of the probability of an attack. It is, however, impossible to reconcile the belief, that prior to the 22d June, the secretary thought so; with the instructions I received from the navy department.
I have defended myself under this specification as if the facts stated in it were true. It was only, however, necessary for me to say, that the menace, if ever made, is not brought home to my knowledge.
I am not unapprized, Sirrs, of the tales which have been industriously circulated, that I received official notice of this menace from the secretary of the navy, with an admonition to be prepared for the attack. I will not believe, Sirrs, that these tales as destitute of all truth, as unsupported by any sort of evidence, will by you be regarded. You will do me the justice to acknowledge, that I have used all means of establishing this damning fact against myself, if it were capable of being established.—Conscious of the falsehood of the tale, and anxious to expose it publicly, I have myself summoned the very witness previously cited to support this part of the prosecution. If he has not attended, it cannot be imputed to me, that all my exertions have not been added to those of the secretary of the navy. I most solemnly deny, that such a communication was ever made, or such admonition ever conveyed to me—This denial, though not required for my present defence, is due to truth, to my own honour, and to the American nation.
But why need I urge this—If I had inferred from these reports, that an attack was probable; has not the result evinced, that such an inference would have been erroneous. For it is now universally known, that the attack was made, not in execution of this pretended menace, but under orders received from admiral Berkeley, only on the night previous to our sailing. I left Hampton Roads, confiding in the amity then existing between the United States and Great-Britain, and under no suspicion that the ships of that nation, which had been for many months lying within sight of Hampton Roads, meditated a hostile attack on me. In determining the effect which subsequent occurrences ought to have produced on my judgment, you should bear this state of mind continually in view; you will perceive that none of them were calculated to excite suspicion; unless viewed through the medium of anticipated hostility.
The first occurrences in the order of time and in the specifications, are the communication by signal from one of the British squadron; the telegraphic communication between that ship and another; and the Leopard's getting under weigh.—These appearances, says the accusation, indicated hostility.—A person unacquainted to naval affairs, would certainly infer, from the solemnity with which these circumstances are urged as indications of an intended attack; that signals were rarely used between ships of the same squadron: and when used, that they could be perfectly understood by all observers.—And the latter conclusion would derive great support from the testimony of Mr. Crane, who (probably from inadvertence) has stated, that the Leopard got under weigh by signal . What would be the surprize of such a person to be told, that the communication by signal is the ordinary mode of intercourse between distant vessels of the same squadron; and that scarcely an hour passes in which various signals are not made from the ship in which we now are to some of the numerous gun-boats in our harbour? How much more would he be astonished when informed, that these signals are as incomprehensible without a book of explanation, as even the hieroglyphicks of col. Burr, without the aid of gen. Wilkinson's key?—All that could be inferred from the signal was, that something was to be communicated. But it seems, that, as the Leopard got under weigh after the signal, I ought to have inferred in the words of the charge "the probability of an engagement"—Why so? If I had been permitted to conjecture the meaning of a signal, which you, Sirrs, as naval officers, know it was impossible for me to comprehend, I should certainly have inferred that the signal was designed, not for the Leopard, which did get under weigh, but for the Melampus which remained at anchor. For the Leopard is not represented to have made an answering signal, (which is always done in our service, and I believe in all others, by the ship to which a signal is addressed) while the Melampus did answer the signal, and engaged in a telegraphic communication with the commodore.
On this subject I shall make but one more remark. There are very many reasons why the witnesses, viewing this circumstance in connection with the attack, should, at this day, attach more importance to that occurrence, than they did before the engagement; there are no reasons why they should attach less. Some of them, it will be re-
membered, viewed them through the magnified medium of anticipated attack. Yet what do they now say?—Captain Gordon, lieutenant Allen, lieutenant Smith, the Master Brooke, and all the Midshipmen saw the signals; yet all acknowledge that they excited no suspicions. Mr. Crane and Mr. Creighton alone deemed them indications of hostility.
But the Leopard it seems got under weigh when no other vessel but the Chesapeake was in sight; carried but little sail; discovered no disposition speedily to leave the land; and the charge supposes that I should have inferred the probability of an engagement from those appearances; to this charge it would be a sufficient reply in the language of a poet:
"Trifles light as air, are to the jealous confirmations strong"
"As holy writ."
Nothing could have given these circumstances any importance, but a previous suspicion; it is notorious that, for many months antecedent to the sailing of the Chesapeake, a British squadron had rendezvoused in the Chesapeake Bay, watching the movements of certain French ships of war within our waters. It is also admitted, that some one or other of these vessels were in the almost daily habit of quitting their anchorage, and going just without the Capes, as the most convenient place for intercepting vessels inward bound. It is universally known, that many inward bound vessels had been actually captured about this time, within sight of the shore. With these facts I was perfectly acquainted—did they not furnish a much more reasonable and natural solution of these appearances, than the extravagant supposition that the ships of a nation, with whom we were in the strictest amity, which for many months had been enjoying the rights of hospitality within our waters, designed an attack upon our flag, at our very threshold?
With respect to the evolutions of the two ships, the tacking, wearing, &c. I really know not how to notice them, because I cannot perceive their force and application, unless indeed they were resorted to by the secretary of the navy, as an ingenious device to introduce before you the opinions of the court of inquiry. If he has promised himself, that this court will be influenced by that opinion, I am persuaded he knows not the characters of which it is composed. I believe this is the first occasion, in which, on the trial of an officer on specific charges, the detailed opinions of an enquiring court were exhibited against him.
It can be no apology for so dangerous an innovation, that it spared him the trouble of introducing them among the specifications.
The change of the Leopard's course was produced by the same circumstance, which caused the Chesapeake to brace sharp, to wit the change of wind; she had before been standing to the S. E. and the wind coming from that quarter, she, of necessity, changed her course, and stood to the north eastward. The coincidence of movements in the two ships, was a matter of necessity on the part of the Leopard, and therefore warranted no inference that she was watching my movements—Neither did it indicate any change of her original intentions to stand to the southward; because being near the shore, the course which she afterwards took, was the only one by which she could get off the land.
It is somewhat remarkable that it should be assigned as an indication of hostility that she manoeuvred to keep the wind of the Chesapeake; when it appears that her gaining the wind, arose wholly from its accidental change. If it had continued at the point at which it was when she passed close round Cape Henry; or, on changing, had come from a different quarter than E. S. E. she would have been to leeward of the Chesapeake.
When the Chesapeake had gained an offing of 3 leagues from the land, she tacked and stood in shore to wait for the pilot boat—the Leopard thereupon also tacked and stood in. If the United States had been at war, such a movement in an unknown ship, would certainly have excited suspicion in the mind of a vigilant officer. It would not then indeed have justified the inference stated in the charge, that "an engagement was probable," but it ought to have made him vigilant, in examining his future movements. But surely it cannot be expected that such a movement in a ship known to belong to a nation in amity with us, a ship which had left our port within my view, ought to have excited the same suspicion. Her subsequent manoeuvres were however calculated to dissipate every suspicion which such a movement could have excited in the most cautious mind. We stood in for the land, under easy sail, for half an hour; if an attack was designed, we were no longer within the limits of the United States, and no respect for our jurisdiction restrained her operations. Instead of making sail to overtake us, before we had got near the land, she continued to follow us under easy sail. I have taken the statements of the lieutenants to be correct in relation to the manoeuvres and movements of the two ships, for the purpose of shewing that their own representations of these manoeuvres and movements, warranted no inference of hostility. You will find, however, that the pilot gives a very different account of the number, nature and courses of these evolutions, and his particular situation gave him the best means of being correct. If you regard his statements, then it will necessarily follow that the inference of the lieutenants is incorrect.
I will not descend to reply to the imputation that I am guilty of misconduct, in not inferring the probability of an engagement from the circumstance of the Leopard's rounding to on the weather, instead of the lee quarter of the Chesapeake.—That mind must be already determined on my conviction, which can draw an inference against me from that circumstance—All that the most scrupulous observer of nautical etiquette could infer, would be the rudeness of capt. Humphries, and the personal application even of this charge would have been diminished by the consideration that this like many other sea honours, have been long arrogantly claimed by British ships.
As to her ports being tripped up, I affirm, in contradiction to what has been said by some of the witnesses, that this, so far from being unusual in two decked ships, is constantly the case in warm climates when the weather permits; it is essential to the health and comfort of the crew. All the ships lying at anchor, when the Leopard got under weigh, were in the same situation—It ought not to have excited my surprize that the Leopard being at anchor with her ports up, should not have taken them down immediately on quitting the Capes, as

there was no necessity to do it. It is somewhat remarkable that although so much importance is now attached to this circumstance, no two of the witnesses agree as to the discovery of the fact so portentous of hostility and death—Let them however speak for themselves. Lieutenant Crane says—"On the wind coming light and shifting, she stood off shore, no doubt to take advantage of a change of wind; a change took place and she shortened sail—Directly after she shortened sail, with her head off shore, I discovered her ports triced up."—Lieutenant Allen says—"At a quarter past two we hauled up our courses, took in our top-gallant sails, and tacked in shore to wait for the pilot-boat. The Leopard immediately tacked in on the same tack with her former sail—she was then about a mile from us; a point and a half abaft the weather beam, and I discovered her lower ports open."—Lieutenant Creighton says—"After she hauled I discovered her lower ports triced up."
Mr. Smith says—"Just before dinner, Mr. Brooke said to me that the Leopard's lower ports were triced, and on looking I discovered it."—Recalling, sirs, they dined at half past two, and the Leopard came down nearly at four—while Mr. Brooke himself says that he did not discover it until she was within a quarter of a mile, and just before she hauled.
One of the specifications under the 2d charge states, that the Leopard approached under all the appearances of being prepared for action—These appearances are not stated; nor can I imagine what they were. The crew were not observed to be at quarters—The tompions were not discovered to be out, till after the British officer came on board; nor had the trainings of her guns, and the bustle among the marines, then been discovered—Some of these circumstances occurred when I was below with the British officer, and were unknown to me; others were not observed till after his departure.
Possibly it may be said, that although none of those appearances, separately considered, ought to have excited suspicion; yet their combined operation ought to have created a belief, that an attack was designed. To this I reply, that each circumstance being susceptible of an easy and natural solution, at the moment of its occurrence, it cannot be believed that their connection and dependence would then have occurred to me. Much less can it be imagined, that any inference, which might have been drawn from their combination would have outweighed the many obvious considerations which rendered such an attack in the greatest degree improbable. Against it, were opposed the recollection of numerous cases in which seamen had been banded of our ships, and refused without hostility; a temper in the British councils more favourable than to the United States, than at any former period; the recent arrangement by a depending treaty of the differences between the United States and Great Britain; and above all; the daring extravagance of the act itself—As well might I have anticipated an attack in Hampton Roads.
I cannot but deem my situation peculiarly unfortunate, when it is imputed to me as a crime, that, for these trivial occurrences I did not infer the probability of an outrage, which the whole American nation has pronounced unprecedented in audacity, and which Great Britain herself has since disavowed.
One circumstance I ought not to pass unnoticed—Capt. Gordon has stated, that, at table, I expressed my suspicions of the Leopard. I most solemnly affirm that I made no such communication. I could not have made it—I entertained no suspicion. He must have misconceived my expression—Doctor Bullus and Capt. Hall were at table—Neither of them heard it; and if expressed it could not have escaped their notice. That capt. Hall did not hear it is proved, by his own oath—He moreover states what were my remarks, which are very different from those ascribed to me by capt. Gordon. That Doctor Bullus did not hear it, is proved by evidence less equivocal even than his own declaration—It cannot be imagined that, hearing such an expression of my suspicions, and being a witness of all that passed with the British officer, he would have been so unmindful of the safety of his wife and children, as to have left them on deck to the latest moment before the attack. Capt. Gordon's account of the conversation is indeed somewhat singular—He recollects no remarks which led to it—none which followed it—It produced no expression of similar suspicion from him, or any other person at table. None of those enquiries were made as to the extent and cause of my suspicions, which would have naturally grown out of such a communication—The remark he ascribes to me is insulated; cut off from every thing which preceded, or followed in conversation.
It seems difficult too to reconcile his subsequent conduct with this representation; leaving the cabin under a persuasion that I entertained suspicions of the movements of the Leopard, was it not to be expected that he would have examined the gun-deck, caused the lumber to be removed, and (to use the expressions of the regulations) "have the ship ready for an immediate engagement." And if my suspicions had not been so strongly expressed, as to have made these arrangements necessary, was it not to be expected that he would at least have watched the subsequent movements of the Leopard, that he might have ascertained the justness of my suspicions? Instead however of doing any of these things, which it would seem so natural for him to do, he acknowledges, that though constantly on deck, he did not even attend to the manoeuvres of the Leopard.
The exhibition of the opinion of the court of enquiry as a part of the charges against me, imposes on me the cruel necessity, not only of justifying myself upon the facts which are now proved, but also against the inferences and opinions expressed by that court. Whether this mode of proceeding be either just or legal, the world will decide; in relation to such parts of that opinion as have produced the charge which I am now answering, the result will be very different from that which was probably anticipated; for you will perceive, sirs, that the court of enquiry have stated the various facts from the combination of which their opinion on this point was deduced—If these facts did not warrant their inference, I ought not to suffer in your estimation from their opinion; if their inferences were correctly drawn unquestionably you cannot adopt a similar opinion, because many of the most prominent facts stated by them are not proved at this trial, and others are proved very differently from their statements of them—For example, the menace to take these men by force, and the conviction
of the court that the presumptive , though not the positive evidence before them, proved my knowledge of that menace, are two of the greatest and most decisive facts from which they inferred my culpability in omitting to prepare for battle. But you have no evidence even of the reality of such a menace, much less of my knowledge of it.
I have purposely abstained from all comment on the details of evidence on these points; you will analyze and compare them, and their disagreement cannot escape you; it is due however to justice and myself to make some general remarks on them—Fifteen or sixteen witnesses have been examined, all of them officers, all possessing the same means of observing the hostile appearances of the Leopard; a great majority of them have declared that they had no suspicion of attack, until the order was given to go to quarters; they also declare that they heard no such suspicions expressed by others. One would imagine it almost impossible that those appearances could have been so decisive as some of the witnesses represent them, without producing at least an expression of it to some of the majority, if not its general communication through the ship.
Another thing is remarkable. The witnesses who have stated that they discerned the indication of unfriendly intention in the Leopard, are, without any other exception but capt. Gordon, the persons who originally preferred the accusation against me; and who have given a written pledge to the world to establish their charges—If I did not acknowledge my respect for some of these gentlemen, and my entire confidence in their honour and truth, I should conceal the opinion which I really entertain of them—But though I believe them honourable and just, I know them to be men: They are not exempt from the infirmities of our nature: It is not in human virtue to be indifferent to the result of a proceeding for the maintenance of which we are pledged to the world—There is a pride and egotism in the mind of man, which recoils from the imputation of convicted error.
In such a situation, our wishes are insensibly insinuated into our statements; and our own mind readily adopts that belief, which we are solicitous to create in others—This bias, which in honourable minds never fails to excite suspicion even over its own opinions, ought to induce you to receive the statements of those gentlemen with considerable allowance. This is the more necessary, when numerous persons having the same opportunities of observing the transaction; but under the influence of no such mental bias, have disclaimed the inferences which my accusers have advanced—It cannot be imputed to these other witnesses, that any bias, in my favour, has operated on their minds, to discolour their representations—To the rising, not the setting sun, are offered homage and adoration—it is before power and authority that the human mind stoops from its native dignity and independence, and crouches into sycophancy—I am stripped of all power; my accusers are continued in command over these witnesses—it may be said, however, that capt. Gordon is not among the number of my pledged accusers—Mist true. A stronger motive operates upon him; the web of his destiny is interwoven with mine; my conviction is the pledge of his acquittal; if it be not proved that the catastrophe resulted from my misconduct, the charge will inevitably revert to that officer from whose neglect of previous discipline and arrangement the surrender flowed—His examination has unalterably fixed the connection between us—To the prosecution his inmost soul is cheerfully unfolded; to me, it is cold as death; and silent as the tomb. Every enquiry of the prosecution, tending to establish my guilt, has readily answered; to me he refuses all information on points essential to my defence; to my enquiries, he replies that he is under prosecution; and is not bound to furnish evidence which may operate against himself; he gives this plea too, sirs, with a full knowledge that the judge advocate, is already in possession of his written evidence, on these very topics; his sensibility is indeed so very delicate, (not to say morbid) that he refuses to give information beneficial to me; on points in no degree connected with the charges against him; he has even refused to acknowledge a letter, since proved to be in his own handwriting; so keen is the perception of his own danger, from my acquittal—Surely, sirs, I have a right to expect, that with those evidences of the temper of capt. Gordon's mind towards me, your justice will apply those restrictions to his statements, which his own lips refuse to furnish.
There is, always, sirs, a surer test of the influence of motives upon men at a past time, than their present declarations; I mean their conduct. The acts of men remain the immovable and immutable monuments of their motives and impressions at the moment of action—Memory is at all times an uncertain expositor of past impressions. But on no occasion can it be less relied on than in its narrative of impressions of distant date, when it is the interest of the narrator to prove the existence of particular opinions at that time. In such a narrative there is a perpetual source of honest error—The judgment readily yields itself to the sophistry of the passions, and becomes a convert to their tenets; it gladly persuades itself that these inferences were really made at a former time, which it test, experience, and reflection, afterwards conspire to create.
In this case there is another obvious cause of error, from which no mind, however honourable and intelligent, can be entirely secure. This affair, and all the circumstances relating to it, have been the topic of a thousand conversations among the witnesses; in this interchange of statements, inferences and opinions, each individual imperceptibly incorporates the stock of others into his own, and insensibly appropriates it to himself, until he finds it impossible to discriminate between the original impressions of his own mind and the derivative conclusions of subsequent reflection or posterior information—I have had occasion to give you a striking illustration of the truth of this remark, in the statements of capt. Gordon. With this truth, thus examined before you, will you not take the conduct of these gentlemen when under the immediate impulse of those occurrences, as the expositor of their impressions at that time, rather than the representations now furnished by their memories? If you can, can you doubt that they did not then think an engagement probable?
The guns of the Chesapeake were loaded before she sailed; this which is always done on board our ships before sailing, capt. Gordon now persuades himself was done in consequence of a menace to take men from us by force; but can it be imagined, that capt. Gordon, if his expectation of attack was really then so strong as he now supposes it to have been, would have gone to sea, expecting an engagement at the Capes, without having ever once had his men trained to the exercise of the guns; and without any inquiries as to the state of the magazine? And if he had deemed it my duty to attend to these matters, would he not, on my coming on board, have thought it his duty to apprize me of the true state of the crew, before we sailed, and his motives for loading his guns? The lieutenants too, would they have pursued the conduct which they did, if their expectations of an engagement had been so strong as they now (I have no doubt conscientiously and uprightly) suppose them to have been? Would they not have examined their divisions, removed unnecessary lumber, and have made all the preliminary preparations, short of actually going to quarters? And if they deemed it improper to do so, without orders, would not their zeal and activity at least have induced them to be on deck, when the British officer left the ship, that they might instantly on his departure have received the order, which they supposed too long suspended, and the more readily prepare for battle. In stead of this, the most of them were in the gun room, when the order was given to go to quarters. Their conduct can only be explained by supposing that the impressions then existing on their minds were not the same which they now entertain, after much reflection, additional information, and frequent interchange of opinions.
One more remark on the evidence, and I have done. Numerous facts are stated, both in the specifications, and the evidence, as indicative of the probability of an engagement. Now this probability results, either from the combination of these facts, or from their separate and individual force. If it be the general result of their combination, by what means does it happen, that these gentlemen should each have attained the same result, though each of them has excluded some one or other of these facts from his combination? If the probability is inferred, from the separate force of these facts, is it not equally strange, that the same facts which one of them mentions as an indication of hostility, is admitted by others to have excited no suspicion. This moral phenomenon admits but one solution; passions are in metaphysics, what fever is in physics; they are both diseases; the mind may be jaundiced, as well as the body.
I proceeded, sirs, to the defence of my conduct, during the period when the Leopard's officers was on board the Chesapeake.
I admit that no preparations were made for battle in this interval; it remains for me to explain, and justify my motives. It has been my misfortune to suffer by misrepresentation in many parts of this unfortunate affair; and in none, more than in that which is immediately connected with this part of my defence. It has been said, that whatever doubts might have existed, antecedent to the receipt of capt. Humphreys's letter, that it ought to have convinced me, that an engagement was inevitable, unless I was prepared to surrender the men who were afterwards taken out. However excusable my conduct may be, it is said, that, on that instant, preparation for battle ought to have been made. If I could have foreseen events, with the same certainty which you can now look back upon them; it undoubtedly would have been my duty to have detained the British officer by force, till my preparations had been completed; and then to have dispatched him, with a positive refusal; but as I did not possess this faculty, all that the most rigid censors can require of me, will be, to show that the conduct which I pursued, was such, as a vigilant, prudent, and determined officer, ought to have adopted, under similar circumstances; if I do this, I have a right to expect acquittal, by all impartial men; although the result may not have corresponded with my expectations.
That you may judge more correctly of my conduct, I will at once state, with frankness and sincerity, the impression of mind, on reading the letter of capt. Humphreys—I did not believe, that an attack would be made on the Chesapeake, in the execution of that order; I do not mean to urge the vagueness of the order of admiral Berkeley, in relation to the mode in which search was to be made; although it will be perceived that there are in it, no instructions to use force; and the terms are studiously ambiguous. But you will perceive that the persons for whom that search was to be made, were men said to be deserters from six ships named in the margin of the order—The Melampus was not among the vessels there named; it is true that one of the persons afterwards taken out was a deserter from the Halifax, which ship was named in the list, but it is equally true, that this man had shipped under an assumed name, and is proof that as well as every other officer of the Chesapeake, was then ignorant that such a person was on board—Believing that no person said to be a deserter from the British fleet were on board, except only the three who had escaped from the Melampus, and discovering that the order did not extend to the deserters from that ship; I concluded that no search would be attempted for these men; and, in this conclusion, I was the more strongly confirmed, from the knowledge of the application, which had been made by the British minister at Washington; of the enquiry which had been conducted by me, under the orders of the secretary of the navy, and of the communication of the result of that enquiry to Mr. Erskine. Will not every liberal and unprejudiced man admit, that these circumstances justified the belief, that the British admiral had purposely omitted the Melampus from this order, because he designed to abandon all pretensions to the men who had deserted from her. Convinced that the persons to whom the order referred were not on board the Chesapeake, I did not believe that capt. Humphreys, (however presumptuous he might deem the order,) would have commenced an attack, after receiving my positive assurance that no person contemplated by the order were on board the ship.
I did, however believe, that the communication ought to inspire vigilance on my part. If capt. Hum. breys did not rely on my assurance, corroborated as it was by the frank and verbal communication, through his officer, of every thing which related to the men of the Melampus; I imagined that another communication would have been made from him before hostilities commenced, and that abundant time would have been allowed to make the necessary preparations for battle. Under these impressions, I did not think, that the occasion warranted a resort to a measure of so decisive a nature, as the forcible detention of the officer. I resolved, however, to clear the ship for action as soon as he departed; not doubting, that all my arrangements would be completed before an attack was made; if indeed capt. Humphreys should not be satisfied with the representation I had made to him. If in these expectations I was afterwards disappointed, the disappointment may be traced to a disobedience of my orders.
On the most deliberate examination of this part of my conduct, my conscience and judgment acquit me of all reproach—The most vindictive of my enemies can suggest no different course, which I could have pursued, but the detention of the British officer till my preparations for battle had been completed. If I had resolved on that measure, on Sirs, know well, that these preparations could not have been made without his knowledge. Viewing the preparations, as the certain indication of battle, nothing but force could have detained him—Ought I to have resorted to such a measure? If the detention had not been considered in itself an act of hostility, it would at least have warranted a belief that the seamen, who were the subject of the order, were on board the ship. I then believed that no person belonging to the ship named in admiral Berkeley's order, were on board. If an attack had been made in consequence of such detention; and, after a destructive conflict, no other men but those of the Melampus had been found on board, to what censure should I not have exposed myself? Would it not have been justly said by the American nation, that as the order of admiral Berkeley did not extend to these men, the conflict could have been avoided by a frank statement on my part; but that the detention of his officer justified capt. Humphreys' belief that these men contemplated by the order were on board; and, that to my misconduct, the nation ought to ascribe the murder of its citizens, the dishonour of its flag, and the destruction of its peace. Brought to a constitutional under such circumstances, with what emphasis should I have been told, in the words of the secretary of the navy, "Our interest as well as good faith, require that we should strictly preserve our neutral relations, and that we should cautiously avoid whatever may have a tendency to bring us into collision with any other power."
Grant, however, that this latter measure appear to you who are coolly looking back at events more judicious than that which I was compelled to adopt, on the reflection of a moment. It touches not my honour, or zeal for the service. It evinces only an error of judgment on a critical point, on which the best officers might have differed—For such an error, I will not believe, that impartial men will consent to stigmatize and dishonour an officer, who has devoted the prime of his life to the service of his country.
I cannot forbear noticing in this place, an imputation on my veracity, as unfounded as humiliating. It has been maliciously asserted, that my letter to capt. Humphreys contained a denial which I knew to be untrue. It is proved by Lieut. Snelcomb, by whom the deserter from the Halifax was enlisted, that I was never apprised of the situation of that man; and every other officer in the ship has concurred in saying, that they as well myself were ignorant that such a person was on board. The most rigid moral-tamers, therefore, impute to me any impropriety in relation to him. As to the three men who had escaped from the Melampus, my denial was literally true because they were not included in the order—Neither did I believe, that American citizens, escaping from lawless impressment could be denominated British deserters.
I have many reasons to regret the absence of Dr. Bullus. He was privy to all the conversation with the officer of the Leopard—It is known to him that so far from denying that these men from the Melampus were on board, I related to the Leopard's officer every thing which had occurred respecting them, and desired him to state it to his commander verbally, as there was not time for a written communication.* (TO BE CONTINUED)
* I have the satisfaction to find that this part of the statement is now established, beyond all question—it will be recollected that Dr. Bullus was sent with the dispatches to our ministers at London, and was selected for that duty because every circumstance attending the demand and attack, were personally known to him. In the letter of instructions to Mr. Monroe, Mr. Madison says—"But the present case is marked by circumstances which give it a peculiar dye. The seamen taken from the Chesapeake had been ascertained to be native citizens of the United States; and this fact was made known to the bearer of the demand; and doubtless was communicated by him to his commander previous to the commencement of the attack."
Mr. Madison's knowledge of this circumstance was derived from Dr. Bullus.
ENGLISH KID SHOES.
WOOD & HASTINGS,
HAVE JUST RECEIVED,
1 trunk fashionable English Kid Shoes, For Sale at a very low price.
To close a consignment, they will sell the best of Hussar BOOTS at 8 Dolls. per pair, Backstrap do. at 10 do. do. June 9.
THE PUBLICK LEDGER.
THURSDAY MORNING, JUNE 9, 1808.
COMMODORE BARRON'S DEFENCE. We expected that it would have been in our power to have given this Defence entire, but finding that it could not be published in one paper, if we had have omitted every thing else, we are compelled to divide it. A few extra papers of each number containing this defence will be printed for sale.
The resolutions of the Legislature of Massachusetts, in the 4th page of this paper, will command the attention of the people of America.
It is a fact that can be no longer questioned, that the late measures of the general government have produced a great change in the sentiments of the people.
The effect which this will have on the Presidential election we cannot as yet undertake to determine; it is certain that the Federalists will have at least 42 votes, but to whom they will be given is very uncertain; they will be probably decisive in the election. We should calculate that they will not be given to Mr. Madison, as the increase of federal interest has arisen in part from the unpopularity of the measures of the present administration, in which Mr. Madison is presumed to participate largely. Those Virginians who have set their hearts upon having a President from this state (and the friends of Mr. Madison are all of that number) will have to thank themselves if they are disappointed. If they had have agreed to support Mr. Monroe at first, they might have succeeded, for the federalists might have supported him, though they will not support Mr. Madison. We are not however of that number who think it important that the next President should be a citizen of Virginia.
We are informed that the owners and consignees of those vessels now in this port, having rice on board, and bound to ports in the northern states, have made application to the Circuit Court of this district to compel the collector to show cause why he refuses to clear them out at the custom-house, under the terms prescribed by the several embargo acts. Under the last supplementary act, the collectors are authorised to detain any vessel on suspicion, of having an unlawful destination, but it is understood that Mr. Gallatin has now directed all vessels to be deemed suspicious, which have provisions on board, and has directed that none be allowed to be exported, even coastwise, but through the intervention of some favourite monopolist, agreeably to the orders of the President. We are informed that it will be tried to-morrow. Charleston Courier.
[By last night's mail we received the Charleston Courier , by which we perceive that the Collector of that port appeared before the court, present Judges Johnson and Bee, when sundry Merchants filed their affidavits, stating the refusal of the Collector to clear vessels bound coastwise, and prayed for a mandamus to be issued in order that the said Collector might shew cause why he refused. Upon the return of the mandamus the Collector shewed for cause, the act of Congress, and the instructions of Mr. Gallatin, dated the 6th of May. The court were of opinion that the act of Congress did not apply to the case, & that Mr. Gallatin's instructions were rather recommendatory than positive, but "that without the sanction of law, the Collector is not justified by the instructions of the executive, in increasing restraints upon commerce, even if these cases had been contemplated by this letter."
A mandamus was accordingly issued, commanding the collector to grant the clearances, which he did, and the vessels were cleared.
We shall insert these proceedings in our next.]
BOSTON, May 31. NEWS FROM SPAIN.
By Mr. Gray's vessel, which has arrived at Salem, from Spain, his catholic majesty's consul in this town, received files of the Gazette of Madrid, to the 27th of April inclusive.
The emperor Napoleon left Paris on the 2d of April, for Bordeaux. On the road he was met by the ambassador from the new king of Spain; who presented his credentials to him as he sat in his coach. The emperor informed that he would give him audience at the first city at which he might stop. The ambassador was necessitated to change his carriage, to endeavour to keep up with him. Napoleon proceeded to Bordeaux, where he visited the different publick buildings, the river, &c.
The late king of Spain had published a proclamation declaring that he had voluntarily abdicated the throne in favour of his son Ferdinand, whom he called on his subjects to obey—at the same time he recommended to his son to keep in office the old unsuspected publick servants.
King Ferdinand had proceeded to Victoria (which is 155 miles N. of Madrid and 82 S. E. of Bilbao) to meet the emperor Napoleon, and conduct him to Madrid, where it is expected the marriage of the king with the emperor's niece, will be solemnized—and the coronation take place.
The Prince of Peace had not been punished, nor even tried—and nothing criminal have been found against persons at first suspected as connected with him.
BY JAMES TAYLOR.
On Tuesday the 14th inst. at eleven o'Clock, on Marsden's Wharf, 120 hogsheads Muscovado SUGAR. Sixty Days—Notes with endorsers. June 9.
The Packet Venus, Capt. Boush, will sail for Boston on Sunday next. For passage only apply on board. June 9.

MASSACHUSETTS LEGISLATURE.
In the legislature of the state of Massachusetts on Friday, the 28th May, Mr. Wheaton, of Nor-
"Whereas the present critical and alarming situation of our national affairs, renders it peculiarly necessary and proper that our rulers should be correctly informed of the sentiments of the people who are the only legitimate source of power;
"Resolved, by the Senate and house of representatives of the commonwealth of Massachusetts, in general court assembled:
"That the citizens of Massachusetts have a natural, and immediate interest in the preservation and prosperity of commerce, navigation and the fisheries;
"That to secure protection and encouragement to these most important and unalienable interests, was a primary motive for the accession of this commonwealth to the constitution of the United States:
"That we therefore view with anxiety and alarm the operations of an embargo of an unprecedented extent and unlimited duration, by which not only foreign commerce is annihilated, but the most grievous restraints and embarrassments imposed upon the intercourse between different states, and even between different parts of the same state.
"That if this unexampled prohibition of commerce could rightly be enforced by congress, yet the delegation of an authority to the executive, to regulate the coasting trade, the ordinary intercourse between the citizens of the same state, and to grant exemptions and dispensations at his discretion to individuals or districts, would not be less dangerous and extraordinary, as it might become the foundation for oppressive monopolies and exclusive privileges and prepare the country for the habitual surrender of the legislative power into a single hand:
"That while the true policy of the United States points to the cultivation of peace and amity with all nations, yet if these blessings be unattainable by means consistent with national honour, the people of this commonwealth will be ever ready to sustain all privations and to make every exertion requisite to support the dignity, and enforce the reasonable pretensions of the nation:
"That in the estimation of this legislature, a naval force is highly important for the defence of this country, and the protection of commerce;
"That the general government, having been instituted expressly to provide for the common defence and general welfare, and to preserve to us and to posterity the blessings of liberty, must be supported at every expense, and every hazard, while it secures these inestimable objects by an equal and paternal solicitude for the various parts and sections of the union:
It was then voted, that they be printed for the use of the members; and that the further consideration of them be assigned for Tuesday next, at 11 o'clock.
We understand the question for printing the above resolutions was carried by a majority of sixty.
Will be Sold at Publick Auction, on
THURSDAY the 16th instant, at 12 o'Clock, A HOUSE on the east side of Com-
JAMES TUCKER. 6
In pursuance of the power and authority to us given, under and by virtue of a Deed of Trust, bearing date on the 6th day of September, 1806, where by Allen Gorman conveys certain property therein mentioned for the purpose of securing the payment of a debt therein mentioned unto Phoebe Dins, his executors, administrators, or assigns.
WILL BE SOLD.
On Tuesday the 14th instant, at Publick Auction, at the Exchange Coffee-House, to the highest bidder, for ready money, the unexpired term of years in one equal undivided moiety or half part of
A LOT OF LAND,
Situate, lying, and being in the Borough of Norfolk, on the south side of Union-street, and bounded as followeth, to wit: beginning on the south side of Union-street aforesaid, at the corner of the Lot now belonging to Richard Evers Lee, and running thence easterwardly along the said street 84 feet more or less, to a lane which separates the said lot from the publick lot whereon the Court House now stands;
The sale will take place at 12 o'Clock on the day above stated.
THE TRUSTEES. 4ds.
LABOURERS WANTING.
The President and Directors of the Dismal Swamp Canal Company want to hire for the ensuing season, a number of Hands to work on the Canal;
May 6. Richard Blow, William Cannack, or Samuel Proctor, Overseer. tf
LANDING
From on board the Swedish Sloop African, captain Portelly, from St. Bartholomews,
2800 HIDES, Spanish,
10 tierces fine Green Mergalante COFFEE,
15 tierces fine Indigo—For Sale by Wilson, Cunningham, & Co.
IN STORE,
10,000 wt. good COFFEE,
15 hogsheads good 2d quality SUGAR,
10 do. N. E. RUM. tf
ICE-CREAMS.
The Subscriber begs leave to inform the Ladies and Gentlemen of Norfolk and Portsmouth, that he has began to make
ICE-CREAMS in various shapes,
which he will sell for the moderate price of nine pence during the season, at his house No 30, Church-street,
Also, Cordials, Syrups, and Cakes. J. DENIS. 3*
June 1. tf
Notice to Shipwrights and others.
{ British Consul's Office, Norfolk, 3d June, 1808.
His Britannick Majesty's Consul is de-
sirous to treat with such persons who may be inclined to undertake, by contract, to launch into deep water, and to convey to this harbour his majesty's cutter Zenobia, stranded on the beach to the southward of Cape Henry,
Persons who may be willing (after having seen the situation of the cutter) to enter into a contract for the purposes abovenamed, are requested to send their proposals in writing, sealed up and addressed to the consul, on or before the 20th instant.
FOR SALE, Or will be bartered in part for Tobacco,
78 punch. choice Demarara RUM,
A few puncheons Gosport RUM, and very fine retailing MOLASSES.
JAMES YOUNG. tf
June 3. tf
RICHARD & JOHN TAYLOR,
Have received by the Ship Rolla, Captain Garey, from London,
A few Packages of GOODS,
suitable for the season. They have also on Hand,
Cambrick; common and furniture
Calicoes; plain and striped Dimities,
White and coloured Jeans; Irish Linens, Sheeting and Cotton Shirting;
London superfine Cloths and Cassimeres, 4 4 and 6 4 Cambrick Muslins; Ginghams, Silk and Cotton Chambrays,
Ladies' and Gentlemen's Gloves and Hosiery, of all kinds, Sacking, Oznaburghs, and Brown Rolls,
Pipes by the box, and Copperas by the barrel, And an assortment of
HARDWARE, NAILS, &c.
all of which they will sell low for Cash, or undoubted Paper at Sixty Days—Also for Sale,
150 barrels NEW PORK,
50 kgs Lard; Old Jamaica Rum and Sugar. May 6. 1m
Just landed from on board the schooner Ploughboy, Capt. Hall, from Charleston,
50 tierces fresh RICE,
15 Bales Upland COTTON—For Sale by GEORGE RAINCOCK. 1m
May 11. tf
WOOD & HASTINGS,
Have just received from Baltimore and Philadelphia, a handsome assortment of
SPRING GOODS,
which with their goods on hand, comprise a large and general assortment, and they will be sold at very reduced prices for Cash only. May 9. tf
FOR ST. BARTHOLOMEWS, The Swedish Sloop AFRICAN; will take passengers if application is made within fifteen days.
Apply on board to Captain Portelly, at Lee's upper wharf. June 1. tf
NORFOLK BOROUGH. At a Hustings Court continued and held the 25th day of May, 1808.
Cornelius Cruywaygan, against Maritzitz Boztells and Moses Myers,
Defendants In Chancery.
The defendant Maritzitz Boztells not having entered his appearance and given security according to the act of assembly and the rules of this court; and it appearing to the satisfaction of the court that he is not an inhabitant of this commonwealth:
A Copy, Teste, WILLIAM SHARP, C. C.
NORFOLK BOROUGH. At a Hustings Court continued and held the 24th day of May, 1808.
Thomas Jones, against Thomas Wright, administrator with the will annexed of Thomas Newton, deceased,
Defendant In Chancery.
The defendant not having entered his appearance and given security according to the act of assembly and the rules of this court; and it appearing to the satisfaction of the court that he is not an inhabitant of this commonwealth:
A Copy, Teste, WILLIAM SHARP, C. C.
York County Court, April 18, 1808. Ordered, That Thomas Griffin, Gaw-
in L. Corbin, and Peyton Southall, gentlemen, be appointed Commissioners to let to the lowest bidder at the expense of this County, the building of a CLERK'S OFFICE as soon as possible,
Copy, Attest, S. Shields, Jun. C. Y. C.
The Commissioners above named are anxious to proceed in the execution of the above order, as early as possible,
Thomas Griffin, Gavin L. Corbin, Peyton Southall, Com'rs.
The above will positively be Let on the third Monday in June, it being Court Day. York Town, 9th May, 1808. 3w
SAMUEL COLEMAN,
Market-Street, westward of the Market, has established
A Boot and Shoe MANUFACTORY
For this purpose he has employed the journeymen who were lately in the service of Mr. Walker—as those are said to be the best workmen in the place, and as he is determined to spare no expense in getting the best materials,
New SHOES from New-York,
as usual for Sale—such as have been generally sold in retail at 9s. and 8s. 3d. for 7s. 6d.; those at 13s. for 13s. 6d. except of Morocco leather;
Gentlemen's SHOES and PUMPS
of many kinds, made in his factory, and in Newark.
VERNON'S BOOTS,
which are no doubt elegant—Having on hand nearly 20 pair of Boots, he believes there are very few gentlemen who cannot be fitted.
A few hundred bushels of ground Allum Salt; India Cottons, &c. &c. as low as they can be sold for a profit, for Cash.
From 10 to 15 BOYS may get good places as apprentices to the Boot and Shoe-Making Business.
June 6. tf
Just received by the schooner Polly, from Boston, and for sale by E. STURTEVANT, No. 77, Main-Street,
A fresh assortment of Ladies' Kid and Morocco SLIPS.
ALSO, Monroe SHOES with Heels. June 6. tf
BANK NOTES LOST.
FIFTY DOLLARS will be paid to any person who will give the Subscriber such information as will enable him to recover the following Bank Notes, of the Branch Bank of the United States, Norfolk.
L. No 1134—dated Philadelphia, 6th July, 1804, favour R. Taylor, for 100 dollars.
F. No 6663—dated Philadelphia, 12th April, 1803, favour R. Taylor, for 100 dollars.
WILLIAM DICKSON. June 6. tf
I will give Cash for barrel STAVES for fifteen days from this date. Moses Myers. June 6. tf
Two thousand Spanish HIDES, For Sale by William Plume, & Co. June 6. tf
For SALE, 4000 bushels Ground Allum SALT, And a few well assorted crates of EARTHENWARE. George Murray, & Co. December 7. tf
For CASH or approved Discountable Paper, 20 bales best Russia CANVAS,
1 do. Ravens Duck; 1 do. Matras Ticking,
65 packages German Linen—For Sale by Niemeyer & Von Kapff. February 26. tf
VIRGINIA, to wit:
At a Chancery District Court held in
the City of Williamsburg, the 26th day of April 1808 Robert, John, and Frances Howard, infants under the age of twenty one years, by Henry Howard their father and next friend,
Plaintiffs. Against Mary Selater, widow and devisee for life of John Selater, deceased, Richard and William S. Selater, sons and devisees of the said John Selater, deceased, Edmund Tabb, Frances Powell, Elizabeth Smith, and Miles Cary, executor of John Selater, deceased, and as executor of the said John, who was executor of Richard Selater, deceased, Defendants.
On the motion of the plaintiffs by their counsel, Sarah Tabb is assigned guardian to the infant defendant Frances Tabb, to defend her in this suit, and the defendant Edmund Tabb not having entered his appearance and given security according to the Act of Assembly and the rules of this Court, and it appearing to the Court that he is not an inhabitant of this country:
A Copy, Anthony Robinson, C. C.
A NEGRO WOMAN for Sale.
She is an excellent Cook and House Servant—Price 300 dollars, Cash. Apply at the Ledger Office. May 13. tf
WHITE JEANS, &c.
Just Received A few pieces very fine White JEANS,
Real Patent NANKKEENS,
Best NAVY CLOTHS, and fashionable BUTTONS. For Sale by
WOOD & HASTINGS. May 9. tf
NOTICE.
The partnership of Ellis & Sprigg, of Hampton, is this day by mutual consent dissolved—all persons indebted to the said firm are requested most earnestly to come forward and pay their respective balances to Mr. C. Sprigg;
Samuel Ellis, Per his attorney in fact, Robert Gibson, Corbin Sprigg. tf
Hampton, February 17.
NOTICE.
The Copartnership of RICHARD POWDEN, & Co having expired, Richard Drummond is authorised to receive and pay the debts of said concern.
Moses Myers, Richard Powden, Richard Drummond, tf
NOTICE.
The Subscribers have removed to the Ware-House, No 6, on Newton's whar, formerly occupied by Messrs. John D. Haidane, & Co.
JENNINGS & RODLEY. January 8. tf
FOR RENT,
That convenient Dwelling-House, on Brewer Street, the property of Mr. John Davidson, at present occupied by Mr. Stephen Harris.
Also, That convenient House, where Mr. Cornelius Calvert formerly lived; they have very fine gardens and all convenient out-houses;
James Tucker. tf
April 13. tf
On Hand,
A few qr. casks of choice Teneriffe
WINE,
And a few kegs fresh Dutch HERRINGS—For sale by the Subscriber. Moses Myers. tf
April 23. tf
Landing from the Sloop African, from St. Bartholomews,
258 bags Gaudaloupe COFFEE,
37 hogsheads } St. Martin's SUGARS.
8 barrels } 8 puncheons Rum. In Store,
60,000 wt. Jamaica COFFEE,
10,000 do. L. Sugar do.
30 kgs Raisins; 150 barrels R. & Whisky
4 cases Country Gin; 10 pgs old Mad. in Wine,
6000 bushels Iva
85 1/2 do. St. Ubes
2500 do. Turk's Island
500 do. coarse Liverpool
C. & F. WHITTLE. tf
May 30. tf
Mackinder & White,
Have just received from on board the schooner Liberty, Capt Lewis, from Philadelphia,
150 boxes fresh Imperial and Hyson
TEAS, of superior quality. ALSO,
A fresh supply of Hollands GIN,
Ticklenburgs, superfine Cloths Gentlemen's Silk Hats, Parasols, &c.
Which they offer for Sale on the lowest terms, for cash or approved notes. N. B. A few barrels of prime Smithfield MESS PORK. April 15. tf
ADVERTISEMENT.
A good Price will be given for the First Vol. of the History of France,
BY GIFFORD.
This Book was sent to the late Mr. M'rick to be bound, and sold at Auction with the rest. Apply at the Ledger Office. April 29. tf
1500 sacks SALT, Liverpool filled,
6000 bushels do. loose, and 30 crates Earthenware—For Sale on board the Ship Schein, by A. Maclure. tf
May 6. tf
AT PRIVATE SALE,
By S. MARKS, JUN,
60 hogsheads St. Kitt's RUM. March 2. tf
NORFOLK:
PUBLISHED THREE TIMES A-WEEK, BY WILLIAM DAVIS,
FOR THE PROPRIETOR, Opposite the Exchange Coffee-House. Price Six Dollars yearly, in advance.