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CHAPTER proceedings against Burr, was soon diverted by two gross outrages upon the sovereignty of the United States-one 1807. of the first fruits of the rejection of the late proposed arrangements with Great Britain; and which served to make any future accommodation the more hopeless, as well by exasperating the feelings of the American people as by presenting to the British ministry and nation striking proofs of the helplessness of the American government.

Among the vessels in company at the time of the unfortunate homicide of Peirce off the port of New York, and within the waters of the United States, by a cannon shot from the British ship of war Leander—an act for which Whitby, captain of the Leander, had lately been tried and acquitted by a British naval court-martial—was the sloop of war Driver, which, along with the Leander, had been forbidden by the president's proclamation, issued on that occasion, ever again to come within the waters of the United States. The Driver, however, in the course of the spring, put into Charleston to fill her water-casks; and, though informed of the proclamation, and requested by the authorities to depart, her commander refused to do so until it suited his own convenience. This, however, was nothing to what happened soon after.

Congress having granted, as we have seen, five hundred additional seamen, steps had been taken toward fitting out the Chesapeake to relieve the Constitution, then in the Mediterranean, and to carry out Commodore Barron, again appointed to command on that station. While the Chesapeake lay at Washington, fitting out for her cruise, there entered at the naval recruiting station at Norfolk three seamen, deserters from the British frigate Melampus, and four others, deserters from the Halifax, vessels attached to a British squadron employed in the

Chesapeake to watch and blockade certain French cruis- CHAPTER ers which had taken refuge at Annapolis.

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An arrangement for the return of British deserters 1807. had been held out, it will be recollected, by the American commissioners, during the late negotiation, as one inducement to the British to abandon the practice of impressment on the high seas. Independently of such a special arrangement, there was no obligation to deliver up deserters, and in defect of any law on the subject, in fact, no authority to do so; more especially if these men were, what they always claimed to be, American citizens who had been pressed into the British service. With regard to the deserters from the Melampus, a formal demand had been made for them by Erskine, a son of the celebrated lawyer of that name, lately appointed, through his father's interest with the Fox administration, minister to the United States as Merry's successor. The answer was in the terms of a former one to a April 7. similar application, that the American government were under no obligation, and, in fact, possessed no power to surrender deserters; that, however, so far from countenancing desertion, general orders had been given to the recruiting officers to enlist no British subjects known to be such; and that it appeared, by an examination of the matter which Commodore Barron had been directed to make, that these particular men were, in fact, American citizens, who had, as they alleged, been pressed into the British service. All three were colored persons, and it was afterward sufficiently proved that two of them were born in Maryland, the third being a South American by birth, brought at an early age to Massachusetts, where he had been educated. It was stated, however, by the captain of the American merchant ship to which they had belonged previous to entering on board the Me

CHAPTER lampus, that, so far from being impressed, they had deXIX. serted his vessel in the port of London, being suspected 1807. of a theft, and had enlisted voluntarily into the British

service. With respect to the deserters from the Halifax, the captain of that vessel having himself seen them on shore at Norfolk, had demanded them, through the British consul, of the recruiting officer and the authorities of Norfolk, but without effect.

After two months' preparation, the Chesapeake sailed from Washington, intending to complete her crew and equipments at Norfolk. On the passage down, three of

the deserters from the Halifax deserted from the Chesapeake, leaving on board of those claimed as British deserters only Wilson or Ratford, an Englishman by birth, and the three colored men from the Melampus.

The desertions from the British Chesapeake squadron had produced a good deal of excitement among the British officers, some of whom complained of having been insulted while on shore at Norfolk by deserters from their own ships. Encouraged, doubtless, by the news of the failure of the American negotiation and of the change of ministry in England, Admiral Berkeley, commanding on the North American station, had taken it upon himself to issue a circular order, dated at Halifax the first of June, and addressed to all the captains and commanders on his station. It recited that many seamen, subjects of his Britannic majesty, and serving in his majesty's ships and vessels, as per margin (to wit, Belleisle, Bellona, Triumph, Chichester, Halifax, and Zenobia), had deserted those vessels, had enlisted on board the American frigate Chesapeake, and had openly paraded the streets of Norfolk, in sight of their officers, under the American colors, protected by the magistrates of the town and the recruiting officer, who refused to give them up either on

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the demand of the commanders of the ships to which CHAPTER they belonged or on that of the British consul. The captains and commanders to whom this circular was ad- 1807. dressed were therefore directed, in case of meeting the frigate Chesapeake at sea, and without the limits of the United States, to show to her captain this order, and to require to search his ship for the deserters, and to proceed to search for them; and if the captain of the Chesapeake should make a similar demand, to allow him to search for deserters from the American service, "according to the customs and usages of civilized nations on terms of peace and amity with each other."

Here was a remarkable specimen of naval exposition of the law of nations, such, however, as are constantly occurring, especially in times of war, on the part of strong nations toward weak ones. The "custom and usage". referred to were a pure figment of Admiral Berkeley's imagination. The British civilians, whatever might be their doctrine as to merchant vessels, made no pretense of the existence of any right to visit foreign ships of war for the purpose of seizing British seamen, whether deserters or others. A ship of war on the high seas was admitted to carry the national jurisdiction with it; and, had the whole crew of the Chesapeake been British deserters, being on board that national ship, they were as much under the protection of the national flag as if in the streets of Baltimore or Norfolk.

The idea, however, of searching foreign ships of war for deserters was not original with Admiral Berkeley. Advocates for that practice had appeared in the columns of the British newspapers and on the floor of Parliament. Nor was the case of the Chesapeake the first in which it had been exercised. The instance off Havana, during the difficulties with France, in the time of John Adams,

CHAPTER already recorded in a previous chapter, had occasioned ΧΙΧ. the issue of a standing order to all commanders of Ameri1807. can ships of war never to allow their crews to be mustered except by their own officers. For that affair an apology had been made-more than seems to have happened in a more recent instance, in which one of the American gun-boats sent to the Mediterranean had been overhauled by one of the ships of Lord Collingwood's fleet off Cadiz, and robbed of three of her crew, under pretense that they were British subjects; an outrage which does not appear to have been made even a subject of remonstrance.

Having at last completed her armament and crew, the Chesapeake got under way from Hampton Roads, and, wholly unconscious of danger, set sail on her intended voyage. For executing Berkeley's orders, as well as for the purposes of general surveillance, there lay in Lynnhaven Bay three British vessels, the Melampus of thirtyeight guns, one of those from which the desertions had taken place, the Leopard of fifty guns, and the Bellona seventy-four. The Leopard got under way at the same time with the Chesapeake, and stood out to sea a few miles ahead of her, a proceeding in which there was nothing to alarm, as the British ships were constantly changing their stations. When both vessels were some seven or eight miles outside the Capes of the Chesapeake, having, as they proceeded to sea, approached each other, the captain of the Leopard hailed, and desired to send some dispatches on board. Nor was there in this any thing suspicious, as it was customary with the British ships of war to avail themselves of such opportunities for the safe transfer of letters to England. Barron accordingly brought the Chesapeake to; the Leopard also came to; and presently a boat was dispatched to the Chesapeake,