Madrid 24th July 1802
Some time since I received a Letter from Thos. Clifton, praying that I would take measures to release him from confinement in Coruña, where he had been detained a Prisoner, by the Orders of Mr Robert Montgomery of Alicante. In consequence of this Letter I wrote to Mr Montgomery to give me a statement of the transaction. I annex his answer, as also Cliftons account of the Affair, thinking it the best means I have, of laying this Case before you, on which I ask your Instructions.1
I do not find that the Laws of the United States make any provision for it, I therefore do not feel myself at Liberty to proceed, without your advice, more particularly as it involves private Rights, and as the measures adopted now, may hereafter be drawn into precedent, on similar occasions. It is to be lamented that this poor man should be detained so long without a trial; but I do not feel myself authorized to bring him to a trial in Spain, and I was fearful if I sent him Home in a Merchant Vessel, he might make his Escape, and avoid that punishment which ought to be inflicted on him, if he is guilty of Barratry.
The Letters annexed to this contain all the material information, I have been able to collect on this Subject, excepting that Mr Montgomery has withdrawn the support hitherto allowed by him to Clifton, and of consequence until your directions are received, he will be maintained at the expence of the United States. With great respect & regard I am dear sir Yours Truly
RC and enclosures (DNA: RG 59, DD, Spain, vol. 6). RC in a clerk’s hand, except for Pinckney’s complimentary close and signature. Enclosures 7 pp.; docketed by Brent (see n. 1).
1. Pinckney enclosed copies of two letters to him from Montgomery. The first letter, dated 27 Apr. 1802, described Clifton as “a fellow running off with a ship & cargo” entrusted to him by Montgomery on behalf of the owners, Loving and Curtis of Boston; Clifton “was first apprehended by our friend Barnet at Bordeaux, having transformed the American ship into a Swedish brig, but escaped from thence as he did afterwards from San Sebastian, & was finally detained, where he now is.” Montgomery “declined bringing him to Trial in Spain, where, if prosecuted, he must be hanged,… nor do I think myself at liberty to let him have his liberty.… Now that you are induced to take notice of the business, I leave him with much pleasure at your disposal.” Montgomery added that the stolen ship and cargo were worth $19,000, “of which nothing has been regained but the empty vessel in very bad condition,” and he suggested that Clifton might “buy himself from the Gallows” by making restitution to the owners. The second letter from Montgomery to Pinckney, 11 June 1802, covered a letter from Clifton to Pinckney of 15 May 1802. In it Clifton maintained his innocence in the affair, claiming that a series of accidents and misfortunes had led to the allegedly criminal acts. JM passed the matter on to Attorney General Levi Lincoln, who decided that “the authority of the general government to take, forcibly detain in custody, and bring to this country, from Europe, a person charged with barratry on private property” was doubtful, and “the controversy” appeared to be of a “civil nature, between private persons; and, like all such cases, to be left to their own course, on the ordinary principles of law” (Lincoln to JM, 29 Oct. 1802, Hall, Official Opinions of the Attorneys General, 1:123–24).