James Madison Papers

To James Madison from Anthony Merry, 9 July 1805

From Anthony Merry

Washington July 9th. 1805


His Majesty’s Consul at Norfolk in Virginia has transmitted to me a Copy of a printed Notice (a Transcript of which I have the Honor to enclose)1 published by the Deputy Marshall of the United States for that District advertizing for Sale on the 12th. of this Month the Brigantine Transfer, which the Notice expresses to have been libelled and sold for a Breach of Blockade, informing me that he had good Reason to believe the Vessel in Question to be British, and that she is the same that, when taken, was called the Scourge, and arrived at Norfolk the Beginning of this Year under the name of the Transfer, which was said to have been captured several Months before in the Mediterranean by a Frigate of the United States, and to have been commissioned for their Service after some summary Form of Condemnation had been adopted by Means of a Board of Officers assembled for the Purpose from the American Squadron in that Sea.

I have the Honor, Sir, to lay this Case before You, as it has been represented to me, because, if the Circumstances already stated, and those which I shall advert to presently, be correct, there would seem to be in it a great Want of that Formality which, according to Practice usually observed in similar Cases, and to the common Principles of Justice, is necessar⟨y⟩; to render the Condemnation legal.

It would seem impossible that that which is said to have taken Place somewhere in the Mediterranean can be considered as such since it is not Known that the United States had at the Time a Court of Admiralty established there, and it would therefore appear to have been very unusual and irregular to alter the Name of the Vessel, and to commission her for the Service of the Government, before the necessary Formalities had been complied with. That a legal Condemnation had not in Fact taken place, and, consequently, that the Alteration in the Vessel’s Name and her Employment in the Service was irregular, appears to be evident from the Circumstance of her having been libelled and condemned latterly in the District Court at Norfolk.

With Respect to the latter Proceeding, it is understood that the Vessel was libelled by the Name of the Transfer and not, as ought to have been the Case, by the name of the Scourge, and that Nobody on the Part of the owners was present to defend their Cause. If these Circumstances should prove to be correct, I can safely trust, from the Known Sentiments of Justice of the Government of the United States, that the latter Proceeding will be considered by them as irregular as the former.

His Majesty’s Consul has not been able to acquire any other or more positive Information on this Subject than that which I have had the Honor to state. I therefore take the Liberty, Sir, of submitting it to you, with the Observations which have naturally occurred to me on it, with a Request that you will be pleased to cause the necessary Inquiry to be made into the Matter. I have the Honor to be With high Consideration and Respect, Sir, Your most obedient humble Servant

Ant: Merry

RC and enclosure (DNA: RG 59, NFL, Great Britain, vol. 3); Tr (UkLPR: Foreign Office, ser. 5, 45:242–243v.); letterbook copy (ibid., ser. 115, 14:113–115). RC in a clerk’s hand, signed by Merry; docketed by Wagner: “Brige. Transfer.” Tr enclosed in Merry to Mulgrave, 2 Aug. 1805 (ibid., ser. 5, 45:239–240v.). For enclosure, see n. 1.

1The enclosure (1 p.; docketed by Wagner) is a transcript of a 28 June 1805 advertisement by Cary Selden for marshal Joseph Scott of the 12 July auction sale of “the Brig Transfer, her Tackle, Apparel, Furniture and Stores, as she came from Sea, libelled and sold for a Breach of Blockade.” The Transfer had sailed to Tripoli from Malta carrying “powder & other stores belonging to the Tripoline Consul.” After evading the blockade, delivering the powder to the pasha, and selling the other goods, the ship, now loaded with oil, sailed for Malta. On 17 Mar. 1804 it was seized by Lt. Charles Stewart of the Syren, who sent the Transfer’s papers to the United States for a condemnation he considered certain. Stewart sold the vessel to Edward Preble who renamed it Scourge and used it in the squadron. The ship arrived at Norfolk in February 1805, but its papers were not sent there for judgment from Washington until April 1805. On 12 July the Transfer was sold to Reeves Spalding for $596 and the guns to another buyer for $150 (Knox, Naval Documents, Barbary Wars, 3:495, 4:35–36, 5:344, 497–98, 506, 6:203).

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