James Madison Papers

To James Madison from Anthony Merry, 14 April 1806

Washington April 14th: 1806


From the Answer which I had the Honor to receive from you, dated the 7th: of January last, to my Letter of the preceeding Day respecting the British Ship Esther, captured by a French Privateer, carried to St Mary’s, condemned at St. Augustine and sold immediately, in Consequence of that Condemnation, at St. Mary’s, I had Reason to hope, notwithstanding that your Instructions to the Collector of the latter Port (a Copy of which you were pleased to inclose to me) were not explicit as to the most essential Circumstance pointed out in my Representation-- that of the Illegality, at all Events, of any Condemnation of the Ship and Cargo which should have taken Place at St Augustine, as not being a Port of the Power by whom the Privateer was commissioned--, that the Collector, Knowing all the collusive Circumstances of the Case, and, above all, that the pretended Condemnation had been effectuated by a Spanish Court of Admiralty at St. Augustine, would have suspended any Assistance on his Part towards legitimating the Departure from St Mary’s of the Vessel and Cargo as American Property, at least till he should have received a further Explanation and Instruction from you.

Contrary, however, to this Expectation I have since learnt that the Part of the Cargo which consisted of Cotton was allowed to be exported in another Vessel, after the Cotton had been put into other Bags to avoid Discovery, that the Ship Esther was also suffered to be cleared out under another Name (that of the William and James) as an American Vessel, and that She was on the 5th. of this Month in the Port of Norfolk, into which she had put in Distress on her Passage from St Mary’s to New York.

All the Particulars, Sir, which I had the Honor to state to you in my former Letter on this Subject have been confirmed by the subsequent Information that has reached me, which adds, that Captain McNeal, not having been able to find the Funds necessary to pay for the Purchase he had made, had incurred the Penalty stipulated in his Agreement, when the Cargo was sold again to Messrs. Magee & Howard of Savannah, who had exported the Cotton in the Manner above described. Indeed, all the most essential Circumstances of the Case, as stated by me, in Regard to the Manner in which the Condemnation took Place have been avowed in an Answer (dated the 19th: January) which the Collector of St. Mary’s gave to a Representation which the British Vice-Consul at Savannah addressed to him as soon as he heard of the Transaction.

The latter Accounts I have received do not specify whether the Collector was in Possession of your Instructions to him when he suffered a Part of the Cargo to be Exported: but I can have no Doubt that they had reached him when he allowed the Ship Esther (now William and James) to be cleared out. He must therefore have considered himself as justified in this Measure by its not having been clearly pointed out to him that, independently of the collusive Sale, a Condemnation of the Ship and Cargo by the Spanish Court of Admiralty at St Augustine, or by any other Tribunal, although French, in the Spanish Dominions, ought to be considered as equally illegal.

A strict Adherence to this Principle of Maritime Law, which, I believe I am justified in saying, was always observed by every Nation, till by the Revolution in the Government of France and by the Power acquired by that Country, this as well as many other Matters of Order in Society and in the Intercourse between Nations, was overturned, appears to be the more necessary on the present Occasion from the Facility which the local Circumstance of the Contiguity of the Territory of the United States and Spain affords for a frequent Repetition of similar Occurrences.

Acording to the Principle which I have had the Honor to State, you will perceive, Sir, how strongly I am bound to consider the Ship Esther and her Cargo Still as British, the Property not having been alienated by a legal Condemnation, whence it becomes my Duty again to have the Honor of soliciting that the most effectual Measures may be taken to render invalid the Sales which have taken Place of the Ship and Cargo. I have the Honor to be; with great Respect and Consideration, Sir, your most obedient humble Servant

Ant: Merry

DNA: RG 59-NFL-Notes from Foreign Legations, Great Britain.

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