To James Madison from Anthony Merry, 23 February 1805
From Anthony Merry
Washington February 23d. 1805
Sir,
The British Ship British Queen arrived at Charleston, South Carolina, in the Month of August last with Two Hundred and Fifty French Soldiers and Passengers on board.1 It appears that this Vessel had been captured by a French Privateer on her Voyage from Jamaica to Liverpool and had been carried to the Havana, where the Cargo was landed and sold, and that she was sent straight from thence to Charleston with the Troops and Passengers abovementioned. This Circumstance, which His Majesty’s Consul at Charleston has stated to me as a Fact, proves that, the Havana not being a Port of the Country from whose Government the Captors could have derived their Commission, no legal Condemnation of the Vessel can have taken Place, consequently, that the Original British Property in her has not been alienated—a Principle altogether as to which I flatter myself that the Sentiments of the Government of the United States will accord with those which I have had the Honor to express.
The Ship in Question continued in the Harbour of Charleston without any Steps being taken in Regard to her, when on the 25th. of last Month an Advertisement for her Sale appeared in the Newspapers of that Place,2 in Consequence of which His Majesty’s Consul considered it to be his Duty to endeavour to prevent the Sale by filing a Bill of Injunction in the proper Court.
I have the Honor, Sir, to transmit to you enclosed a Copy of the Bill, and of the Decree pronounced upon it by Mr. Judge Johnson,3 by which the Injunction solicited was refused.
It is unnecessary, Sir, for me to trouble you with those Observations which are obvious upon the several Reasons stated in the Decree which are adduced as Grounds for such a Sentence, except upon the alledged Impropriety of the Court’s interposing its Authority in a Case of this Nature, upon which I will beg leave to remark that the same Court in a similar Case which occurred in the year 1799 of a Bill filed by the Spanish Consul to prevent the Sale of a Vessel of his Nation which had been captured and sent into Charleston by one of His Majesty’s Ships, did not hesitate to grant the Injunction solicited.4 At all Events, the Appeal which I have the Honor to make to the Government of the United States for their Interference in the present Instance is pointed out by the Decree itself as the only Remedy left to prevent the Injury which His Majesty’s Subjects will Sustain by the Sale of this Vessel. It is therefore with less Reluctance that I give you, Sir, the Trouble of laying the Case before you.
His Majesty’s Consul in reporting to me the Proceedings Which have been held upon it has stated, that Mr. Judge Johnson in the Course of his Observations on the Subject considered the Treaty of 1794 between His Majesty and the United States (the 24th. Article of which would have applied to the Point in Question) as expired,5 and that he supposed that this Consideration, more than any of the Reasons alledged in the Decree, had operated to produce so unfavorable a Sentence.
It cannot be disputed that the Article alluded to in the Treaty abovementioned is no longer in Force. But whilst there is an Article to the same Effect (forbidding the Sale of Prizes) in the Treaties subsisting between the United States and the French Republic,6 I can safely trust to the just and equitable Sentiments of the American Government, and to their Jealousy of observing a strict Neutrality in the present War between Great Britain and France, for their not allowing, in a matter which solely regards the War, any Advantage to the King’s Enemies, because such a Determination would seem to be incompatible with that Impartiality and Neutrality which they are so desirous to maintain.
Upon these Grounds, Sir, I have the Honor to solicit that the necessary Measures may be taken, with as much Celerity as the Nature of the Case shall appear to you to require, to prevent the Sale of the Ship British Queen, or, should it have already taken Place in Consequence of the Decree of the Court, to provide such Remedies as shall render the Sale invalid. I have the Honor to be, with high Respect and Consideration, Sir, Your most obedient humble Servant
Ant: Merry
RC and enclosure (DNA: RG 59, NFL, Great Britain, vol. 3); Tr (ibid., vol. 5); Tr and Tr of enclosure (UkLPR: Foreign Office, ser. 5, 45:68–76; letterbook copy and letterbook copy of enclosure (UkLPR: Foreign Office, ser. 115, 14:17–22). RC in a clerk’s hand, except for Merry’s complimentary close and signature; docketed by Wagner. Minor differences between the copies have not been noted. For the enclosure, see n. 3.
1. The 30 July 1804 Charleston Courier listed the arrival on 28 July of the ship British Queen with “200 French Passengers and balast.”
2. “The French Ship BRITISH QUEEN … with all her standing Rigging, Yards and Spars; two Cables, two Anchors, &c.” was advertised for public auction on 25 Jan. 1805 (Charleston City Gazette, 25 Jan. 1805).
3. The enclosure (9 pp.; docketed by Wagner) is a copy of a suit initiated by British consul Benjamin Moodie against French commercial agent Jean-François Soult and vendue master Jacob Cohen & Co., asking the court to prevent the sale of the British Queen of Saint John, New Brunswick, that departed Kingston “in the Month of Novemr. or Decemr. 1803,” was captured shortly after, and carried into Havana, where the cargo was sold and the ship was boarded by French troops and passengers bound for Charleston. Moodie argued that the peace existing between Great Britain and the United States and the neutrality of the latter in the war between the former and France made the sale a violation of the law of nations. Attached to the suit is William Johnson’s decree that granting “an Injunction to prevent an intended violation of the Laws of Nations” was beyond the court’s jurisdiction; he added that the question at issue, that of whether the British Queen was “Prize or no Prize,” could only be settled by an admiralty court.
4. Diego Morphy’s 14 May 1799 suit against British consul Benjamin Moodie asked for an injunction against the sale of the Spanish felucca La Nostra Signora which had been captured by the British frigate Meleager and sent into Charleston. The court granted the injunction on the grounds that because the Jay treaty prevented Spain from selling British prizes in the United States, strict neutrality would preclude the British from selling Spanish prizes, at least without special permission from the president (Reports of Cases Adjudged in the District Court of South Carolina. By the Hon. Thomas Bee, Judge of that Court [Philadelphia, 1810; 21865], 263–65; Charleston City Gazette and Daily Advertiser, 16 May 1799).
5. For the expiration of articles 11 through 28 of the Jay treaty, see 2:264. Article 24 forbade the sale by “Foreign Privateers” of vessels of either contracting party in ports of the other (ibid., 262).
6. See article 25 of the Convention of 1800 with France (ibid., 477–78).