To Anthony Merry
Department of State July 16th. 1805
I have had the Honor to receive your Letter of the 9th. Instant respecting the Brigantine Transfer.1 By Information remaining in the Navy Department it appears, that though a Sale is ordered by an Interlocutory Decree, yet—Time has been given for a Claimant to appear until the next Term, before which Time no Distribution can be made of the Proceeds. It also appears, that before she was temporarily taken into the Public Service by the American Commodore, her Value was ascertained by three impartial and respectable Persons; and that not a Doubt remained of the Truth of the Facts on which she was stopped, and that they would amount to such an unneutral Conduct as necessarily to produce a Condemnation. Of the su⟨mmary⟩; Condemnation in the Mediterranean noth⟨ing⟩; can be traced; and it is evident from ⟨the⟩; Vessel being sent to the United States fo⟨r⟩; Adjudication, that either such a Proced⟨ure⟩; did not take Place, or that however advisable in some Respects it might be ⟨deemed⟩; by the Commodore, it was not understo ⟨od⟩; ⟨by⟩; him as in any Manner affecting the C⟨laims⟩; of the former Proprietors. It is moreove⟨r⟩; verbally reported to me, that an Offe⟨r⟩; ⟨was⟩; made to the Captain of the Transfer, of th⟨e⟩; Means of accompanying her to the Unit⟨ed⟩; States, which he declined. In Reference ⟨to⟩; the Facts of the Case, I shall only add, ⟨that⟩; the Transfer, the Name by which she h⟨as⟩; been proceeded against at Norfolk, ⟨ is that ⟩; which belonged to her at the Time of th⟨e⟩; Capture. In order however that every opp⟨ortunity⟩; may be afforded to the former owner who resides at Malta, to make Claim even at this late stage of the Process, if he thinks it advisable, Instructions will be given to the Attorney of the United States for the District of Virginia, to apply to the Court to prolong the Term allowed for a Claimant to come in, for such an additional Space, as may be fully adequate for the Purpose.2 Should this Application be allowed, as I make no Doubt it will, I flatter myself that your Views will be accomplished: and in the mean Time you may be assured of the sincere wish of the United States to promote on every proper Occasion such measures as may secure to Foreigners Justice in its Forms as well as Substance, and more particularly to repair and rectify Irregularities in Cases of Marine Captures. I have the Honor to be &c.
(signed) James Madison
Tr (UkLPR: Foreign Office, ser. 5, 45:245–246; letterbook copy (ibid., ser. 115, 14:115–117). Tr marked “⟨Co⟩;py,” enclosed in Merry to Mulgrave, 2 Aug. 1805, ibid., ser. 5, 45: 239–240v. Words and parts of words in angle brackets have been supplied from the letterbook copy. Minor differences between the copies have not been noted.
2. On 17 July 1805 JM wrote to George Hay, U.S. district attorney for Virginia, stating: “In the course of the last year one of the Vessels under Commodore Preble in the Mediterranean captured the Brigantine Transfer bound to Tripoli, after having an estimate made of her value he took her temporalily [sic] into the public service, and she has since been proceeded against as prize at Norfolk, where an interlocutory decree for her sale has been made and time given till the 13th. day of the next term of the District Court for claimants to come in. Her late owner being a resident of Malta, and Mr. Merry, the British Envoy, supposing him to be a British subject, has addressed a letter to me on the subject of this capture, intimating a dissatisfaction that the prosecution should proceed without the presence of any representative of the owner. As it does not appear that the Master or any of the officers of the Transfer were brought to Norfolk with her, as she was converted to public use abroad when in strictness she should have been previously sent home for adjudication, it is thought to be not unreasonable in order to satisfy forms and repair any irregularity which might have taken place before the judicial proceedings commenced, that ample time should be given for the owner to make his claim if he should think proper. You will therefore be pleased to apply to the Court to prolong the time limited for the claim and to suspend the distribution of the proceeds of the sale for Six months or such other term as may be sufficient for notice to reach the Island of Malta” (DNA: RG 59, DL, vol. 15; 2 pp.).