To James Monroe
Department of State October 26th. 1804
The turn which our affairs have taken at Madrid renders it expedient in the judgment of the President that you should proceed thither without delay in execution of the instructions heretofore given1 with such alterations and additions as are contained in this letter. You will of course make such communications to the British Government on your departure, as will guard your mission against injurious misconstructions; and at Paris, on your route, you will avail yourself of all the opportunities there, for ascertaining and turning to just account, the dispositions of the French Government with respect to the questions depending between the United States and Spain.
As Mr Pinckney may have left Madrid, and if not, is on a footing unfavourable for cordial negotiations with the Spanish Ministry, I inclose herewith a new letter of credence and Commission,2 enabling you singly to execute the trust. Should a Successor to Mr Pinckney be appointed and arrive in time, it will be decided by the President how far he will be associated with you in the business.
For a view of the circumstances which call for your presence at Madrid, I refer you to the late correspondence here with the Marquis Yrujo of which a copy is annexed,3 and to that with Mr Pinckney and to his with Mr Cevallos, which his files will furnish you. I add also, a letter of this date from the Department of State to Mr Pinckney.4
Notwithstanding the rumour which appears to have spread in Europe, of an impending rupture between Spain and the United States, there is nothing in the avowed sentiments of the Spanish Government, and certainly nothing in the sound policy of Spain, to justify an inference that she wishes to be no longer at peace with us. It may reasonably be expected therefore that you will meet with a friendly reception. In return you are authorized by the President to give every proper assurance of the desire of the United States, to maintain the harmony and to improve the confidence between the two nations, and with this view, to hasten, by frank elucidations, and equitable accommodations, a removal of every source from which discord might arise. You will not fail at the same time to recollect in conveying these Amicable sentiments, the propriety of leaving the Spanish Government under an impression that they flow neither from a fear of the Spanish power, nor a belief that Spain sets little value on a continuance of peace with us. If the United States have a deep interest in avoiding war, they know that Spain cannot feel less of interest in avoiding it and is in no condition therefore to extort sacrifices or to risk the consequences of such an experiment.
If no exchange of ratifications of the Convention of Augt 11—1802 should have preceded your arrival at Madrid, the President has authorized you to make the exchange but it is on the expectation that the Spanish ratification will be absolutely unqualified. It must be not only without conditions, but without protestandos or declarations of any sort. Rather than admit them it is thought better to let the convention drop altogether, and to incorporate its provisions with those of a similar kind making part of the general accommodation with which you are charged. Indeed, if there be a prospect of effecting this accommodation without delay there may be an advantage in laying aside the Convention of 1802, as there will be an opportunity of giving to some of its articles both more precision and more comprehension. You will find some hints on this subject in the letters heretofore written to Mr Pinckney particularly that of 5 and may derive others from similar provisions in former conventions.
The spoliations by French Citizens chargable on Spanish responsibility will be an important topic in your negotiations, whether the Convention of 1802 be separately carried into effect, or be consolidated with a new one.
It is clear as has been distinctly and repeatedly stated in the instructions given to Mr Pinckney that where the capturing vessels were equipped within Spanish ports, or the prizes made or condemned within Spanish jurisdiction, Spain is answerable for them to the United States. This as a general principle has not been denied. But two pleas are offered, as rendering the principle inapplicable to the claims of our Citizens. One is, that the circumstances in which Spain was placed disabled her from controuling the wrongs done by French Citizens; the other, that the Convention between the United States and France having relinquished the claim of indemnities against the latter, Spain became thereby absolved also; inasmuch as the relinquishment to France would otherwise be so far frustrated, by her obligation to satisfy Spain for the indemnities paid by her to the United States.
The first plea alone was advanced in the early stages of the discussion. The second was pretty certainly suggested by the Spanish Minister here, who for that reason may be the more anxious to see it prevail; and it has been abetted by the rescripts of several American Lawyers, obtained doubtless by the same Minister, on a hypothetical case so stated as to educe the desired opinion.6
With respect to the first plea, it is too little consistent with the honor of Spain to be persevered in; and has been but feebly urged since the second occurred. It would require, besides, from Spain, satisfactory proof that she made every reasonable effort to maintain her own authority against the coercive intrusion of that of France. No such proof has been offered or attempted. In truth no serious effort appears to have been made and it may fairly be presumed, that the pliability of Spain was either the result of a positive understanding with France or a complaisance offered as the price for some equivalent advantage.
With respect to the second plea, so far as it respects the opinions of the lawyers, I refer, for the light in which it ought to be regarded, to the observations made in my letter of 7 to Mr Pinckney.
In its merits, the plea is equally unsustainable. In the first place, some of the French Citizens whose irregularities are charged on Spain, were private citizens, having no Commissions from France, in whose proceedings France cannot be supposed to have taken any interest, and for which therefore she might justly refuse to be answerable. In the next place, others of the wrong doers, tho’ once commissioned by France, may at the time have been without commissions, or have retained dead Commissions only. For these also as in fact private citizens France may refuse to be answerable. Again in cases where the captures stated to have been numerous, being made within the territorial jurisdiction of Spain were controuled by Spain, and probably not patronized by France, no sufficient ground appears, on which France could be made chargeable.
The responsibility of Spain in this last case is the more direct and positive, as she is bound by the 6th article of the Treaty of Octr. 17958 to use all her efforts to recover and restore to the right owners, their vessels and effects, which may have been taken within the extent of her jurisdiction by sea or land, whether they are at war or not with the power whose subjects have taken possession of the said effects.
Lastly therefore the cases for which France is eventually liable, because presumably a party to them, are those only in which her commissioned Cruizers on the high seas were the Captors and her Agents in the Spanish ports the instrument of condemnation. The several other cases, with such as may have happened between the Convention with France of Sept 30—18019 and that with Spain of Augt 11—1802 being as unsustainable against France, not within the principle on which the Spanish plea is founded.
As to this last class of cases, proceeding from French Officers and French Agents, as well as every other which can be traced to the sanction and support of France, it is certain that eventual resort may be had to France, for indemnification.
But it is no less clear that this eventual remedy does not interfere with the right of the United States, to resort in the first instance to Spain as in the first instance and in the ordinary course responsible for the injuries committed. French citizens like all other aliens, within Spanish jurisdiction are for the time and place spanish subjects. As such they are regarded by Spain herself. As such they are regarded by other nations. And as such, Spain is answerable for their conduct to other nations, in the same manner, as she is answerable for that of her permanent subjects.
Could it be shewn therefore that France had been released from her responsibility, it would not follow, that this release of Spain was involved in that of France. France would only have been released from her eventual responsibility (where it even existed) whilst Spain would have remained under her immediate responsibility. Both may be considered as bound to indemnify the United States; Spain as the primary, France as the secondary debtor, Spain as the principal, France as a surety; and the release of France consequently as no more releasing Spain than the release of a surety would release the principal debtor. This view of the subject derives force from the consideration that the United States have from the beginning addressed their claims to Spain as primarily and principally bound to satisfy them.
But to cut up this plea by the roots, it may be affirmed that no such release has been given by the United States to France. The Convention from which the plea is derived expressly binds France, in the Third article, to indemnification, for all captures which might be subsequent to the date of the instrument; and also in cases where no definitive condemnation had at that date taken place.10 Now the condemnations by French Agents in Spanish ports are neither definitive condemnations, nor any legal condemnations at all. The degree of authority, and forms of proceeding meant by France to be intrusted to her Commercial Agents in foreign Countries, appear to have been different at different times; and it may deserve enquiry what they were at the respective dates of the cases in question. By a law of the Republic of October 179511 it would seem that the authority was first granted, and in an unconditional form. By a law of their Consular Government however, of 8 Germinal 8 year,12 the same authority was granted with the following modification “Lorsque des prises seront conduites dans les ports étrangers, les commissaires des relations commerciales se conformeront exactement aux traités conclus entre la France et les puissances ches lesquelles ces commissaires seront etablis, et aux instructions du Gouvernement.
“Et dans le cas oú le présent reglement pourra y recevoir son exécution, ils rempleront toutes les fonctions dont il charge l’offic[i]er d’administration des ports de la republique en se faisant assister de deux assesseurs, choisis, s’il est possible, parmi les Citoyens francaise immatriculés et etablis dans le lieu de la residence de ces commissaires.”13 The proviso, implied by the expression “et dans le cas ou le present reglement pourra receivoir son execution” combined with the preceding reference to treaties &c will shew that the authority was not to be exercised, without the consent of the foreign Country where the trial was to be had. And by a Spanish regulation in 1799 referred to and enclosed in my letter to Mr Pinckney of March 8—1803,14 the jurisdiction of the French Agents in Spanish ports was not admitted by the Spanish Government. It will deserve enquiry also, in what light France herself may view the condemnations assumed by her Agents in Spanish ports. From some information lately received from Mr Skipwith, it may be inferred, that they are not classed with those relinquished to her by the United States and if not mere nullities, are at least within the exceptions to the relinquishment stated in the 3d Art of the Convention of 180115 and consequently, were it possible for Spain to prove the duress she alledges, would be eventually chargeable on France, according to her own view of the subject, so far as her judicial regulations may have been pursued by the individual sufferers.
In fine the proceedings in question were either valid or not valid. If not valid the release of France cannot be applicable to them, and the plea of Spain falls.16 If valid, the validity must proceed from the sanction given to them by Spain herself, since without that sanction, the French authority could not operate within the Sovereignty of Spain; and with that sanction the proceedings would be virtually the Acts of Spain, and the more undeniably charg[e]able to her account.
Thus in every view of the subject Spain will find it impossible to evade the obligation to include in a just and honorable settlement with the U States, the French Spoliations charged on her, as well as those committed by Spanish Subjects.
Still her pride may adhere to objections which have been so pertinaciously tho’ with such little reason urged by her. To spare this her retreat may be covered by general expressions confounding the French with the other spoliations or it may if necessary be still more effectually spared by a tacit relinquishment at the same time on the part of the United States of the indemnities for the interruption of the deposit at New Orleans which being an express violation of treaty forms a claim against Spain which she cannot controvert and of which the government of the United States has never lost sight. In such a relinquishment it will be desireable if practicable to except such of the few claims for losses sustained by individuals as can be properly specified and verified limiting thereby the relinquishment to the general injury done to the body of the people by the unlawful obstruction of their commerce. A reparation for this injury is clearly due to the American nation and Spain has no reason to expect that it will be abandoned without a valuable consideration of some kind or other.
For your guide in your general negotiations, you will take the instructions heretofore addressed jointly to Mr Pinckney and yourself,17 with one alteration however, which is authorized by the President. In case the Spanish government shall refuse to cede the territory eastward of the Perdido and shall require as indispensable to an acknowledgement of our title to the territory westward of that river an acknowledgement on our part that in ultimately establishing the western boundary of Louisiana the pretensions of the United States shall not go beyond the proposed western limit to the interval of desert to wit the river Colorado a line thence to the source of Red River18 thence along the highlands &c you are authorised after reasonable endeavors19 otherwise to effect your object to acquiesce in the acknowledgement so required.
In looking over the project of a Convention contained in my letter of April 15, I observe that Sect. 5 of Art II is so expressed as to permit Spain to continue Garrisons “at places where she now20 has them.” As “now” will refer to the date which the Convention may bear, it will be proper to substitute, for “where she now has them” “where she had them at the date of the Cession of Louisiana to France.”21 The reason of this change is obvious, and cannot justly be opposed by Spain, and is the more indispensable as otherwise the Garrisons which Spain may unnecessarily establish would give her an undue and dangerous preponderance within the neutralized district.
My letter of 22 to Mr Pinckney contains a representation, which he was charged to make to the Spanish Government on the offensive conduct of its Minister here, the Marquis Yrujo. The documents now inclosed, will exhibit further proof of his unfitness to be an organ of communication between Spain and the United States.23 You will observe that in his letter to the Secretary of State, his own explanation of what passed in the interview with Major Jackson convicts him of an attempt to debauch a citizen of the UStates into a direct violation of an act of Congress, and into a combination with a foreign functionary in favor of a foreign Government against the supposed measures of his own. The explanation tacitly confesses also some of the expressions charged on him which were grossly disrespectful to the Executive of the UStates. To all this is to be added, his publication of his letter to the Secretary of State in the newspapers as an appeal to the people; and the pretensions advanced in it, which are as extraordinary as the sophistry is absurd, which he employs in support of them. It cannot be necessary to develope or enforce such egregious misconduct. The Spanish Government will doubtless be at once struck with so singular a departure of their representative from the respect which he owed to the restraints imposed by the law of nations on public Ministers, who have more than a balance for them in the immunities with which they are endowed; from the respect which he owed equally to the Government to which he was deputed, and to that which he represented; and lastly from the respect which he ought to have felt for his own character which cannot fail to be degraded by the use or abuse which may be made of the press against him. The President wishes you to make such a communication on this subject to the Spanish Government as will lead to the substitution of a less exceptionable representative here, unless that step Should have resulted from the communications heretofore transmitted. I have the honor to be Sir, With great respect your most Ob Sert.
RC, extract, and enclosures (DLC: Monroe Papers); letterbook copy (DNA: RG 59, IM, vol. 6). RC in a clerk’s hand, signed by JM. Unless otherwise noted, italicized words are those encoded by a State Department clerk and decoded here, with periods added, by the editors (for the code, see PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 4:352 n. 1). RC decoded interlinearly by Monroe. The extract, in an unidentified hand and headed “Settlement of Boundaries,” is the deciphered text of the second coded section of the letter. In place of the last paragraph, the letterbook copy includes a clerk’s notation: “For the last paragraph of this letter respecting the Marquis de Yrujo which was casually omitted to be recorded here, see the letter under date of 23d May 1805” (JM to Monroe, 23 May 1805 [second letter], DNA: RG 59, IM, vol. 6). For enclosures, see nn. 2–4 and 21.
1. See JM to Monroe, 15 Apr. 1804, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 7:51–60.
2. Although not with the RC, several copies survive of Jefferson to Charles IV, 14 Oct. 1804, introducing Monroe as minister plenipotentiary to Spain (2 pp.; two copies, signed by Jefferson and JM [ViW: James Monroe Papers; NjP: Fuller Collection of Aaron Burr Papers]; Tr [DNA: RG 59, Credences]), and Monroe’s 14 Oct. 1804 commission (1 p.; two copies, signed by Jefferson and JM and marked “Duplicate” and “Triplicate” [NN: Monroe Papers]; Tr [DNA: RG 59, Credences]).
5. Left blank in RC and letterbook copy. JM probably referred to his 6 Feb. 1804 letter to Pinckney (PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 6:438–41).
9. JM referred to the convention of 30 Sept. 1800 (ibid., 2:457–82).
10. Underlined in RC.
11. JM referred to the law of 3 Brumaire an IV (25 Oct. 1795), which gave detailed instructions as to the procedures to be followed for the condemnation of seized vessels (J. B. Duvergier, Collection complète des lois, décrets, ordonnances, réglemens, avis du Conseil-d’état … [2d ed., 30 vols.; Paris, 1834–38], 8:383, 385–86).
12. JM referred to Article 23 of the “Arrêtté pertant création d’un conseil des prises” of 6 Germinal an VIII (27 Mar. 1800) (ibid., 12:173–75).
13. “When prizes are taken in foreign ports, the commissaries of commercial relations will conform exactly to the treaties concluded between France and the powers where these commissaries are located, as well as to the instructions of the government.
“In the case in which this rule may be executed they [the commissaries of commercial relations] will fulfill the functions with which the administrative officer of the ports of the republic charges them, seeking the assistance of two assessors, chosen, if possible, from registered French citizens in the commissary’s place of residence.”
14. PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 4:400, 401 n. 5.
15. JM probably meant Article 4 of the Convention of 1800. Article 3 refers to the capture of government vessels (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, D.C., 1930–48). description ends , 2:459).
16. The preceding sentence is omitted in the letterbook copy.
17. See JM to Monroe, 15 Apr. 1804, and JM to Monroe and Pinckney, 8 July 1804, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 7:51–60, 430–31).
18. Extract reads: “said river.”
19. In the extract this word is “indications.”
20. Underlined in RC.
21. See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 7:54, 60 n. 16.
23. In addition to the copies described in nn. 3 and 4, above, JM enclosed a copy of William Jackson to Jefferson, 7 Sept. 1804, with Jackson’s 7 Sept. 1804 deposition describing Yrujo’s attempt to have Jackson publish his essays (5 pp.).