James Madison Papers

To James Madison from George W. Erving, 20 November 1805 (Abstract)

From George W. Erving, 20 November 1805 (Abstract)

§ From George W. Erving. 20 November 1805, Madrid. No. 2. “I had the honor to write you on the 25th. Ulto. from the Escurial, by Mr. Pinckney who proceeded to Lisbon on the 26th.

“Mr. Pinckney will have informed you particularly of the state in which he left our affairs here, of the means which he took, (but without success,) towards the close of his Mission, to obtain a Ratification of the Convention, & of the actual dispositions of this Government. Since his departure nothing of very material importance has occurred: their proceedings in the capture & trial of our vessels do not seem to be regulated by any uniformity of system, or to be founded on any determined principles. Whether owing to a policy in the Government perpetually varying, to a want of due organization in its Tribunals, to the insubordination of the inferior to the superior departments of the Government, or to the interference of personal interests & influence, it is difficult to say; probably at times to each of these. However this may be, the effect is very prejudicial to us, rendering it almost impossible (the great points of question apart) to preserve that perfect cordiality & uninterrupted harmony of intercourse which it is so desirable to have with this Country; for under such a state of things the Commerce of our Citizens must always be subjected to insufferable vexations, even if it can be secured from actual depredation.

“In consequence of the repeated & strong representations of Mr. Pinckney, an order was passed last year, intended, as it would seem, to secure a due respect to the 15th. Article of the Treaty1 on the part of the inferior executive departments, the tribunals & the Commanders of armed vessels, public & private; more particularly to repress the excesses of the privateers-men which had been so much complained of, & to establish a sort of code to regulate their conduct which appears to have been before that time perfectly lawless. I am informed from Cadiz that to this day no notification of the order has been given to the Tribunals there, & we have unfortunately abundant proof of its total inefficacy in other places; so that whether any vessel engaged in carrying enemies goods may or may not be brought in, & if brought in whether she will or will not at this moment be condemned, remain loose & uncertain questions.

“Having received from Nathaniel F. Adams, lately Commander of the Ship ‘Recovery’ from Norfolk, a copy of a decree made by the Court at Algesiras in July last, by which it appears that the Cargo of that vessel was condemned upon the ground of its being English property,2 I have thought this a fit occasion & the present a suitable time to make such a representation to this Government as is calculated to ascertain whether or not it will explicitly abandon the pretention of capturing enemies property on board our vessels, & properly inforce the order which it formerly issued upon the subject.

“I have thought it my duty to make a representation at the same time upon the case of the ‘Hudson,’ Bailey—a vessel which was robbed by a privateers-man of her papers, & then condemned for the want of them, with a view not only of obtaining an immediate restitution of the ship & cargo, but the infliction of such punishment on the privateers-man as the enormity of his offence seems to require, & which may operate beneficially as an example to others. I have the honor to inclose a copy of these notes,3 together with a copy of a decree lately given in a Court constituted by the french Admiral at Cadiz to try an American vessel (the ‘Huntress,’ Cunningham)4 which was taken by the combined fleets on the day of their sailing. By this last document it appears that whilst the Spaniards are harrassing our Commerce in such a variety of modes, the french authorities here are disposed to respect the neutrality of our flag to the full extent of our treaty stipulations—thus, though the Cargo of the ‘Huntress’ was proven to be enemies property, it has been delivered over to an Agent for the owners, appointed by the Captain, the question only as to the blockade of Gibraltar being reserved for the decision of a superior Tribunal.

“The claim of Messrs. Dulton & Tombarel, which you have been pleased to recommend to the care of Mr. Pinckney,5 he has not been able, with every exertion, to bring to a favorable issue, & I am now informed by Mr. Tombarel that he has learnt, tho’ not from a source immediately official, that he cannot hope to be paid the compensation which he has been so long seeking for; since the Government having received accounts from the United States, giving them reason to apprehend hostilities in that quarter, have concluded not to attend to individual reclamations.

“What calculation they make here as to the future, it is difficult to conjecture; wholly deprived of the means even of defensive operations, they must needs rely upon the interference or intermediation of their powerful ally: Whether on assurances from that quarter, or whether from an ignorance of, or an insensibility to, their true situation with respect to the United States, they seem, as far as I can observe, to repose in a state of perfect security.

“I did not write to you immediately upon the important meeting of the combined fleets & that of the British, because I concluded that you would receive intelligence from various other quarters much earlier than I could transmit it from hence in any correct form, for even to this day the whole extent of the loss on either side, is not generally known here. I inclose herewith the best reports which I have been able to obtain. I hear further that only two of the Spanish Ships are considered to be worth the expence of repairs. The King has rewarded the bravery of his Officers, by promoting each a grade, & by additional honors given to those of the highest class.”6

Adds in a postscript: “21st. The following is extract of a letter which I have this day received from Mr. Montgomery of Alicante, dated 16th. November.

“ ‘Last night I received a letter from Mr. Mounbird, Agent of the United States at Algiars. He advises that the new Dey has entirely quietted the insurrection within the City, & dispersed the rebellious Army without, so that tranquility has taken place of terror and disorder, & American affairs in the Regency were on the best footing. Colonel Lear had not yet returned from his mission in Tripoli.[’]”

RC and enclosures (DNA: RG 59, DD, Spain, vol. 10). RC 3 pp.; in a clerk’s hand, signed by Erving; docketed by Wagner. For enclosures, see nn. 2–3.

1For article 15 of the 1795 Treaty of San Lorenzo, which allowed either country to trade with the enemies of the other, see Miller, Treaties, 2:328–30.

2For the Recovery, see Charles Pinckney to JM, 24 July 1805, and n. 2. Erving enclosed a copy of Erving to Pedro Cevallos, 14 Nov. 1805 (3 pp.; marked “(Triplicate.)”), transmitting a copy of the 26 July 1805 decree of the Algeciras court and noting that the cargo was condemned (1) for want of certain certificates specifying cargo particulars as required by article 17 of the Treaty of San Lorenzo; (2) because this defect could not be supplied by custom house clearances; and (3) because the bills of lading did not specify that the freighters were American citizens, which led to a suspicion that the goods were not American. Erving stated that because the lack of the certificates could be made up by custom house clearance papers showing the ship as American in spite of the requirements of article 17, because the fifteenth article of the treaty allowed that free ships make free goods, and because the cargo, when examined in a Spanish port, was clearly shown not to be contraband, the decree was unjust. Erving stated that Cevallos must see that the rights of the United States, founded on the Treaty of San Lorenzo, had been violated by the Algeciras court; that he did not doubt that Cevallos would annul the decree; and that the king would issue an immediate order for restitution of the cargo. He added in a postscript that to save Cevallos trouble, he was enclosing a copy in French but stated that he could not be answerable for the accuracy of the translation. For article 17 of the 1795 Treaty of San Lorenzo, see Miller, Treaties, 2:332–33.

3The enclosure (3 pp.) is a copy of Erving to Cevallos, 16 Nov. 1805, repeating the details of the case of the Hudson, Bailey, which was stopped by a Spanish privateer while en route to Naples in May 1805. All the ship’s papers were in order, the cargo was owned by neutrals, and it was bound to a neutral port. The captain of the privateer took away the ship’s papers, and Captain Bailey, unable to continue his voyage without them, followed the privateer into Cádiz, where the privateer’s captain, instead of returning them, hid them. Bailey’s agent later found two of the documents in the health office, but because an essential one was missing, the ship was condemned. The king ordered the proceedings delayed until evidence could be obtained from the United States. Erving announced that this had just arrived, was enclosed, and would prove that the ship had every necessary document when it left the United States. He added that since the guilt of the privateer’s captain had been established, he trusted Cevallos would take the measures “which a love of justice will naturally declare.”

4For the case of the Huntress, see Anthony Terry to JM, 31 Oct. 1805, and n. 2.

5For Thomas Dulton and John Francis Tombarel’s case, see Jacob Wagner to JM, 17 Aug. 1801, PJM-SS, 2:49, 52 n. 3.

6In addition to promoting the officers who were at Trafalgar, the Spanish awarded every soldier and sailor who had been there treble pay for the day, since they were considered to have acted courageously and endured an honorable defeat. The French, on the other hand, considered Trafalgar “a disgraceful disaster,” and those who had participated were rewarded with “oblivion” (Adkins, Nelson’s Trafalgar, 346–47).

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