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To James Madison from George W. Erving, 21 January 1806 (Abstract)

From George W. Erving, 21 January 1806 (Abstract)

§ From George W. Erving. 21 January 1806, Madrid. No. 4. “I had the honor to receive on the 14th, Inst. your letter of November 1st., 1805,1 in which you are pleased to instruct me as to the line of conduct to be observed with this Court, & find with great satisfaction that the language which I have held here upon all occasions, as well to individuals as in my public communications with the Government, has been such as will probably meet with the President’s approbation. As all the details of the late negotiations had been transmitted to you, & were to be decided on by Congress, I did not find myself authorized to open in the way of discussion, any ground embraced by them; yet the circumstances of the times, the total change which has since taken place in European affairs, & still more the determination of Great Britain to support the most absurd pretentions by a system of violence & outrage, extending much beyond whatever has been formerly experienced, have induced me to seek every regular means of obtaining from this Government some concessions which might possibly give an opening for new & successful negotiations, or some overtures tending to reestablish harmony between the two Countries. In this view I held the conversation with the Prince of Peace, which is referred to in my letter No. 3 (December 7th.)2 and tho’ that interview did not produce any thing of the nature hoped for; yet after having received from Mr. Bowdoin more particular information respecting the proceedings of the English Government, I thought it adviseable again to see him, which I did on the 19th. Instant: at that time he conversed with more freedom than on the former occasion; he expressed the best dispositions towards accommodation, professing to hope that certain propositions which the Marquis de Yrujo had been instructed to offer, would prove acceptable: Upon the whole, however, I concluded that he did not feel himself at liberty to make any other advances at present, & consequently left him, confirmed in my former belief upon this subject.

“As my principal object in these conversations with the Prince had been to persuade him of the propriety of immediately ratifying the Convention, & having on the 20th. Ulto, received from Mr. Bowdoin, transferred into Mr. Monroe’s Cypher, your letter of May 23rd,3 I thought that the powers given by the last Paragraph of that letter, founded upon the reasons which you are pleased to state for giving them, which are very much strengthened by those arising out of the actual state of European affairs, would justify my proceeding one step further. I therefore communicated so far with General Beurnonville, the French Ambassador at this Court, as to induce him to speak to the Prince upon the subject of the Convention, & to recommend its immediate ratification. It seems by what General Beurnonville has reported to me of the conversation which passed between them, that whatever dispositions the Prince may have, he has concluded to do nothing ’till the answer to the propositions, before referred to, are received. As we understand however that these propositions were transmitted to the Marquis de Yrujo immediately after the termination of the late negotiations, General Beurnonville agrees with me that, if they have been duly submitted to our Government, by that Minister, it is more than probable that the answer has been long since returned. This point appears to be put out of question by the President’s Message to Congress, which I received on the 10th. Inst, and immediately transmitted to the Prince, taking that occasion of again adverting to the topics of our conversations.

“In the course of ordinary business the only case of particular importance, which has occurred since my arrival is that of the “Recovery—Adams,” mentioned in my former letters. In No. 3.4 I transmitted to you my note of December 6th. to Dn. Pedro Cevallos, a duplicate of which is herewith inclosed; & that the whole of this discussion, which involves some important questions, may be more particularly before you, I herewith enclose also copies of the notes which have since passed: Vizt. Mr. Cevallos’s of December 7th. & 16th. & mine of 13th, & 25th. of the same.5

“My other applications to this Government have related only to cases of individual hardship, particularly in what regards their quarantine regulations, which are extremely unreasonable & oppressive. I am still endeavoring to procure some favorable alteration in them, & which by the use of the statement upon this head, made by the President in his message, I am in hopes of soon obtaining.

“Mr. Jarvis has within these few days found an opportunity of transmitting from Lisbon the Cypher of this Legation, which Mr. Pinckney had taken with him upon the supposition that Mr. Bowdoin had received another.

“I cannot from hence add any thing important to the information which you receive from more direct sources, respecting the great transactions of the present war: In what more particularly concerns Spain, the situation of the affairs of Portugal are interesting: It is certain that the old demand, to close her Ports against the British, is renewed; whether as on former occasions, the compliance may be compromised for, by money, is yet doubtful: in the mean time the Portuguese Government is in a state of great concern, trying all practicable means to avoid this severe & humiliating alternative: It is not to be expected that a regard of their distressed & critical situation, will produce any relaxation in their favor: they must therefore submit: to make war would certainly be worse than fruitless; for if there were any objections formerly to the march of french troops thro’ this Territory, certainly none exist now; at least none which will not be very readily removed: but the moment is one of peculiar difficulty for Portugal intelligence has just been received of the arrival of the English force under Sir Home Popham, in the Bresils: whether he is really on his way to India or elsewhere; or whether this is one of those precautionary measure which characterize the policy of the British Cabinet, is yet uncertain: the account states that Sir Home Popham having demanded permission to land his troops, the Governor refused to allow more than 400. At a time to be on shore, & these he insisted should be without arms. This information has been sent here by a special Messenger, & it will probably have the effect of suspending for some time longer, the fate of Portugal.

“In compliance with former arrangements, this Government on the requisition of the Emperor, at a time when the French force in Italy was supposed to require some augmentation, sent from 6. to 8,000. Troops over land to Etruria, under the command of General O’Farril; but it was not ’till after the operations of the French force had placed that Country out of all danger that the General & his Staff left this for Barcelona, from whence he has proceeded to his destination but a very short time since: this circumstance seems to shew that there is no intention of recalling that army; it will probably be continued there ’till the conclusion of a general peace; it is said indeed that orders are given for the march of more troops to Italy, but whether for the same quarter, or whether they are to be connected with the operations against Naples, is uncertain.

“A British fleet of 15. Sail of the Line & 4. Frigates, under Admiral Lord Collingwood are now before Cadiz.”

RC and enclosures (DNA: RG 59, DD, Spain, vol. 10). RC 6 pp.; marked “(Duplicate.)”; docketed by Wagner. For enclosures, see n. 5.

1See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 10:489–90.

3See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 9:380–83.

4See ibid., 10:633 n. 2.

5The enclosures (8 pp.) are (1) a translation of Cevallos to Erving, 7 Dec. 1805, acknowledging Erving’s 6 Dec. letter, stating, in the matter of the seizure and condemnation of the U.S. brig Recovery, that there was no question of the rights of American citizens under the Treaty of San Lorenzo, but the question was whether persons connected with the captured ship were comprised in the treaty terms which fell within the purview of the tribunal; that if one imagined justice had not been done, one could have recourse to a superior court as was the practice of all civilized nations; Cevallos also informed Erving that all the foreign ministers at court in Madrid communicated with him in French, otherwise it was necessary to send their letters to the translator general for an accurate translation; (2) a copy of Erving to Cevallos, 13 Dec. 1805, reminding him that it was not the Recovery that was condemned at Algeciras but the cargo as British property, which was the point of his protest; he further stated that since the earlier case of the U.S. ship Hudson had been appealed, he would no longer trouble Cevallos about it, suggesting that Cevallos had misunderstood the point of his 6 Dec. letter, and adding that he would write in French had he the proper knowledge of it but in the future would always accompany his communications with a French translation by his secretary; (3) a translation of Cevallos to Erving, 16 Dec. 1805, stating that he had not misunderstood, that Erving’s 6 Dec. note applied to the Recovery as well as the cargo and to all ships brought into peninsular ports by Spanish privateers; that all civilized nations agreed that the tribunals of a country’s sovereign are judges of causes occurring in their country and that there should be a court of appeal; that if the court at Algeciras had declared the cargo free, Erving would not be protesting that the court lacked jurisdiction; but since the decision was for the privateer, Erving now raised a principle that could not be admitted: that the court could not judge of the facts; Cevallos reiterated that if the owners considered the decree unjust, they could appeal to the Superior Council of War; and (4) Erving to Cevallos, 25 Dec. 1805, stating that his arguments were founded on reason, public law, or the rights of Americans; that the principle of a sovereign’s right to establish courts to decide questions was unobjectionable but that this right had limitations; that in this case the court had no jurisdiction because a treaty between the United States and Spain prescribed the grounds of judicial investigation in prize cases; that in all civilized countries treaties are the law of the land, ascertaining the rights of the contracting parties, superseding ordinary laws, and even binding the exercise of sovereign rights within a jurisdiction; that the treaty between the U.S. and Spain grants the ships of each country perfect liberty of commerce and forbids inquiry into the property of the cargo, that neither country could establish courts to make such inquiries, which would be giving the courts the power to violate treaties; that Erving’s assumption that the king had not given the courts such powers was confirmed by Cevallos who had told Erving that at the outbreak of war the king had given Spanish courts particular orders to pay the “most exact respect” to U.S. ships; that the Algeciras court had violated U.S. rights, which was why he protested; that he was aware that in different cases captors had certain rights, and in such cases he would not have applied to Cevallos, but that in this case he believed that not to interfere would be to “encourage a repetition of irregularities.”

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