To James Madison from Jacob Wagner, 19 September 1806
From Jacob Wagner
Department of State 19 Septr. 1806.
Dear Sir
In the Globe of the 23 July you will see that Mr. Erskine has been appointed to succeed Mr. Merry. As this notice is extracted from the London Gazette, no more doubt remains of Lord Selkirk having declined it.
Respecting Jones’ case at New York1 the draft I have made proceeds upon a doctrine laid down in Jenkins in many places and repeated by Woodeson,2 that the Renvoy of offenders, except when required by treaty, by State-policy or the peculiarity of circumstances, is gone into disuse: though I suppose that the American tribunal has no right to take cognizance where neither the vessel, the deceased nor the culprit belong to us. In Mr. Marshall’s celebrated speech respecting Jonathan Robbins3 the law is forcibly stated to decline the cognizance in such a case; but if the Court is mistaken Jones’ counsel must advise a writ of error.
The Collector of Norfolk speaks of but one clearance obtained by Cooper; and there is every reason to believe that Cooper & every soul on board the vessel perished in the late storm, as his wife and the part of his family not with him did on board another vessel.4
Mr. Yrujo’s late visit to Baltimore has excited much attention. Perhaps the conjecture of the Aurora that it had commercial concerns for its object may not be wide of the mark; it might otherwise have been a conference with Genl. Turreau. It is scarcely to be doubted that the Anonymous letter herewith is the offspring of Foronda’s policy and resentment.5 Mr. Erving’s intelligent manner of acting I have generally admired; and it is exemplified in the answers about Yrujo.6 I should suppose that the Spanish theories about the rights of embassy would be very little countenanced at Paris, where the practice has ever been to ascribe very little respect to them. I have the honor to remain, with respectful attacht. yr. ob. servt.
Jacob Wagner
RC (DLC). Docketed by JM. For enclosure, see n. 5.
1. The editors have identified no cases brought against a defendant named Jones in the 1806 sessions of the U.S. circuit and district courts at New York. Wagner’s comments on the case suggest that he may have intended to refer to John Thomas (see Anthony Merry to JM, 12 Sept. 1806).
2. Wagner probably referred to William Wynne’s Life of Sir Leoline Jenkins (1724), and to one or more of Richard Wooddeson’s works.
3. For the case of Jonathan Robbins, see 17:273 and n. 1; for John Marshall’s 7 Mar. 1800 speech in the U.S. House of Representatives defending Robbins’s extradition, see Johnson et al., Papers of John Marshall, 4:82–109.
4. On 9 and 12 Sept. 1806 the Richmond Enquirer reported that the schooner Comfort, sailing as a packet from Hampton Roads to Charleston, had capsized in a “violent gale” on 22 Aug. 1806. Among the twenty passengers lost were “Mrs. Cooper, wife of captain Cooper, lately resident at Hampton, removing to Augustine” and two female relatives. Also on 12 Sept. the Enquirer reprinted a notice from the Norfolk Herald, stating that one of the vessels found washed ashore near Beaufort, North Carolina, was likely the pilot boat Tartar, “lately fitted out in Hampton, by Captain Cooper, on board of which he was with one of his sons, and many others.”
5. Wagner may have enclosed the 16 Sept. 1806 letter sent to Thomas Jefferson by “an Anonymous Worthy of your attention” (3 pp.; DLC: Jefferson Papers), which Jefferson docketed “postmark Philadelphia. Spanish.” The writer urged the administration to remain firm in its demand that Carlos Martinez de Yrujo be recalled, asserting that Yrujo did not have the support of the Spanish government but was fabricating reports to the contrary in order to stay in the country and pursue his illegitimate commercial interests. For the quarrels between Yrujo and Valentin de Foronda, Spanish consul at Philadelphia, which had to do in part with Yrujo’s American business associations and his laxity in enforcing Spanish commercial regulations, see Linda K. Salvucci, “Atlantic Intersections: Early American Commerce and the Rise of the Spanish West Indies (Cuba),” Business History Review 79 (2005): 796–99; and Robert Sidney Smith, “Valentin de Foronda, Diplomatico y Economista,” Revista de Economía Politica 10 (1959): 429.