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To James Madison from Carlos Martínez de Yrujo, 6 December 1805 (Abstract)

From Carlos Martínez de Yrujo, 6 December 1805 (Abstract)

§ From Carlos Martínez de Yrujo. 6 December 1805, Philadelphia. The extreme effort with which I have endeavored to maintain the harmony and good understanding between Spain and the United States have made me read with a peculiar sensation the article of the message of the president sent to Congress the third of this month on political relations between the United States and the king my master. As in the exposition to which I allude, there exist, it seems to me, various equivocations of a delicate and important propensity, although I do the president of the United States the justice due upon the motives that could have caused this apparent lack of exactitude, my character imposes on me the obligation to enter into the examination of some of his assertions to show that, whether through lack of exact information, or through faulty translations, they appear in some cases not to be correct.

In the article of the said message relative to Spain, the president, after mentioning that the negotiations for ending existing differences had not had a felicitous issue, continues: “Compensation for the spoliations produced during the previous War, and for which Spain had formally acknowledged herself responsible, she now denies us except under conditions that affect other claims that have no connection with her. Nevertheless, she has renewed the same practice in the present War, and these new spoliations are already to a great amount.”1 It is well known that in a state of war [there] exists, and probably will always exist, some abuse of the power entrusted to subordinate hands. Even the United States has been unable to be an exception to this general rule, and in the short period of hostilities towards France in the year 1798, in spite of not having armed privateers, and reducing its defensive force to a small number of frigates, neutrals experienced from [the United States] many annoyances, well demonstrated by the numerous claims of the injured powers on this Government, principally on the part of Denmark and Sweden. In the past War there perhaps could have been some abuses of this nature, although very rare, on the part of the royal navy of Spain; but the king my master, animated by the spirit of justice that characterizes him, authorized his chief secretary of state to sign a convention with the American minister near his person by which was stipulated reciprocal compensation for the damages that the subjects and citizens of both might have experienced on the part of officers or individuals of either [country] contrary to human rights or to the Law of Nations. This stipulation resembled that of the same kind in the treaty of friendship and limits made in 1795,2 and fulfilled religiously by my sovereign, would have now had the same effect, through the ratification of the convention, if there had not been inserted in it an article whose tendency was to impose on Spain an obligation for a responsibility as grave and important in its consequences as [it was] little supported by reason and justice under the circumstances.3 My court, by direct means as well as through me, has repeatedly shown the American government that it was disposed to carry out the said stipulations provided that the article in the same convention relative to the said responsibility be suppressed, or altered in a way that it believed conformed to justice; and it has been so far from refusing to fulfill the said compensation for claims that have no connection with it, that in reality this connection has been precisely the reason that the said convention has not been carried into effect as the king my master has always wished. It is certain that the two points in their nature do not have a connection with each other; but it is also true that this connection is very great when it is considered it attempts to make these two things, diverse in themselves, parts of the same whole; hence results the disagreeable dilemma for the king my master, whether to refuse to ratify a stipulation that he believes fair, and that he consequently wishes to carry out, or to impose upon himself a responsibility more or less direct in favor of the United States that they, as is well proven, have no right to claim.

As for the new spoliations, I can assure you, there are very few Spanish vessels that strictly merit this denomination, many of the seizures frequently listed in the American gazettes originating either in acts of contraband trade, or from the lack of papers that they ought to carry on board according to our treaty of 1795,4 or from other circumstances that the captains or owners of the said seized ships have been very careful to hide; leaving this aside, the citizens of the United States would find the same justice that they experienced on this point under the treaty of 95. I can do no less than observe, having had the honor of informing you some two months ago, that the most strict orders had been given by the king my master that the navigation of Americans employed in licit commerce should not be interrupted;5 the president has not made any mention of this circumstance as important in its effects for American navigations, as for demonstrating [the king’s] just and peaceful intentions.

Without it being my intention to use recrimination, I am obliged to notice that when violations of the rights of neutrality occur infinitely more frequent and extensive on the part of England, whose Royal Navy vessels have almost constantly blockaded the ports of the United States; and what is more, when this power daily decrees new principles upon the rights of neutrals, that really undermine them and reduce them to nothing, the name of Great Britain is not found in any column of the president’s message. These circumstances in themselves would not give me the right to accent them if it were not for one, extremely essential, that immediately affects the interests of the king my master; I allude to the huge numbers of American sailors carried off by force from the shelter of the flag under which they ought to find themselves protected, and who find themselves forced to fight in British ships against the subjects of the king my master. This conduct cannot but excite in me the obligation to remind the Government of the United States of it in order that in its wisdom it may take suitable means to correct an abuse that at the same time that it actually violates its neutrality continues so greatly damaging to Spain.

The president goes on to say: “Our commerce through the River Mobile continues to be obstructed by arbitrary duties, and troublesome searches.” Although this assertion is not accompanied by any remark that could make it look like a national offense, I cannot but observe in passing that according to what I am informed the import and export duties on the Mobile are very moderate, of only six percent;6 that each power can arrange these matters within the limits of its jurisdiction as it thinks; and that this practice of Sovereignty is executed by the American government at Fort Stoddert, being within its boundary, without Spain pretending to interfere in its regulations. Ultimately, this might be an inconvenience, but in no way can it be presented as a national offense.

After, he says: “Propositions for adjusting amicably7 the limits of Louisiana have not been acceded to.” This proposal is not strictly correct, since it is, and has been, the wish and the intention of Spain to adjust amicably8 the limits of Louisiana: but although her dispositions toward this end may have been, and are, friendly, she cannot sacrifice to them either the dignity or the rights of her crown; so that this matter not having been concluded has not been because of the lack of will for adjusting amicably9 as the president supposes, but because of the nature of the propositions, which were inadmissible.

The same paragraph continues: “While the title continues undecided we have abstained from changing the state of things, from taking new positions, or fortifications in the disputed territories with the hope that the other power will not compel us, by a contrary conduct, to follow its example, and generate conflicts of authority whose consequences would not be easy to contain; but we now have reasons to lessen our confidence in this hope.” Truly I cannot comprehend what it is that the president could call unsettled title, much less if he wishes to apply it to that part of West Florida between the Mississippi and Iberville, the Lakes, and the Perdido River. The title to this territory cannot be considered as undecided or unsettled, since putting aside that given by possession, and the treaty of retrocession of Louisiana to France, there is another conclusive circumstance, well known to the American government, that ought to and must dissipate all doubts, if they should exist on this point. The most distinguished publicists10 agree that the true interpreters of a treaty doubtful in any of its clauses or expressions are the contracting parties themselves when this can be achieved. Spain and France are these in the treaty of retrocession upon which the sale of 30 April11 is based, from which emanate the pretensions of the American Government; they have declared, as is evident to you, that Spain had no intention to give France more than she had received from her, as the title and the word retrocession used in it indicate; and France had neither claimed nor expected an inch of land to the east of the Mississippi, Iberville, and Lakes. The true intention of the contracting parties being stated and shown in this manner, I will content myself with copying to you here a short paragraph from Vattel among the many other publicists who one could present in support of the rights of the king my master upon this point. In paragraph 274 of the interpretation of treaties,12 Vattel says: “When we manifestly see what is the sense that agrees with the intention of the contracting Powers, it is not permitted to turn their words to a contrary meaning. The intention sufficiently known furnishes the true matter of the convention of what is promised & accepted, demanded & granted. To violate the Treaty is to go contrary to the intentions sufficiently manifested, rather than against the terms in which it is conceived; for the terms are nothing without the intention that ought to dictate them.13 In view of this, the position that the president has taken in the cited paragraph that the right (no doubt alluding to a territorial right) could be doubtful, or unsettled, cannot be admitted, and all persuasions and conclusions emanating from this supposition fall of themselves; leaving that aside, as I have had the honor to inform you previously, whatever alteration may have existed in the territories of His Catholic Majesty, either could have been the effect of a new plan for the frontier that the alienation of Louisiana made necessary, or must have proceeded from the circumstances of the war in which Spain is now engaged with England, and in no way has the goal of disturbing the peace, and good harmony between Spain and the United States.

The president goes on to say: “Lately forays or incursions have been made into the territories of Orleans, and Mississippi. Our Citizens have been seized, and their property stolen in those same places that Spain has transferred to us and this by regular officers and soldiers of this Government.”

Although on this point I have no more news than that received from the American gazettes, whose reports one cannot expect to be very impartial, nevertheless, supposing them correct in all their extent, it does not follow from those that I have read, nor does it seem to me credible, that the officers and soldiers of the king my master, might have crossed the American line in order to commit within the jurisdiction of these states the insults that are surmised. The first example of these incursions was given by a lot of American citizens in the month of August 1803,14 penetrating the territory of Baton Rouge, aided by the Kemper brothers and other malcontents from the Spanish side with them, who made an attempt to seize the fort of Baton Rouge, and imprisoned some mayors and other persons of note. About this matter I had the honor to speak and write to you, but I have not until now had the least response. If seizing the person of American citizens (our citizens have been seized)15 has some reference to the apprehension of the Kemper brothers inside the American line,16 I must declare first that, according to what I am informed, the said Kempers are not American citizens; having been established in Spanish territory, they have become subjects of the king my master, and consequently have lost their rights as American citizens; and second, because in the arrest of these subjects according to the extract of a letter from Natchez of 8 Oct. last, published in the Gazette of the United States at Philadelphia,17 their arrest was accomplished by negroes,mulattoes, and American citizens, who no doubt expected some recompense for delivering them inside the Spanish line, from where it seems some Spanish soldiers were charged with conducting them to Baton Rouge. It is true, it is said also, that part of a cavalry company commanded by a certain Captain Jones had crossed another part of the border and had conducted themselves in a hostile and violent manner toward two families;18 but if a story of this nature should be certain, I can assure you that the government of the United States shall not fail to receive the appropriate satisfaction from Spain, whose government has too well established its reputation for one to attribute to it knowledge or approbation of acts as improper in their character as useless in their effects. Incidents of this nature often occur on the borders of all countries and only deserve attention when they receive the sanction of the government of the aggressors, or the satisfaction due in such cases is denied.

I have examined step by step the article of the president’s message relative to Spain, and I have tried to present with candor and truth, although lightly, whatever can elucidate correct ideas about its nature and tendency. Having discharged this obligation belonging to my station, I place myself at your service.19

RC (DNA: RG 59, NFL, Spain, vol. 2); Tr (AAE: Political Correspondence, U.S., 59:4–9); Tr (Danish National Archives); letterbook copy of second Tr (UkLPR: Foreign Office, ser. 115, 15:33v-41). RC 10 pp.; in Spanish; in a clerk’s hand, except for Yrujo’s complimentary close and signature. First Tr is a translation of the RC, in French, enclosed in Turreau to Talleyrand, 15 Jan. 1806 (AAE: Political Correspondence, U.S., 58:292). Second Tr is an English translation. Italics are Yrujo’s underlings. Quoted passages from the message are in Spanish in the RC, and quotation marks are as placed by Yrujo, except as noted in n. 13 below.

1Jefferson’s fifth annual message was printed in the Philadelphia United States’ Gazette on 5 Dec. 1805. For the paragraph dealing with U.S. relations with Spain, see Ford, Writings of Thomas Jefferson, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends 8:390–91.

2For articles 20 and 21 of the 1795 Treaty of San Lorenzo dealing with claims, see Miller, Treaties, description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends 2:334–37.

3Yrujo referred to article 6 of the Convention of 1802, under which Spain would have accepted responsibility for condemnations of U.S. property by French consuls in Spanish ports. For earlier correspondence on these claims, see PJM-SS, description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (10 vols. to date; Charlottesville, Va., 1986–). description ends 4:442–43, 596–97, 5:358, 7:55, 8:166, 171–72, 198–99, 9:410.

4For article 17 of the 1795 Treaty of San Lorenzo detailing the nature of the papers merchant ships were required to carry, see Miller, Treaties, description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends 2:332–33.

6In the second Tr, and in copies printed in contemporary newspapers, and in Annals of Congress, description begins Debates and Proceedings in the Congress of the United States… (42 vols.; Washington, 1834–56). description ends Ninth Congress, Second session, pages 688–93, there is an asterisk here with the following note: “It is necessary to remark that the navigation of the Mobille, which appears to furnish to the President a motive of complaint, is enjoyed by the Americans in consequence of a gracious indulgence on the part of Spain; as no right does yet exist, to navigate the waters of that River within the boundaries of Spain, who holds exclusively that right grounded on Sovereignty possession, on the opinions of the most celebrated Civilians an[d] supported by the very principles established by the American Government, thro’ the medium of their Attorney-General Bradford, in the case of the Prize Grange, taken on the waters of the Delaware. After this it is necessary to confess, that the animadversions of the President upon this head are as unjust as they are impolitic” (Washington Federalist, 5 Feb. 1806). Yrujo referred here to the case of the British merchant ship Grange that was captured in Delaware Bay within U.S. territory on 25 Apr. 1793 by the French privateer L’Embuscade and carried into Philadelphia. The Grange was released after the U.S. government insisted that the capture of the ship in neutral waters was a violation of U.S. sovereignty (Boyd, Papers of Thomas Jefferson, description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (39 vols. to date; Prince ton, N.J., 1950–). description ends 25:637–40, 26:43–44, 75).

7Yrujo repeated the phrase “for adjusting amicably” in English here.

8Yrujo repeated the phrase “for adjusting amicably” in English here.

9Yrujo repeated the phrase “for adjusting amicably” in English here.

10Publicist: “An expert or writer on the law of nations or international law” (OED Online description begins Oxford English Dictionary, www.oed.com. description ends ).

11For the 30 Apr. 1803 Treaty for the Cession of Louisiana, see Miller, Treaties, description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends 2:498–505.

12Vattel, Law of Nations (1793 ed.), 230–31.

13The quoted paragraph is in English.

14Yrujo was mistaken. It was in August 1804 that the Kemper brothers attempted to capture the fort at Baton Rouge, and JM did reply to Yrujo’s complaint about the raid. See PJM-SS, description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (10 vols. to date; Charlottesville, Va., 1986–). description ends 7:638 n. 2, 657 and n. 1, 8:203–4, 237, 263, 281.

15Yrujo repeated these words in English.

16For the seizure and subsequent rescue of the Kemper brothers, see Robert Williams to JM, 14 Sept. 1805, and nn. 1–2, and 1 Oct. 1805, and n. 1.

17The 14 Nov. 1805 United States’ Gazette carried an 8 Oct. 1805 report from Natchez of the results of an inquiry before Thomas Rodney at Fort Adams. On 3 Sept. 1805 nineteen individuals, twelve whites and seven slaves, broke into the houses of Nathan and Samuel Kemper, seized them and their brother Reuben, carried them below the border, and turned them over to Spanish soldiers. The Kempers were rescued by U.S. troops when the party passed Pointe Coupée. The raiders included citizens of Mississippi Territory and Spanish citizens, and most of them escaped. Two whites and the blacks were held in custody for trial; the Spanish troops were released because they had only been acting under orders. Several of the raiders were enemies of the Kempers, and the Spanish government had also offered a reward of $1,500 for each of the Kempers (Philadelphia United States’ Gazette, 14 Nov. 1805; Robert V. Haynes, The Mississippi Territory and the Southwest Frontier, 1795–1817 [Lexington, Ky., 2010], 113).

18For this incident, see Robert Williams to JM, 1 Oct. 1805, and n. 1.

19On 21 Jan. 1806 Yrujo sent a copy of this note in French to the other foreign ministers, stating that since he had received no reply nor had the U.S. government printed his note, he was transmitting copies to show the truth of the king’s actions toward the United States. Translations of his letter to the ministers and his note to JM were printed in the 27 Jan. 1806 Philadelphia United States’ Gazette.

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