To James Madison from Jacob Wagner, 17 August 1801
From Jacob Wagner
Dep. State, 17 Augt. 1801.
Dear sir
I was duly honored with your favor of the 8th. The demurrage of the Peace and Plenty was advantageously settled, on the terms mentioned in the enclosed letter from the Purveyor,1 and the money has been paid. I am sorry that it should have been encreased by the tardiness of Capt. Shaw.
With respect to printing the laws in a german paper in Pennsylvania, I promised Mr. Gallatin, that I would not act until I mentioned to you what he states to have been an objection in the legislature of that State to printing them in that language; which was that it would be giving two texts of the law. This certainly would be an objection to giving the german text a legal sanction; but none, I conceive, to publishing a translation, rendered upon the responsibility of the editor of a gazette only, tho’ paid for by the public, and designed to furnish an imperfect light to those who are now in utter darkness. Very many Germans in that state understand no other language but their own.
Mr. Dallas, who was lately here, brought another communication from Mr. Beveridge.2 I have therefore united, in a letter to Mr. Pinckney, a reference of that claim and another of a very serious nature from Capt. Dulton of Petersburg. You will find a letter from Capt. Dulton enclosed.3
Mr. Soderstrom proposes that one of the District Attornies should appear and defend the suits he has brought and is about to bring against our naval commanders, on behalf of Danish subjects. I see no objection to the measure, unless it should be considered as one, that he should negotiate at all about the business, after the arrival of a Danish Minister and Consul General. In England the King’s advocate appears to all suits brought against his sea-officers.
Enclosed are further communications from that Minister.4 I have prepared an exequatur for him as Consul General. The President will, I presume, dispense with the exhibition of the original commission, which seems to be incorporated with the Letter of Credence, until he receives both together.
In consequence of receiving Mr. Cabot’s answer to your letter, I have collected all the documents which may have a tendency to elucidate his claim, and covered them with some remarks of my own.5
Enclosed is an agreement to refer two interfering claims to a patent for an invention.6 You will find the law in the 2nd. vol. p. 204. s. 9. I pray you to sign the reference and direct me how to fill up the blank left for the name of your referee. I am told the Collector of Hudson7 is a respectable man and suitable for this purpose.
The letter of Mr. Yznardi8 would be an extraordinary one, if it came from any-body else. An allowance is to be made for his peculiar temper. It is written in bad Spanish, and therefore I have not been able to convert it into good english.
I enclose Mr. Hamilton’s answer to my application for the discharge of one of the seamen detained on board the Andromache.9
A disagreeable subject remains for me to notice. On the 12th. I received voluminous dispatches from Consul Eaton, by a Ragusan Brigantine, arrived at New York, and which he thought him self justified in hiring for 8000 dollars. As she had a four months passage she brings nothing new except a letter from the Bey of Tunis containing a civil demand of 40 twenty four pounders. I have the honor to enclose the principle dispatches, of which but two or three of the last from Eaton are alone worth your perusal, and the charter party.10 From the latter you will observe, that the vessel is bound to take back a cargo, if tendered. I offered her to the Secretary of the Navy to transport a cargo of munitions and provisions for our squadron in the Mediterranean, but his agents have already hired vessels sufficient for that purpose. We are not in debt to Tripoli or Tunis, and therefore we shall have no cargo for her, unless you determine to send something more to the Dey of Algiers. The following statement may be of service in making up your opinion.
Two years annuities are not settled for: one other will become due next month. It will be expedient, perhaps, to remain in debt one year’s annuity constantly. Suppose Capt. Dale commutes, with the 30,000 dollars he has, for one year: on the other, the George Washington carried out property which cost $29,229 44/100. There had before been received by the Regency property supposed by Mr. OBrien to neat about $5000, when set off against the annuity, but when compared with the real cost of the annuity to us, it must be estimated at $18,500. Adding therefore the two sums
| 29,229..44 | |
| 18,500..— | |
| $47,729..44 | are paid on the years annuity, which deducted from |
| 80,000—– | the estimated cost of a year’s annuity, leaves a balance of |
32,270..66 dollars, due upon it. It ought also to be kept in view, that it is by no means certain, that the Dey will accept the $30,000 carried by Capt. Dale, in lieu of a year’s annuity. I ought also to remind you, that
| the biennial present, due this month, is estimated at | $13,500 |
| on which we sent, in cloth and linen, by Capt. Dale | 2,761 |
| Leaving to be provided for the sum of | $10,739 |
In OBrien’s letter of the 5th. April, enclosed in Mr. Kirkpatrick’s of 28th. May,11 you will observe a demand of the Dey for some powder and ball, of which I make the following estimate.
| 500 | bbls. | powder | weight | 25 | tons | cost say | 20,000 | |
| 4000 | balls of | 24 lb | do. | 48 | do | do |  |
10,000 |
| 4000 | do | 18 do. | do. | 36 | do | do | ||
| 4000 | do | 12 do | do. | 24 | do | do | ||
| 133 | tons | $30,000 | ||||||
As these articles can be had, in all probability, from the Navy-stores, if you decide to send any thing back in the vessel, you will perhaps send them.
Mr. Eaton could have relied, with more certainty, on his dispatches reaching us quickly, by an unusual multiplication of copies, than by the extraordinary and expensive measure of hiring a vessel. I have had no communication from the Captain; but judging it to be not impossible, that she either brought here or might be designed to take back something for him, I have written to the Collector of New York to make enquiry, and also to inform me of her tonnage and whether she is a staunch vessel. The suspicion I allude to may be unjust and ungenerous, but considering the peculiarity of the Charter-party and other circumstances in reference to him, I hope you will excuse me.
A want of circumspection is at least imputable to him in hiring a vessel to go from Tunis to the United States and back again, in a case which did not absolutely require it. I have not the least doubt that the occurrence suggested to the Bey his demand of the cannon, as a fairer opportunity could not have presented itself, especially in the present posture of our affairs, for effecting a demand. I hope it will be repelled.
As I daily expect to be called upon for the first half of the freight, I should be glad to hear whether you have any objection to paying it. If it shall not appear that she was loaded by Mr. Eaton, I suppose we must pay it; and if it should even be otherwise, I am not prepared to say we can avoid it.12
In Mr. Smith’s No. 50.13 is a copy of a letter from OBrien of the 24 May, referring to a letter from Cathcart of the 17th. April, when no change had taken place in our affairs, which, in OBrien’s opinion, would be still further steadied by the Dey’s strong letter of the 16th. April. With perfect respect, I have the honor to be, Dear sir, Your most obed. servt.
Jacob Wagner
RC and one enclosure (DLC). RC docketed by JM. Enclosure 2 pp.; dated ca. 1804 in Index to the James Madison Papers (see n. 5).
1. Israel Whelen to JM, 12 Aug. 1801.
2. Philadelphia merchant David Beveridge had gone to Havana in March 1782 when trade was opened between Cuba and the U.S. After commercial contact was again proscribed by the Spanish authorities in 1784, he was imprisoned twice between March and June of that year and at last was expelled forcibly from the island, leaving behind uncollected debts due him in the amount of $23,600. John Jay submitted a memorial from Beveridge to Congress on 8 Feb. 1785 (DNA: RG 59, DL, vol. 1).
3. Letter not found. Capt. Thomas Dulton (or Dalton; also Dutton), shipowner and slave trader, bound from Kingston, Jamaica, to Savannah with a cargo of blacks on his armed ship Stag, was captured sometime after 13 Apr. 1798 by the Spanish who suspected him of being either a pirate or an English spy. He was acquitted and released on 27 July and ordered to pay costs. On 18 Sept. 1798 he and John Francis Tombarel, supercargo, were rearrested when a letter from Yrujo arrived suggesting that the ship really belonged to John Hamilton, British consul at Norfolk. On 2 Jan. 1799 they were again acquitted and assigned costs. Appeals kept the case open for several years until it was finally closed by royal decree on 9 Aug. 1806 (, 2:192; , Foreign Relations, 2:457; DNA: RG 76, Spain, Treaty of 1819, Allowed Claims, vol. 91; JM to Charles Pinckney, 23 Nov. 1802 [DNA: RG 59, IM, vol. 6]; Miguel Gómez del Campillo, Relaciones Diplomáticas entre España y los Estados Unidos [2 vols.; Madrid, 1944], 1:134–35).
4. Peder Blicherolsen to JM, 9 Aug. 1801, and enclosures. JM eventually informed Söderström that the State Department would handle all Danish affairs through Blicherolsen (JM to Söderström, 27 Oct. 1801).
5. See Samuel Cabot to JM, 3 Aug. 1801. In his enclosed remarks, headed “Samuel Cabot’s case,” Wagner noted that Cabot had written to Pickering on 23 Apr. 1800, immediately after his arrival in the U.S., “enclosing letters expressive of the consent of Mr. King and the Commers. to his leave of absence for a ‘limited time.’” Cabot had arrived on the same vessel with commissioner Christopher Gore, and Wagner suggested that “he ought to have returned when Mr. Gore did.” Cabot had been allowed $3,000 for his first year abroad and $2,500 per year afterward, but “nothing is said of an allowance for his return.” His having left a substitute “merits no consideration, as his appointment was a special personal trust, which does not admit of a deputy.” Wagner concluded: “Upon the whole it seems reasonable, that he should be contented with the receipt of his pay up to Mr. Gore’s departure, and five hundred dollars additional for his return. He ought to present a new account commencing … with the first public monies he received.” Among the documents relating to Cabot’s claims that Wagner enclosed were probably Cabot to Pickering, 23 Apr. 1800, with enclosed copies of his letters requesting a leave of absence to Rufus King and to Christopher Gore and William Pinkney and their replies, and Cabot to Marshall, 20 June 1800 (DNA: RG 76, British Spoliations, 1794–1824, Unsorted Papers) (see Helen R. Pinkney, Christopher Gore: Federalist of Massachusetts, 1758–1827 [Waltham, Mass., 1969], pp. 74, 75; on Cabot’s claims, see also , 1:404, 447–48).
6. Enclosure not found. Section 9 of the 21 Feb. 1793 act to promote the progress of the useful arts provided that “in case of interfering applications, the same shall be submitted to the arbitration of three persons, one of whom shall be chosen by each of the applicants, and the third person shall be appointed by the Secretary of State, and the decision or award of such arbitrators, delivered to the Secretary of State, in writing and subscribed by them, or any two of them, shall be final, as far as respects the granting of the patent.” On 14 Aug. 1801 John M. Mann’s patent fee for an invention similar to one by Christopher Hoxie was returned until arbitration could decide the inventor (, 1:322–23; DNA: RG 59, DB, p. 113).
7. The collector of the Hudson district of New York was Henry Malcomb (, 1:180).
8. Letter not found. Josef Yznardy, acting consul at Cádiz, who was described by Timothy Pickering as “having a good deal of pepper in his constitution,” was in the U.S. to defend himself against charges instituted by Joseph Israel, master of the Trial, a ship owned by John M. Pintard, the American consul at Madeira. According to Yznardy, Israel had stopped at Cádiz in 1797 while trading to the rebel port of Safi during the Moroccan civil war and vowed to continue his voyage in spite of strong advice to the contrary from James Simpson and express orders from Yznardy. The matter seems to have taken a personal turn, and Israel sent Yznardy a letter from Safi which read: “I am here against your consent. I wish you will die old villain with all the torments of hell!!” Israel also hung an effigy of Yznardy on his ship and shot at it and spread tales and letters all over the Iberian peninsular coast defaming Yznardy’s character. As a result of these insults, when Israel again entered Cádiz harbor in 1798, Yznardy had him taken into custody by the Spanish. Breaking parole, Israel returned to the U.S. where he published his account of the matter in the Norfolk, Virginia, newspaper. When Yznardy returned to the U.S. to defend himself against these “injurious and vilependious expressions,” he was arrested and imprisoned briefly in Philadelphia in December 1800 in connection with damage suits instituted by Israel and Pintard. It is unclear if all this had any connection with another suit that Pintard had instituted earlier against Yznardy’s son, Joseph M. Yznardy. Yznardy published a pamphlet in 1801 giving his version of the dispute (, 1:152; Josef Yznardy’s “Letter in vindication of his conduct as pro-consul at Cadiz” [n.p., n.d.], pp. 22, 23, 26, 29).
9. Enclosure not found. The British eventually agreed to the release of three Americans from the British vessel Andromache (Edward Thornton to Wagner, 4 Sept. 1801 [DNA: RG 59, NFL, Great Britain, vol. 2]).
10. Besides Eaton’s dispatch of 10 Apr. with its enclosures (see , 1:82 nn. 1 and 2), Wagner probably sent JM Eaton’s 18 Apr. dispatch which enclosed the charter party (, 1:104).
12. Added to the $3,700 for the first half of the charter Eaton negotiated with Giovanni Jercovich, captain of the Benvenuto, were various port and demurrage charges amounting to $681.25. All attempts to find freight for the ship failed, and on 7 Oct. Jercovich accepted $2,100 to release the government from the remainder of the contract. The Treasury Department charged the total cost to Eaton (DNA: RG 217, Misc. Treasury Accounts, no. 12,778; David Gelston to Wagner, 9, 29, and 30 Sept. 1801 [DNA: RG 59, ML]; Gelston to JM, 2 Oct. 1801).