From William Jarvis, 11 October 1805 (Abstract)
§ From William Jarvis. 11 October 1805, Lisbon. “Inclosed is a copy of my letter of the 26 Ulto, which went by the Bark Pompey, Captn Orne for Salem, mine of the 9th Inst that went by the ship Baltimore, Captn Long for Baltimore with the letters from Messrs Pinckney, Montgomery & Terry inclosed, a copy of which went by the ship Nanking, Captn Dorr for New York.1
“As I at first supposed in case any interference took place, the inclosed copy of a letter from His Excy Mr de Araujo will inform you of the decision of this Government to let the affair be decided in the Courts of this Kingdom.2 The trials in the Tribunals are commonly so slow that little prospect remained of this affair being brought to an issue under four or five years if the claimants of the Vessel thought proper to keep it off so long. It would also be attended with a considerable expense & I think would ultimately be likely to eat out the Vessel. Beside which there is no certainty of a decision according to the true merits of the case being finally had, for the reasons I offered in my letter of the 8th: Inst to His Excy. (a copy of which goes inclosed)3 and for others which will readily suggest themselves to your mind. Under all these circumstances I thought it better to leave the affair with this Government to decide as it might deem mos⟨t⟩; consonant to strict justice. Several advantages it appear’d to m⟨e,⟩; would attend this mode of proceeding. In the first place it not only would prevent any altercation with this government, but might be construed into a handsome compliment. To the Spanish Ambassador it indicated a disposition on the part of Government, as far as it could be supposed that I knew its sentiments, to adjust amicably any difference between the two Countries: and after the spirit of justice his Court discovered in the orders of the 3d. Sept⟨r⟩;. for restoring all American Vessels captured by Spanish privateers, that its Officers would not strain a point of Law to the injury of a Spanish subject. To add to the favour I conceived it would be well enough to state the ground upon which I founded my request to send her to the U.S. for Trial. Copies of a letter & Note from the Spanish Consul General go inclosed.4 I have been very doubtful how to act in this affair, and if Gover⟨n⟩;ment thinks I have taken the worse course, it will add to the numberless proofs that the best intentions in the world will not always free us from error. But a⟨s⟩; there were only two ways of proceeding, after this Government determined that the affair must be decided in its Tribunals; either to pursue it through this channel at considerable expense, much time & great trouble, when I was persuaded that a decision according to the true merits of the case was at least uncertain, which therefore I deemed would have been contrary to the Consular Instructions of the 9th. April 1803;5 or to leave it with this Government to decide, recommending the situation of the late Spanish Owner to favour; which method I imagined would be more consonant to the liberal views of Government & hope my Conduct will not meet its disapprobation. In my letter to Mr. de Araujo I am afraid that you will think I have made use of an improper expression (’altho it might be contrary to the strict letter of the Law’) to convey the idea that Govmt. would not under the circumstances of the late Owner, wish to strain or rigidly inforce a point of Law to his injury.
“A formal declaration of War was not made on the 26th. Ultimo, but only virtually in a speech made by the Emperor Napoleon to the Senate, in consequence of the Austrian forces having passed the River Inn;6 the French Minister at Vienna some weeks ago having Officially declared that the Emperor would consider the invasion of Bavaria by Austria as a declaration of War. Genl. Junot is appointed to a command in the Army.
“All conversation has subsided relative to a farther demand for money, nor do I believe that any has lately been made.
“This Court has lately gon⟨e⟩; into mourning for the Countess of Artois & the Duke of Gloucester. A Copy of the Notice goes herewith.7 About 3 months since the same formality was gone thro⟨ugh⟩; for the queen Dowager of Prussia.
“Inclosed is a Copy of a letter from me to Mr Lyman at London regarding an impressed seaman, to which I must beg leave to refer for particulars.8
“I have been honored with your circulars of the 1st. & 12th. July past & was much pleased with the instructions relative to Judicial proceedings. It will save the Consuls from much censure; at the same time that it no longer leaves his discretion as the measure of his conduct. The Laws of 1804–5 I also received.
“I am extremely solicitous to know the measures pursued by Government relative to Spain. Events have proved as favourable as We could desire either to urge a compliance with our territorial claims, or of receding without the appearance of weakness. In fact not to enforce them at such a moment must be considered as the highth of generosity. I presume from the extremely embarrassed state of the Spanish finances, no compensation for or settlement of our monied claims need be expected during the War, without some territorial arrangement should take place & it should be included in that.”9
RC, two copies, and enclosures, two copies (DNA: RG 59, CD, Lisbon, vol. 2). First RC 5 pp. Second RC in a clerk’s hand, unsigned; marked “(Dup)”; written at the head of Jarvis to JM, 24 Oct. 1805. Words and parts of words in angle brackets in the first RC have been supplied from the second RC. Minor differences between the copies have not been noted. For enclosures, see nn. 2, 4, 7, and 9.
1. The Pompey, Capt. William Orne, arrived at Salem, Massachusetts, about 7 Nov. 1805; the Baltimore, Captain Long, arrived at Baltimore about 16 Dec.; the Nanking, Captain Dorr, arrived at Norfolk about 17 Dec. (New-York Evening Post, 14 Nov. 1805; New-York Gazette & General Advertiser, 20 Dec. 1805; Philadelphia United States’ Gazette, 23 Dec. 1805).
2. The enclosure (3 pp.; in Portuguese and English) is a copy of António de Araújo to Jarvis, 27 Sept. 1805, in reply to Jarvis’s letter of 6 Sept. about the Venus. Araújo said the prince regent had decreed that the government could not proceed against the ship and the captain on the basis of a mere allegation, especially in so delicate a matter as commerce, therefore the case should be decided in the proper court and after that such steps as were found necessary would be taken.
3. In his 8 Oct. 1805 reply (4 pp.; in a clerk’s hand, signed by Jarvis) to Araújo’s 27 Sept. letter (see n. 2 above) Jarvis repeated the personal information about John Reoch and the sale of the Venus that he had sent to JM on 16 Sept. 1805; enclosed the documents he had about the Venus; stated that had it become known that Reoch was not American, as he had claimed in order to get American papers for the ship, the vessel would have been liable to seizure by any of the belligerents. He asked how far any nation had a right to claim jurisdiction over a foreign flag for a breach of the laws of the country to which the ship belonged when the breach occurred out of the territory of the nation claiming jurisdiction. Jarvis acknowledged that although some writers on international law upheld the principle, in practice it was so difficult to enforce that most governments waived that right when an official request for custody had been made by the nation where the crime was committed. He cited two recent examples from England, one of an American captain accused of killing a seaman who was released from jail at Rufus King’s request and sent to the United States for trial, and the other of Portuguese citizens who had forged Portuguese financial paper and who were “indirectly given up” to the Portuguese minister and sent to Lisbon. He also cited the difficulties of translating United States laws affecting the Venus case, of deciding cases by the laws of a foreign country whose language the judges didn’t understand exacerbated by the different legal customs of Portugal and the United States, all of which might make it difficult to achieve a decision based on the merits of the case, leading to unpleasant discussions. He added that the American government had too high an opinion of the wisdom of the prince regent not to be satisfied with whatever steps he decided to take and that the U. S. Constitution forbade public officials from spending sums not expressly appropriated by law, which would prevent him from pursuing the case in the Portuguese courts without express orders from his government. His correspondence with Spanish consul general Lugo (see n. 4 below) had suggested a solution. Because those who sold the ship to Reoch had taken bills from him, and because he was not “a man of property,” if the ship was condemned, they would be the losers. Should Portugal approve the restoration of the Venus to Tastet & Co., he was convinced that the U.S. government would be satisfied with that step “although it might be contrary to the strict letter of the Law.”
4. The enclosures (5 pp.; in French and English) are copies of (1) Spanish consul general José de Lugo to Jarvis, 4 Oct. 1805, stating that Tastet & Co., merchants at St. Sebastián, informed him that the Venus, which had entered Lisbon from Cádiz under the American flag, was sold by them to John Reoch, but the sale was being canceled for lack of payment, and they wished Lugo to reclaim the ship; that Lugo had just learned that Jarvis had placed an embargo on the ship because the papers shown him were not according to regulation; that the owners wanted the ship sold at Lisbon; and asking Jarvis to lift the embargo so the proposed sale might take place; (2) Jarvis to Lugo, 6 Oct. 1805, noting that Lugo had not mentioned the ship’s papers, and adding that whatever steps Jarvis might take were contingent on an unqualified promise from Lugo that they would be returned; (3) Lugo to Jarvis, 6 Oct. 1805, apologizing for neglecting to mention the papers, and assuring Jarvis that the American papers of the Venus would be delivered to him so that this unpleasant business would be quickly drawn to a close; (4) and Jarvis to Lugo, 9 Oct. 1805, saying that the affair of the Venus was in the hands of the Portuguese government for a decision; that in his 8 Oct. letter to Araújo (see n. 3 above) he had mentioned the case of the Spanish owners favorably; and that the decision of Charles IV ordering the release of American ships captured by Spanish privateers in violation of the Treaty of San Lorenzo would dispose the U.S. government to “grant every consistent favour” to Spanish subjects.
5. For JM’s 9 Apr. 1803 Circular Letter to American Consuls and Commercial Agents, 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 4:491–93.
6. In his 23 Sept. 1805 speech to the senate, Napoleon announced that he was just leaving Paris to lead the French army, that Austria had crossed the Inn, that Munich had been invaded, that war had broken out in Germany, and that Russia and Austria had allied themselves with Great Britain (Annual Register for 1805, description begins The Annual Register, or a View of the History, Politics, and Literature, for the Year… (80 vols.; London, 1758–1837). description ends 659).
7. The enclosure (1 p.) is a copy of Araújo’s 3 Oct. 1805 letter announcing that the court had decreed two months’ mourning for the Countess of Artois and noting that within that period would also be included fifteen days’ mourning for the Duke of Gloucester. Marie Thérèse of Savoy, Countess of Artois, died on 2 June 1805, and William Henry, Duke of Gloucester, died on 25 Aug. (Francis Lieber, ed., Encyclopaedia Americana: A Popular Dictionary of Arts, Sciences, Literature, History, Politics and Biography, Brought down to the Present Time … [13 vols.; Philadelphia, 1829–33], 3:82; Times [London], 27 Aug. 1805).
8. In his 30 Sept. 1805 letter to William Lyman (2 pp.; in a clerk’s hand, signed by Jarvis), Jarvis stated that American seaman John Robinson of Wiscasset had been impressed at Lisbon into the British sloop-of-war Constance, Captain Griffiths, who denied to Jarvis’s secretary that Robinson had a protection. Robinson had written Jarvis that, although he had declared that he had one, no one at any time had asked to see it. Jarvis presumed that in view of this the Admiralty would issue orders for Robinson’s discharge. Jarvis himself had seen the protection, which described Robinson, who was a destitute seaman discharged from the French fleet, but Jarvis could not send Lyman the description because he took only the date, the number, and the district where issued from protections when he aided American seamen. He added that he presumed Captain Griffiths was unaware of this, since he could not believe “a person holding so reputable a station” would lie.
9. Also filed with this letter is the 10 Oct. 1805 deposition of consulate clerks Charles T. Gilman and Thomas Carter (4 pp.; in a clerk’s hand, signed by Gilman and Carter, certified by Jarvis). The deposition stated that they were present in the office when John Reoch appeared to request entry at the custom house on or about 2 Sept. 1805. Their testimony repeated much of what Jarvis had written about the case in his 16 Sept. 1805 letter to JM, adding only that the twenty-seven-year-old Reoch said he had been sent to Cádiz by Firmin de Tastet & Co. of London to purchase the ship for Mr. Crousillat of Philadelphia, that he had been shown no power of attorney from Crousillat, and that he could not present the protection he had received at Salem, Massachusetts, when he was seventeen because he had lost it.