To James Madison from George W. Erving, 8 February 1807
From George W. Erving
Madrid February 8th. 1807.
Sir,
With my letters No. 19. & 20.1 I had the honor to transmit to you copies of sundry notes which have passed between the Spanish Minister of State & myself, upon the most interesting occurrences in our affairs here; & more particularly relating to the outrageous proceedings of the Corsairs & Tribunal at Algeciras, the measures which I have thought it my duty to urge upon this Government with a view to arrest & correct the practises complained of, and the investigation into the conduct of the Tribunal in question, which in consequence of these representations the King has directed to be made, before his Council of War.
Presuming, Sir, that you will consider these subjects to be of considerable importance; and that the question connected with them which I have taken occasion to discuss in various notes (Vizt. whether the late decisions of the Tribunal at Algeciras, given in direct violation of the very letter of our Treaty, should be carried by appeal before the Council of War; or whether on the contrary, the King should not interpose his authority to stop the course of this injustice, to censure the Tribunal, & to restore the condemned property,) is not less so; I have thought it therefore necessary, for the purpose of giving that near & intimate view of these affairs which you will be desirous of having, to transmit the notes themselves, rather than a succinct narrative of the points to which they refer: and the more so, as if I have erred in my opinions; if I have assumed or advanced upon any ground which the President shall not judge suitable, you may have the best means of correcting my error, & of indicating the course to be pursued hereafter.
The notes herewith inclosed, numbered 1. 2. 3. being mine of January 13th. Mr. Cevallos’s of the 14th. January in reply to mine of December 27th. (transmitted with the dispatch No. 20.) & mine of January 27th.2 relate also to the matters referred to.
I beg leave to request your attention to that part of this last note, in which Mr. Cevallos is reminded of his having intimated to me in conversation, that the decisions of the Council of War were to be deemed conclusive against the reclamations of all parties. What is there referred to was in fact much more strongly expressed, than you will infer from the note: It was occasioned by my observing that if the decisions of the Tribunal at Algeciras were violations of the Treaty in the points to which I adverted, (which he had not denied;) then it were both useless & improper to refer the cases to the Council of War: if the Government saw that the Tribunal had offended against the Treaty, it should repair the evil immediately; the promptest justice best comported with the friendly dispositions which his Majesty professed to have towards the United States. To refer the cases to the Council, was to presume that the decisions at Algeciras may have been correct, but he in effect acknowledged that they were not so: no decree of the Council of War then could alter the character of those decisions; if the decrees of the Council of War confirmed them, these last would be as much violations of the Treaty as the original sentences, for which his Majesty would be responsible to the United States: In fine, the effect of such a course would be to enrich the privateersmen with American property, which the King must hereafter reimburse. Upon this Mr. Cevallos observed that I was entirely wrong; that the King had established certain Tribunals for the trial of these questions; that the trials would be impartial, & whatever the decisions of the Council of War, (before which, all complaints against the decisions of the inferior Tribunals must necessarily be brought,) they were binding upon the United States; that I entirely misapprehended the subject, if I supposed that the King was responsible for property condemned by his Tribunals. It has seemed proper in adverting to this part of the conversation (in the note of 27th. January, above referred to,) not to fix upon Mr. Cevallos so unadvised a declaration; but rather by some looseness of expression to afford him an opportunity of escaping from the doctrine; if on further reflection he should be disposed to do so. But indeed past experience (and I refer particularly to the case of Messrs. Dulton & Tombarel, the subject of my dispatch, No. 18.)3 gives ample reason to apprehend that this doctrine does in fact form a part of their system with respect to the United States; and that belief is still confirmed by more recent example: I have taken occasion in a former letter to observe also, that nothing is to be expected from the justice & impartiality of the Council of War. In support of these opinions, I submit to you the case of the “Patty, Loughlin,” as stated in my note to Mr. Cevallos of December 22nd. (number’d 10.)4 herewith inclosed, together with his reply of January 31st. (number’d 11.).5 You will perceive, Sir, by this last, that there can be no hope of obtaining the reversal of any decree of the Council of War however unjust; & here is a case too in which the gratitude, as well as the honor & good faith of the Government, is implicated.
Thus, the uniform ill success of our appeals to the Council of War, & the refusal of the Government to interfere with its decisions, encourage the Corsairs to persevere in their depredations. Though the condemnations of the inferior Tribunals are grounded upon pleas all insufficient in the view of the Treaty, sometimes on open declarations directly contrary to the very letter of that instrument, all discussion upon these is declined; the subject is not considered to be an affair of State, but a litigation between individuals referrable to the higher Tribunal; the decisions of which, tho’ the motives to them be not expressed, are presumed to be pure & impartial, & therefore to close the door against all reclamation. The Prince of Peace, who, as you will have seen, by a Cedula of the King has been appointed High Admiral of the Castiles & the Indies with very extensive powers,6 has lately told me that he shall remodel the prize Courts; nevertheless I cannot see reason to hope for any alteration in the present system, which will be more favorable to the rights of the United States: because that system belongs to defects deeply rooted in the nature & genius of this Monarchy, begetting political perversion, & apathy unexampled: It is supported by that same pride & unpliancy of character which belonged to the antient renown of Spain, & to its power in Europe; which has not accommodated itself to the change of circumstances, which is uncorrected by any enlightened reflection on the state of our Country, or by any political forecast whatever; and which is encouraged by misrepresentations continually received from thence, as to the dispositions of our Government.
I formerly submitted to you the communications which had passed here upon the subject of quarantine; from which, Sir, you will have observed that no representations with a view to diminish the rigor of the existing regulations, could produce any effect; and that this Government had finally referred itself to the reports of its own Consuls residing in the United States. These it seems having now been received, Mr. Cevallos, by a note of 13th. January, communicated to me that the Quarantine was taken off. About the same time I received advice from Mr. Montgomery, our Consul at Alicante, that an American Vessel had arrived there from Barnstable in Massachusetts, having two men on board sick, but with what disorder he could not ascertain, as in spite of all his exertions she was immediately driven from the port, & was finally obliged to seek a market in Italy. Apprehending that this incident would be represented by the Officers of health or of the customs at Alicante, (who derive great profit from the Quarantine,) in such a way as to obtain a continuance of the old regulations at that port, I immediately wrote to Mr. Cevallos on the subject: (January 21st.). I have now his answer, (of January 31st.) by which it appears that my expectation is realized; the affair at Alicante has renewed the alarms of the Government, & the former strict regulations are reestablished in all the ports of Spain, upon all vessels coming from whatever part of the United States.
These notes are herewith transmitted (Nos. 7. 8. 9.).7 Thus it would seem that no ameliorations which this Government may see fit for any reason whatever to adopt at any future time, can be relied on for a single day.
Two of our Vessels (the “Cyrus” & “Sybae,”) having been brought into Alicante by a french privateer under the pretended authority of the late Imperial french decree, Mr. Montgomery exerted himself to procure that they might be adjudged by the Tribunal at that place: by a course of proceedings however very unjust & irregular on the part of the Commandant at that port, the papers have been put into the possession of the french Consul & will probably be transmitted to Paris. I made a representation to Mr. Cevallos on this subject, (21st. January,) & these being the first cases of the sort, I thought it might be well also to apply to the French Ambassador for his interference; these notes & the answer of Mr. Beauharnois (Nos. 4. 5. & 6.) are herewith inclosed.8 I have not as yet received the answer of Mr. Cevallos; nor has Mr. Beauharnois hitherto made me any communication in consequence of the report upon this subject which he immediately directed to be transmitted to him by his Consul at Alicante; he has however in conversation assured me that he shall do whatever is possible to satisfy the complaint, & exert himself on all occasions in whatever may depend upon him, to maintain the friendship which subsists between the United States & France, as well from motives of personal good will, as because he knows it to be the sincere disposition of the Emperor his Master, to live in the most perfect good intelligence with the American Government. I have the honor to be, Sir, With Sentiments of the most perfect Consideration & respect, Your very obt. Servant.
George W Erving
P. S. The winter here has been hitherto uncommonly mild, & has given scarcely any rain; it is apprehended therefore that the coming harvest will be very scanty; yet the last two favorable harvests have given such a plenty of corn to the Country, that it will not probably suffer in any great degree even if the ensuing crop should fail altogether.
GWE
I have duly received Mr. B. Smith (of the Department of State,) his letter of September 25th. inclosing one to yourself from Mr. Wm. Cook of Charleston;9 and have also received the “Autos” belonging to the case of Mr. Cook. Mr. Smith has not transmitted to me any instructions, & indeed it does not appear from what I have been able to see of the case on reading the documents (which are all in Spanish,) that there is any prospect of obtaining redress: or were it otherwise, that the present moment is suitable for application on the subject.
GWE
RC and enclosures (DNA: RG 59, DD, Spain, vol. 10). In a clerk’s hand, signed by Erving. For enclosures, see nn. 2, 4–5, 7–8.
1. See Erving to JM, 24 Dec. 1806 and 7 Jan. 1807.
2. Erving enclosed copies of three letters he exchanged with Pedro Cevallos. Erving to Cevallos, 13 Jan. 1807 (3 pp.), transmitted various affidavits and explanations relating to U.S. claims for ships and cargoes captured as prizes by Spanish privateers, accused the Tribunal of Algeciras of corrupt dealings with the privateers, and noted Erving’s intent to call on Cevallos to discuss the matters in person. Cevallos to Erving, 14 Jan. 1807 (2 pp.; in Spanish), acknowledged receipt of Erving’s 27 December 1806 letter and noted that his complaint about the necessity of bringing cases to the Council of War (rather than making a direct appeal to the Crown) displayed a misunderstanding of the council. Cevallos informed Erving that an appeal to the Council of War constituted an indispensable part of Spanish legal procedure when appealing the decisions of lower tribunals. According to Cevallos, taking causes to the Council of War did not make the council the judge of whether the stipulations of the treaty between the Spanish king and the United States ought to be observed, as Erving seemed to indicate. Instead, the council decided whether foreign vessels conformed to the stipulations of the treaty. Cevallos concluded by maintaining that the tribunal’s decisions indicated that the U.S. crews lacked proper documents as stipulated by article 17 of the Treaty of San Lorenzo (Miller, Treaties, 2:332–33). Erving to Cevallos, 27 Jan. 1807 (7 pp.), complained about Cevallos’s insistence that U.S. litigants in prize cases bring their appeals to the Council of War. Erving acknowledged that “all other civilized States” used such appeal procedures to resolve disputes between individuals but claimed that for “questions which arise between Nation & Nation” or between individuals of different nations whose governments had contracted treaties, the sovereign power had to intervene. Erving laid out additional arguments for the intervention of the Spanish king rather than using the courts, maintaining that “to submit to the Council of War for its ratification or dissent, a decision of an inferior Tribunal, given in direct violation of the Treaty […] is in effect to submit to the Council of War the question whether the Treaty shall or shall not be observed on that point.” He concluded by citing technicalities in the treaty that negated the necessity of appeal to the Council of War. For a copy of Erving to Cevallos, 27 Dec. 1806 (enclosure not found), see Erving to JM, 7 Jan. 1807, n. 6.
3. See Erving to JM, 4 Nov. 1806 (second letter).
4. The enclosure is a copy of Erving to Cevallos, 22 Dec. 1806 (3 pp.), in which Erving remonstrated against the “illegal & unjustifiable proceedings” of the tribunal at Algeciras against the Felicity, Catalina, and Molly. He expressed frustration that the tribunal had referred the case of the Rebecca to the Council of War, and he hoped that the Spanish king would intervene to prevent the same outcome for the other three vessels. Erving also recounted that in 1805 a Spanish official, Don Manuel Garcia, had condemned the Patty as a legitimate prize even though U.S. supercargo Robert Macullock had received permission to trade in Porto Cavallo. The Spanish auditor of war, Francisco Diaz Inguanzo, reversed the judgment; nevertheless, the Council of War confirmed the original sentence. Erving requested the king’s direct intervention in this matter.
5. Erving enclosed a copy of Cevallos to Erving, 31 Jan. 1807 (2 pp.; in Spanish), in which Cevallos reported that the Spanish king refused to review the case of the Patty.
6. See Erving to JM, 21 Jan. 1807, and n. 1.
7. The enclosures are 1) a copy of Cevallos to Erving, 13 Jan. 1807 (1 p.; in Spanish), citing an 11 January 1807 decree lifting the quarantine placed on American vessels; 2) a copy of Erving to Cevallos, 21 Jan. 1807 (2 pp.), acknowledging receipt of Cevallos’s 13 January 1807 letter, in which he claimed that the two men on board the American vessel Morning Star were “sick, but not with the yellow fever” and stated that the vessel had nonetheless been turned away and forced to proceed to Leghorn; and 3) a copy of Cevallos to Erving, 31 Jan. 1807 (2 pp.; in Spanish), claiming that because the two sick men showed symptoms of yellow fever, the king would reinstate the 1 November 1805 royal resolution that placed a rigorous quarantine on all vessels from the United States.
8. The enclosures are 1) a copy of Erving to Cevallos, 21 Jan. 1807 (3 pp.), remonstrating against the captures of American vessels Cyrus and Sibae; 2) a copy of Erving to François de Beauharnais, 22 Jan. 1807 (2 pp.), enclosing a memorandum on the cases of the Cyrus and Sibae and asking the minister to “interpose your authority to discountenance the intended violence, to forbid such misconstructions of his Imperial & Royal Majesty’s [21 November 1806] decree, & by this seasonable check to the first abuse of that Instrument, wholly, to prevent the recurrence” of such instances; and 3) a copy of Beauharnais to Erving, 24 Jan. 1807 (2 pp.; in French), acknowledging Erving’s 22 January letter and promising to request a report on the matter from the French agent at Alicante, where the two vessels had been taken.
9. The last known letter from William Cooke to JM is dated 13 April 1806, PJM-SS, 11:474–75.