James Madison Papers

To James Madison from George William Erving, 8 February 1807

No. 23.

Madrid February 8th. 1807.


With my letters No. 19. & 20. 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 ⟨oc⟩casion 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 ⟨   ⟩th, Mr. Cevallos’s of the 14th. January in reply to mine of December ⟨   ⟩ transmitted with the dispatch No. 20) & mine of January 27, 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 expresssed, 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 these 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. Dalton & Tombarel, the subject of my dispatch, No. 18.) 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.) herewith inclosed, together with his reply of January 31st. (number’d 11.). 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 reclamations. 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, has lately told me that he shall remodel the prize Courts; nevertheless I can not 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.). 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" & "Sybac",) 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. 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.


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; 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.


DNA: RG 59--DD-Diplomatic Despatches, Spain.

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