James Madison Papers

To James Madison from George W. Erving, 1 September 1807

No 32.

Madrid Septr 1st. 1807.


By my letter No. 28. of June 20th., I had the honor to submit to you copies of sundry correspondence with the Minister of State, upon the subject of the Spanish decree; upon several Cases of Capture, and upon the quarantine regulations; together with a note to the Prince of Peace upon the particular case of the fishing Vessel "Prince" Captn. Sears: these came down to May 25th. I now transmit copies of all the communications which have since taken place (down to 17th. August) on various subjects, appearing of sufficient importance to be laid before you.

Nos. 1 & 2 are Mr Cevallos’s notes of 26 June & 7th July in reply to what I wrote him on the 17th June upon the case of the "Seaman" Lasher referred to in my above mentioned dispatch No. 28; and No. 3 is my answer to those two notes. No. 4 is a note Requesting that consular agents of the United States might be allowed to act at the ports of Bilboa & St Sebastians; this application I was induced to make by the transactions which had taken place in the case of the "George Washington" (also mentioned in No. 28) evincing the necessity of having such agents at those ports, & the assurance that the French government had them: No. 5 is Mr Cevallos’s answer; in Consequence of which I have recommended Mr O’Brien the consul at St Ander, to give deputations to some fit persons to represent him at Bilboa & St Sebastians: No. 6 is Mr Cevallos’s note in reply to what I wrote to him on the 17th may, to disprove the allegations of the physicians at Alicante, that the yellow fever had Existed on board the ship "Morning Star⟨"⟩: the determination taken upon this subject seems to annihilate all expectation of obtaining any amelioration of the existing quarantine regulations: No. 7. is a further note to Mr Cevallos respecting the blockade decree, which was occasioned by the capture of the "Shepherdess" Captn Doane: & No. 8. is his answer: The Shepherdess has Since been released by order of the Admiralty: Nos. 9, 10, 11, 12 & 13 relate to a question which has arisen upon the pretension made by this government to compel the foreign Ministers to put their communications in the french language, which I thought it necessary to protest against; first on the ground of the indisputable right according to the established usages of all nations, which Every minister has to write in his own language; and secondly, because, no pretension contrary to this right has ever been set up by the American government; and more particularly, as the Spanish Ministers in the U. S have always when they thought proper availed themselves of it, even in cases where to have dispensed with it woud not have subjected them to any inconveniences.

Mr Cevallos certainly can not support by any sound argument his assumptions that every government is competent to Establish a rule for itself, which shall controul the rights of foreign ministers in this point; if he coud, by a parity of reasoning he might also invade others of their most Essential priviledges sanctioned by usage immemorial, and recognized by the public law, and upon which their utility very materially depends. But having said upon the subject all which appeared to be necessary, and in the note of July 14th having placed my acquiescence with his wish, on the ground where it seemed proper that it shoud rest; I thought that further contention woud serve no purpose but to give the matter a character of personal dispute founded upon motives of convenience; that it was therefore proper to leave Mr Cevallos’s last note without reply, & submit the correspondence in its present state to your consideration.

No. 14 is Mr Cevallos’s reply to No. 3 upon the Case of the "Seaman": No. 15 is my note to Mr Cevallos upon the case of the "Trial" Harding", a condemnation under the blockade decree, first stated to him in a note of June 18th sent to you with my dispatch No. 28: No. 16 is his Answer, and No. 17 is a note to the Prince Admiral on the same subject, and on the decision of the Admiralty in the case of the "Rebecca”: No. 18 is a note from Mr Cevallos respecting the late appointment by the President of a Consul at Puerto Rico & No. 19 is the reply.

You will observe Sir by Mr Cevallos’s note of August 5 (No. 16) that he seems to consider the order given by the Prince Admiral which was communicated to me by his note of July 19th (No. 8) as providing an adequate redress for the complaints made against the Execution of the decree of 19 Feby: and indeed the very extraordinary delay which has taken place in making the satisfactory Explanations which the Prince of Peace has repeatedly given me reason to Expect to receive from him, after his Communication with the government of France upon the subject; leaves me to apprehend that it is not really his intention to do any thing further. I thought it proper therefore to write to General Armstrong on the 27th. of July, (a letter whereof Copy is inclosed) hoping that he might be able to do something useful upon this subject with the french governt.

I beleive it to be the policy here to suffer the decree of Feby 19th. to become a dead letter; because a due Execution of it in any shape conformable to the spirit of the Imperial decree, woud annihilate the small Remnant of commerce between Spain & England, which in the present situation of this Country is of serious importance to it.

But tho’ the decree may not be Executed in all its rigor; yet whilst it stands in its present form it cannot fail from time to time of doing some mischeif to our trade in these Seas, & will undoubtedly commit great devastation on it in more remote places, where the same policy which may check the ⟨ill⟩ Effects of the measure in Europe, does not apply. But further it is not to be supposed that in the actual state of relations between this country & France, that the former will long be sufferred to relax on any point of hostility to England; & particularly on this, wherein the Emperor seems to have founded his principal hope of reducing that power. Hitherto we have had only six ships taken under the order referred to, two of which have been released upon my application by order from the Prince: One is pending by appeal to the Admiralty: One in which the tribunal at Algeciras has been prohibited from acting; and which is also before the admiralty: One which was brought in on ye. 21st. Ulto., & is yet in quarantine therefore no step taken: And one only which having been condemned at Algeciras, & the Captain not appealing, seems to be desperate.

It must be said that the Admiralty is upon the whole well composed; it has in it Admiral Aliva, & other men of character & independence; and I am persuaded that if the Board was left in all Cases uncontrouled by the power of the Prince, we shoud not have very great reason too complain of its decisions. But there are two singularities belonging to the constitution of this body, which are of a very unfavorable character; the one, that it assigns no reason whatever for its decisions: and the other that its President as high Admiral, has ten per Cent of all property condemned by it.

The representations which I had occasion to make to this government some time since on the case of the "Rebecca"; and the malpractices & corruptions of the tribunal & Corsairs at Algeciras therein developed, which produced the removal of Don Manuel Serano y Cuevas the auditor of Marine there, of whom I had particularly complain⟨ed⟩ and the appointment of Don Chrystoval Ysquierdo de los Santos (who having acted in absence of the former, and given the first sentence, of acquittal, in the "Rebecca", I had recommended as his successor; seems to have checked in some considerable deg⟨ree⟩ the depredations on our commerce in that quarter. The decisions of the new officer have been hitherto generally favorable; & I have not had reason to suspect that he has ⟨or will⟩ entered into that corrupt connection with the privateersmen, for which the last was notorious. Thus since his appointment (which was in Decr. 1806) Eight months past, of 33 Vessels captured he has acquitted 22; of 9 which he has condemned 3 were under the blockade decree, so that he coud not do otherwise; 2 now lay by appeal before the Admiralty; 4 only are desperate, and these, because the Captains having received their ships & freights, have not thought fit to appeal; one of these captures he has not been permitted to act on, & one is yet pending before him. Whereas the former judge from Oct 1805 (the time of my arrival in Spain) to Decr. 1806 (the time of his removal from office) out of 25 Vessels captured, had condemned 12 and of the 13 which were acquitted many were judgements directly bought; and many, if not all the Remainder, as I am led to beleive were given by consent of the Captors in Consequence of arrangements made between them & the Masters.

The case of the "Rebecca" Captn. Nimmo about which so much has been written was finally decided by the Admiralty in August: the ship, with that part of the Cargo belonging to Degen & Purviance of Leghorn was acquitted; but a small portion of the Cargo (being Hamburghese property) was condemned. I know from a good source that the Admiralty had at first determined to release the whole, and to give Captn. Nimmo 18,000 Ds. damages; but their sentence was delayed for a fortnight, to give time for the Captors to Represent against it; and the just determination of the Admy. was finally overruled.

That you may have at one view a state of the captures which have occurred since my arrival in Spain; of the judgements which have been given; and of the actual situation of those pending; I herewith inclose a memorandum comprising all the matter which is important to that view, and which I have endeavoured to classify in the plainest manner. There may be some cases which have not come to my knowledge; but if so, they will in all probability have been acquittals.

The whole number in the list inclosed is 76; of which it will be observed that there were three old cases pending on my arrival, on which I had to officiate with the government, and two other old cases, on which the proceedings at Algesiras not being known, were presumed to be depending, but which were in fact I doubt not dismissed.

Of this number 76, there have been 44 acquittals and 22 condemnations, and one in which neither the lower or superior courts have yet acted viz the "Iris" Conway"; 5 are pending in the lower courts (including the two old cases at Algeciras, as above mentioned presumed to have been acquitted;) and 5 depending upon appeal, (including the one above mentioned in which the inferior court has been prohibited from acting:) 6 of the Cases as before mentioned are under the blockade decree.

Of the Acquittals, 37 were on summary process, 4 on appeal, & 3 on government order.

Of the Condemnations, in 17 there was no appeal, and 5 were condemned on Appeal: (4 of the condemnations in the inferior courts yet pending by appeal.)

Of the condemnations; 18 originated at Algesiras 3 at Bilboa, 1 at Cadiz, 1 at Vigo, 1 at Guardia, and 1 (on appeal) from Puerto Rico: making 25 of which 25, 3 were afterwards released by government order. I have the honor to be Sir with sentiments of perfect Respect & consideration Your very obt St

George W Erving

P. S. On the 1⟨9⟩ Augt. I had the honor to receive by Mr Hollins of Baltimore, your dispatches of May 6th, duplicate of that Jany 20th., and a parcel of Newspapers


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

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