James Madison Papers

From James Madison to George W. Erving, 18 October 1807

Department of State October 18 1807


I now acknowledge your several letters of Feby 8. March 17 April 8. June 20. July 13 & 26th.

If the Spanish Government meant to assert the doctrine that the decisions of its Tribunals, on questions affecting the rights of other nations under Treaties and the law of Nations were definitively binding on other nations, it has taken a ground which its own reflections must abandon. Every sovereign is answerable for the conduct of the instrumental authorities in relation to other Sovereigns. A certain degree of confidence is due to the ordinary Agencies by which the national obligations are fulfilled; but an appeal always lies from them to the supreme authority, where this right has not been mutually relinquished by Treaty. No such relinquishment can be pretended against the United States in favor of the Spanish Tribunals. They have therefore the clearest right to disown the illegal decrees of those tribunals, and to require from the Government of Spain the fulfilment of the Treaty violated by them. The like doctrine was advanced before the Board of Commissioners under the 7th. article of the British Treaty of 1794. It was rejected by that joint Tribunal; and decisions of the British Admiralty Courts, not excepting that of the highest resort, were reversed in favor of American claims. The case is indeed too plain to need argument, or to admit of perseverance in error by a Government which respects its reputation either for justice or intelligence.

It appears by the communications from Paris, that the construction there of the French decree of Novr. 21. 1806, exempts the commerce of the United States from any illegal operation. It may be expected therefore that the same complaisance at Madrid which adopted the French Decree will adopt the French construction of it. In every event the Spanish Government will be accountable to this nation for the spoliations committed against its commerce, whether on that or any other unjust pretext; and you have very properly kept that in view in your remonstrances.

The demand of Mr. Cevallos that your Official communications should be either made in Spanish or accompanied by Spanish translations, appears to be equally contrary to reason and to usage. If it be a rule however observed by the Ministers of all other nations, without a reciprocity in the Spanish Ministers counterplacing them, it may not be necessary to refuse your compliance; otherwise you will use your own language only, as the Spanish functionaries here do theirs, in their communications with this Government.

The complaint of Mr Cevallos against an act of Congress establishing custom House regulations on the Western Waters, will receive a particular answer as soon as there may be leisure for it. In the mean time the tenor of the act cannot be supposed to excite any well founded inquietude.

Yrujo has not yet left the United States. The inclosed papers will shew the footing on which Foranda was received as Charge d’Affaires. I inclose also copies of the correspondence with the latter on several subjects, on which it may be well for you to know what has passed.

Capt. Dutton is anxious to learn precisely the state of his business with the Spanish Government. Be so good as to enable this Department to satisfy his enquiries.

You will receive this from Mr Nirac, who goes to Madrid charged by Mr Bruel, with the case of his ship the George Washington; and with some other claims against the Spanish Government. I find that the former has already engaged your interposition; but in compliance with the wish of Mr Bruel, I recommend both that and the other case to whatever attentions you may find due to them. Mr Nirac will of course supply all the requisite explanations.

I send herewith a series of late newspapers from which you will gather the general state of our internal affairs. The question before the Court at Richmond concerning Colo. Burr, Blannerhasset and others, is expected to be decided in a few days. Congress you have been already apprized is to meet on the 26th. inst. As we learn that the vessel which carried the dispatches on the subject of the outrage on the Chesapeake arrived in England about the last of August, it is probable the result of our remonstrances and demands will be before them very early in the Session if not at its commencement. I have the honor to be &c

James Madison

DNA: RG 59—IM—Instructions to Ministers.

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