[Enclosure]15

Case of the Marquis de Casa Yrujo, Envoy Extraordinary and Minister Plenipotentiary of His Catholic Majesty to the United States.

The deviation of this Minister from the line of conduct prescribed by his diplomatic station near the Government of the United States, may be traced as far back as the month of February 1804. In a letter of that date, to the Department of State, he undertook to require from the Government, a prohibition of all trade by the Citizens of the United States, with the Island of St Domingo, a Colony under the dominion of a third power; and endeavoured to enforce the demand, by suggesting that it would be backed by the principal nations of Europe.16 It is true that he disclaimed this import of his suggestion; but his explanation, if it had done less violence to his expressions, could not rescue him from the just charge of referring to the presumed views of those Nations, with the manifest and offensive desire of awing the Councils of the United States.

The correspondence on that occasion must have become known to the Spanish Government, which ought to have seen in it, moreover, a stile and a tone very different from what it would expect from the Ministers of other nations residing at Madrid.

It was not long before another occasion was seized by the Marquis de Yrujo, for developing the intemperance of his character.

The situation of the Southern frontier of the United States, fixed by the Treaty of 1795 with Spain, had for some time required an extension, to that quarter, of certain revenue provisions existing in every other. During the session of 1804, this extension was made by an Act of Congress; and it was so framed as to be applicable to the event of an expected adjustment of the controversy relating to the Territory between the Mississippi and the river Perdido; which would put the United States in actual possession of the entire river Mobille.17 This was the construction put on that part of the Act by the Executive authority, the constitutional expositor of it, and the construction in which the law has been actually carried into operation.

The Marquis de Yrujo, without waiting for any evidence whatever of the meaning which would be officially and practically applied to the terms and phrases used in the act, without even previously asking for explanations on this subject, gave way to the vehemence of his temper, first in his verbal remonstrances against the act;18 and afterwards in his letter of March 7—1804,19 in which he substitutes a positive meaning for the provisional meaning; and on this unwarrantable construction, proceeds to arraign the act of Congress in terms which ought never to stain a diplomatic paper. After acknowledging that he had ascertained the printed act to be authentic, he calls it, “an atrocious libel”—“an insulting usurpation of the unquestionable rights of his sovereign”—“a direct contradiction of the assurances given by the President.”

It was reasonably supposed that the Spanish Government with such a specimen of the character of its Minister in its hands, would lose not a moment in making him feel the marks of its displeasure, which were so clearly prescribed as well by its respect for itself, as by that which was due to the United States. In this confidence, no recall of him was expressly desired; and from an unwillingness to interrupt the ordinary communication between the two Governments, that channel of it was permitted to remain unclosed.

This moderation on the part of the American Government was not, however, followed by any steps on that of His Catholic Majesty, expressive of corresponding sentiments; and it was not very long before the Marquis de Yrujo, encouraged doubtless by the impunity he had experienced from his own Government, and calculating on the patience of that of the United States, took a course which put their patience to a new trial.

Instead of confining himself to a communication with the Government, in all cases where he had information to give, or representations or remonstrances to make, according to the established and essential rules for exercising the Diplomatic trust; he addressed himself, in the month of Sept. 1804, to the Editor of a Gazette in Philada,20 with the avowed purpose of engaging him, by a pecuniary recompense, to make his press instrumental in combating the supposed measures and views of this Government, and in gaining over the people here, to those of his own. This charge does not rest merely, as has been alleged, on the declaration of the Editor, which included many aggravating particulars, and was made under the solemnity of an oath; but is ratified by the express and official avowals of the Marquis himself. It may be added, that the attempt to seduce the Editor, was, contrary to the assertion of this Minister, in direct violation of an Act of Congress, prohibiting under adequate penalties any correspondence or intercourse of Citizens of the United States with any foreign Government or its Agents, in relation to any disputes or controversies with the United States, with intent to influence the measures or conduct of such foreign Government or its officers, or defeat the measures of the Government of the United States.21

Instead, again, of offering apologies, or even a modest silence, for so flagrant an aberration, he made it the subject of a letter to the Department of State, in which he avows the fact charged; denies the impropriety of it, even in the latitude of the affidavit made by the Editor; and asserts a right, as the public Minister of His Catholic Majesty, in common with the Citizens, and under the Constitution of the Country, to employ the press in vindicating and advancing the objects of his Government, and in turning the opinion of the people against their own.

This is the first instance, without doubt, in which such a doctrine ever made its appearance; and it is not less notable for its extravagance, than for its novelty. To claim, in the same breath, all the rights of a citizen, and all the immunities of a public Minister; to speak of rights under the Constitution of the Country, as belonging to a foreign Minister who disclaims every species of allegiance except to his own Sovereign; to put himself on a level with private Citizens in the free use of the press, and to put himself above even the Government, by holding himself responsible for his abuses of that freedom, to a foreign Government only; these are inconsistencies which overwhelm the pretension from which they flow; a pretension which, as it has its origin, will probably have its end, with the case in which it is advanced.

What in fact would be the state of things, if in a government where the press is free, so extravagant a pretension were admitted and exercised; if, to all the privileges and means already indulged to public Ministers, by usage and the law of nations, were to be added, the free use of the press under the municipal laws, for the purpose of employing, in that most operative of all modes in a government like that of the United States, the treasures of a foreign Prince, and the intrigues of a foreign Minister; in poisoning the public opinion, in biassing the elections, and in turning both against the interests and government of the Country?

To shew that this pretension is not unjustly ascribed to the Marquis de Yrujo, it is stated in his own words, as follows—“Under such circumstances I believed then and I believe now it was not only my right but also my duty to check the torrent of impressions as contrary to truth as to the interest of my Country, being very well acquainted with the great influence of public opinion in a popular government as that of the United States; with a just intention of bringing the subjects of discussion under a forcible point of view, which had been carefully concealed, and presenting them to the public eye under new aspects; and, apprehending that the Editors who had previously espoused a party on the question would refuse to insert in their papers my intended publication, I thought that Mr Jackson among others would not perhaps have the reluctance which I anticipated in the former.”*22

Not satisfied with addressing to the Government this curious attempt to justify his transaction with the Editor, he had the temerity to carry his doctrine into practice, by causing the letter to be printed in a newspaper; and such was the eagerness in taking this step, that the letter appeared in print before it was delivered at the office of the Secretary of State.

Who could doubt that the Spanish Government would be duly struck with such an outrage on decorum, and such an open contempt for all the restraints imposed by the law of Nations on foreign Ministers, who have far more than a balance for these restraints, in the privileges with which the same law endows them? The Government of the United States could certainly no longer forbear a formal representation, to the Spanish Government, of the insuperable objections to such a diplomatic organ; and to let it be clearly understood, that the recall of its Minister was expected. Instructions to this effect were accordingly forwarded to the American Ministers Extraordinary then at Madrid;23 and in pursuance of those instructions, the requested recall, with the grounds of the request, was on the 13th. of April 1805, formally addressed to the Spanish Government.24

In answer to this letter, the Minister informed them on the 16th. of the same month, by command of the King, that as the Marquis had obtained his royal permission to return to Spain “at the season which should be convenient for making a passage with the most probable safety,” the desired removal of the Marquis would, in that mode, be accomplished; and a hope was expressed that the Government of the United States would consider that as a proper mode for reconciling its object with the respect due to the Minister Plenipotentiary of His Majesty.25

To this communication the American Ministers, reciting the permission given for the return of the Marquis “in the course of the present favorable season, and the wish of His Catholic Majesty that this mode might be satisfactory,” expressed in reply their confidence that the respect entertained by the United States for His Catholic Majesty would induce their Government to be satisfied with the mode of fulfilling their object, most agreeable to him.26

The President acquiesced in the proposed removal of the Marquis by a permitted return, instead of a recall; and on the receipt of the communication from the Ministers of the United States at Madrid, justly expected that the effect of the instructions from the Spanish Government to their Minister, which ought not to be much longer on the way than the communication of those Ministers would speedily appear in the presentation, by the Spanish Minister, of his letters of leave. Whilst presumable casualties could in any measure explain the delay, it was allowed to have as little effect as possible; either on the estimate of the dispositions of the Spanish Government, or on the intercourse with its representative. This explanation however, vanishing gradually with the lapse of time, was at length precluded altogether by satisfactory evidence, that the Marquis had received, at different times, communications from his Government of dates subsequent to the engagement that his return should take place by permission; for which return the most favorable season of the year, might have been found between the arrival of instructions, if duly given, and the winter months. It was under these circumstances, and after a lapse of many months, that it was learnt with no little surprize, that the Marquis, instead of leaving the United States, had formed the purpose of taking his station at Washington, as usual, on the meeting of the Legislature; the time for which was approaching. Such a purpose would certainly have justified a course, which a government less temperate in its character than that of the United States, would have rigorously pursued. In adherence, nevertheless to its principles of moderation, and to the policy of rather preventing than redressing obnoxious occurrences, measures of rigor were not only forborne, but a friendly and informal intimation was allowed to be given to the Marquis, that under existing circumstances, prudence and delicacy equally recommended a change of his intention.

The intimation was disregarded; and at the end of the 8th month from the period at which his leaving the United States was promised, he arrived at the City of Washington. Those who take into view the more rigorous modes of proceeding which the law of nations, as carried into practice by some of the most respectable of them, would have authorized, will find in that adopted by the Government of the United States; a fresh example of its disinclination to depart from the most lenient course reconcileable, in any manner, with the attention indispensably due to the rights and to the honor of the nation. In this spirit the following letter was written to the Marquis, bearing date the 15th Jany 1806:

“In consequence of the just objections which your conduct had furnished against your continuance here as the organ of communication on the part of His Catholic Majesty, it was signified at Madrid, in the Month of April last, thro’ the Mission of the United States there, that the substitution of another was desired by the President. In reply, it was intimated by Mr Cevallos, that as you had yourself expressed a wish and obtained permission to return to Spain, the purpose might be accomplished without the necessity of a recall; and that such a change in the mode would be agreeable to your government. In a spirit of conciliation, the arrangement proposed by Mr Cevallos was admitted; and it was not doubted that it would, without delay, have been carried into effect. It is seen therefore, not without surprize, that at this late day, you should have repaired to the seat of Government, as if nothing had occured, rendering such a step improper. Under these circumstances the President has charged me to signify to you, that your remaining at this place is dissatisfactory to him, and that altho’ he cannot permit himself to insist on your departure from the United States, during an inclement season, he expects it will not be unnecessarily postponed, after this obstacle shall have ceased.

“I am charged by the President at the same time to let it be fully understood, that the considerations which have led to this explanation being altogether personal, they are perfectly consistent with the ready admission of a successor; and with all the attention which can be due to whatever communications His Catholic Majesty may please to make, with a view to maintain and cultivate harmony and friendship between the two Nations. I have the honor &c

(signed) “James Madison”27

This letter was answered, on the succeeding day, by one in which he prefixes to some very unsound remarks, in terms not always the most delicate, on his transactions with the Philadelphia Editor; and on the letter of the American Ministers requiring his recall, a declaration in these words: “As I have not come to form plots, to excite conspiracies, or to promote any attempts against the Government of the United States, and as, to this hour, I have not directly or indirectly committed acts of that tendency, which alone could justify the tenor and object of your letter, to which I now reply, it results that my coming was an act innocent, legal, and which leaves me in possession of all my rights and privileges both as a public man, and a private individual. Making use of these I intend to remain in the City of four miles square, in which the Government resides, as long as may suit the interests of the King my master, and my own personal convenience; adding as I ought to do, that I shall not lose sight of these two considerations, in relation to the time and the season, of fulfilling our mutual wishes for my departure from the United States.”28

The letter from which this passage is extracted, was followed by another of Jany 19 which is given entire:

“Muy Señor mio. Desembarazado de las explicaciones personales en que por justas razones me vi obligado à entrar en mi primera contextacion a la carta de V.S. de 15 del corrente. debo ahora decir à VS lo que de otro modo habria entonces constituido mi unica respuesta, à saber, Que el Enviado Extraordinario y Ministro Plenipotenciario de Su Magestad Catholica, cerca de los Estados Unidos, no recibe ordenes sino de su Soberano. Tambien debo declarar à V.S. que considero el estilo, y tenor de su carta como contrarios al decoro y su objeto como una infraccion de los privilegios que me da mi caracter. Esta violación de los derechos diplomaticos, tan inexplicable, como poco fundada exige de mi la protesta mas solemne contra la citada carta de VS, su estilo, y el intento conque se me dirigio. Protesto, pues, del modo mas solemne que me es posible executarlo, contra este paso tan contrario, baxo las circunstancias existentes, à las leyes y costumbres diplomaticas, como lo es al espiritu de la constitucìon y Gobierno del pays; y à fin de que la conducta de V.S. en este caso no pueda afectar de modo alguno los privilegios del cuerpo, à que tengo la honor de pertenecer, pasaré immediatamente à los demas Miembros de el, acreditados cerca de los Estados Unidos, copia de la citada carta de V.S, de mi primera contextacion, y de esta mi Protexta para que conste siempre que si ha existido de parte de esta Administracìon una determinacion arbitraria à violar los derechos de Embazada, respetados por todas las Naciones civilizadas, ha existido tambien en mi la justa resolucion de repeler semejante atentado. Dios gu[ard]e a V[uestra]:S[eñoría], M[ucho]s a[ño]s Washington 19 de Enero de 1806 &ce &c &C

“El Marquis de Casa Yrujo

“Sõr don Jayme Madison[”]29

These letters speak for themselves. With the sole exception of cases where a foreign Minister may be engaged in plots, conspiracies, or attempts on the Government itself; they assert a right in him, under the law of nations, and, what is more, under the municipal constitution, to go where he pleases, to stay as long as he pleases, and to commit every other species of offence he pleases; without being removable or controulable by the Government of the Country; or in the least responsible to any other authority than that of his own sovereign.

May then a foreign Minister, when once received, offer with impunity to the Government receiving him, every offence short of the specified crimes against the state? May he trample on all the rules of decorum observed in public as well as in private intercourse? May he tamper with the virtue and fidelity of the Citizens; may he corrupt the presses for the purpose of public or private defamation; may he give ostentatious defiances to the Government; may he insult the Chief Magistrate by insolent letters charging him with dishonorable conduct, and by the publication of them arraign him before the community; may he even insult him to his face, by his looks, his language, and his deportment; may he commit, and go on committing, these and a thousand other enormities not falling within the specified cases; and find, in his diplomatic badge, a consecrated shield against every restraint; until his case shall have been transmitted to his own Government, and it shall please that, to rescue the insulted government from the presence and provocations of such a functionary?

Common sense revolts at such pretensions. Every Government which respects itself, will feel its right, whenever a foreign functionary shall presume to carry them into practice, to banish him instantly from its presence, to strip him of his immunities, or to order him out of the Country; according to the degree of provocation given. This right, inherent in all governments, derives additional energy in the case of the United States, not only from peculiarities in their political principles and institutions, which would widen the range for indignities not on the short list of crimes against the state; but especially from the distance of the Governments whose representatives might so offend, and the lengthened periods of liability to such indignities, if no right existed on the spot to put an end to them.

After the moderate exercise of this incontestible right, in the letter signifying to the Marquis de Yrujo that his presence at the seat of Government was dissatisfactory, the provocation superadded by the stile and matter of his answers, would have justified a procedure against him, much more expressive of the sentiment they were calculated to inspire. This sentiment however was no otherwise manifested, than by a silent consignment of him to the mortification of his own reflections.

These reflections had not the effect which they ought to have had. On the contrary, pressing forward in his intemperate career, he not only executed his purpose of communicating to the other public Ministers at Washington, the correspondence which had just taken place with the Department of State; but caused that correspondence, with his letter to those Ministers, to be published in the Gazettes, as another appeal to the people against their Chief Magistrate. So familiar, indeed, had this resort become to his mind, that nearly about the same time, he addressed to the public, through the press, and with the same view, an official letter which he had written to the Department of State, commenting in a stile which might have been more respectful, without being less adapted to its object, on certain passages in a message of the President to the Legislative Body.30

But altho’ no immediate notice, beyond that of the letter of Jany 15 was taken of the Marquis de Yrujo, notwithstanding his continuance for two weeks thereafter, within the City of Washington, it was a matter of course to communicate to his Government these aggravated provocations, with the proof they afforded of the protracted forbearance of the Government of the United States. The printed copies of all the documents, with the fact attached to them, of his having caused them to be thus published, were accordingly transmitted to the Diplomatic Agent of the United States at Madrid; with an instruction, to lay the whole before the Spanish Government, without a single comment.31

On the 6th of May last, the communication was so made;32 with an effect, however, very different from what was expected. Instead of repairing the wrongs of the Spanish Representative against the United States, by expressions of regret, and by withdrawing the author of them, Mr Cevallos, in his answer to the communication,33 vindicates the Marquis de Yrujo throughout, adopts his pretensions and his fallacious arguments, copies often his very words; and descends so far as to repeat observations, which, as they would have been passed over in silence in an answer to the Marquis, if his title to one had not been forfeited, must excite the greater surprize at their escaping the pen of His Catholic Majesty’s first Secretary of State. The letter of Mr. Cevallos does not scruple to mingle with these extraordinary contents, a complaint not less extraordinary, that the Communication made on the 6th. May, without an explanation of the reasons which supported it, was a disrespectful mode of addressing the Spanish Government on the subject.

But what explanation could be deemed necessary in a case, which explained itself in every particular; which carried on the face of it, pretensions, without example in diplomatic history, addressed to the Government in terms at which every Government ought to take offence; and the proof, that these pretensions had been actually exercised, in a printed appeal to the people of the United States, against their own Constituted authorities. This silence was, in fact, so far from being dictated by a want of respect for His Catholic Majesty, that it was preferred, as at once the most delicate and emphatic manifestation of the charges against his Minister, and of the confidence placed in his readiness to do justice to a friendly power, who might reasonably have declined awaiting so distant an interposition.

Proceeding himself in the very footsteps of the Marquis de Yrujo, which this Minister ought to have been made to tread back, Mr Cevallos contends that the letter of Jany 15 signifying the dissatisfaction of the President at the repairing of the Marquis to Washington, was a marked violation of the sacred rights of embassy; that such a step would be justified, solely, by a conspiracy of that Minister against the Chief magistrate of the United States, or against the security of the nation or its Government; and that in case the Spanish Plenipotentiary had justly drawn on himself the treatment experienced, a specification of the crime and exhibition of the proofs, ought to have been the first communication made; instead of that silent transmission of copies of the correspondence in question, which was itself a confirmation of the violent and causeless procedure of the American Government. He even allows himself to assert the singular pretension of the Marquis, as the Minister of a foreign nation, to the peculiar rights and privileges of American Citizens, under the constitution of the Country.

It would be an useless repetition of remarks already made, to point out the tendency of these spurious doctrines and pretensions; but it may not be amiss, once for all, to substantiate those remarks by the latest as well as the highest authorities on public law; premising only that34 a material error of fact runs through the answer of Mr. Cevallos. He takes for granted that the letter of Jany 15th to the Marquis de Yrujo, which cut off official Communication with him, stripped him, at the same time, of the immunities attached to his Character, and subjected him to the municipal jurisdiction. However justifiable this Course might have been, it is neither the import, nor has it been the effect of that letter.

The Rights and the Responsibilities of public Ministers are perhaps no where more clearly laid down than by Mr. Rayneval in his work entitled— “Institutions du droit de la Nature et des gens.”

“Mais l’immunité dont il s’agit n’assure point l[’]impunité. Si le ministre oublie lui même sa dignité; s’il perd de vue la maxime qu’il ne peut ni offenser ni etre offense; s’il permet des injustices, des actes arbitraires; s’il [ose] troubler l’ordre public, manquer aux habitans, au Soverain lui meme; s’il conspire, s’il [se] rende odieux suspect ou coupable, c’est à son Soverain qu’il faut s’addresser; c’est a lui à le punir: il le doit; c’est une condition tacite mais essentielle, de l’admission de son agent. Le Soverain pres du quel celuici reside peut aussi selon les occurrences, prendre des mesures de sureté contre lui: il peut interrompre toute communication, tout rapport avec lui; il peut meme le renvoyer de ses Etats, et en cas de resistance, il peut employer la force pour le contraindre; car en pareil cas le Ministre se met dans un etat hostile, et devient lui meme l’auteur de la violence qu’il eprouve, il manque aux obligations que son caractere lui impose, il detruit par là lui-même le caractere, et, par consequent les prerogatives que y son attaches.”35

The authority of Mr. Rayneval has been cited, not only because he is so late a writer (his work being published in 1803) and of known talents, but because he has, thro’ the greater part of his life, been practically occupied in Diplomatic affairs; sometimes in the Foreign Department under the French Government, and sometimes as its Minister abroad. To the best means therefore for understanding both the law and the practice, he adds an advantage of deriving an impartiality between the pretensions of foreign Ministers and those of the Sovereign receiving them; from his having been in situations to maintain both.

Should authorities longer known to the public be called for in this case, Grotius, Bynkershoek and Wyquefert will be found to speak a similar language, and above all, Vattel, as will be seen by the passages here extracted, L[ivre] IV. C[hapitre]. VII. S[ection]. 94/95.

[“]Si l’ambassadeur oublie les devoirs de son etat, s’il se rend desagreable et dangereux, s’il forme des complots, des entreprises prejudicialles au repos des Citoyens, à le’Etat, ou au prince a qui il est envoyé, il est divers moyens de le reprimer, proportionnes a la nature et au degré de sa faute. S’il maltraite les sujets de l’Etat, s’il leur fait des injustice, s’il use contre eux de violence, les sujets offencés ne doivent point recourir aux magistrats ordinaires, de la jurisdiction desquels l’ambassadeur est independant; ou par la même raison ces magistrats ne peuvent agir directement contre lui. Il faut, en pareilles occasions, s’addresser au Soverain, qui demande justice au Maitre de l’ambassadeur, et en cas de refus peut ordonner au Ministre insolent de sorter de ses Etats.

Si le Ministre étranger offense le prince lui même, s’il lui Manque de respect, s’il brouille l’Etat et la cour par ses intrigues, le Prince offense, voulant garder des menagemens particuliers pour le Maitre, se borne quelquefois a demander le rappel du Ministre; ou si la faute est plus considerable, il lui defend la Cour en attendant la reponse du Matre, dans le cas grave, il va même jusquá la chasser de ses Etats.”36

To these passages from Vattel, an extract from a succeeding one may properly be added, as a concise and conclusive reply to a Consideration which Mr Cevallos seems to regard as particularly supporting the pretensions of the Marquis de Yrujo. In requiring, on the occasion of a demanded Recall of a public Minister, that regular proofs should accompany a specified offence, Mr. C. gives, as a reason, “that the contrary doctrine would leave Ministers at foreign Courts at the mercy of the Governments there, and deprive them of the sacred and necessary independence, requisite for the discharge of their duties, a monstrous doctrine, Yet a necessary consequence of admitting the principle of removal without those preliminaries.”37

Vattell referring to a like agreement used in a case which he cites, makes the following Remark.

“Elle seroit bien plus malheureause, la Condition des Prince[s], s’ils etoient obligés de souffrir dans leurs Etats, & a leur Cour, un ministre disagreable, ou justement suspect, un brouillon, un enemi masqué sous le caractere d’ambassadeur, qui se prevaudroit de son inviolabilité pour traimer hardement des entreprizes pernicieuses.”38

The solidity of this reflection of Vattel is illustrated by the best attested experience which has constantly shewn a greater tendency in foreign Ministers to abuse their privileges and pervert to evil purposes the benevolent policy of permanent legations, than in Governments to exert an undue authority over the Minister residing near them.

No Institution could promise better to the peace and harmony of Nations, than that which naturally places near friendly Governments well chosen Representatives always on the spot to explain difficulties to repress unjust or extravagant jealousies, to remit faithful intelligence to promote justice; and by these laudable offices, to cherish that confidence and good will which alone can maintain peace among nations. And where this important trust is committed to enlightened and upright functionaries, of whom there are many honorable examples, who consult the true object of the diplomatic establishment, its happy fruits confer on it the highest praise. But how often has there been occasion to lament the course, actually pursued by those intended organs and guardians of the friendship of nations? How often has it been found that instead of the good which they might do both to the Countries appointing and to those receiving them, all their address is employed in the evil task of corrupting the Citizens, of poisoning the Councils, and of disturbing the tranquillity of the latter? How often are they found to sacrifice every patriotic consideration, to their selfish views, by representations to their Governments calculated not to correct injurious errors, or impart salutary truths, or promote a wise and honorable policy, but to flatter prejudices, to stimulate jealousies, to disguise or pervert facts, or to varnish and recommend projects contrary both to the Interest and the honor of their own Country; in a word, by telling their Government not what is true, but what may be agreeable; not what will promote its just and useful objects, but what will recommend themselves to the favor of their Superiors, and pave the way to higher honors or advantages for themselves.

That this is not a picture drawn by fancy for a particular occasion, will be admitted by all who have the least acquaintance with the history of diplomacy. Instead of citing cases, which it would be so easy to multiply, a single, but very unexceptionable authority shall suffice.

Monsr. Callierés, who held an important station in the French Cabinet, after having been employed at different times in diplomatic missions, delivers in his “De la Maniere De Negocier”—the following instructive testimony on this point.

“Il faut rendre justice a la plûpart des legitimes Souverains, en disant, qu’il y[’]en a tres peu qui se pretent d’eux-mêmes à de semblables desseins; presque toutes les entreprises injustes, et les cabales qu’on fait en leur nom dans les autres Etats, leur sont suggerées par leurs Ministres, ou par quelques negociateurs qui les y engagent, en s’affiant de les executer, bien loin de les en detourner, & ces negociateurs ne sont pas à plaindre quand ils tombent dans les filets qu’ils ont eux mêmes tendus pour autrui; on pourrait alleguer divers exemples de la vérite de cette observation, et on en trouvera toujours dix contre un, ou les negociateurs ont été les auteurs et les solliciteurs de pareilles entreprises, pour se faire de fête auprés de leurs Princes.*”39

Mr. Cevallos is unfortunate in all his attempts to vindicate the conduct of his government on this occasion, towards the United States.

Referring to the delay in the promised Return of the Marquis, assigned in the letter to him of Jany 15. 1806, as a ground on which his visit to Washington was reprehended, and a communication with him refused, Mr. Cevallos not only denies the sufficiency of the delay, if real, to justify the measure, but denies that the promise required the departure of the Marquis until his return should be freed from the risk incident to the state of war.

The best answer to this construction of the promise will be found in a brief review of the Correspondence between the Ministers Extraordinary of the United States and Mr. Cevallos.

In the letter from those Ministers already cited, they expressly state the demand of the President to be, “the immediate recall of the Marquis de Yrujo,” for reasons which rendered his “longer stay” in the quality of Minister Plenipotentiary “highly improper.”40

In the answer, Mr. Cevallos suggests, that as the Marquis had asked and obtained the royal permission to come to Spain at the season which shall be convenient to him to make his passage with the most probable safety, it was hoped that the Government of the United States would consider this as a proper mode of reconciling their wish, with a due respect to the Character of the Minister Plenipotentiary of his Majesty.41

In the Reply of the American Plenipotentiaries, citing not the words but the sense of Mr Cevallos, they observe, that as his Majesty had some time since given leave to his Minister Plenipotentiary near the United States to return to Spain in the Course of the present favorable season & &a. they were very confident that the mode proposed of complying with the request of their government would be satisfactory.42

If there were any ambiguity in the terms by which Mr. Cevallos expressed the season for the Return of the Marquis, an ambiguity which ought not to be presumed, the sense in which they were understood by the Ministers of the United States is perfectly free from it. They expressly refer to the season, not of the war, but of the year; and even to the present season of the year. If Mr. Cevallos had therefore meant not the season of the year, but of the war, his candor would never have permitted him to be a party to an arrangement in which he clearly understood the intention of the other party, whilst the other party misunderstood his intention, and whilst he knew that they did so. He would have corrected their misconception, by an explanation required by good faith, instead of confirming it by the silence which he observed.

Another Reflection annihilates the plea now urged. The object of the President, communicated by the American Ministers to the Spanish Government was, the immediate recall of its Minister, because his “longer stay” in the United States had become highly improper. The object of the Spanish Government was, to spare the feelings of its Minister, by Substituting a return by permission, in place of a recall; and in this change of mode, which equally produced the departure of the Offensive Minister, the essential object of the United States, their Plenipotentiaries acquiesced, and anticipated the acquiescence of their Government. How could Mr. Cevallos suppose that with this essential object in charge, they meant to be satisfied with an arrangement which completely defeated it, which, instead of producing the immediate departure of the Minister, whose recall was demanded, permitted him to remain as long as an obstinate war, just entered into by Spain, might be protracted? How could he suppose, that if the Ministers had so far forgotten the purport of their orders just presented to him, that the Government of the United States would so far forget what it owed to itself, as to accept, for an immediate recall of the Minister who had so highly offended it, his voluntary Return, at any time, within a period so likely to be of protracted duration? How could the American Ministers, in fact, how could the Government of the United States, suppose that so preposterous an expectation could ever enter into the discerning mind of His Catholic Majesty’s first Minister of State?

Mr Cevallos dwells on a passage over the Atlantic in time of war, as a risk unjust towards the Marquis as it would be unreasonable towards his successor.

Does he suppose then that this tenderness is due to a public Minister who has abandoned himself to the Career in which the Marquis de Yrujo has been traced? Can he suppose that a Government is to tolerate the indefinite stay of an Offensive Minister, and subject itself to a re-iteration of his insults, because the remedy may expose him to personal inconveniencies? Such an expectation would, it is true, be unjust and unreasonable; not, however, as it relates to the culpable Minister, but to the offended Nation. If, besides the mere recall or removal of the Minister, the risks of the Sea in time of war, be an additional Consequence of his misconduct, they ought to be an additional restraint from acts which might justly lead to that Consequence. These risks never can be a consideration, to which a Government can be expected to sacrifice the essential respect which it owes to itself, and the satisfaction due in such a case from a friendly government. More than this, Mr. Cevallos ought to have recollected that the Minister in question actually passed the Sea on his original Mission to the United States whilst Spain was at war with the same power as at present; that this is not the only instance in which the sea has been passed, in time of war, by Spanish Ministers appointed to the United States. He may be informed also, that it has been usual for both French and British Ministers to cross the Atlantic, during war, both in missions to, and return from the United States.

The anxiety of Mr Cevallos to transfer to the Government of the United States the blame which adheres to that of Spain, has led him into errors of various kinds. Among others, he has permitted the assertions to escape from him, that the letter to Mr de Yrujo, closing the Communication with him, was scarcely half a year after the demand of his recall at Madrid; and that the promise of fulfilling the wish of the American Government, even by the return of the Marquis on leave, was an excess of Condescention on the part of His Catholic Majesty.

Had the interval between the demand of Recall, and the refusal of further Communication, been correctly stated, the inference of Mr. Cevallos would not have been warranted. Six months was evidently a longer time than could have been requisite for the transmission of instructions from the Spanish Government to its Minister in the United States. With the aid of several Copies, always employed in time of war, two or three months are amply sufficient; and as has been already noticed, communications, of dates posterior to the promise of his return to Spain, had unquestionably been received by the Marquis, from his Government, a considerable time before his visit to Washington took place. But the statement of Mr. Cevallos is not correct, and the error is the more surprising, as it ought to have been presented by the face of the very documents on which he was commenting, or rather by the very dates which he cites from them. The letter demanding the Recall bore date the 13th April 1805; the date of the letter of the Marquis on his arrival at Washington was Jany 15. 1806; making an Interval of more than 8 instead of scarcely 6 months.

In calling the promise that the Marquis should return on leave, even in exchange for a recall, an excess of condescention on the part of His Catholic Majesty, Mr. Cevallos has created a difficulty of replying, without observations of a nature which the Government of the United States would always reluctantly employ towards a Government which it wishes to respect. Mr. Cevallos before he indulged his pen in this very extraordinary sentiment ought to have weighed more deliberately its inconsistency with a regard due from one Government to the reasonable expectation of another to be gratified by the removal of a public minister on the mere consideration that his Character or conduct was disagreeable; and that this reasonable expectation becomes a positive and incontestible right, in such a case as that in question, has been shewn to be. He ought to have reflected that the language held by him implies that a government has a right to keep an obnoxious Representative near a foreign Government, in defiance of the will of the latter, within the limits of its own sovereignty; a doctrine, to which neither His Catholic Majesty, nor any other Soverign, would listen for a moment. These reflections would have been suggested by any one of those accredited authors on the law of Nations, to whom Mr. Cevallos has appealed. He would even have been led by them to reflect that a government in attempting to obtrude or continue a minister near a foreign Government, to which he was unacceptable, violates the first principle of diplomatic policy, not less than it forgets the dignity which ought to be seen in all its proceedings. Mr. Reynaval’s remarks on this subject could not be more pertinent.

“L[e] premier [devoir] d’un ministre public est de se rendre agreable, d’inspirer de la Confiance de se faire considerer; se donc un souvrain manifeste de la repugnance a le recevoir, il y a de l’imprudence a exiger son admission, et si par des circonstances particulerès on lui fait la loi a cet egard un Ministre disagreable remplira mal sa mission. Il faut bien se penetrer de cette verite en un Ministre public doit avoir de la consideration personelle, s’il veut qu’on en ait pour son caractere. La necessite peut forcer de dissimuler; mais cette dissimulation nuit au succes des affaires, comme a la dignite du souverain que s’obstine a soutener un agent qui deplait.”43

The letter of June 2d 1806 from Mr. Cevallos having been answered by the American Charge des Affaires at Madrid,44 he replied in another on the 24th day of June, in the same spirit and to the same effect; and this, again, receiving an answer from the same quarter,45 it was intimated in a brief reply from Mr Cevallos on the 18th of July,46 that as the motives for demanding the recall of the Marquis de Yrujo had not been explained, His Majesty had given orders that the Reclamation on this subject should be addressed at Washington, to the Government of the United States.

In the mean time the Marquis de Yrujo, tho’ he has not again obtruted [sic] himself at the seat of Government, has not retired from the United States; and has lately invited through an indirect Channel the acquiescence of the Government in a modified renewal of his Official communications with it. Not succeeding in this, he proceeded to signify peremptorily, thro’ the same channel, that it was the purpose of His Catholic Majesty, that he should continue to exercise in the United States the functions of his Minister. Finding disappointment alone to be the fruit of these experiments, he resorted to another, still thro’ the same channel, regardless of the light in which he placed both his Government and himself, by such versatile and inconsistent disclosures.47 A day or two only after it had been signified to be the intention of His Catholic Majesty, that this particular Minister should continue to be his diplomatic functionary in the United States, it was signified, without any intimation or probability of intervening instructions, that provisional arrangements existed, for the use of a different functionary of an inferior grade. As the government of the United States had in the letter of the 15th January sufficiently explained its readiness at all times to admit a Successor to the Marquis de Yrujo, the proper answer was found in that letter, to this abrupt change in the aspect given to the intentions of His Catholic Majesty. No accredited Successor, however, of any grade, has yet presented himself; nor, consequently, has any reclamation, such as was intimated to the American Chargé des Affaires at Madrid, been yet received.

From the foregoing Review, it is manifest, that if the Government of the United States be under any difficulty of justifying itself, in the case of the Marquis de Yrujo, the difficulty arises not from the illegality or rigor of its proceedings towards him, but from that excess of condescention and forbearance, of which his continuance to the present day within the United States and in the enjoyment of the immunities of a public Minister is a conspicuous monument.

It only remains to observe that the conduct of the American Government throughout has been equally a proof of the disposition of the United States, in spite of every adverse occurrence, to maintain harmony with Spain, and to defer to the last moment the most just and proper steps which misinformations or misconstructions might possibly render unpropitious to the relations between the two Countries.