Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

Filing 163

REPLY to response to motion re 131 MOTION to dismiss Amended Complaint or for summary judgment (Reply to Odyssey) filed by Kingdom of Spain. (Attachments: # 1 Exhibit A, # 2 Exhibit B-1, # 3 Exhibit B-2, # 4 Exhibit B-3, # 5 Exhibit B-4, # 6 Exhibit B-5, # 7 Exhibit B-6, # 8 Exhibit B-7, # 9 Exhibit C-1, # 10 Exhibit C-2, # 11 Exhibit C-3, # 12 Exhibit C-4, # 13 Exhibit C-5, # 14 Exhibit C-6, # 15 Exhibit D)(Goold, James)

ANNEX 10 TO EXHIBIT B (O'Donnell Reply Declaration)

Registry stating that [illegible] leaving this Port of Cartagena de Indias, today . . . the Frigate of H[is ]M[ajesty] carrying 34 Cannons named Nuestra Señora de la Mercedes commanded by the Captain of this class of the Royal Navy D. Juan de Aguirre y Villalba [Description of Ship, Crew, and Armaments]

Notes 1a That this vessel finds itself watertight [estanco] and with its rigging, hanging masts and [illegible] complete. 2a That the lieutenant of Milicias of Panama don Pedro de Mella and the second countermaister Juan Montero are being transported. 3a That the sea gunner Juan de Mila remains jailed and the Brigade Artilleryman Blas Días in the Hospital. Cartagena de Indias and June 19, 1789 Juan de Aguirre y Villalva (Signed)

Registry stating that [illegible] entering this Port of Cartagena de Indias, today . . . the Frigate of H[is ]M[ajesty] carrying 34 Cannons named Nuestra Señora de la Mercedes commanded by the Captain of this class of the Royal Navy D. Juan de Aguirre y Villalba [Description of Ship, Crew, and Armaments]

1a That this vessel enters watertight [estanco] and with its rigging, hanging masts and [illegible] complete. 2a That the most Excellent Sir Don Jose Ezpeleta Viceroy of Santa Fe [de Bogotá], the Vice-Queen and the rest of his family are transported. [. . .] Anchored at the Port of Cartagena de Indias, 2 June 1789 Juan de Aguirre (Signed)

REGISTRY STATING THAT [illegible] LEAVING THIS PORT . . ., TODAY . . . the Frigate OF H[IS ]M[AJESTY] CARRYING 34 Cannons named Nuestra Señora de la Mercedes commanded by the Captain ["Capitán de Fragata"] of the Royal Navy D. José Vasco y Pasqual. [Description of Ship, Crew, and Armaments]

1a N That this vessel leaves watertight [estanco] sheathed with copper, with its rigging complete, preparation pending and [illegible]. 2a O Transports to Genoa the Sirs Count of Bartoli, Count of Sumalia, a son, and a nephew of the second T E S

a Guard de Corps, and the Lieutenant Junior Grade D. Marzelo Federechi, seven servants, and a woman with three children, a Maltese Marine [illegible], and another that was Soldier of the Marine Batallions to Genoa On Board said ship in Cartagena July 9, 1796 Jose Vasco (Signed)

Frigate Mercedes Set sail on July 9, 1796

Spanish Original

ANNEX 11 TO EXHIBIT B (O'Donnell Reply Declaration)

Archive of the Royal House. Folio 254

Reserved papers of His Majesty, Volume 100

Paris November 2 of 1804. Most Excellent Sir = My esteemed Prince and my benefactor: the night of the 28 I wrote to you in haste communicating to you the terrible occurrence of the battle of frigates of double strength than ours, which attacked in wholesome Peace, among the English frigates there were two that were cropped ships of the line ["navíos rasos"] that had been of 74 [cannons] before, thus conserving their battery of 32, and as a consequence their size and broad side, hence the battle of our frigates is glorious by those who have sustained it, and particularly by the Commander of the "Medea," as the papers verify. [. . .] [. . .]

Federico Gravina.

Most Excellent Prince of Peace

Spanish Original

ANNEX 12 TO EXHIBIT B (O'Donnell Reply Declaration)

THE TRAFALGAR CAMPAIGN

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27 Paris, October 30, 1804 LETTER: Federico Gravina, Ambassador of Spain, to Pedro de Cevallos. News received regarding the capture of the Spanish frigates after the battle of Cape of Saint Mary. Order for urgent departure of General Beurnonville to Madrid. Import of grains from France to Spain. CATALOG NUMBER: AHN, State, leg. 5212 (original, signature); BRAH, Col. JPG, ms. 11/8302 (copy) No. 187. My Most Excellent Sir: The night before last, with the messenger Don Fernando de Castañeda, the only one I had here, I communicated to Your Excellency without wasting time the sad news about the unfortunate battle of 4 frigats of His Majesty with 4 British ones close to the Cape of Saint Mary, which transported specie from Rio de la Plata, and the final outcome of which seems to have been the capture of said three frigates and the fourth having blown up. This disastrous news arrived here the same day via various letters from Holland which referred to the English papers, and I received it through a letter from the businessman Cröes of Amsterdam, which I sent to Your Excellency with the gazette that was included and in which it was announced. Public papers today carry th[e news] which I send with this same date. I implore Your Excellency to read the attached Monitor that refers to it. Last night I received another letter from the Ministry of His Majesty in The Hague from the 25th of this month in which he tells me that nothing else was known yet about this event, and he only adds that there may be papers that assume that the breaking with Spain would still depend on the definite response that may be received to the demands they made of our Court. Last night I saw Minister Talleyrand and he told me that he also had not found out more than what the papers said. I have found out that[,] this Minister Talleyrand having received this same news the night before last at nine via another mail from Mr. Senonville, Minister of this Emperor in The Hague, he was ordered by His Imperial Majesty to give the order to General Beurnonville to depart within 24 hours for Madrid. In effect, [Talleyrand] called him at midnight and intimated this order. [Myself] having visited [Talleyrand] yesterday, he confirmed the same to me and today he planned to verify it. Although I announced the day before yesterday through the aforementioned extraordinaire to Your Excellency that I would probably send another one to Your Excellency the next day, I haven't done so because I haven't done further regarding the said matter, nor could I yet inform of the result of the claims for the extraction of grains. I have returned to the Minister of the Interior to tell him what His Imperial Majesty had responded to me in the public hearing, assuring me that he had been informed about this matter and that he would grant us the extraction. The aforementioned Minister told me that Mr. de Talleyrand had talked to him again insistently, and that based on what I had just communicated to him regarding the dispositions of the Emperor, he would renew his requests to him in his dispatch tomorrow, flattering himself that this important matter could get resolved and that he would tell me instantly. If so, I will send it to Your Excellency immediately using one of my servants up to the border, with everything else that I learn by then regarding the matter of England. 186

DOCUMENT CORPUS

I reiterate to Your Excellency my desires to please you and pray that god keep your life for many years. Paris, October 30, 1804. Most Excellent Sir, B.L.M. of Your Excellency, his most thoughtful and kind servant, Federico Gravina (signed). Most Excellent Sir Mr. D. Pedro Cevallos. [. . .]

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THE TRAFALGAR CAMPAIGN

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33 November 6, 1804, Madrid OFFICIAL LETTER: The Prince of the Peace to Felix de Tejada. Gives the news about the battle engaged near the Cape Saint Mary, suspends the departure of the frigates Prueba and Venganza and orders the precautions that should be adopted. CATALOG NUMBER: BRAH, Col. JPG, ms. 11/8307 (original, signature) OBSERVATIONS: Followed by the response from Tejada (summary) The King has just found out through reliable channels that a division of English warships beat upon the cape of Saint Mary on the coast of Portugal, the four frigates of His Majesty coming from Montevideo to the port of Cádiz 190

DOCUMENT CORPUS

with products from those domains, one of these ships having been blown in action, and the other three having to give up and surrender. Under such circumstances it is the will of His Majesty that[,] until further orders, neither the frigates Prueba and Venganza, nor any other ship of the Royal Navy leave that port of Ferrol, and that all commanders of these and the Navy Chiefs of that Department be informed by Your Excellency of the precautions with which they should handle themselves after such an event, which will be beneficial to Your Excellency for your role in government, also notifying the Captain General of Galicia for the uses that may be needed in the district of his charge. God keep Your Excellency for many years. Madrid, November 6, 1804. The Prince of the Peace. (signed) Mr. D Felix de Tejada. Ferrol.
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Spanish Original

ANNEX 13 TO EXHIBIT B (O'Donnell Reply Declaration)

48 Chapter IV THE PEACE OF AMIENS AND THE DIFFICULTIES OF SPANISH NEUTRALITY

The long war had enormously worn down English resources, and the nation aspired to obtain peace as a means for a later favorable commercial treaty that would allow it to maintain the comfortable economic position that it held. With the Second Coalition defeated and dissolved, after the French victories of Marengo and Hohenlinden which had obligated the Austrian Empire to sign the Treaty of Luneville of February 8, 1801, through which the line of the Rhine was recognized as the northeastern border of France and the dependency of the filial republics of Holland, Switzerland, Lombardy and Liguria, the English saw themselves deprived of continental allies. It could furthermore be detected how the powers of the North began to turn once again against England and [England's] maritime tyranny. For its part, France, where Bonaparte had been in charge of politics since the coup d'etat of 18 Brumaire (September 9, 1799), desired to initiate a period of general internal reconstruction that would have effects from public works to the legal world and would allow it to consolidate the hegemony over Western and Central Europe, recently acquired through arms. Spain, fully incorporated into the French orbit, had little to say by itself, since it was plunged into an enormous economic debt brought about by the two last wars, the one sustained against the Convention and the one that it was carrying out, ruinous to its overseas commerce. Conversations having been initiated in November of 1801, and after four long months of negotiations, Joseph Napoleon, brother of the First Consul and marquis of Cornwallis[,] signed a peace treaty in Amiens on March 27 of 1802 through which the King of England renounced his traditional rights to the throne of France, and [France] retained a good part of its conquests, occupying the north of Italy, part of Germany and the Netherlands ­ now the Batavian Republic ­ which once again included the Cape of Good Hope. Egypt started to depend on

49 the Ottoman Sublime Porte and England kept Ceilan and Trinidad, but returned Minorca to Spain. French diplomacy had done little or nothing to avoid the loss of Trinidad, in spite of the fact that in the treaty that united it with the Spanish crown [France] had promised to safeguard the possessions of Charles IV in their integrity. In this lack of interest on the part of Napoleon a retaliation has been perceived for the signing of the Treaty of Badajoz, which had ended the war with Portugal, in very different terms than he had hoped. Since he had decided to accept the peace, the First Consul did not think of it as something permanent and definitive, but rather as a mere period of recovery. On February 19, 1802, in an extensive note for his minister of the Navy, Denis Decres, [Napoleon] had developed an entire plan for the future based on the following premises: 1. To seek that France alone would come to have a Navy equal to that of the English within ten years would be wishful thinking. The costs of putting this expectation into practice would compromise its continental position without assuring maritime dominance. 2. The best that could be aspired to with some possibility of success before those ten years was to combine the naval efforts of France, Spain, and Holland. 3. Should peace not last, it would be possible to increase the number of French vessels to 60, and to arm 50 of them. With the Spanish counting with 20 ships of the line ["navíos"] in Cadiz and 8 or 10 in El Ferrol, it was not probable that England would be able to remain the owner of the Mediterranean if Holland managed to get another twenty ships of the line together in its American colonies or in Texel. In the future plans of the French dictator, Spain and its fleet continued to occupy an indispensable position. This fact helps to understand the events that led to the war of 1804. The peace between France and England did not last very long, even less than could have been foreseen, and even in the summer of 1802 it could start to be seen that none of the signatory powers were willing to carry out what had been agreed to, nor to let the other side do so. Great Britain first put off the decision and later refused to return the island of Malta to the Knights of Saint John and to abandon the Mediterranean without more and Napoleon, already consul for life, showed that he was not willing to abandon his imperialist politics.

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English public opinion began to manifest itself against the Government of Prime Minister Henry Addington[,] who had reached a very unfavorable agreement, through which he had to begin war preparations, increasing the forces of the Navy by ten thousand men, for which he had to resort to the reintroduction of the income tax, while the newspapers published caricatures of the famous Gilray, vilifying the Napoleonic attitude that foretold his imperial ambitions. Two years later, Nelson would write to Hugh Elliott, British ambassador in Naples, remembering the times immediately following the signing of the peace in which naval costs were logically reduced through the decision of his boss and friend, Lord St. Vincent, who had been named First Lord of the Admiralty: "We are using peace not to recover our Navy, but rather to be the cause of her ruin." The annexation of Piedmont to the French Republic and the invasion of Switzerland with the pretext of reestablishing concord among the cantons[] provoked the protestations of the English ambassador in Paris, Wintworth, but these were not heard and the official Napoleonic press got even worse in its attacks. The question of Malta was the determining one for the rupture, but there were others behind it: France, which had signed commercial treaties with Spain, with Naples, Portugal and Turkey, had disillusioned the hopes of English commerce[,] which, far from also benefiting, had watched its customs tariffs increase on its exports. Moreover, French influence had again increased enormously in the Antilles, thanks to the retaliatory expedition against the rebels in Haiti and Santo Domingo in which the Spanish squadron of Gravina had collaborated, and of course in the European satellite republics and in Germany. In reality[,] the peace did not benefit either of the two rivals while they continued to be [rivals], which was inevitable. Napoleon could not wait to impose himself completely due to the inefficiency of his Navy, nor could England, due to a lack of allies, territories and soldiers in Europe to thwart him on land. One and the other had to construct and reconstruct alliances in the aspect where they were the weakest. Although Bonaparte had ordered the increase of the fleet up to seventy-six ships of the line, he did not make greater war moves, causing George III to issue a declaration of war ahead of him on May 18, 1803, and four days later to proceed to the embargo of every French and Dutch vessel that navigated the sea, the squadron of Cornwallis immediately proceeding to blockade

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Brest and that of Nelson, named general commander of the Mediterranean, to Toulon, with William Pitt put in charge of the government. The cynical phrase attributed to him, and picked up by the Prince of Peace, is a significant sign of the future attitude of this prime minister with regards to Spain: Between friends and neutrals, the distance is immense. On the other hand, it is so short between enemies and neutrals, that in any unexpected event, a happy occasion, mistrust, a suspicion, even just an illusion, it is obligatory to confuse them. In full peace, but with a thought given to the maritime war against England, Napoleon, in need of money to use for the reconstruction of his fleet, had negotiated the sale of Louisiana in the United States, in violation of the Spanish-French treaty of San Ildefonso and the one of October 1, 1800, in which it had been agreed that France could not get rid of this colony except to return it to Spain. The leaders of the United States, Livingston and Monroe, had been authorized by their Government to pay up to 10 million dollars, a number they had to increase to 15 million, for an extension of more than two million square kilometers, when they signed the sale with the French Republic[,] which was on the verge of disappearing to change into an Empire. The complaints of the Spanish government were not heeded, but now that war had again broken out, the French breach of contract seemed to offer a magnificent opportunity to Spain to denounce the treaty of San Ildefonso and recover its neutrality and its freedom of action. It did not turn out this way. Napoleon invoked the punctual compliance with the treaty through which it believed itself to be able to rightfully demand the aid of twenty-four thousand men and fifteen ships of the line, to which the Spanish government refused. A few opportune military maneuvers through which France as a pretext situated a military corps in Bayona determined that a transactional agreement be reached, although Godoy preferred to opt for a breaking-off with France, given that the latter could have maintained the peace and Spain had not been consulted in its breaking. Nevertheless, an agreement was reached: Napoleon agreed to Spanish neutrality in exchange for a subsidy and commercial advantages. This subsidy was set at a payment of six million francs, equal to twenty-four million monthly reales until the end of the war, and payable from month to month, in kind. The free rights of transit of French merchandise to Portugal was also allowed. Not even the monthly payments that became due on the date in which Napoleon estimated they should have been paid were forgiven,

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having to be made in one payment. This obligation terminated upon the end of the war or Spain's entry to it. In exchange, if Great Britain were to be defeated, Trinidad and Gibraltar would be returned [to Spain]. Up until this consensus was reached, Napoleon had pressured with all possible means, casually opposing any attempt of military preparation on the part of Spain consistent with the decision of Godoy, anguished with the prevailing panorama, to "activate works, repairs and stocks in order to come wellprepared to whatever the political state of Europe may bring." In July of 1803, France sent a firm protest regarding the draft in Castilla of twelve regiments, some eight thousand men, gathered between Valladolid and Burgos, maliciously interpreted as done against [France] and as done in accordance with an alleged secret agreement between Madrid and London. To this [protest], another was added at the same time, demanding economic compensation for the imprisonment by the English of a merchant from Marseilles, coming from Martinique, before the battery of Algeciras, given that Spanish territory had been violated. The situation of greatest conflict had been created however by the warships. In mid-September of 1803, some French ships of the line, protected by Spanish neutrality, had found themselves obligated to take refuge in El Ferrol, while others found themselves in Algeciras waiting for the ability to return to their bases. Although there was no reason whatsoever to doubt the goodwill of the Spanish nor to doubt the security of these ships, the First Consul took advantage of the circumstances, assuring that he feared that they be given to the English by the agents of the Prince of Peace, for two concrete objectives: to further embitter the already difficult Spanish-British relations[,] harming Spanish neutrality, and to indicate to Charles IV that his minister was held as "persona non grata", and should be substituted by a better negotiator, [the current] being considered an obstacle to [the First Consul's] plans. The message transmitted by ambassador Beurnonville did not constitute a simple note, but rather an authentic and insulting ultimatum in which [France] threatened to send a military corps to Spanish ports to guarantee the security of its ships and to set up in the meantime the batteries and defenses of El Ferrol, declaring war if this expedition encountered the smallest military opposition. It was written with unacceptable brusqueness, ignorance of diplomatic customs and flippancy, but nevertheless with great ability since, apart from the significance of the threat, it could awaken the deepest fears and suspicions of the Spanish King. The confrontation between France and Spain, the fault of which

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rested entirely on Godoy, whom everyone considered to be the one authentically in control of the nation, would inevitably provoke the loss of the house of Bourbon in French opinion, while [Godoy] would be well received in England where he would go to enjoy his presumably immense fortune. In light of this unexpected attack, Godoy saw himself in danger and his reticence stopped immediately. On the other hand, the terror of a French invasion and the internal revolution that this could provoke weighed more heavily on Charles IV than the possible English retaliations. This, along with the lack of allies and Spanish weakness, was what ultimately obligated Godoy to sign with Talleyrand in Paris on October 19, 1803 [the treaty] which, in the view of everyone, ended up determining the entrance of Spain in the war under the worst possible conditions: begging for the help of France since the precarious neutrality would last only as long as it took English diplomatic services to detect the existence of a "secret" treaty in which one of the parties, France, was more interested than anyone else in it not having that character, and thus acquiring a cheap ally. As a quite compromised addendum, Charles IV guaranteed the security and shelter of as many French ships of the line as would arrive in Spanish ports, opening the possibility to future complaints from both contenders. Amidst all this, Spain could be grateful, since France had not dragged it directly into the war as it had done with the Batavian Republic. When everything was already inevitable, the Prince of the Peace consoled himself by thinking that, like in times of the marquis of Ensenada, our neutrality was based in being the "third international force to balance out the two conflicting powers." At the end of the year, the treaty was already public and on December 13, 1803, the English minister in Madrid, Mr. Frere, forcefully demanded clarifications about the scope of the pecuniary subsidies given to France, giving rise to a continuous series of detentions of vessels in offense to the Spanish flag of war which affected above all our mails with America, by English corsairs under cover of accommodating French ships in Cuba, the most significant of these attacks being that of the mails-corvette Urquijo[,] which, upon attempting to defend itself, was shot by cannons and assaulted, with various officials dying. Practically the whole of the following year would take place with Spain in continuous anxiety as it attempted to please one side or the other without success.

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The explanations of the Spanish government that the offered quantity had still not been able to be made effective did not satisfy the English government[,] which alleged that "it could be considered as a subsidy of war, the most efficient and adequate subsidy for the necessities and situation of the enemy, and, as such, the most damaging...". Nevertheless, after an exchange of notes in the middle of February of 1804, between minister Pitt and Anduaga, our ambassador in London, the intensity of what already appeared as an ultimatum seemed to subside when the Spanish government gave guarantees to abolish all naval preparation and to prohibit the sale in Spanish ports of prizes by French warships and corsairs, [Pitt] admitting both concessions as a foundation for the continuation of neutrality, while the Spaniards downplayed the importance of a few subsidies that they did not have the means to make effective each time they received some British protest in the sense of considering [these subsidies] incompatible with being neutral or that [these subsidies] had to be compensated with the concession of other advantages to the British camp. Spain, however, was worried by the enormous difficulties that its difficult neutrality presented and the Prince of Peace also studied the option of an alliance with England, proposing to the envoy extraordinary Hookham Frere in August of that year in San Ildefonso the possibility of counting on English troops in order to thwart the foreseeable Napoleonic invasion that would take place if Spain either refused to pay the subsidies or openly declared itself to be in favor of the English cause. With [France's] hands free in Europe, all of the forces of imperial France could fall on the exhausted Spanish kingdom. Frere could not promise more than a collaboration very much in the future, when his troops were not needed to defend the southern coast from French disembarkation, offering in the meantime a comfortable and safe exile in London for Spanish kings, ministers and capital. In this case at least there was no attempt to deceive as [had been done] to the Germans, Dutch and Italians[,] which had succumbed to Napoleon after waiting in vain for the British rescue. With this possible alliance ruled out, in this same month there was an incident that worsened the existing situation alarmingly, with a riot in Vizcaya that ended up turning into a rebellion that the local authorities could not put down with their own means. Although its causes remained unclear and the suspicious Godoy wanted to see in it an attempt to dispossess him of the power fostered by Mazarredo, the argued

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pretext for the popular protest was the damage that the construction of the port of Abando would mean for Bilbao. It was immediately decided to transport troops across the sea from El Ferrol as the fastest means, and the rearming of the necessary disarmed warships was ordered for this. In compliance [with the order], on September 5[,] the ships of the line Neptuno, Monarca and San Agustín, the frigates Prueba and Venganza, the corvette Urquijo, and the brigantine Esperanza left the naval dockyard. In that port, five French and one Dutch ships of the line of the squadron of RearAdmiral Gourdon were taking refuge, for which Napoleon worried much, blocked in by the English. This naval officer saw an opportunity to take advantage of the departure of the Spanish squadron to escape from his lock up and on the way create an incident between Spain and England. It took little time for Rear-Admiral Cochrane, chief of the blockading force, to notify London of the situation and to request reinforcement from the various vessels of the squadron that at the same time blockaded Brest. With the English having decided to attack the Spanish and French indiscriminately if they left the port and considering the incident a violation of Spanish neutrality, the government of Spain was required to disarm the prepared vessels immediately. Surprised and alarmed by the forcefulness of the English reaction, Godoy ordered the immediate disarmament of the vessels and their return to the dockyard on September 15 and the dispatch by land of the military forces destined to quell the riot, to avoid giving reason for complaint. This pacifist sign was not enough, and a few days later[,] by order of his government, admiral Cochrane informed the General Commander of Galicia, Felix de Tejada, that he would not allow the entrance or departure from port of any Spanish warship, while Pitt, without awaiting a response, issued orders to his Navy to detain or seize those that were navigating, while English ships continued to stock up and re-supply in our ports. Faced with such interference in its own affairs, Madrid showed itself to be firm for the first time, without foreseeing the immediacy of war, and on October 6, Tejada received the order from the Prince of Peace that[,] "tolerating or neglecting the threats, make respect the flag, ordering that as many warships as are necessary leave the ports...". In the British cabinet[,] the opinion that the manner in which to treat a dubiously neutral power like Spain should become

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stricter, even to the point of facing the risk of a rupture, took more and more form. The attitude toward the armed neutrality of the Danish three years earlier had in fact been much more drastic, Sir Hyde Parker having presented an ultimatum that, once rejected, had given way to the victory of his second, Nelson, at Copenhagen (April 2, 1801). The details of the secret convention were received in London on August 9, 1804, through Hookham Frere, the plenipotentiary in Madrid, and when it was confirmed that Spain had committed itself to pay Napoleon seventy-two million francs annually, more than a third of its budget, as a contribution to the war, the most belligerent sector prevailed. The situation was presented to the Cabinet on September 18 and, in light of the information acquired through espionage, they decided to act with dramatic effect, far exceeding the habitual indirect poking and with every guarantee of success, although in keeping with the formalities of a police operation against the contraband of war and without dispatching too ostentatious naval means. The only one to whom this approach seemed disloyal was the man in charge of organizing and ordering its execution: Henry Dundas, lord Melville, first lord of the Admiralty. Informed that four Spanish frigates of war, the Fama, Medea, Mercedes and Clara, had left Montevideo for Spain on April 3 at the command of their squadron leader [rear-admiral] Jose de Bustamente y Guerra, transporting close to eight and a half million pesos fuertes and costly goods from the Buenos Aires Viceroyalty, like tree bark and vicuna wool, [the Cabinet] decided to intercept them. Commodore sir Graham Moore was ordered to do so with seemingly equivalent force, and to transport them to English ports so that the tribunal of prizes could determine the justice of their seizure. The frigates selected were the Indefatigable, the Lively, the Amphion, and the Medusa. Only the first one, or any two of the others, had the same firepower than all the Spanish frigates combined, counting with, in addition to the cannons of regulation, modern carronades of wide caliber and dreadful effects against personnel and with the advantage of having spark holes with pans to fire them. The plan was extremely astute, since, knowing the entity, the place and date of the departure of the convoy, its route and its destination, the seizure was certain; as was the fact that the Spanish would not capitulate faced with an equal number of ships even if it were only not to suffer the disciplinary consequences of their naval orders. This is what was sought, to engage in battle, with

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a view to international opinion and, above all, English public opinion specifically, thus further facilitating that the booty that could be obtained would be declared "good prize". To the already mentioned Spanish disadvantages, other negative factors that would decide the fight were added: the Spanish ships not being duly forewarned considering themselves to be in time of peace, and not being able to put into effect an effective combat plan since the frigates were loaded with bundles of goods that presented obstacles to fire in the battery and combat on deck. In the morning of October 5, near the Cape of Saint Mary, already close to the coast, both divisions were sighted which, upon doing so, as a precaution, adopted the formation of line of battle. The English continued reducing the distance until each one of them brought itself alongside its corresponding Spanish [ship]. An English negotiator having been sent on board the Medea, the flagship of the Spanish division, he presented the purpose of his commander in detaining the convoy and leading it to an English port; "we never thought that they were trying to do anything but reconnoiter us, being certain that the neutrality between the two nations continued, as we had been assured by several other foreign vessels we had reconnoitered for this purpose" stated the Spanish commander in his report. A meeting of the officers having been convened by Bustamente, it was decided that the honor of the flag obligated them to give resistance. The battle began at 9:15 with a very lively artillery duel by both sides. Half an hour later, the initial superiority of the English became overbearing when they managed to make the magazine of the Mercedes explode with one of their projectiles, thus allowing its opponent to cross fire over the Medea, while the remaining frigates continued to fight with their respective rivals. With the flagship exhausted after its mast was brought down and the majority of its crew injured, the seizure of the others one after another was simple, in spite of the frustrated attempt by the Clara to urn around and escape. Two of the English frigates, the Indefatigable and the Amphion escorted the prizes to Plymouth where they arrived on October 19. In the exchange the attacked had suffered a hundred victims against nine of the English. Among the Spanish dead, there were seven ladies, family of those on board, and the very wife of the captain ["capitán de navío"], Diego de Alvear, second chief of the Spanish division with his eight children. The Vice-Admiral lord Nelson, commander in chief of the Mediterranean Squadron, ignoring the darker political aspects, had tried to send

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the ship of the line Donegal in support of the four English frigates, but it could not arrive on time. His intention was that, faced with such a notable superiority, the Spanish would surrender and thus avoid a useless bloodshed, providing for a later opportunity to find an amicable resolution. Once the frigates were in English ports, Spanish diplomatic agents initiated steps for the return of the savings and pay ("caja de soldadas") of the officers and navymen which had nothing to do with the detained specie ("caudales") of the King, as well as the personal fortune of Diego de Alvear, to which the English government consented while not agreeing to indemnify the widows and orphans of the Mercedes, alleging that the misfortune of its explosion was due to not consenting to its detention. When Federico Gravina learned in Paris about the battle of Cape Saint Mary, he exposed to Godoy the real superiority of the English frigates which [the English] had tried to hide; among them there were two that were in fact cropped ships of the line ["navíos rasos"] that had before had 74 cannons and conserved their high-caliber battery, their size and broad sides, and [Gravina] stated his skepticism with regards to a possible resolution: "There is still no declared war, but it is bad that they have the money in their house." Days later he would refer the barely disguised pleasure with which the sad news had been received in Paris, and the ignonimous form in which the official newspaper Le Moniteur had published it with interest, "treating us as a sleeping and lethargic nation to reduce us to declaring ourselves against England", which had obligated him to present a complaint to councilor Talleyrand. In London, it was up to ambassador Jose de Anduaga to make the last efforts and to arbitrate solutions to the already imminent risk of war which would permit to continue a precarious neutrality without losing dignity. He however was convinced that, once again, the English government had chosen Spain as a victim to get from it what seemed difficult to obtain from powerful France, deceiving the nation with easy and brilliant lucrative ventures against the Indies or against the Canaries, with regards to which he would communicate to Madrid with alarm: "This government is asking about the state of the Canaries." The English press, for its part, took sides for or against the war with Spain, some pamphlets having been published in favor of returning the seized ships. Of the three English gazettes with the greatest distribution, the Morning Post was the organ of the ministerial party, and the Morning Chronicle that of

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the opposition, while the Times was considered impartial and objective on quite a lot of aspects. The Spanish Court did not, however, consider for now the matter of the frigates a definitive casus belli, in spite of calls to dignity from such a suspicious and interested partner as Napoleon I, and was prepared to take the discussion back to the supposed causes that had prompted the seizure, even though since the beginning of September, and as retaliation and as a response more honorable than possible, it had given the order to have the Spanish seize any English ship. The main recipient of this order had been the General Commander of El Ferrol, Felix de Tejada, who seemed to be the one who could count on greater opportunities, and who was given the plain instruction: "Act as if we were at war with Great Britain." General Castaños, who would later become famous in the war of Independence, who was at the time general commander of the Camp of Gibraltar, had received instructions from Godoy to begin preparations aimed at surprising the English garrison of that site, using for this purpose prisoners from Ceuta directed by daring officers, a plan that turned out to be unviable. The Spanish-British tension had increased notably since the request of the passport and for the voluntary withdrawal from Madrid of the charge de affairs Mr. Frere upon considering that the Spanish Government had not responded satisfactorily to his requests, and in the last days of November of 1804 war seemed inevitable when the Spanish ambassador received instructions from the secretary of State, Pedro Cevallos, to request for his part the passports of all of the members of the embassy and consulate under his responsibility. Anduaga nevertheless wanted to shoot a last round trying to convince premier Pitt that the resignation of Frere had been hasty since the Spanish were still willing to continue conversations until they reached an honorable solution to both parties. The Spanish Government was willing to play deaf to the worrying information received from the employer of a Valencian catboat who, detained by an English ship and his papers confiscated, was forced to embark on his own boat, the apprehending commander proceeding to sink the small merchant boat after informing him that [the apprehending commander] had instructions to sink every Spanish merchant [vessel] the size of which did not reach a hundred tons, to burn those that were aground on the coast, and to seize and take to Malta only those that exceeded a hundred

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tons in size, without even respecting the cargos of grains that came from everywhere to alleviate hunger in the most calamitous year that anyone could remember. In theory, the "point of honor" consisted in that Great Britain refused to hold conversations tending toward a resolution without first having obtained a clear response about the exact amount of aid that was provided to France, and in that Spain considered having to give such detailed accounts of a decision of its sole concern by sovereign right as a threat against its dignity and [as] gratuitous, alleging that[,] if its sincerity was doubted, one could likewise doubt the quantity that it declared to pay [to France]. While Spain even ordered the suspension of mails-ships for fear of their being seized, the opportunity arose for the ambassador to speak directly to William Pitt because his normal interlocutor, lord Harrowby, fell down the stairs in the first days of December. Pitt proved himself to be tough, alleging that the monetary subsidy was worse than the provision of warships, since these could be attacked, while the money could arrive without risk and be used in ways more damaging to the interests of England, in the conviction or well-feigned belief that the sum being provided was far superior to the real [one]. In light of this, it was not difficult for Anduaga to demonstrate to the head of the English executive that in any case, the terrible hardship through which Spain was passing would have prevented it from paying higher sums and that even the promised one was sent with great delay. Returning to the topic of the armament of vessels in violation of the status of neutrality which appeared to have been cleared up and resolved, the Spaniard had to point out that that compromise could not be interpreted so strictly, nor with respect to third parties, since Spain would otherwise have been left totally defenseless before any attack from Algiers or the Barbary [pirates], without being able to respond to it. William Pitt was also not moved by the request that, since Frere's statements had not be sufficiently clear, England could present at any moment an ultimatum before making the definitive decision to break off talks. Written in very clear terms with regards to its demands, this ultimatum could quickly be analyzed by Madrid, and answered a few short days [later] in one way or another, even giving way for the Spanish King to give in for the love of peace. A humanitarian aspect, like that of permitting the arrival in port with safe conduit of vessels carrying wheat to alleviate the scarcity, was also not

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heeded and this merchandise began to be considered at this point as contraband of war. From the beginning of December, reprisals were already being taken in Spain against English subjects, the order being given to be hostile to their ships in whatever way possible and ordering the response to attacks "everywhere with the honor corresponding to the weapons of His Majesty and the good credit of his Navy." On December 2, news arrived of the attack by the English frigate Venus on a Spanish brigantine in the neutral port of Funchal, on the island of Madeira, from which the latter was able to miraculously escape, and on the 7th, [news arrived] that Sir Richard Strachan, commander of the ship of the line Donegal[,] after intercepting the frigate Anfritite and pushing her to accompany [the ship of the line] giving the captain only three minutes to deliberate, had opened fire on her when the boat with the answer of surrender was on its way back, resulting in the death of the Spanish officer and the seizure of the ship. With a certain delay, the news arrived from Montevideo of the seizure of a schooner and a brigantine and the theft of four hundred quintals of copper by a single English ship. Keeping in mind public opinion, both domestic and international, the British Government included in its plans not to be the ones to declare war, but rather tighten the rope so much that [the rope] would break on the Spanish side. On the 11th, the Private Council resolved to give free reign against the Spanish without the two nations been formally at war. Spanish dignity already demanded without further delay to be the first of the parties to declare war; Great Britain, on the other hand, was not interested in appearing before the world, almost exclusively represented by the powers of the North, as a warmongering and domineering power. If it had consented and even procrastinated in the conversations that were theoretically aimed to arrive at an agreement, it had been with the intention of exhausting the patience of the Spanish Government so that the latter dictate the formal act, since from a factual point of view, England had been carrying out decidedly warlike acts for three months. The declaration of war by Spain came on December 12, 1804 as "indispensable and tough precision", when Charles IV considered all of the resources compatible with the honor of his Crown already exhausted and while a new treaty of military and naval aid was being negotiated with France. The next day, the King gave the order to include the declaration in the Gaceta de Madrid, knowingly omitting the customary measures of solemn declaration and

62 publication because he did not consider the Government of London worthy of them, having not observed its end of the most elemental rules of coexistence between two civilized nations. As a response on the same level, on Thursday January 15th, George III, who had just gotten out of a crisis, gave a speech to the two Chambers of Parliament in which he presented the British position showing that the Spanish Court was evidently under French influence, which had obligated [him] to take precautions against the effects of its hostility, while at the same time he had made an effort to avoid a rupture, but that, because satisfact[ory answers to] his representative were refused, this representative had withdrawn, the declaration of war from the Spanish side thus having been produced. The king of England, like the [king] of Spain a few days earlier, was convinced of his moderation having gone as far as the interests of his dominions had permitted and expressed his affliction toward Spain wrapped in the hostilities against its own interests. In both Chambers the war was discussed, lord Grenville being the speaker for the official position in the High [Chamber], contradicting some without much force, as did Mr. Fox in the Commons. In spite of both real declarations, the diplomatic conversations continued the next day, and since the basic question was that of the evaluation of the subsidies so that the English Government could decide whether or no it consented to Spanish neutrality, Anduaga presented, as a last resort, an ingenious and reasonable solution: since the economic subsidies were nothing but the translation into money and effects of the amount of the military aid to which Spain had committed itself in 1796, and those were public, it would be easy for the English Government to verify these and, based on this, to obligate Spain not to provide a single franc more. This solution seemed to make Minister Pitt doubtful, but at this point England had already made the decision to fight Spain, the relevant measures had already been adopted and the appropriate plans drawn up, and the King had already given his reasons to the country. There was still an option to play outside any claim of justice and the Spanish representative did not omit it, through it the offended party, Spain, saw itself obligated to make the maintenance of peace more difficult and to remind the promises made by England to help and support the states that it assumed were subjugated to France, and to free them of their dependence, with the humiliation that was implied by the recognition that [Spain] considered itself included in this group, showing moreover and finally, the greatly weakened state of the country, practically condemned to famine due to poor harvests and the plague. "For us", responded

63 Mr. Pitt, "from the moment in which Mr. Frere did not receive the response that this Ministry wanted we have considered the matter as one that does not allow for hope of repair." Given the definitive position of the premier, the Spanish ambassador, the secretary of the legation and the others gathered, as well as the general consul, headed for Harwich where they boarded for Spain on a previously chartered ship. On December 20, and while a warning was set in the café Lloyd's that announced the order of the Private Council to the employees of Customs to impound any class of ships chartered for Spanish ports, in Madrid the prince of the Peace, put in charge by Charles IV to lead the war, issued a manifest to the Spanish people encouraging them to take up arms and collaborate to avenge all English abuses against fishermen, against the Army and against the Navy, reminding in this last case of the casualties caused during full peace since the month of September: "Marines: three-hundred of your brothers killed and one thousand trapped treasonously [shall] arouse your honor to make amends." In all previous wars and subsequent peace in which France and Spain had fought together against England, Spain had been the soft underbelly onto which to deal blows and the booty that compensated the effort of war. With France in a complete continental triumph, England could hope for little, lacking allies for the moment, through which the situation seemed to repeat itself, Anduaga stating: "Based on all appearances we come to be the victim that this Government has chosen to pay what it cannot get from France, that is, objects with which to satiate the greed of a certain type of persons and motives to delude the nation with brilliant ventures, and above all lucrative [ones] at the price of justice, equity, healthy politics, and perhaps of humanity itself." When war broke out, Spain was totally unprepared, as it had never been before.

Spanish Original