Prologue to Impeachment: The Case of 1)on Joseph Cabrera HE story of the attempt by the Pennsylvania Assembly to impeach and remove Governor Thomas McKean in Decem- Tber 1808 is a familiar one. So, too, is that of William Duane's ^Aurora in promoting and orchestrating the final political strategems against the embattled Governor. But little attention has been paid to the case of Don Joseph Cabrera, a prime catalyst in Duane's determination to truncate McKean's public career.1 If the legal community in Philadelphia was drawn to the Cabrera matter be- cause of questions it raised regarding the "law of nations/' Duane's preoccupation with it went well beyond that narrow concern. In the political and legal circumstances surrounding the Spaniard's arrest and incarceration Duane glimpsed most of the themes that later constituted the basis for his impeachment campaign against McKean. Not only did the Cabrera affair identify for Duane arbitrary and illegal conduct on the part of the Governor and members of his family, but he recognized in it an excellent vehicle by which to draw public attention to "unrepublican" manifestations, epitomized by McKean, then besetting Pennsylvania society. The case began innocuously enough. During the summer of 1804 two checks in the name of the Spanish Minister to the United 1 Standard secondary accounts include Sanford W. Higginbotham, The Keystone in the Democratic Arch: Pennsylvania Politics, 1800-1816 (Harrisburg, 1952); James H. Peeling, "The Public Life of Thomas McKean, 1734-1817" (doctoral dissertation, University of Chicago, 1929); Peeling, "Governor McKean and the Pennsylvania Jacobins," The Pennsyl- vania Magazine of History and Biography (PMHB), LIV (1930), 320-354; G. S. Rowe, "Power, Politics, and Public Service: The Life of Thomas McKean, 1734-1817" (doctoral dissertation, Stanford University, 1969); and Kim T. Phillips, "William Duane, Revolutionary Editor" (doctoral dissertation, University of California, Berkeley, 1968). Higginbotham mentions the Cabrera case only in passing; Peeling and Phillips ignore it. Part of the research for this article was conducted under a grant from the University of Northern Colorado Research and Publication Committee. The author wishes to thank Professors Alexander Knott and Charles Meyer for their help. 224 1978 CASE OF DON JOSEPH CABRERA 225 States, the Marquis Casa de Yrujo—one for $600, a second for $1,000—were cashed at the Bank of Pennsylvania. Yrujo denied authorizing the checks and alerted bank officials to watch for future illegal withdrawals. On August 24, Charles Lange, a black man, was arrested while attempting to cash a check for $300 bearing Yrujo's signature. Lange quickly confessed that he had been pressured into the illegal acts by his master, Yrujo's secretary Don Joseph Cabrera.2 The president of the bank, Samuel M. Fox, was perplexed as to what steps against Cabrera were feasible in light of his diplomatic position. Suspecting that Cabrera might be protected by "the law of nations" and fearful lest his bank offend a foreign government, Fox urged Governor Thomas McKean to use his influence with Yrujo, who was McKean's son-in-law, to impress upon Cabrera the wisdom of "surrender[ing] up" and agreeing to be legally prosecuted in the state courts. Fox was confident McKean could "direct such measures as shall appear to you consonant to justice, and the privileges of those attached to a foreign embassy."3 That same day (August 24) McKean advised Yrujo of the bank's wishes. He emphasized that "the government and citizens of Penn- sylvania have at all times evidenced a sacred regard to the law of nations (which is a part of the law of state law) . and to the . inviolability of foreign ministers, their domicils and those of their train." But McKean thought "under all the circumstances of this case" Yrujo would judge it "just and proper to withdraw your protection from a person thus charged with an offense so immoral. ." The Governor formally requested that Yrujo submit Cabrera "to the laws and justice of this state," remarking that Cabrera's punishment, should he be convicted by a Pennsylvania court, would "be very mild, compared with that he would undergo in his own country." 2 Poulson's American Daily Advertiser, Apr. 23, 1805. Accounts also appeared in Relfs Philadelphia Gazette, Apr. 24, 1805, and the United States Gazette, Apr. 23, 1805, both based heavily upon Poulson's report. Cabrera's version of these developments can be found in "Detaille circonstancie des soupgons contre moi," dated Oct. 1, 1804, in Notes from the Spanish Legation in the United States to the Dept. of State, 1790-1906, II, National Archives Microfilm 59, roll 3. 3 Samuel M. Fox to Thomas McKean, Aug. 24, 1804, Relfs Philadelphia Gazette, May 22, 1805. aa6 G. s. ROWE April Yrujo refused to be pressured into turning his secretary over to Pennsylvania authorities. He conceded that a perusal of the evidence convinced him there was "very little favorable to the honour and good name of... Cabrera/' and that his first impulse was to deliver the "culprit into the hands of justice." A more sober assessment of the situation, however, persuaded him that he could not take it upon himself to strip Cabrera of his diplomatic immunity, an im- munity implicit in his appointment by the King. "I do not believe myself authorized to take from him, what he has not received from me," he explained to McKean. They must therefore await the King's judgment. In the meantime, Yrujo informed the Governor, Cabrera would be "detained according to my ideas, by my direction and orders."4 Only hours after McKean heard from Yrujo, he informed Sheriff John Barker that the Spanish Minister wished to have Cabrera incarcerated in a debtor's apartment in the Philadelphia jail. The Governor took the occasion to review for Barker the intricacies of international law respecting this matter. Barker was told: "By the law of nations, Don Jos. De Cabrera is entitled to all the immunities appertaining to one of the train of the envoy extraordinary and minister plenipotentiary of his catholic majesty." Though Cabrera might not "be amenable to our laws and tribunals, yet he may be secured with the consent of the minister of Spain" until such time as the king formally made his wishes in the matter known.8 On the same day Yrujo notified Cabrera that, "after consulting many people and books about the law of nations," he had agreed "to give [him] over to the common justice of Pennsylvania." Such a step, Cabrera was told, was "not only proper, but just and con- formable to the general practice, according to the most accredited publicists." Exactly what Yrujo meant by giving Cabrera over to the common justice of Pennsylvania is not clear. Initially he in- formed Cabrera that he had withdrawn his protection from him; later he advised him "voluntarily" to "leave his immunity" and proceed to the debtor's apartment set aside for him and await the King's disposition of his fate. Yrujo assured Cabrera that the apart- ment provided him would be suitable for someone of his rank. Nor 4 Thomas McKean to Casa de Yrujo, Aug. 24,1804; Yrujo to McKean, Aug. 27,1804, ibid. 5 Thomas McKean to John Barker, Aug. 27,1804, Aurora, Apr. 26,1805. 1978 CASE OF DON JOSEPH CABRERA 227 should Cabrera worry about state authorities taking him by force; they would merely "oversee" his "arrest" and confinement. Yrujo admonished his aide, however, that should he refuse to submit voluntarily, Yrujo would withdraw "all immunities and leave him to the local courts/'6 When this missive reached the Spanish secretary he was already unhappily ensconsed in a debtor apartment shared by three other prisoners. Not only was he dismayed by the discrepancies between what Yrujo promised and what Barker had arranged, but a single night in jail had convinced him that he wanted no part of any arrangements which necessitated his prolonged occupancy there. He asserted his innocence, insisting that the real villain was a Frenchman who had subsequently left the city. Cabrera's plea to be confined in his own home, under house arrest, until his innocence could be established by the Frenchman's capture was studiously ignored by Yrujo and state officials.7 The arrest of a Frenchman in Wilmington, Delaware, on August 30 satisfied Yrujo that Cabrera's alibi was false and that he must take his chances in Pennsylvania courts.8 Yrujo informed his secretary that either he submit himself to Pennsylvania justice or face up "to five months confinement" in the debtor's apartment. This ultimatum was prompted in part by the Minister's conviction that Cabrera now had "all and every means of defense in [his] own hands," and in part by pressure from McKean. Accordingly, in the first week of September Cabrera waived his remaining immunity in favor of a speedy trial. When his request to stand before a local court was passed on to McKean by Yrujo, the Governor ordered his son, Attorney General Joseph Borden McKean, to initiate pro- ceedings in the Mayor's Court, a move which led to Cabrera's indictment on three counts of forgery. Bail was set at $2,000. This sum, Cabrera insisted, was well beyond his means, and he 6 Yrujo to Don Joseph Cabrera, Aug. 27, 1804, Aurora, Apr. 29, 1805. See also the letter to Cabrera of August 31 {ibid.) wherein Yrujo tells Cabrera that Cabrera's "rights and privileges remain unblemished." 7 Cabrera to Yrujo, Aug. 31, 1804, Aurora, Apr. 29, 1805. McKean had written Barker that the sheriff should provide Cabrera a room to himself "when a whole room can be spared." 8 Yrujo to McKean, Aug.