James Madison Papers

From James Madison to Charles Pinckney, 5 February 1802

To Charles Pinckney

Department of State: Washington,
5th Feby. 1802


Though you have been referred to the 21st Article of the Spanish Treaty as a model for the provision you are instructed to urge the Government of Spain to accede to for indemnifying our commercial citizens whose claims have originated since, it is found to be incommensurate in some respects with the relief expected by them. The words are “In order to terminate all differences on account of the losses sustained by the citizens of the United States in consequence of their vessels and cargoes having been taken (apresado) by the subjects of his Catholic Majesty during the late War between France and Spain &c.” Thus the 21 Article is limited to captures; but some of our citizens have complained of injuries received from the officers of Spain in attaching their property for supposed breaches of its fiscal regulations: and examples are not wanting of unjust and ruinous prosecutions against our citizens upon criminal allegations. Two examples are at least recollected of the latter description. It might possibly be questioned whether a seizure in port on suspicion of enemy’s property, as in the case of Capn. Eldridge’s brigantine Sally,1 would be fairly embraced within the terms of that article. Complaints have also been made of the tender laws whereby our citizens have been paid in a depreciated medium for specie contracts. Some of these cases are marked with arbitrary circumstances derived from the direct interposition of the Government or its Agents: others have arisen in the Colonies and tho’ conducted under judicial forms have issued in the ruin of innocent individuals who have been borne down by the weight of Official influence opposed to them.

It is perhaps difficult to define by a general article which shall appear unexceptionable the principle under which relief in some of these cases is expected: and on the other hand to attempt a detail would hazard the attainment of what might not under a general description be combatted. If indeed the latter mode should be preferred, much of the benefit to be derived from the agreement would depend upon the intelligence and character of the referrees. Should a majority of them feel an undue attachment to Spanish interest or to the artificial maxims of law, some of our claims founded in substantial justice might fail.

The following is supposed to be a form of words which would be preferable to the 21st Article of the Treaty.

“In order to terminate all differences on account of losses sustained since the   day of April 1796 (the day on which the ratifications were exchanged) by merchants and others citizens of the United States trading to the Spanish dominions from the unjust seizure or detention of their persons vessels and effects, or otherwise, under colour of authority from his Catholic Majesty it is agreed &c,[”] to which may be annexed any clearly defined exceptions which it may appear reasonable to make at the instance of the Spanish Government.

Another expedient may be resorted to, should that Government oppose a general provision. After securing a referrence to Commissioners mutually chosen of as many of the cardinal subjects of claims as may be found practicable the remainder may be submitted to two or three of the Officers of the Spanish Government to be named in the agreement for their award, which shall not be final unless the claimant signify his assent in a given time, and if he dissents the claim to remain open. In this way was settled a considerable number of our smaller claims on Great Britain for illegal captures; the Kings Advocate General and a Doctor of the Civil law making the awards which were generally satisfactory and it is believed always accepted.

Mr: John Perry has lately presented to this Department a claim upon the Government of Spain for a quantity of flour he shipped from Pittsburg in the year 1785 for New Orleans, and which was seized and confiscated at the Natchez by the Spanish Commandant.2 The documents respecting the transaction are inclosed. Whatever justice there may be on his side, its having laid dormant so long necessarily weakens the force of the claim; and you will therefore be pleased to consider it transmitted to you with the same directions which accompanied Mr. Beveridge’s3 papers by Mr. Graham.

I have the pleasure to inclose a new Commission, issued in consequence of the Senate’s confirmation of your appointment. Mr. Grahams’ second Commission is also inclosed.4 I have the honor to remain &c.

James Madison

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