To Charles Pinckney
Department of State, October 25th. 1802
I have received your two letters of July 1st & 61 inclosing your draught of a Convention, with the objection and alteration brought forward by the Spanish Minister.
It is regretted that any difficulty should have occurred in bringing to an equitable and Amicable settlement claims of our citizens which are not likely to receive so fair a decision in any mode as thro’ a joint Board of Commissioners. From the disposition or rather assent manifested at first by the Spanish Government, a more favorable as well as more speedy issue to your negotiation was expected; and it is still hoped that modifications may have been or will be devised that will make the contested article satisfactory to Spain without being unjust to the United States.
The true object is to give to the Board a power that will reach every description of cases. According to information received from time to time, it appears that losses have been sustained by citizens of the United States 1st on the high seas, 2d within the Territorial jurisdiction herself, 3d within the jurisdiction of her Colonies; that they have proceeded 1st from Spanish subjects, 2d from others within Spanish jurisdiction; that they have been contrary either 1st to the Treaty of 1795 or 2d to the law of nations or 3d to substantial justice. It is desirable therefore that a stipulated provision for repairing these injuries should be so expressed as to be commensurate with this view of the cases; or if this extent cannot be explicitly given to the provision, that it should be as little narrowed as possible.
The objection made to giving the Board cognizance of the wrongs committed by aliens within the jurisdiction and consequently within the temporary allegiance of the King of Spain, is clearly open to the reply you made to it. The authority which every Sovereign has over the conduct of aliens within his territorial jurisdiction, makes him responsible to others for their conduct, as much and for the same reason, as he is responsible for the conduct of permanent Citizens or subjects. This is a doctrine too well established both by reason and by public law, to be questioned. The United States have pursued it in practice, as well as in discussion, and may therefore with the more energy claim the benefit of it. The remark of the Spanish Minister, that the stipulation on this subject in our Treaty of 1794 with Great Britain2 implies that without such a stipulation, the law of Nations would not have imposed on the United States the responsibility assumed, admits of a double answer. The United States acquiesced in the doctrine before the Treaty was made; and the stipulation in the Treaty like numerous stipulations in other treaties, was not meant to supercede the rule of public law, but to acknowledge and explain it.
It is not denied that there are certain exceptions to the authority over those within a temporary, which do not apply to the authority over those within a permanent allegiance; and so far there may be exceptions to the responsibility of the Sovereign also. But none of these exceptions belongs to the cases in question. In the equipment of Privateers and the condemnation of prizes in Spanish ports the King of Spain had the same authority to restrain aliens as he had to restrain his own subjects, from illegal acts towards other nations. Having this authority, his duty to other nations required him to exert it, and failing in this duty he made himself answerable to those injured by the failure.
This reasoning admits of no reply, unless it be that the Spanish Sovereignty was under some foreign duress within its own territories; and being not a free agent, it ceased to be a responsible one. This plea, tho’ little consistent with the respect due from Spain to her own dignity, seems to have been resorted to. But before such a plea can be admitted at all, it ought to be shewn that the force or danger which destroyed the free Agency really existed, and that all reasonable means were employed to prevent or remedy the evil resulting to Nations in amity with Spain.
The losses sustained by Americans from aliens, and for which Spain is held answerable have proceeded 1st from condemnations within her jurisdiction 2d from equipments within her jurisdiction known to be against the American trade 3d from equipments ostensibly made against the enemies of Spain, but turned against the United States 4th from captures only within the limits of Spanish jurisdiction.
With respect to the two first cases it is clear that the Spanish Government had not only the right but the power to interpose effectually, and is consequently bound to repair the consequences of her omission. With respect to the 4th case, the violations of her territory might be less under her controul, where the prizes were not carried into her ports. Still however, with the right accruing to her against the aggressors, accrues at the same time the right against her to the sufferers. With respect to the third case, there may be room for equitable considerations in favour of Spain. Perhaps these distinctions in the several cases, may lead to an admission of the clearest and strongest of them to the same footing with similar ones where Spanish subjects were the wrong doers: reserving to the others the benefit of the moral principle of responsibility contended for by the Spanish Minister. Should the Spanish Government however, persist in requiring in all cases where aliens were the wrong doers, a preliminary decision by the Board, how far special circumstances absolved Spain from the usual responsibility it becomes a question, whether it may not be better to refer this preliminary decision to the Board, than to leave out of the Treaty a provision for so important a class of cases, and trust to further negotiations for justice. The reflections of the President on this subject have led him to conclude it the better course on the whole that the Treaty should provide for these cases, even in such a form as that proposed by the Spanish Minister, than that they be left to the delays and uncertainties of further negotiation; in which it is not likely that Spain will be more flexible than she is at present, and which must on that supposition end at best in a return to arbitration on the point in controversy. You will be guided by this idea therefore in the arrangements which may be finally made.3
The President thinks at the same time, that whilst you admit so vague a rule as that of the morality of actions into questions where Spain claims it as an advantage, you may very reasonably urge an extension of it to other cases where it would be favourable to the United States, by obliging Spain to repair wrongs not only against Treaty and the law of nations, but against mere equity and moral obligation also.
The application of this comprehensive principle of redress, would be particularly favorable to claims founded on proceedings in the Spanish Colonies. In a variety of cases it would give relief where neither the Treaty nor the law of nations would in strictness prescribe it. In whatever turn the negotiation may take, it will be proper for you to keep this branch of claims in view, and to include them if possible within the terms of the proposed Convention. I do not find that my letter of Feby 5th.4 on this subject had reached you, which I am surprized at; but you will have been reminded of the importance of these claims by information given you by the parties interested, as well as that furnished from time to time by this Department. It is probable you will soon receive an extensive application from Merchants in Boston and Philadelphia who have complaints against the Colonial subjects and governments of Spain.5 I have recommended to them to discriminate the cases, in such a manner, as to shew the precise principle on which they severally turn, that it may regulate the interposition proper for you to use with the Spanish Government.6 They propose to send an Agent to Madrid and to solicit the indulgence of sending attornies or Agents, into the Colonies to pursue their just claims there. This appears to be so reasonable that it may be expected from the justice and fairness of the Spanish Government, and the application for it, will accordingly claim your patronage; as far as that mode of redress may not be rendered unnecessary by Conventional arrangements.
This letter is written on the supposition that the Convention may be still depending. Should it have been closed without comprehending all the provisions wished for, the President relies on your further efforts to complete the work, either by a supplemental article, or by a distinct compact.
According to the latest information from Paris the affair of Louisiana is somewhat at a stand. The crisis will encourage you in pursuing the instructions you already have on the subject;7 but it does not suggest any particular addition to them. With sentiments of the greatest respect &c. &c.