James Madison Papers

From James Madison to Charles Pinckney, 6 February 1804

To Charles Pinckney

Department of State February 6th. 1804


Your last letter not already acknowledged is that of August 2d continued on August 30th.1

The Senate having resumed at the present Session the Convention with Spain, postponed at the last, have thought proper to ratify it; and the President has completed the act on the part of the United States.2 The instrument is now returned to you with these sanctions, in order to be exchanged for the ratification of his Catholic Majesty. You will hasten this formality as much as possible, and forward the result to the Government here, that no time may be lost in procuring to our citizens the benefit stipulated to them. To favor dispatch, as well as to guard against casualties, duplicates and even triplicates will be proper.

In concurring in this partial provision for the indemnities due from Spain, it is to be particularly understood that it proceeds from no other considerations than a wish to shorten the delay of relief to that portion of the claimants who are included in the provision, and a determination to avail the residue of the reserve expressly made in behalf of their claims by the art. of the Convention. When the decision of the Senate was postponed at the last Session, it was justly hoped, that before the succeeding one, the Spanish Government would have yielded to the reasonableness and justice of giving to the provision the extent required by the United States; in which case, the arrangements would have been simplified, and a foundation laid at once for closing all controversies on the subject. The final refusal of Spain to concur in these views has been thought to give a preference to the course now adopted.

None of the pleas urged by the Spanish Government can in the least invalidate the justice of the claims for injuries committed by French Citizens or Agents within her jurisdiction.

If his Catholic Majesty be sovereign in his own dominions, aliens within them are answerable to him for their conduct, and he of course is answerable for it to others. This is a principle founded too evidently in reason and usage, to be controverted. As well might Spain say that a theft or robbery, committed in the streets of Madrid by a Frenchman on an american, is to be redressed by France and not by her, as pretend that redress is to be so sought for spoliations committed by cruizers from or condemnations within Spanish Ports. Nor is there any room for the distinction between the injuries proceeding from the French Cruizers and the French Consuls. With respect to the Consuls their acts were either authorized or not authorized by Spain: if authorized by Spain, Spain is answerable for giving them the authority: if not authorized by Spain, they could not be authorized at all; the law of nations giving them no such authority, and France having no right to give it; and being acts without authority they are not to be regarded as Consular acts, but as much the acts of private individuals as the cruises or any other irregularities committed or instituted by French Citizens within the jurisdiction of Spain. To say that the Consuls derived their authority from the sanction given by Spain to the authority derived from France, without which sanction positive or permissive, it is clear that the authority of France within the jurisdiction of Spain would be a nullity, is still to rest the condemnations by the Consuls on the authority of Spain and to leave her responsible for them.

Under every aspect therefore, Spain is bound to do justice in this case to the Citizens of the U States, unless she not only pleads a duress, suspending her free Agency, and prostrating her national honor, but proves the reality of this duress; and not only proves this duress, but proves moreover, first that she did every thing in her power to prevent the evil, next that she did every thing in her power to obtain reparation for it; and lastly that in tolerating the evil, she did not deliberately and wilfully surrender the neutral rights under her protection, to advantages positive or negative, obtained or expected by herself from France.

The suggestion that France was resorted to for redress is unfounded. It does not appear that any such resort was authorized by the Government of the United States; whilst the claims against Spain have been uniform and pressing. Nor is it believed that any interpositions have proceeded from the American Legation at Paris. Had indeed such interpositions taken place, they would in no respect lessen the obligations of Spain. Individuals may have made their applications to the French Government. But it will not be pretended that the merits of the question can be affected by that circumstance.

The plea on which it seems that the Spanish Government now principally relies, is the erasure of the 2d Art. from our late Convention with France,3 by which France was released from the indemnities due for spoliations committed under her immediate responsibility to the United States. This plea did not appear in the early objections of Spain to our claims. It was an after thought resulting from the insufficiency of every other plea, and is certainly as little valid as any other. The injuries for which indemnities are claimed from Spain, tho’ committed by Frenchmen, took place under Spanish authority. Spain therefore is answerable for them. To her we have looked and continue to look for redress. If the injuries done to us by her resulted in any manner from injuries done to her by France, she may if she pleases resort to France as we resort to her. But whether her resort to France would be just or unjust is a question between her and France; not between either her and us, or us and Franc⟨e.⟩ We claim against her not against France. In releasing France therefore we have not released her. The claims, again, from which France was released were admitted by France and the release was for a valuable consideration in a correspondent release of the United States from certain claims on them. The claims we make on Spain were never admitted by France nor made on France by the United States; they made therefore no part of the bargain with her, and could not be included in the release. The only supposition on which Spain could turn us over to France, would be that of her being in a state of absolute duress, of her being merely the staff by which the blow was given by France. But even on this supposition, the injuries done by France thro’ Spain, could not by any fair interpretation be confounded with the injuries released to France, by which could be meant such injuries only, as proceeded from her own immediate responsibility, and as were in the ordinary course of things chargeable on her.

The last plea under which refuge has been sought by Spain against the justice of our claims, is the opinion of four or five American Lawyers given on a case stated;4 without doubt by some one of her own Agents. An argument of this sort does not call for refutation; but for regret that the Spanish Government did not see how little such an appeal from the ordinary and dignified discussions of the two Governments by their regular functionaries, to the authority of private opinions, and of private opinion⟨s⟩ so obtained, was consistent either with the respect it owed to itself or with that which it owed to the Government of the United States: that it did not even reflect on the reply so obvious, that four or five private opinions however respectable as such, could have no weight against the probability that other lawyers had been consulted, whose opinions were not quoted because they were not the same, and that if the Government here could descend to the experiment, little difficulty could be found in selecting more numerous authorities of the same kind not only in the United States, but among the jurists of Spain.

It was probably unknown to the Spanish Government that the lawyers in giving the opinion to which it attaches so much value, violated a positive statute of their own Country forbidding communications of any sort with foreign Governments or Agents on subjects to which their own Government is a party; that one of them being in a public trust under his own Government, violated his official duty, and that another being allied by affinity to the Minister of His Catholic Majesty here, would have consulted his personal delicacy more by withholding, than by adding his name to the rescript.5

The observations here made on the subject of this portion of our claims on Spain, are not meant to revive your efforts for an adjustment of them. As Mr Monroe will be instructed to repair to Madrid, as soon as he shall have made arrangements with the British Government on certain points depending between it and the United States, and as it may perhaps be best to connect this subject with the negotiations in which he will unite with you, the views of the President require that it should await that occasion. In the mean time you may avail yourself of the ideas now communicated as far as they may be made useful, particularly in stifling an inference by the Spanish Government, that in ratifying a provision for some of our claims, the American Government has relaxed either its confidence in the justice of the residue, or its determination to press them on the reconsideration of Spain. I am with the greatest respect &c

James Madison

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