To Charles Pinckney
Department of State: Washington,
October 25th. 1801
In the instructions, accompanying your Commission, it was not forgotten, that the trespasses of Spain on our commerce, had laid the foundation for strong complaints and reclamations on the part of the United States; and it was accordingly made your duty to press them in a proper manner on the Spanish Government. As this violation of our neutral rights prevailed most during the misunderstanding between the United States and the French Republic, and was generally masked under, or confounded with the Commission and flag of the latter, it was hoped that with the termination of that misunderstanding, would have terminated also the abuses which Spain had permitted her subjects to connect with it. By the documents hereto annexed consisting of a letter from the President of the Insurance Company of North America; a memorial from the Chamber of Commerce of Philadelphia, a letter from Thomas Fitzsimons Esqr and several private letters from the Captains and Supercargoes of the captured vessels,1 you will find that instead of fulfilling this reasonable hope, the predatory cruizers from the port of Algeciras have assumed a recent activity peculiarly alarming to our merchants. American property to a very heavy amount has already been a prey to the Spanish Gun boats issuing from that asylum, and it is justly apprehended from the extent of our commerce flowing thro’ the same channel, that a still greater portion of it will be exposed to the same fate. This apprehension is the greater, as the general disarming of our merchantmen, produced by the reconciliation with France, removes the check heretofore given to the predatory boats by the means of resisting their enterprizes.
The pretext for the seizure of our vessels seems at present to be, that Gibraltar has been proclaimed in a state of Blockade, and that the vessels are bound to that port. Should the proceeding be avowed by the Spanish Government, and defended on that ground, you will be able to reply.
1st. That the proclamation was made as far back as the 15th of Feby 1800, and has not since been renewed; that it was immediately protested against by the American and other neutral Ministers at Madrid, as not warranted by the real state of Gibraltar, and that no violations of neutral commerce having followed the proclamation, it was reasonably concluded to have been rather a menace against the enemies of Spain, than a measure to be carried into execution against her friends.
2d That the State of Gibraltar is not and never can be admitted by the United States to be that of a real blockade. In this doctrine they are supported by the law of Nations as laid down in the most approved Commentators, by every Treaty which has undertaken to define a blockade, particularly* those of latest date among the maritime nations of Europe, and by the sanction of Spain herself, as a party to the armed neutrality in the year 1781. The spirit of Articles XV and XVI of the Treaty between the United States and Spain,2 may also be appealed to as favoring a liberal construction of the rights of the parties in such cases. In fact this idea of an investment, a seige or a blockade, as collected from the authorities referred to, necessarily results from the force of those terms; and though it has been sometimes grossly violated or evaded by powerful nations in pursuit of favorite objects, it has invariably kept its place in the code of public law, and cannot be shewn to have been expressly renounced in a single stipulation between particular nations.
3d. That the situation of the naval force at Algeciras in relation to Gibraltar has not the shadow of likeness to a blockade as truly and legally defined. This force can neither be said to invest, besiege or blockade the Garrison, nor to guard the entrance into the port. On the contrary the gun boats infesting our commerce have their stations in another harbour separated from that of Gibraltar by a considerable Bay; and are so far from beleaguering their enemy at that place, and rendering the entrance into it dangerous to others, that they are, and ever since the proclamation of a blockade, have been, for the most part kept at a distance by a superior naval force which makes it dangerous to themselves to approach the spot.
4th. That the principle on which the blockade of Gibraltar is asserted, is the more inadmissible, as it may be extended to every other place in passing to which vessels must sail within the view and reach of the armed boats belonging to Algeciras. If, because a neutral vessel bound to Gibraltar can be annoyed and put in danger by way laying cruizers, which neither occupy the entrance into the harbour nor dare approach it, and by reason of that danger is liable to capture, every part of the Mediterranean coasts and islands, to which neutral vessels must pass thro’ the same danger, may with equal reason be proclaimed in a state of blockade, and the neutral vessels bound thereto made equally liable to capture: or if the armed vessels from Algeciras alone, should be insufficient to create this danger in passing into the Mediterranean, other Spanish vessels co-operating from other stations, might produce the effect, and thereby not only blockade any particular port, or the ports of any particular nation, but blockade at once a whole sea, surrounded by many nations. Like blockades might be proclaimed by any particular nation enabled by its naval superiority to distribute its ships at the mouth of the same, or any similar sea, or across channels or arms of the sea, so as to make it dangerous for the commerce of other nations to pass to its destination. These monstrous consequences condemn the principle from which they flow, and ought to unite against it every nation, Spain among the rest, which has an interest in the rights of the Sea. Of this Spain herself appears to have been sensible in the year 1780. when she yielded to Russia ample satisfaction for seizures of her vessels made under the pretext of a general blockade of the Mediterranean, and followed it with her accession to the definition of a blockade contained in the armed neutrality.
5th That the United States have the stronger ground for remonstrating against the annoyance of her vessels on their way to Gibraltar, inasmuch as with very few exceptions, their object is not to trade there for the accommodation of the Garrison, but merely to seek advice or convoy for their own accommodation in the ulterior objects of their voyage. In disturbing their course to Gibraltar, therefore, no real detriment results to the enemy of spain, whilst a heavy one is committed on her friends. To this consideration it may be added that the real object of a blockade is, to subject the enemy to privations, which may co-operate with external force in compelling them to surrender; an object which cannot be alledged in a case, where it is well known that Great Britain can and does at all times by her command of the sea, secure to the Garrison of Gibraltar every supply which it wants.
6th It is observable that the Blockade of Gibraltar is rested by the proclamation on two considerations, one that it is necessary to prevent illicit traffic, by means of neutral vessels, between Spanish subjects and the Garrison there; the other that it is a just reprisal on Great Britain for the proceedings of her naval armaments against Cadiz and St Lucar. The first can surely have no weight with neutrals, but on a supposition never to be allowed, that the resort to Gibraltar under actual circumstances, is an indulgence from Spain, not a right of their own; the other consideration without examining the analogy between the cases referred to and that of Gibraltar, is equally without weight with the United States, against whom no right can accrue to Spain from its complaints against Great Britain; unless it could be shewn that the United States were in an unlawful collusion with the latter, a charge which they well know that Spain is too just and too candid to insinuate. It cannot even be said that the United States have acquiesced in the depredations committed by Great Britain under whatever pretexts on their lawful commerce. Had this indeed been the case, the acquiescence ought to be regarded as a sacrifice made by prudence to a love of peace, of which all nations furnish occasional examples, and as involving a question between the United States and Great Britain, of which no other nation could take advantage against the former. But it may be truly affirmed, that no such acquiescence has taken place. The United States have sought redress for injuries from Great Britain as well as from other nations. They have sought it by the means which appeared to themselves, the only rightful judges, to be best suited to their object; and it is equally certain that, redress has in some measure been obtained, and that the pursuit of complete redress is by no means abandoned.
7 Were it admitted that the circumstances of Gibraltar in February 1800, the date of the Spanish proclamation, amounted to a real blockade, and that the proclamation was therefore obligatory on neutrals; and were it also admitted that the present circumstances of that place amount to a real blockade (neither of which can be admitted) still the conduct of the Algeciras cruizers is altogether illegal and unwarrantable. It is illegal and unwarrantable, because, the force of the proclamation must have expired whenever the blockade was actually raised, as must have been unquestionably the case, since the date of the proclamation, particularly and notoriously when the port of Algeciras itself was lately entered and attacked by a British fleet, and because on a renewal of the Blockade, either a new proclamation ought to have issued, or the vessels making for Gibraltar, ought to have been pre-monished of their danger and permitted to change their course as they might think proper. Among the abuses committed under pretext of War, none seem to have been carried to greater extravagance or to threaten greater mischief to neutral commerce, than the attempts to substitute fictitious blockades by proclamation, for real blockades formed according to the law of nations; and consequently none against which it is more necessary for neutral nations to remonstrate effectually, before the innovations acquire maturity, and authority, from repetitions on one side and silent acquiescence on the other.
In these observations you will find a sufficient guide to the representations which it may be proper for you to make to the Spanish Government, in case justice should not have been yielded by it to the interpositions which will no doubt have been previously tried by Colo. Humphreys or yourself, or by both. Letters from the former of the 21t and 29 of August shew that several cases of seizure had been made known to him, and that he had it in view to carry them before the Spanish Government. Considering the amicable disposition manifested in general by that Government towards the United States, and the mutual interest it has in maintaining perfect harmony with them, the President indulges the strongest hopes that the earliest opportunity will have been seized for repairing the wrongs which have been committed, and for preventing a repetition of them. Should this hope prove falacious, it will be your duty to press these objects, by fair and frank representations, aided by the communications now made to you, and by an appeal to the express instructions from the President included in them; mingling always with your requisitions assurances of the cordial sentiments cherished by the United States towards Spain and their entire confidence in her disposition to evince that justice and respect for our rights which is not less congenial with her own high character than it is necessary for our satisfaction. I have the honor to be &c.