James Madison Papers

To James Madison from Charles Pinckney, 6 July 1802

From Charles Pinckney

Madrid July 6th 1802

Dear Sir

In my last I acquainted you with the state of our negotiations respecting the Claims of our Citizens up to that time. I have now the Honor to inclose you Mr Cevallos Letter of the 26th Ulto marked No 11 in reply to mine of the same month. In consequence of this I drafted the Letter No 22 and requested another conference with him on that Subject, and also on that of Louisiana & Florida on which latter he had informed me he prefered to reply verbally, to my repeated applications to know what were the Boundaries of Louisiana & the Florida’s—and His Majestys intention with respect to our rights of Navigation and Deposit—he appointed yesterday and I attended him. I begun the conference by apologizing for troubling him, so soon after his return to Madrid; but that as our affairs were important & pressing, and I had the opportunity of a Gentleman returning to america—I wished very much to transmit to my Government the Ultimate determination of His Majesty on the Subject of our Claims. That as he had agree’d so far as his own Subjects were concerned, to refer them to arbitration—I wished, if in my power, to endeavour to convince his Excellency, that the Honor and Justice of Spain required, that our Claims for French Spoliations should also be included—that in the latter part of his Letter, he had agree’d to include the words “de otros3 which was all we wished; but had clogged them with an explanation totally unusual and inadmissible—this was the insertion of the words “Segun los principios que constituyen la moralidad de las acciones y su responsibilidad”4—that I had no objection to insert the words Segun los principios que constituyen su responsibilidad5 but that those of “la moralidad de las acciones6 would lead to discussions & explanations, which would embarrass & probably defeat the whole arbitration—that we all knew what the words the Laws of Nations & the Stipulations of our Treaty and the principles which made Spain responsible for the acts of others, meant; but that the Morality of actions was a field so extensive, and the meaning so difficult to define when applied to these cases—that I could wish His Excellency would leave the whole Business to the Commissioners, to determine, upon the principles of Justice & Equity—the Laws of Nations, and the Stipulation of our Treaty—that it would be easily in my power to convince him that upon these stipulations & principles Spain was liable for those Captures by the French, which had been made by Privateers equipped & manned in Spanish Ports & for those American Vessels & Cargoes which had been brought in and sold in the same. I then went into a train of reasoning to shew that “as strangers can do nothing in a Country against a Sovereigns will”7—that therefore the equipping & manning these Privateers, bringing in & selling the Prizes, to the amount of more than one hundred Sail was not a thing to be done in a moment, or concealed from the Eye or Knowledge of the Government—that being thus known, it was fair to conclude it was permitted and countenanced, and that being so, if unlawful Spain was bound to compensate. That the arming and equipping vessels in the Ports of Spain to cruise against the United States with which Spain was at peace, was certainly a violation of the Territorial Sovereignty of Spain, and that if she had not prevented it, when it was in her power to do so; but winked at it to the injury of the United States she is bound to repair. That by the Law of Nations it is not permitted to a Stranger, nor can any Foreign Power or Person levy Men within the Territory of an Independent Government, without its consent: that he who does it may be rightfully & severely punished—that as Spain had the right to refuse the permission to Arm Vessels & raise men to man them, within their Ports & Territories—they were bound by the Laws of Nations to exercise that right, and prohibit such armiments and enlistments and the condemnation and Sale of our Vessels—and that not having done so she was liable to compensate & make reparation.

I then stated the reasoning of Vattell8 & Wolf9 on this subject and those excellent ones of the President, when Secretary of State, in his Letters to Mr Genet10 & Mr Morris.11 I also informed him that I had written a Letter in answer to his of the 26th Ulto & had therin mentioned the only explanation, I thought myself authorized to enter into with respect to the French Spoliations—that I would read it to His Excellency & hoped he would still consent to sign the convention in the manner it was drawn and sent to him. After reading the Letter to him he replied he was sorry I considered the words “la moralidad de las acciones12 so inadmissible, that however certain he was that Spain was not bound by the Laws of Nations to make reparation in these cases—yet to shew she was willing to submit the whole of her Conduct to arbitration, he would consent to sign the Convention with the insertion of these words—that he did not suppose without them the whole Business would be properly before the Board—that when thus called upon to pay or to risque the being liable to pay large sums, by not one shilling of which, the Spanish Government had ever been benifited, Spain had the right to the insertion of such clauses, as would authorize the full investigation of her then Stituation [sic], Conduct, and Motives, as it would only be upon a thorough examination of the whole, that the Commissioners would be enabled to Judge, whether according to Justice, Equity, and the faith of Treaties or what he considered, ought to be as fairly before the Board as any of them, the principles which constitute the Morality of actions, or her responsibility, she ought to be really responsible for the acts of Foreigners in her Dominions, under the circumstances of these cases—that he had fully considered the Subject and could only sign that part of the Convention, with the insertion of these words. Finding him not to be brought to a change of his opinion I told him the claims were so important, and my Instructions, so clear & positive, that I did not conceive myself authorized to depart from the Proposition I had made or to insert words unusual & difficult to define, & which might tend to emba[rra]ss & defeat the arbitration. That I preferred closing with him on the ground of the Spanish Spoliations, inserting a clause, reserving to us a right to reclaim & demand for the French, in the same manner as if this Convention had not have been made, and referring the whole Business as it now stands respecting the French Spoliations to my Government for their decision. That if they viewed it in the same light I did, they would probably direct some other mode to be proposed for adjusting these claims, or at any rate instruct me what was farther to be done. That for the present I would draft & send him another Convention, confine’d to the Spanish Spoliations, which is now doing, and will be transmitted to him as soon as finished.

My own Opinion is that Mr Cevallos has heard of the Senate’s striking out that Article of the Convention with France, which respected our claims for Spoliations,13 and that he thinks it hard, Spain should be obliged to pay for violations of her Territorial Sovereignty, which it might not have been prudent for her, or was not perhaps, then, in her power to prevent, and for claims arising from acts committed within her Dominions by the French, which if they had been committed in their own, would have been relinquished—he never mentioned this to me, nor did I think it prudent to do so to him, because it was possible he might not be fully possessed of the facts, and being extraneous to our discussions I took care to avoid it.

The next point we discussed was the subject of my Letter requesting Official Information on the bounds of Louisiana & Florida, and the Rights of the United States to Navigate freely the Mississipi, and deposit their Produce & Merchandize on its Banks. I told him I would not enter into the Subject of our Right to Navigate the River, as on that, Spain & the United States had already agree’d, and the former had entered into Stipulations with us, on the Subject of the Deposit of our Produce & merchandize at New Orleans or some other convenient place on the banks of the Mississipi. That His Excellency was well aware how important it was to us to know what were the Boundaries of Louisiana as intended to be ceded to France—whether they included both banks of the River, & whether, as I had understood him on a former occasion, there being no Stipulations in the Treaty ceding Louisiana to France, respecting our right to Navigate & deposit our Merchandize on its Banks, His Majesty did not mean before the delivery of Louisiana, to instruct his Minister at Paris to apply to the French Government on that subject, and obtain from them a Stipulation that they received Louisiana subject to the Conditions & Stipulations of his Catholic Majesty’s Treaty with the United States and the free & unmolested exercise of their Rights to Navigate & Deposit. That I wished such Instructions to be sent as soon as possible to the Chevalier D’Azzara at Paris, and that when sent, I would be much obliged by being favoured with a Copy of them, for the purpose of transmitting them to Mr Livingston urging him to join & aid Mr D’Azzara in the Negotiation. That I applied to His Majesty to direct this, because I apprehended we had some right to expect it from his Justice & Friendship—it being established by the Laws of Nations, that when once a nation has entered into engagements by Treaty, it is no longer at liberty to do in favour of others (contrary to the tenor of the Treaty) what it might otherwise have granted to them, agreeably to the Duties of Humanity or to the general Obligation of reciprocal commerce: being to do for others no more than what is in its power—having deprived itself of the Liberty of disposing of a thing—that thing is no longer in its power—that this was the case of Spain with respect to Louisiana & the Mississipi. That we considered the confirmation of our Rights under the Treaty with Spain as irrevocably fixed in the United States, and that she could only therefore cede Louisiana, subject to the same free & unmolested exercise of them by us when France held Louisiana that Spain had stipulated, had she continued to possess it. That I was sure His Excellency viewed it in the same light, and that if thro: accident or mistake the Stipulations respecting our Rights to navigate & Deposit had been forgotten or omitted, it was not yet too late to obtain it, and that I was sure His Majesty would instruct his Minister at Paris to use his influence in the manner I had with much deference proposed. Mr Cevallos replied that he hoped the United States would feel no uneasiness on this Subject—that he was charged by the King his Master (to use his own words) to assure me, and desire’d me to assure my Government that if the King did think proper to part with or cede Louisiana, it should never be done to the prejudice of the United States, and that the cession & Delivery would be made in a manner to secure to the United States the free & unmolested exercise of all the rights & privileges confirmed & secured to them by their Treaty with His Majesty.

He did not reply explicitly to my Question respecting the Boundaries—although I asked him repeatedly—which makes me suppose there is still some difficulty between them & France respecting the Limits of Louisiana.

On the Subject of the Sale of the Floridas or West Florida he made me the same answer he had done before—that as soon as they obtained the necessary information from their Governors and Officers in those Provinces his Majesty would reply to the Proposition.

I shall write again on the 8th & in the interim remain my dear sir With regard & much respect Yours Truly

Charles Pinckney

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