James Madison Papers

To James Madison from Charles Pinckney, 2 August 1803

From Charles Pinckney

Madrid August 2: 1803

Dear Sir

My last Dispatches & those which preceded them1 will have conveyed to you the propositions I submitted to this Government on the subject of our claims & particularly the captures & condemnations by the french. They will also have informed you of the anxious manner in which I have been expecting the arrival of Mr Monroe since the 20 of May hopeful that the instructions he would bring might enable me to add such offers a [sic] bring the Question of the Spoliations by the French in some manner before the Government to tempt them to accede to our propositions. After waiting until nearly the beginning of this month I recieved a Letter from Mr Monroe & Mr Livingston acquainting me with the cession of Louisiana & another from Mr Robert L. Livingston yesterday saying that Mr Monroe was gone to London to reside there as Minister from the United States. In consequence of this I have again pressed upon this Government a decision with respect to the french captures & condemnations & have desired an audience on Tuesday.

While I expected Mr Monroe & supposed that in treating respecting Florida something could have been proposed which might have induced this Government to include our claims for french spoliations & condemnations, notwithstanding I had in pursuance of your instructions brought them forward I forbore to push them lest I might injure the other & more important parts of the negotiation but the moment I recieved official information from Mr Monroe & Mr Livingston that Louisiana was ceded & that they considered the Cession as including West Florida & that Mr Monroe was not coming I then pushed the new propositions respecting our claims in that positive & decided manner which the Circumstances of Europe & the particular situation of Spain seemed to me to warrant. In my letter Number 12 You will perceive the manner in which the new Propositions were submitted & the copy of the new Convention. These went in the last Dispatches. After waiting some time to see whether Mr Monroe would arrive with the extraordinary Commission & finding it doubtful I wrote the Letter Number 23 & immediately on being informed that Mr Monroe would not come I demanded an audience of Mr Cevallos the secretary for the foreign Department in which I went over the whole ground of our difference in Opinion & repeated to him at length not only all the arguments used in my letters but such others as occurred in the course of conversation or as I thought the particular & doubtful situation of Spain at present, warranted.

I entered fully into the impropriety of Spain’s having suffered her ports to be used for the purpose of equipping privateers to cruise upon our Vessels & bringing them in as Prizes & permitting the Consuls of France to condemn them by which means her territorial sovereignty was not only violated, but her Ports which we ought to have considered not only as the Ports of a neutral and a Friend But of a Nation in treaty with us was by that means converted into those of an Enemy—for what could France do more with her Ports against us than equip & man privateers in them & bring in & condemn our Vessels? Spain did not permit us to do so & if she had offered it, she well knew the offer was of no consequence to us, because the Distance from the United States & the contiguity of the French coasts created a Difference in the Exercise or use of the permission which made it extremely important to the one & of very little consequence to the other. That there can be no doubt that any Nation which lends the aid of its ports for the purpose of arming Privateers aids in annoying the Commerce of those against which these Privateers are intended to cruise—that farther any Nation which vests within its Dominions a foreign Tribunal with the power of condemning & selling the Property of a Neutral nation assists in depriving the Citizens of that nation by force of their Property—hence it would seem a permission to arm privateers & sell prizes granted to one belligerent power is inconsistent with the impartiality due to both by a Nation which professes to be neutral. That it would not destroy the argument to say the same privileges might be granted to both—that in our late differences with France it could not for the United States never suffered their public or private Vessels to capture the merchant Ships of France & it is believed in no instance could the privilege operate equally in favour of two nations. From their maritime strength, local situation or other cause the one must always benefit by it more than the other, hence one of them must be materially injured if it was granted to both. For Example Suppose Spain & Russia were engaged in War. Would the United States do them equal justice by opening her ports for the arming of their Privateers & the sale of their Prizes? Nobody would suppose she did, when he recollected that all or nearly all the rich commerce of Spain passes before the Ports of the United States, & that Russia has no commerce in that Quarter of the World. Again, if unfortunately there was a War between the United States & Spain would England do equal justice to both if she opened the Port of Gibraltar to both for the purpose of arming Privateers & selling Prizes? Certainly not for by doing so she would give to the United States the most advantageous position from whence to annoy the Commerce of Spain & to Spain she would give the use of a Port 3000 Miles Distant from the United States & not more useful to her than her own in the Mediterranean.

From these & other Examples I endeavoured to convince him how peculiarly Spain is situated & how important it is to her to put an End to a practice so contrary to the Principles of justice & strict neutrality. I repeated to him that these observations together with those which have been from time to time during the last five Years offered by my Predecessor & myself to the Consideration of his Majesty are believed to be sufficient to entitle us to demand Compensation from his Majesty for the Property Wrested from us by those whose actions he had a right & most certainly the Power to controul. That the respect which the Government of the United States had for his Majesty had enduced them to urge the point, which they considered as a Point of national honour with the greatest moderation as was proved by their offering to refer the Question to Arbitration although they were perfectly conscious of their right to demand Payment without a reference of which they had given a Proof before they had become interested themselves. But that if Spain will not agree to the principle of Neutral right & chooses to adopt as a part of her public law, the practice of opening her ports for the arming of Privateers & selling of Prizes I am sure the United States would in point of mere interest be benefited by following the Example after obtaining compensation for the Losses they have already sustained.

In order to meet the observations he made before that his Majesty was not by the law of Nations liable for the condemnations by the French Consuls I repeated to him the Observations of Vattell in his 3d. Book & particularly in the Ps. 15, 95: 97: 102 & 1044 & endeavoured to shew him how incompatible these aggressions were with the duties therein enjoined to Neutrals that at the time Vattell & others had written on the Laws of Nations no such case had occurred—no such new extraordinary or unwarrantable attempts had been made to erect within any country, tribunals independent of it’s Authority. I endeavoured to impress upon him the manner in which Our Government had defeated a similar attempt upon them at an earlier period of the War, well knowing that to permit such an exercise of the rights of War within their Cities would be to make their Coasts a station of hostility—to shew him that We did not stand alone in our opinions on this licentious attempt to exercise the rights of War within neutral Countries where no such rights have ever before been exercised I read & explained to him the Doctrines laid down in the English Court of Admiralty by Sir William Scott in the celebrated Case of the Flat Oyer Martinsee Master5 & which as you no doubt have seen I shall not trouble You with reporting. I concluded with informing him that our Government considered this as a point of national honor which they could never relinquish—that a War had again commenced between Great Britain & France the Decision of Spain on this subject was become now indispensable. That we knew not to what other parts its flames will soon extend, That our Commerce must never again be exposed to similar depredations & that our Government were determined upon this occasion to shew how far they would protect it that having arranged all their Differences with France and England it now rested solely to do so with Spain—that to do this they had offered an equal and amicable arbitration & that I had waited with great patience for their Decision. That however being now instructed to transmit his Majestys Answer so that it might be received by the meeting of Congress the period had arrived when I could delay no longer applying to his Excellency for a prompt & decisive one which I was hopeful he would give me in a few days as I had two American Gentlemen only waiting to take it to America.

In his answer he went over the old Ground that Spain not having authorised but expressly forbidden the exercise of this power by the french Consuls was not in his Opinion liable to make reparation—that the more he had considered the subject the more he was convinced & that in his View of it the Quotations I had made from Vattell did not apply. That since the last Year he had been informed from the best sources, that many leading men in our (the American) Government were in sentiment with him that Spain was not liable & that even some of our best informed Lawyers had given the same opinion. I replied it was incredible to me, that any men of information whether in our Government or among our Gentlemen of the Bar could have given such an opinion. That if they had I had never heard of it—that it was always safest for his Excellency to take the sentiments & Views of our Government, as they respected Spain, from me. That I could assure him, Every Branch of our Government was not only decided in their Opinion as to the liability of his Majesty to make compensation but determined never to relinquish it, at least so far as to insist upon its being included in the Arbitration. That the Senate not having ratified the Convention ought to be full proof of their Determination upon this subject—that it was time our Government should know his Majesty’s Decision & I must request to have it by the day Mr. Young sailed. He said that was impossible as the Royal Feasts & other occupations of his Majesty for this Month in which he was obliged to attend him, would put it entirely out of his power, but that he would give it as soon as he could. I then informed him that I considered it as my duty to write & asked him “whether I was to transmit to our Executive as his Majestys final decision that he could not consent to include in the Convention the Captures & Condemnations by the French & their Consuls.” He hesitated & said, no. The serious manner in which I put the Question seemed to have affected him—he added “The subject with your representations are now before his Majesty & I will state what has passed further this Evening” at the same time assuring me I should have a very speedy answer. He then went on to converse with me on the subject of the Cession of Louisiana by the French to Us in which he expressed an Opinion so important & extraordinary that I made a point of transmitting it to You by the post the next Day By the route of Lisbon & which I trust You will soon recieve.6 The substance was this that in the Cession of Louisiana by Spain to France there was a secret article that France never should part with Louisiana except to Spain, that if she (France) should ever wish to dispose of it, Spain should always have the right of Preemption—from which he argued that France had not the right to make such Cession without the consent of Spain & that he was astonished our Commissioners had not applied to their Government to know the actual terms upon which France was to recieve Louisiana & in fact to examine their title. I answered him by saying that he could not be more astonished at their not doing so than I was at his remark—that he well knew Mr. Livingston & myself had been applying for upwards of a year incessantly to the Governments of France & Spain to know if Louisiana was ceded & upon what Terms? That for more than a year the most guarded silence was observed by both & that at last when Spain had answered & avowed the Cession, not a Word was mentioned in his (Mr Cevallos’s) Letter to me of any secret article—that the letter only avowed the Cession & that it had been made subject to the Conditions of our Treaty—that I had transmitted this to Mr Livingston & Mr. Monroe & I asked him, whether after the Sight of this letter from him acknowledging the Cession, they could for a moment doubt the perfect right of France to sell. I then further asked him whether if Spain still continued in possession, & our Government ratified the Treaty, there would be any hesitation on the part of his Majesty to give us the possession, to which he made no positive reply, nor could I bring him to do so during the whole Evening. I could easily discover in the course of it, that there exists at present much uneasiness on the part of this Court with respect to the conduct of France in the sale of Louisiana & particularly in the Opinions held by our Envoys that it included West Florida which both Mr Cevallos & the Prince of Peace expressly deny & on which I wrote you a separate letter conveying my conversation with them on this subject.

August 30. Not recieving the answer of the Secretary as soon as I expected & anxious to transmit you the result I followed the Court to San Ildefonso & had another conference with him on the 24 instant. In this he apologized very much & said he was extremely sorry so much delay had been occasioned in his reply—that it was owing to the removal of the Court & the particular urgency of the moment alluding I suppose to the state of things occasioned by the War. That the answer was now prepared & would be transmitted in a few days—that I would see in it the two Grounds upon which his Majesty concieved he was not liable to make compensation for the french condemnations & that several very respectable & learned gentlemen in the law had expressed the same opinion a copy of which he would send me inclosed in his reply. The Grounds were the inability of Spain to prevent it & the general relinquishment of our claims to France for every thing done by frenchmen so far as respects the Seizure of our Vessels & their condemnations & that he was convinced when our Government came to see these Opinions & to reconsider the Question they would think with his Majesty & his ministers that Spain was only liable for the acts of her own subjects. I told him I had reason to believe our Government would be not a little surprised to find Spain resorting to the plea that she was not able to prevent it. That if he pressed this argument & contended she was not then a free agent & of course ought not to be a responsible one & could prove it to be so it only remained for me to transmit his reply to You for the future directions of our Government. That the relinquishment he spoke of, to France had nothing to do with our claims on Spain. That we never considered ourselves as having any right to demand compensation from France for these violations of the territory & sovereignty of Spain by the Cruisers & Consuls of France. That they were by no means included in the claims relinquished but were as separate & distinct as claims could be—that we had received from France a very valuable compensation in her acquiescing in the dissolution of the treaties of commerce & alliance previously existing between the two nations—an alliance by which we were bound to Guarantee her Islands in the West Indies & to be liberated from which was inestimable to the United States. That from Spain we had recieved no compensation & that it would be found a great part of our claims had even originated since the date of the Convention. That I still hoped he would consent to include them in some manner convinced that if they were not provided for in some way our government would remain extremely dissatisfied. That merely from motives of conciliation I would consent to insert them with the addition of the Words he offered the last year—segun los principios que constituyen la moralidad de las acciones.7 He said he was rather of opinion from the intelligence he had recieved from the United States that the thing would now be viewed in a different light & that the Government would not now insist on so hard terms, even if they had the right, as to call upon them for condemnations they could not prevent, or not one shilling of which ever went into the pockets of his Majesty or his subjects. That he never meant the last year in what he said respecting the arbitration subject to the limitation of segun los principios &c &c. to apply it to the condemnations of the french consuls or to have left it to the Commissioners to decide upon them, but only to the violation of territory & had I admitted the limitation he would have expressly excepted the Condemnations. That for the acts of his own subjects & the violations of territory by foreign Cruisers his Majesty had been always ready to arbitrate as appears by his letters to me on this subject of the last year. That he wished me to transmit the reply he would send me with the Opinion of the American Lawyers the claims & that he had no doubt the future instructions of my Government would be such as would tend to promote the harmony of our two nations. On the morning following he sent me the inclosed answer to my several verbal & written applications8 accompanied by an opinion which I also inclose given by Messieurs Ingersoll Rawle Mackean Du Ponceau & Livingston on an abstract question submitted to them as I suppose by Order of this Government.9 I thought proper to send Mr Cevallos an answer10 wherein you will find most of the arguments insisted upon that had been before used & in which I object to the statement submitted to our lawyers as not expressing either fully or truly the state of facts. That in relinquishing our claims on France we had done so for a valuable consideration & that in so doing We had by no means relinquished our claims on Spain as they were separate & distinct. That for the truth of this we refered him to the letters of my Predecessor by which it appears the Government of Spain was continually warned of the illegality of these captures & condemnations & informed that his Majesty would be held liable to make compensation. That in resorting to the plea that Spain could not prevent it it was incumbent on her to shew she really could not either by force or influence do so & that she had exerted herself as far as she was able to effect it & that after all if it was true she could not prevent it but to avoid a War or a renewal of the War with France was under the necessity of submitting to it & sacrificing to the preservation of peace the Commerce & property of the Citizens of the United States, on every principle of justice & national honour she ought now to make compensation—that the tacit sacrifice of the property of our Citizens was the price she paid for a peace inestimable to her in every respect & that in my judgment she ought now most chearfully & gratefully to submit to our proposition for an arbitration, rejoicing that we have been so moderate as to acquiesce in this mode & not to demand not only immediate compensation for the losses but satisfaction for the injury to our national honour. That it should be recollected, the Opinions of Gentlemen of the Law however respectable as professional men were not to direct our Government—that they was supposed to be the best judges of our public rights & had alone the authority to treat respecting them & when necessary to devise the means of asserting & protecting them & that even the Opinions he produced could easily be proved to be in our favour, or at least some parts of them might as I would shew him.

As I cannot now expect that Spain will agree to include the claims for the condemnations by the French Consuls it will remain for You to direct me further, or to inform me of the Presidents Wish & opinion upon the subject. You will consider how far her plea that she could not prevent entitles her to consideration & whether it appears that in any of our applications to the french Government previously to the signing of the Convention of 1800 We applied to them for compensation for those Captures & Condemnations by the french Privateers or consuls or included them in those claims which we afterwards relinquished. In determining this much will depend upon the correspondence of our Envoys with the french commissioners at that time & I will thank you for the necessary information & copies of such of the letters as may be proper.

From the above you will see the state of the negotiation as it respects the claims for the captures & condemnations by the french & how extremely unwilling the Spanish Government are to arbitrate them. I have no doubt that Mr Yrujo in the United States & Mr Azzara in Paris have been exerting themselves to collect intelligence to prove, if possible that our Envoys in France claimed as well for these & the other captures & condemnations by the French & that they are included in the general relinquishment to that nation. As I have no doubt it is otherwise & that they are not included I have always considered them as separate & distinct & have accordingly urged them as such.

Upon the whole of this Business—considering the present state of Europe: how extremely uncertain it is when & in what manner the War will end, that it is extending itself every day & that in all probability there will be a general continental War by the Spring. That amidst this general wreck of states property & morals, it is of the deepest importance to our country to be at peace I am under these circumstances clearly of opinion that it would be politic in our Government to endeavour to compromise all our claims by the purchase of what you shall be [of] opinion still remains to Spain in the Floridas for I shall certainly soon hear from you respecting what you now consider as our Limits under the late Cession from France & what you are determined to insist upon as belonging to us in the Floridas. The present appears to me to be the time for us to attempt this purchase again because we are now sure of the aid & the influence of France as General Bournonville the French ambassadour told me lately he had recieved directions from his Government to promote as far as he could a disposition in Spain to sell us the Floridas—it was I am pretty certain owing to them We did not get it before. They had obtained Louisiana & were anxious to have the Floridas—their Views however are now changed & I believe we may depend upon their influence in our favour. Should this be still the Opinion of the President I should suppose the best way would be to ratify the Convention which you already have, conditionally, striking out the sixth article11 & adding one including the arbitration of the claims you are still determined to insist upon & accompanying the conditional ratification with an offer to purchase Florida in which purchase it is probable Spain will agree to allow us a certain sum as France did in lieu of our claims, or to agree to the arbitration of the french captures & condemnations or make some just arrangement on that subject. In this case I will thank you for the most explicit instructions as in important pecuniary concerns in which the public are interested I wish as little left to my discretion as possible. As Mr Cevallos has chosen to resort to the Opinions of some of our own lawyers it might not be amiss to send me the Opinions of the Attorney General & some other experienced & eminent gentlemen of the Law on this Question.

I am very anxious to hear from you it being now within three or four days of six months since the date of your last dispatch & you have no doubt much to say on the great change which has since taken place in the European World. As far as my intelligence reaches at present our Flag appears to be much respected & the agents of the lovers of peace & quietness who have nothing to do with the Quarrels & intrigues of Courts & Governments & who are fatigued with War & its attendant miseries are turning their longing eyes to the only Land of tranquillity & true liberty & safety now on Earth. That we may long enjoy this envied state depends entirely on ourselves. Our Citizens must be very happy in reflecting that under our present administration there can be little doubt of it.

By Mr Young & by the way of Lisbon also I send you the Draught of the new Convention I proposed & my letters Numbers 1, 2 & 3 & copies of this. I therefore have not inclosed them now, as one of those two sets will certainly arrive safe.

I must request you to present me affectionately & respectfully to the President & our friends & to believe me always with the sincerest friendship & esteem Dear Sir Yours Truly

Charles Pinckney

From what I have heard I believe there will be no objection if you make the alterations in the Convention You suggested respecting the Wording of some part of it & the lengthening the time.12 The main difficulty is about the french condemnations & their proceedings in the Spanish Ports for which this Government is extremely unwilling to pay.

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