When Charles Pinckney was sent as minister to Pinckney's Instructions. Spain in June 1801, he was "instructed to urge particularly on the Spanish Government redress for such of our citizens as have suffered from captures made by privateers unlawfully cruising out of Spanish ports, and from wrongful condemnations, both by Spanish tribunals and by decisions of French consuls, within Spanish jurisdiction." He was forewarned that the Spanish Government meant "to turn us over for redress to the French republic in all cases where the prizes have been taken under French commissions or been condemned by French consuls;" and was directed to "combat such an idea" with arguments drawn from sources in his possession, and with appeals "to the principles and motives which ought to direct the conduct of a wise and just government." For the purpose of adjusting the questions at issue, he was instructed to propose arbitration by a board of commissioners such as that under Article XXI. of the treaty between the United States and Spain of 1795, or those under Articles VI. and VII. of the Jay Treaty.1 Spanish Blockades. Many of the attacks on the commerce of the United States that were begun or consummated in Spanish jurisdiction by persons acting under the authority of France occurred during the "misunderstanding" between the United States and the French republic which was terminated by the convention of September 30, 1800. Numerous seizures were, however, made by the Spaniards during 1800 and 1801 under a proclamation issued on the 15th of February 1800, on which day the Spanish minister of state announced that the King, in consequence of the "scandalous traffic" which many of his subjects carried on with Gibraltar in neutral vessels, and for the purpose of making reprisals against the enemies of his Crown, had declared the ports of Cadiz and St. Lucar de Barrameda to be blockaded, and had also thought proper to declare that from that day Gibraltar should be considered as blockaded, and that all neutral vessels going thither should be held to be legitimate prize. While Gibraltar was little resorted to for the purposes of trade, American vessels engaged in commerce with the Mediterranean were very generally instructed to touch there, since in consequence of its situation it was much used by vessels as a port of call, not only for the purpose of getting information, but also for the purpose of obtaining the convoy of national ships against the Barbary corsairs. The blockade in question, at the time when it was proclaimed, was protested against by the ministers of the neutral powers at Madrid on the ground that it was not warranted by the real state of Gibraltar. It was subsequently stated that the force by which the blockade was alleged to be maintained was stationed at Algeciras, and was for the most part kept at a distance from Gibraltar by a superior naval force which it could not without manifest danger venture to approach; that, after the issuance of the proclamation, the port of Algeciras was itself entered and attacked by a British fleet, and that since this occurrence no proclamation had been made declaring the blockade to be renewed.' Am. State Papers, For. Rel. II. 476. 2Id. III. 293. Subjects to be Arbitrated. While the twenty-first article of the treaty with Spain of 1795 was referred to as a model, it was pointed out to Mr. Pinckney that its provisions were in some respects incommensurate with the relief now sought to be obtained. They related solely to vessels and cargoes which had been taken (apresado) by Spanish subjects during the period covered by that treaty. The new complaints comprehended not only captures or condemnations by the French in violation of Spanish neutrality, but also claims for the attachment of property under fiscal regulations, for unjust criminal prosecutions, for the seizure of property in port on suspicion of being enemy's property, and for losses suffered by American citizens under tender laws by which they were required to accept payment "in a depreciated medium for specie contracts." Mr. Pinckney was therefore instructed to propose an article that would include all claims for losses sustained by the citizens of the United States, since the exchange of the ratifications of the treaty of 1795, "from the unjust seizure or detention of their persons, vessels, and effects, or otherwise, under color of authority from His Catholic Majesty," with such reasonable exceptions as the Spanish Government might desire to make. But in case that government should oppose any general provision, he was authorized, after securing a reference to commissioners mutually chosen of as many cardinal subjects as possible, to agree to submit the remainder to two or three Spanish officials, to be named in the agreement, whose award should not be final unless the claimant should within a given time signify his assent to it. "In this way," said Mr. Madison, "was settled a considerable number of our smaller claims on Great Britain for illegal captures, the King's advocategeneral and doctor of civil law making the awards, which were generally satisfactory, and it is believed always accepted.” i Mr. Pinckney prepared a draft of a convention in Pinckney's First Pro- conformity with his instructions and submitted it to posal. the Spanish minister of state. It included claims not only for spoliations by Spanish subjects, but also for spoliations that were effected or consummated within the Spanish jurisdiction by citizens of France. In answer to objections made to the inclusion of claims of the latter class, Mr. Pinckney argued that the permission to French citizens "to arm and equip their privateers in Spanish ports, and condemn and sell the vessels they had taken under the authority of French consulates exercising the powers of courts of admiralty," rendered the Spanish Government responsible for the losses so occasioned to innocent and neutral traders; that when, at the commencement of the war between England and France a similar use was made of American ports, the United States interfered to prevent it, and agreed to make compensation for vessels and cargoes that were brought in and condemned; and that, having pursued this policy toward other nations, the United States had a right to expect the observance of a similar conduct toward themselves. The Spanish minister of state replied "that certainly Objections of Spain. it was very honorable and generous in the American Government to do this; but he did not conceive they were bound to do it by the laws of nations, or agreeably to the dictates of 1Am. State Papers, For. Rel. II. 478. justice; that His Majesty had fully considered the subject, and was ready to submit all the captures, detentions, or other acts committed by Spanish subjects to arbitration, but that he could not consent to do so with respect to the captures by French privateers." Not long afterward Mr. Pinckney learned from a member of the diplomatic corps at Madrid that the Swedes and Danes and various other nations had numerous claims on the Spanish Government, similar to those of the United States, and that they were awaiting the issue of the negotiations between the United States and Spain before pressing their demands. This circumstance strongly militated against the American claims, since of all the demands of foreign nations against Spain, which aggregated an enormous amount, those growing out of the violation of Spanish neutrality by the French privateers fitted out in Spanish ports formed by far the greater part.1 Conclusion of a For several weeks the progress of the negotiations between the United States and Spain was stayed by the discussion of the claims originating in captures and condemnations made under French commissions. But on the 11th of August 1802, no agreement in regard to those claims having been reached, Mr. Pinckney signed with Don Pedro Cevallos, the Spanish minister of state, a convention by which it was agreed that a board of five commissioners should be constituted, to sit at Madrid, for the purpose of adjusting all claims arising "from excesses committed during the late war, by individuals of either nation, contrary to the law of nations, or the treaty existing between the two countries." In order, however, to avoid any prejudice to the claims for acts of the French, there was inserted in the convention, at the instance of Mr. Pinckney, a stipulation to the effect that each government should be understood to reserve to itself, its citizens, or subjects, the right to bring forward, at such time as might be most convenient to them, "the claims originating from the excesses of foreign cruisers, agents, consuls, or tribunals," in the territory of the other government. tions. In explaining his reasons for signing this convention Pinckney's Explana- Mr. Pinckney, in a dispatch of August 15, 1802,2 stated that since the 7th of the preceding October the number of vessels seized or detained with their cargoes by the Spaniards was 101, to which were to be added 12 vessels taken jointly by the French and Spaniards, and 12 cargoes seized or embargoed by Spain. In a few of these cases the vessel or cargo had been acquitted, but in every case there arose a claim for damages. Moreover, besides the claims for captures, it was reported that there were many claims, aggregating a large amount, arising from the excesses of individuals, particularly in South America. All these claims Mr. Pinckney believed to be embraced by the convention, and he did not feel himself warranted in withdrawing them from immediate adjustment on account of the French spoliations, which there was little doubt that Spain would in the future agree to arbitrate. Out of the whole number of vessels captured by the French Mr. Pinckney stated that only 71 had been condemned, and it was not unlikely that, when the true amount was ascertained for which the citizens of the United 1 Am. State Papers, For. Rel. II. 481. 2 Id. 482. 2 States might have a right to compensation, the claims arising from the acts of the French might prove to be less than those arising from the excesses of Spanish subjects. In a subsequent dispatch Mr. Pinckney, referring to the reluctance of the Spanish Government to arbitrate the spoliations by the French, said: "They (the Spaniards) complain of it as one of the hardest cases that can possibly occur; that their situation was well known; just emerging from a war with France, in which they were pressed to the last extremities; obliged to suffer the French Government and consuls to do as they pleased in their ports, for fear of renewing the war by refusing and irritating them; to be thus mortified by these violations of their territorial sovereignty by a power they could not resist, and to be obliged, after all, to pay for those prizes, not one shilling of which even went into the pockets of the King or his subjects, appeared to them to be, as they have often said, one of the hardest cases that could occur. Mr. Cevallos or the government here do not confess this to be the motive; their pride would not suffer them to avow it. They say the laws of nations or the treaty do not oblige them; but the true reason, I believe, I have stated above." Mr. Pinckney's convention was laid before the Senate Postponement of Action of the United States on the 11th of January 1803, but by the Senate. when the session closed in March no final action on it had been taken. It was found that while a majority was willing to acquiesce in its ratification, the two-thirds required by the Constitution could not be obtained; and the consideration of the convention was postponed till the next session in order that another effort might be made to secure the inclusion of the claims growing out of the acts of the French.3 When Mr. Pinckney again brought forward these Further Negotiations. claims, the Spanish Government, while still denying that they were well founded in international law, also set up in answer to them the convention between the United States and France of September 30, 1800. By the second article of this convention the claims of France against the United States growing out of the treaties of 1778, and the claims of the United States against France growing out of the spoliation of American vessels and cargoes by persons acting under French commisisons, were mutually postponed, and in the exchange of the ratifications they were mutually renounced. It was maintained by the the Spanish Government that if any obligation had rested on Spain in respect of spoliations by the French, she was absolved from it by the renunciation of the claims against France. The obligation of Spain in respect of such spoliations could not, said Señor Cevallos, have been more than the secondary or conditional obligation of suretyship, which is released by the discharge of the principal debtor. This being so, it was indubitable that the United States in renouncing their claims against France, the principal debtor, had released Spain from any liability for the acts of the The increase here indicated in the proportion of the Spanish captures and condemnations was mainly due to the adjustment of the relations between the United States and France by the convention of September 30, 1800, and the operation of the Spanish decrees of blockade. 2 August 30, 1802, Am. State Papers, For. Rel. II. 483. 3 Am. State Papers, For. Rel. II. 596. French. In support of this position Señor Cevallos adduced an opinion given by certain eminent American lawyers adverse to the liability of a government for acts of hostility committed within its jurisdiction by the agents of a friendly power against foreigners, such government being unable to prevent the acts in question. In answer to this argument Mr. Pinckney maintained (1) that, in respect of the acts of the French for which it was sought to hold Spain liable, Spain and not France was the principal debtor; (2) that the renunciaton under the convention between the United States and France of 1800 extended only to spoliations for which France and not Spain was primarily liable; and (3) that, in supposing that the gov. ernment within whose jurisdiction the hostile acts were committed was unable to prevent them, the question submitted to the American lawyers assumed that Spain was unable to prevent the acts complained of, an assumption which was yet to be proved.1 Final Action of the When Congress reassembled the President communicated these discussions to the Senate, in order that it might judge whether they offered such a prospect of obtaining the arbitration of the French seizures and condemnations as would justify a longer suspension of the claims for which Spain conceded her obligation to make indemnity. Under the circumstances the Senate took up the convention and ratified it, and it was returned to Pinckney with instructions to exchange the ratifications.3 But in the mean time the cession of Louisiana by Exchange of Ratifica- France to the United States had completely altered the tions Suspended. relations between the latter country and Spain. Apart from the fact that the cession was highly repugnant to Spanish feelings, a controversy immediately arose as to the eastern limits of the territory. On the strength of Livingston's statement that the cession included West Florida, the United States claimed to the river Perdido, while Spain denied their right to any territory eastward of the Iberville. In consequence of this dispute Spain declined to exchange the ratifications of the convention of 1802, and Monroe was sent to Madrid on a special mission to endeavor to settle, jointly with Pinckney, the question both of limits and of indemnities. Spain was, however, practically forbidden by France to grant any redress for acts of spoliation by French subjects, and she was sustained in her position respecting the eastern boundaries of Louisiana by Talleyrand's explicit declaration that the territory lying to the eastward of the Mississippi and the Iberville and south of the thirty-second degree of north latitude belonged to Florida, and was not included in the cession I Am. State Papers, For. Rel. II, 596–606. 2 In this relation the President suggested that as the settlement of the boundaries of Louisiana would require a new negotiation with Spain, the claims not embraced in the Pinckney convention might be included in those discussions. An instruction to Pinckney of February 6, 1804, declares that the suggestion that France was appealed to for redress in respect of those claims was unfounded. (Am. State Papers, For. Rel. VI. 185.) 3 Am. State Papers, For. Rel. II. 615. 4 Id. 613. |