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Relations with Spain.

professions were sincere, by never making these in 1800, two years before the present; nor would propositions, because you were long told, before it be considered, by the law of nations, a very you did make them, how extremely inadmissible honorable thing to refuse the ratification on the and improper they would be considered, or after ground of a small part of one of the Floridas, they were made, and you found the humiliating which, you say, Congress have encroached upon, light in which they were viewed, by withdrawing when it is well known that the whole value of them, and consenting to ratify the convention, both the Floridas would not cover the claims extending the time for receiving the claims to six which this convention is intended to provide for. or eight months, or to twelve months, as I told To endeavor, therefore, to get rid of the ratifica you you might, and I even proposed it to you. tion, on account of a dispute about a small slip of those colonies, will not, I suppose, be viewed by our Government, or any neutral or impartial one, as that honorable right which, according to the law of nations, can alone justify a Power in refusing to ratify a convention formed by a Minister fully authorized. Having high respect for His Majesty's honor and justice, I am very unwilling to believe he could have authorized you to refuse to ratify the convention on these grounds, or to hold such language, or make such demands of the United States, as they have, upon all occasions, manifested great respect for his person and Government. Be assured that our own would have regarded the refusal alone with great seriousness; but coupled with these degrading condi tions of totally abandoning the French claims, by the suppression of the sixth article. and, as it were, commanding the repeal of a law of Congress without allowing us time to consult and examine or defend it, are so high an indignity, that I am convinced, had I not determined to refuse all discussions upon the subject of admitting them as conditions of the ratification, as well as to be the instrument of transmitting them to my Govern ment, and, finding you insisted on it, had I not also immediately determined to leave Madrid, and put an end to all discussions on the conditions proposed here until the President's pleasure be known, I should not only have met with his disapprobation, but that of every man in a country where every individual feels himself personally interested in the honor and character of his Government.

In speaking of striking out the sixth article, your Excellency does not appear to me to be aware of the nature of the proposition you have made; in remarking on this subject you say, "que la supresion del articulo 6, de la convencion en nada altera la esencia de esta, pues como en dicho articulo no se concede ni se niega el derecho que puede competir á los Americanos por razon de las perjuicios ocasionados en las costas y puertos de España, por los corsarios Franceses, serio que se dexa subsistir tal qual es para lo sucesivo: es claro que por su insercion en la convencion no adquiere mayor fuerza que la que puede tener por si solo si tiene." Your Excellency certainly knows that it is an established principle of the law of nations that, in framing treaties or conventions, which have for their object the continuance of peace, or the accommodation of differences, all points or claims for injuries or damages, which are intended to be reserved, must be mentioned, or otherwise they will be considered as relinquished; and this was my reason for inserting it in the convention. Our object in framing that instrument was, the amicable settlement of all differences arising from spoliations on our trade, contrary to treaties and the law of nations, and for which we hold Spain liable. Had we, therefore, said nothing about the French captures or condemnations within her territories or ports, or should we now agree to strike out the sixth article, there is not a man who knows anything of the law of nations, who will not instantly say that we had abandoned them; and if your Excellency was not convinced of this, why have you so perseveringly endeavored to suppress

it?

The case your Excellency quotes of the Intendant of New Orleans does not apply; that was a By the law of nations, "a monarch cannot, in flagrant breach of a solemn treaty, and deprivahonor, refuse to ratify a convention made by a tion of a right secured by that treaty, and daily Minister with full powers, unless it can be proved used, and indispensable to a numerous portion of that the Minister had remarkably and openly de- our citizens, which, as your Excellency well viated from his instructions, or the monarch has knows, was the reason why the Senate did not some other very strong reasons for so doing, but ratify the convention during that session, and was they must be very strong." Now, according to the cause of the inevitable delay that took place, this principle, I deny positively, from your own and for which a Spanish agent was blameable, statement of the conditions, that His Majesty has whom your Minister declared instantly to our any sufficiently strong reasons to justify the not Executive had no authority to do so: while the ratifying this convention: it cannot be because law you complain of is the act of a Government, you made it contrary to your instructions; for so constructed as that it is impossible for them to you are now, and were then, his first Secretary of proceed without that due examination which is State, and signed it under his own eye, and in necessary to prevent precipitate, and generally his own palace: neither can it be on account of leads to just, decisions of a Government, as re the suppression of the sixth article; for all that markable for its attention to the rights of foreigncan now be known about it was known then, anders as to those of their own citizens; and which. the relinquishment to France of other and totally no doubt, will be able to maintain the propriety distinct claims, of which you speak so much, and of any law it has passed, by strong and unanswerwithout the least weight, was as much in exist-able arguments. And here let me remark to your ence as it is now: for that convention was made Excellency, that it was not on account of the

Relations with Spain.

time you may have taken to answer my first application to ratify, that I objected, and wrote my letter of the 5th of July; for if you had taken much more, although I should not have considered it as worthy of Spain to think of a revenge of that kind, for the unavoidable delay the convention met with in the Senate, on account of the shutting the deposit of New Orleans, yet I should have waited some time longer; but it was to the answer itself of the 2d of July, when made, and to the refusal to ratify, except upon the degrading conditions you annexed, which I objected to; and it is upon this answer, and this alone, that I grounded my proceedings.

them; and, certainly, after the manner in which you treated our Government, in your letter of the 31st of May, and that of the 2d of July, your Excellency could not expect any other conduct on my part. There was another reason which gave me a right to consider all discussions on the conditions as out of the question, which was, that my two letters in June, copies of which I send here annexed, had anticipated the question of the conditions proposed, and had shown you the impossibility of my suffering them to be incorporated into the ratification; and this was done before you formally proposed them, as I had received notice you intended it, and endeavored to prevent your doing so.

In all the differences between Great Britain and France, the United States have uniformly maintained their rights with a firmness that has done them honor, in the opinion of every nation; and, as I have often told your Excellency, it is not now to Spain, or any other country, they will yield them. My letter of the 22d of June, and the previous friendly one of the 1st of June, (both of which I annex, and desire your Excellency, in any use you may make of them, to consider as a part of this,) while they state the sufferings of our citizens, and the wrongs the convention is intended to remedy, will, at the same time, show my unwearied exertions, and the mildness with which I attempted to persuade your Excellency to ratify it.

Believing, as I solemnly do, that when the refusal to ratify, except on these degrading conditions, be made known in the United States, this affair cannot be amicably arranged without such sacrifices or concessions, on the one part or the other, as no people having a national character to support will be ready to make; and as I am sure we shall not, there appears to me a great probability of a misunderstanding; and, so believing, it is my indispensable duty not to conceal it from the citizens of the United States in the ports of Spain, who are, or may be, interested, and indeed are always applying to me on the subject of the convention, well knowing it was the only mode to preserve friendship or peace between the two countries. The same duty required of me a similar communication to the commander of our ships in the Mediterranean, for his notice, and of that In speaking, as your Excellency does, that it is of our merchant vessels, that they should, using general in all countries, on questions of this kind, their own discretion, avoid making too free with to resort to the ordinary tribunals, I only remark, the Spanish ports or coasts, during the state of that your Excellency well knows how painful it uneasiness and uncertainty which now exists. has been to be continually representing the sufferThis indispensable part of my duty your Excel-ings and losses of our citizens, and the delays lency seems, improperly, to feel as a menace, attending their applications to the tribunals here; when a moment's reflection should have con- delays of such an extent, as to impress them with vinced you it was a duty I could not avoid. the opinion that a recourse to the tribunals of How, indeed, was it possible to neglect it? or Spain can seldom be viewed as the proper means what other opinion can we form, but that, when to obtain the rights of American citizens; that the United States see the convention returned, the years and means necessary to pursue their and with conditions so humiliating and inadmis- claims, through those channels, were infinitely sible, they will give up all hope of payment here, more ruinous than the first loss; and that it was and, however unwillingly, still be inevitably com- essential for our Government decidedly to interpelled to seek some mode of paying themselves? fere; and, for the truth and justice of this reHaving this view, therefore, of the business, how mark, I appeal to every unfortunate American unpardonable would it have been in me not to citizen who has had business here for the last six warn our citizens of it, and prevent their being years. lulled into security, and surprised at a moment when they least suspected it.

Your Excellency complains of my fixing a short day, and requiring a positive answer. The reasons are obvious; you were to leave Madrid with the Court in a short time. It was at least three months since you knew that the convention was ratified, for I have a right to believe you knew it before I did; you had, therefore, full time to consider it; and as my former experience had convinced me, that, on a question not agreeable to you, it would be difficult for me to obtain an answer for a long time, the proposing of these conditions, and my public duty, made it necessary for me immediately to know, and that in the shortest time possible, if you would ratify or not without

How far the conduct of your Excellency, in refusing to ratify, and bring into effect the only mode that remained of arranging them peacea bly, will go to strengthen the opinion just given, is left for you to decide. After what has happened, our citizens will very much doubt whether there was ever any serious intention here to ratify the convention as it was made; and, if it is now ratified, I shall always believe it was entirely owing to the measures my duty made it necessary for me to pursue. I form this opinion by reading your Excellency's letter of the 9th, in which I am pleased to see you begin, at last, to have some value for the friendship and peace of the United States; and to find there is a point of indignity or neglect, beyond which even their moderation

Relations with Spain.

will not go. I am, therefore, led to hope that the messenger, who you say is to sail for the United States, will carry out the convention fully ratified, without limitation or condition, and with orders to arrange it agreeably to the United States. This I advise your Excellency most sincerely to do. I have always done so, until your letter of the 2d of July, in the most mild and friendly terms, and with the greatest deference and respect to Spain; and, had your Excellency proceeded in the same way, it would have been no less honorable to your talents than to the justice and friendly intentions of His Majesty, which you so often mention.

tion, which says, "the present convention shall have no force or effect until it be ratified by the contracting parties," but from many other antecedent examples, as that which occurred at the er change of ratifications at Paris at the Treaty of Peace of 1763, of which I verbally informed you and, lately, in the Treaty of Limit's between England and the United States; the latter, as is understood, having refused to ratify a part of it, in consequence of the acquisition of Louisiana.

By order of the King, my master, I have renewed here the opposition made by His Majesty to the ratification of the said convention, except under the conditions which were proposed in Madrid to the beforementioned Minister of the United States, one of which was the entire sup pression of the sixth article of the convention;

Your Excellency must perceive that the measures I have adopted were rendered indispensable by the respect I owe my Government; it being my duty to defend them from the charge of hav-but, having recollected that, from insisting on this ing lightly or inconsiderately legislated upon point, the consequence might be the complete an important subjects, and thereby outraged and nulment of a convention by which the King, my usurped the rights of others. It was equally my master, animated by the sentiments of justice duty to defend, and preserve inviolate, the well-which characterize him, desired to do justice to founded claims of a numerous and deserving class of our citizens, whose legal and meritorious exertions, while they contribute to increase the enterprise, and extend the commerce of the United States, have the fullest right to demand, and will always be sure to receive, the cordial and unceasing support of their Government.

With this explanation of the reasons which will compel me to leave Madrid, and with the determination and orders to keep our citizens in Spain constantly warned against being lulled into security by any notification or information which they may receive, except from their Government or its officers, I end this letter. It has become my duty to return to the President and Congress of the United States, in order to give them, and, through them, to my fellow-citizens, such statements and opinions as can alone be properly done in person. To them I shall refer the question, well knowing that, in their hands, the rights, the character, and the sacred honor of a free people are always safe.

III.—Correspondence between the Secretary of State and the Marquis de Casa Yrujo, on the ratification of the Convention of 1802.

The Marquis de Casa Yrujo to the Secretary of State.

OCTOBER 13, 1804. SIR: By the communications I have made to this Government, and the translation of the correspondence between His Excellency Don Pedro Cevallos and Mr. Pinckney, Minister of the United States to His Catholic Majesty, you are informed of the just motives His Catholic Majesty has for not ratifying the convention pending between our two Governments, except on certain conditions, founded on the most rigorous justice, and necessary, as well to the honor of his sovereignty as to the protection of the interests of his subjects. That His Majesty has the right to propose the alteration which he may judge proper for these objects, before the ratification, is indisputable, not only from the expression which is found in the seventh article of the said conven

the citizens of the United States who might have suffered during the last war by the excesses of his commanders or subaltern officers, contrary to the existing treaty and the laws of nations, and more and more to prove that the King, my master, proceeds in this affair with the liberality and frankness which always mark his conduct towards the United States, I am authorized to say to you that His Catholic Majesty will accede to the ratification of the said convention, under the following conditions:

1st. The Government of the United States will suppress or modify, as I proposed to you in one of my letters in the month of March past, the elev enth section of the act of Congress of the 24th of February last, and on which His Excellency Don Pedro Cevallos has made like complaints to the American Minister in Madrid; or, if it should be more agreeable to this Government, it will de clare to me in writing, through you, that, by the said eleventh section of the beforementioned act, it had not intended to offer any insult to His Catholic Majesty, nor any aggression upon the rights of his sovereignty, and that the Executive.as the true interpreter of the said law, shall declare that the object or intention of what is contained in the said section is and ought to be only appli cable to the territory of the United States, and not to the country belonging to and in the actual possession of His Catholic Majesty; it being well understood that, until the commission destined to the demarcation of limits shall have decided, by common consent, that the territory claimed by the United States did not belong to His Majesty, but to the said States, they, nor the President authorized by them, shall make no change in it nor publish laws, nor establish custom-houses nor any other species of regulations in said territory; but, on the contrary, that they should leave things in statu quo, as they were before the resolu tion of Congress complained of. Moreover, there shall be given the corresponding notoriety to this act of ratification on the part of the United States, in a mode that, without in any manner compro

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Relations with Spain.

mitting its dignity, may prove that satisfactory Mr. Madison, Secretary of State, to the Marquis de explanations were given on this point to His Catholic Majesty.

Casa Yrujo, Minister of His Catholic Majesty.
DEPARTMENT OF STATE,

2d. His Catholic Majesty being informed that October 15, 1804. the mercantile operations of the citizens of the SIR: Your letter of the 13th instant, commuUnited States, out of some of which, without nicating certain conditions which His Catholic doubt, their reclamations will grow, have ex- Majesty considers as proper to be annexed to his tended to the most distant possessions of His ratification of the convention of August 11, 1802, Majesty, as well in America as in the Philippine now depending between the two Governments, islands, and, from the great distance of these has been laid before the President. One of these points, and the interruption to which the naviga- conditions refers to a section in an act of Contion to them is subjected during a great part of gress passed on the 24th day of February last, rethe year, the term of eighteen months prescribed garded by His Catholic Majesty as disrespectful to the Commissioners by the thirtieth article to to his sovereignty, and requires, as a reasonable receive all the reclamations must be short, it be- preliminary to the ratification of the depending comes necessary that the term should have a rea-instrument, that the said act should be freed, by sonable extension; and this is requisite, to the end authentic exposition, from the apparent import at that the subjects of the King, living at so great a which umbrage has been taken. It could not be distance, may draw the advantage which is due learned by the President without some surprise, to them from the beforementioned convention. that the law in question should have given rise to 3d. Although, as has been made apparent, by complaint, and much more that it should be made reasons which His Majesty has not as yet seen a reason for suspending the final sanction of His combated, that the complete suppression of the Catholic Majesty to an instrument deliberately sixth article would be conformable to entire jus- formed, and awaiting that single formality only tice; nevertheless, thinking that my master will for its completion. The President had certainly not oppose himself to the retention of the said a right to expect that a legislative act, depending article, if an alteration is made in its phraseology, essentially for its effect in the particular case on which, without diminishing the right of the Uni- his discretion, would have been left to the regular ted States, should give more clearness to the in- exposition and execution, before it should become tentions of His Majesty, contained in the said the object of criticism and complaint from any article, the sixth article should be expressed in foreign Government. He had a right, conseterms nearly as follows: quently, to prescribe this answer, when the act above cited was first made a subject of representation; and he might even now be justified in resting on this sound principle the reply to the representation which is repeated in the communication just received from you. Yielding, nevertheless, to the disposition of the United States to maintain the most friendly understanding with Spain, and to that frankness which is dictated by the integrity of his views, he charged me with the candid explanations which were contained in my letter of March the 19th last. These explanations, when received by His Catholic Majesty, cannot fail to satisfy him that the United States, not less careful to forbear than ready to resent real insults, could not have meditated, by the act complained of, the slightest disrespect to his rights or his sovereignty; and as the most definite proof of the sentiments entertained for His Catholic Majesty, I am now charged to enclose for his information the executive act of the President, founded on, and of a nature equally public with, the act of Congress aforesaid; by which it will be seen that, in expounding and applying the latter, there is the most exact conformity to the assurance given in the letter of March the 19th; that the operation of the 11th section would take place within the acknowledged limits of the United States, and would not be extended beyond them, until it should be rendered expedient by friendly elucidation, and adjustments with the Spanish Government. In order to hasten those, a special mission to Madrid was sometime since provided for; and if the destined Minister Extraordinary has not already repaired thither, the in

"The beforementioned Plenipotentiaries, not having been able to agree on the principle of the claims originating in the excesses of the foreign privateers, agents, consuls, or tribunals, in their respective territories-Spain considering herself not responsible for these, as appears both from the circumstances and the time of the offence, as well as from the character of the measures afterwards taken by the United States with France-and the United States, on the contrary, claiming from Spain the amount of the damages and injuries arising from that source, both Governments have expressly agreed that each Government reserve to itself, (as is done by this convention,) not only for itself, but also for its subjects and citizens, respectively, all the rights which they may now have, it being well understood that the ratification by His Catholic Majesty of the present convention ought not, nor shall not, be considered as an acknowledgment on his part of any right, or that of the United States, to such reclamations and pretensions, nor as a renunciation by His Majesty of the exceptions which result from the conventions between France and the United States" Under these conditions, which the King flatters himself will appear just to the American Government, His Majesty is ready to ratify the beforementioned convention: and from the moderation. and even liberality, so clearly manifested in these, it will remain apparent, that if the said convention should not take effect, it ought not to be attributed to the want of frank and friendly dispositions on the part of the King my master. God preserve you many years.

Relations with Spain.

structions, which will now be repeated, if no un-jesty to withhold his ratification in this case, it favorable considerations present themselves, may be expected soon to have that effect. In the meantime, the President concurs with the Spanish Government in the expediency of leaving things precisely in statu quo. And he persuades himself that it will be deemed equally expedient on both sides to give to this precaution its full effect, by a mutual forbearance to increase unnecessarily either within or on the borders of territories, the limits of which remain to be adjusted, military provisions of any kind, which, by exciting jealousies on one side or the other, may have tendencies equally disagreeable to both.

The other condition proposes to remodel the terms of the sixth article of the convention, which leaves for subsequent discussion the particular class of claims therein described. The President does not conceal his regret at seeing the ratification of the convention clogged with a condition which, if persisted in, could not easily be reconciled with that delicacy in such transactions which he has always felt a pleasure in ascribing to His Catholic Majesty, or with that desire which His Catholic Majesty has so often professed, to multiply proofs of his friendly sentiments towards the United States. If the preceding condition had not been the result of misconception, which can now no longer exist, it might have had a natural source in the sensibility, not unbecoming a magnanimous Government, and might have been urged by the considerations, it had reference to an event subsequent to the first assent given by His Catholic Majesty, and which, although distinct from the intrinsic merits of the convention, might raise a question how far the completion of it was permitted by a new state of things. The condition relating to the sixth article is of a character altogether different. The article, as it now stands, was negotiated under the eye and with the approbation of the Spanish Government. All the principles, all the facts, all the authorities of public law, were at that time the same as at present. And there can be the less reason for attempting to unsettle what was then decided, as the period of negotiation was sufficiently protracted for the most minute examination and the maturest reflection. If it be said that the alteration proposed would be in words only, and not in the meaning of the article, may it not with greater propriety be answered that, on that supposition, it cannot be of such importance as to be pressed as a condition which would require all the delay, and all the forms of a new stipulation, and which might have the effect of frustrating the convention altogether? For, without entering into a comparison of the article in its present terms with the substitute proposed, it is obvious that the difficulty of adjusting a form of expression-a difficulty not inconsiderable originally-would be much increased by the necessity of seeking in the relation of the new to the old article, as well as in the terms of the new, the precise construction which ought to be given to it.

Were it necessary to enforce these observations by an inquiry into the right of His Catholic Ma

would not be difficult to show that it is neither supported by the principles of public law. nor countenanced by the examples which have been cited. According to the former, such a refusal ought to be founded either on a departure of the negotiating Minister from his instructions, or on intervening occurrences, or on some surprise or deception. Neither of these can be alleged. The Spanish Government itself was privy to the ne gotiation, leaving, consequently, its final act of ratification the merest ceremony. No new facts connected with the subject have come to light. The negotiation was so long on foot, and sofairly conducted, that neither surprise nor deception can possibly be pretended. In every such case. besides, the motive for refusal ought to be of grea and evident importance. In the present case, the very argument for the change destroys the im portance of it, since the change is alleged to be in the words, and not in the meaning, of the article. As to the examples cited, they bear no analogy to the case to which they are applied. In that of the Treaty of Peace at Paris of 1763, the plea, on the British side, is understood to have been a matter deeply interesting, which was discovered and declared by the negotiator himself on the very day of his signing the instrument. The other example of the conditional ratification here of a late convention with Great Britain is still more dissimilar; being occasioned by an important event-the acquisition of Louisiana by the United States-which might have given to one of the articles a scope contemplated by the instructions of neither party, nor within the knowledge or intention of either when signed by the negotiators. Another distinction absolutely decisive is that the conditional ratification proceeded from the Senate, who, sharing in treaties on the final ratification only, and not till then even knowing the instructions pursued in them, cannot be bound by the negotiation like a sovereign, who holds the entire authority in his own hands. When pecu liarities of this sort in the structure of a Govern ment are sufficiently known to other Governments, they have no right to take exception at the inevitable effect of them.

With respect to the enlargement of the time for the assembling of the Commissioners, which can be done without any remodification of the convention, the President's respect for the wishes of His Catholic Majesty will not permit him to refuse his concurrence; although he does not him self perceive the necessity or advantage of it The Commissioners who may be appointed on the part of the United States will accordingly be ap prized that their proceedings are not to be com menced till the month of May next, unless for ther inquiry shall satisfy His Catholic Majes that an earlier day will not be inconvenient.

On a view of the whole subject, as it now pre sents itself, the President infers, with confidence, that His Catholic Majesty, recollecting that the claims to be adjusted under the convention are of the most incontestable character, and finding that a disappearance of every other obstacle to his ral

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