Opinion
No Number in Original
February 5, 1819, Decided
The government of the United States having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and which the new governments in South America may direct against their enemy.
Unless the neutral rights of the United States, (as ascertained by the law of nations, the acts of congress, and treaties,) are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; the legality of which cannot be determined in the Courts of a neutral country.
Where the pleadings in a prize, or other admiralty cause, are too informal and defective to pronounce a final decree upon the merits, the cause will be remanded to the Circuit Court, with directions to permit the pleadings to be amended, and for farther proceedings.
Mr. Winder, for the appellants, argued, that there was nothing stated in the allegation of the Spanish counsul, or in the other pleadings in the cause, by which a prize court of this country could take jurisdiction of this capture. Nothing was alleged to show that it was made within our neutral territory, or in violation of our neutral rights by an armament fitted out, or augmented in our ports; the only two cases in which the tribunals of a neutral country can assume jurisdiction of captures made jure belli. The present capture was made jure belli, because made under a commission from the United Provinces of the Rio de la Plata. The government of the United States, recognizing the existence of a civil war between Spain and the United Provinces, but remaining neutral, the Court of the United States must consider as legal, those acts of hostility which war authorizes, and which the new government may direct against the parent country. Possession under the capture is prima facie evidence sufficient to maintain that possession, unless it is shown that the libellants have a better right. But that possession is admitted, and nothing is shown by the pleadings to authorize the Courts of this country to devest it from the captors. There is no infraction of the treaty with Spain pleaded, which can give our Courts jurisdiction restore to the former Spanish owners. The 6th and 9th articles of the treaty of 1795 are the only articles which can have any bearing upon the case, and these only provide for restitution where the capture is made within our territorial limits, or, where it is made by pirates. But it is not pretended, that the present capture was made within our territorial jurisdiction; and the Court has already determined, that a capture under a commission from the revolted provinces is not a piratical capture.
The United States v. Palmer, 3 Wheat, 610. 634.
Mr. Chief Justice MARSHALL delivered the opinion of the Court. The decision at the last term, in the case of the United States v. Palmer, 8 establishes the principle that the government of the United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and which the new governments in South American direct against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of congress, and treaties with foreign powers, are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; that legality of which cannot be determined in the courts of a neutral country. If, therefore, it appeared in this case, that the capture was made under a regular commission from the government established at Buenos Ayres, by a vessel which had not committed any violation of our neutrality, the captured property must be restored to the possession of the captors. But, if, on the other hand, it was shown, that the capture was made in violation of our neutral rights and duties, restitution would be decreed to the original owners. But the pleadings in this case are too informal and defective to pronounce a final decree upon the merits. The proceedings in the admiralty must always contain at least a general allegation of such a nature as will apply to the case, as of prize, &c. The Court has always endeavoured to keep these proceedings within some kind of rule, though not requiring the same technical strictness as at common law. Here the pleadings present a case which may be consistent with the demand of the former owners for restitution, but which is tied up to such a state of facts as, if proved, will not authorize it; and will not admit the introduction of evidence varying from the facts alleged. The decree of the Circuit Court must, therefore, be reversed, and the cause remanded to that Court, with directions to permit the pleadings to be amended, and for farther proceedings.
Cause remanded. 9
APPENDIX.
NOTE II.
DIFFERENT PUBLIC ACTS BY WHICH THE GOVERNMENT OF THE UNITED STATES HAS RECOGNIZED THE EXISTENCE OF A CIVIL WAR BETWEEN SPAIN AND HER AMERICAN COLONIES.
Extract from the President's Message to Congress, November 17, 1818.
"In suppressing the establishment at Amelia Island, no unfriendliness was manifested towards Spain, because the post was taken from a force which had wrested it from her. The measure, it is true, was not adopted in concert with the Spanish government, or those in authority under it; because, in transactions connected with the war in which Spain and the colonies are engaged, it was thought proper, in doing justice to the United States, to maintain a strict impartiality towards both the belligerent parties, without consulting or acting in concert with either. It gives me pleasure to state, that the governments of Buenos Ayres and Venezuela, whose names were assumed, have explicitly disclaimed all participation in those measures, and even the knowledge of them, until communicated by this government, and have also expressed their satisfaction that a course of proceedings had been suppressed, which, if justly imputable to them, would dishonour their cause.
The civil war, which has so long prevailed between Spain, and the provinces in South America, still continues without any prospect of its speedy termination. The information respecting the condition of those countries, which has been collected by the Commissioners, recently returned from thence, will be laid before Congress, in copies of their reports, with such other information as has been received from other agents of the United States.
It appears, from these communications, that the government at Buenos Ayres declared itself independent in July, 1816, having previously exercised the power of an independent government, though in the name of the king of Spain, from the year 1810: that the Banda Oriental, Entre Rios, and Paraguay, with the city of Santa Fee, all of which are also independent, are unconnected with the present government of Buenos Ayres: that Chili had declared itself independent, and is closely connected with Buenos Ayres: that Venezuela has also declared itself independent, and now maintains the conflict with various success; and that the remaining parts of South America, except Monte Video, and such other portions of the eastern bank of the La Plata as are held by Portugal, are still in the possession of Spain, or, in a certain degree, under her influence.
By a circular note addressed by the ministers of Spain to the allied powers with whom they are respectively accredited, it appears that the allies have undertaken to mediate between Spain and the South American provinces, and that the manner and extent of their interposition would be settled by a Congres, which was to have met at Aix-la-Chapelle in September last. From the general policy and course of proceeding observed by the allied powers in regard to this contest, it is inferred that they will confine their interposition to the expression of their sentiments, abstaining from the application of fore. I state this impression, that force will not be applied, with the greater satisfaction, because it is a course more consistent with justice, and likewise authorizes a hope that the calamities of the war will be confined to the parties only, and will be of shorter duration.
From the view taken of this subject, founded on all the information that we have been able to obtain, there is good cause to be satisfied with the course heretofore pursued by the United States, in regard to this contest, and to conclude, that it is proper to adhere to it, especially in the present state of affairs."
Extract from Mr. Commissioner Rodney's Report.
"Their private armed vessels are subjected to very strict regulations, agreeably to their prize code, which is among the original papers presented, and herewith delivered. It may be proper, in this place, to introduce the subject of the irregular conduct of the privateers under the patriot flag, against which the commissioners were directed to remonstrate. Having taken an opportunity of explaining to Mr. Tagle, the secretary of state, the proceedings of our government relative to Amelia Island and Galveztown, agreeably to their instructions, the commissioners embraced a suitable occasion, to urge the just cause of complaint, which the malpractices of private armed vessels, wearing the patriot colours, had furnished our government. On both topics they had long and interesting conversations. With the conduct of the government respecting Amelia Island and Galveztown, Mr. Tagle expressed himself perfectly satisfied, and he disclaimed for his government any privity or participation in the lodgements made at those places, by persons acting in the name of the patriots of South America. In reference to the acts of cruizers under the patriot flags, he said he was sensible that great irregularities had occurred, though his government had done every thing in their power to prevent them, and were willing, if any instance of aggression were pointed out, to direct an inquiry into the case, and if the facts were established, to punish those concerned, and redress the injured individuals. He professed his readiness to adopt any measures that would more effectually prevent a recurrence of such acts, in which he expressed his belief, that the privateers of Buenos Ayres had rarely participated, though the character of the government had suffered from the conduct of others. He stated, that they had on one occasion sent out some of their public vessels to examine all cruisers wearing the Buenos Ayrean flag, to see that they were lawfully commissioned, and to ascertain whether they had violated their instructions."
Extract from Mr. Commissioner Bland's Report.
"In a short time after our introduction to the director, and in about a week after our arrival, we waited on the secretary of state, as being the most formal and respectful mode of making our communications to this new and provisional revolutionary government. We stated to the secretary, that our government had not viewed the struggle now pending between the provinces of South America and Spain, merely as a rebellion of colonists; but as a civil war, in which each party was entitled to equal rights and equal respect; that the United States had, therefore, assumed, and would preserve with the most impartial and the strictest good faith, a neutral position; and in the preservation of this neutrality, according to the established rules of the law of nations, no rights, privileges, or advantages would be granted by our government to one of the contending parties, which would not, in like manner, be extended to the other. The secretary expressed his approbation of this course; but, in an interview subsequent to the first, when the neutral position of the United States was again spoken of, he intimated a hope, that the United States might be induced to depart from its rigid neutrality in favour of his government -- to which we replied, that as to what our government might be induced to do, or what would be its future policy towards the patriots of South America, we could not, nor were we authorized to say any thing.
We stated to the secretary, that it had been understood, that many unprincipled and abandoned persons, who had obtained commissions as privateers from the independent patriot government, had committed great depredations on our commerce; and had evidently got such commissions, not so much from any regard to the cause of independence and freedom, as with a view to plunder; and that we entertained a hope, that there would be a due degree of circumspection exercised by that government in granting commissions, which, in their nature, were so open to abuse.
The secretary replied that there had hitherto been no formal complaint made against any of the cruisers of Buenos Ayres; and if any cause of complaint should exist, his government would not hesitate to afford proper redress, on a representation and proof of the injury; that the government of Buenos Ayres had taken every possible precaution in its power, in such cases; that it had established and promulgated a set of rules and regulations for the government of its private armed vessels, a copy of which should be furnished us; and, that it had in all cases, as far as practicable, enjoined and enforced a strict observance of those regulations, and the law of nations."
Extract from Mr. Commissioner Bland's Report relative to Chili.
"I then told him, that the government of the United States had been informed, that some of the cruisers, under the real flag of the patriot authorities, had committed considerable violations on our commerce; that, if any such wrongs were to be committed by armed vessels, sailing under the Chileno flag, he could not but perceive, how inevitably such acts would tend to disturb all harmony between the two countries, and to crush, in the very formation, every friendly relation that might be begun, and desired to be matured between the two nations; since my government would feel itself bound to protect the rights of its citizens against the insults, or injuries of any other people, however deeply it might regret the repulsive measures it was thus driven to adopt; and, that the President would wish to be informed if there were any prize courts yet established in the country; and, if any, what regulations had been adopted for the government of the public and private armed vessels of Chili. The director said, that whatever cause of complaint the United States might have against the people of any other of the patriot powers, none, he felt satisfied, could be made against Chilenos, or those under the flag of Chili; because, until very lately, there were no shipping or vessels of any kind belonging to it, excepting, indeed, some fishing boats; and that, within a few months only, some few vessels had been commissioned; that he had heard of complaints of abuses committed under the flag of other patriot powers; and, to prevent the like, as far as practicable, from being perpetrated by those of Chili, it had been determined to put on board each an officer, and such a number of marines as would be able to control and prevent the mischievous propensities of seamen; that, with regard to matters of prize, they were brought before the ordinary and temporary tribunals of the country, until more formal and systematic institutions could be established: and, that for the regulation and government of armed vessels, a set of rules and orders had been adopted, a copy of which should be furnished me, which was accordingly handed me, and accompanies this as document marked (A.)" 10
AN ORDINANCE OF THE GOVERNMENT OF BUENOS AYRES, REGULATING PRIVATEERS.
By the Supreme Director of the United Provinces of South America.
The bloody war which King Ferdinand VII. has, since his restoration to the throne of his ancestors, prosecuted through his myrmidons against all the inhabitants of the new would, who have claimed their natural freedom, demands that a recourse should be had to those measures of retaliation, which the law of nations permits, in order to make the Spanish nation sensible of the consequences attending the barbarous obstinacy of her monarch, fascinated by corrupted ministers, against the just claims of the injured Americans.
The insults offered to mankind by the cruel agents of the Court of Madrid, and the approbation by which it has confirmed all the acts of devastation, which, in contempt of divine and human laws, the Spanish leaders have committed both with fire and sword, through all parts of America, unfortunately visited by them, would, in the opinion of all the world, justify any act of reprizals. But being unwilling to tarnish, by acts unworthy of an enlightened age, the holy principles on which the emancipation of the United Provinces of the South rests, and resolved to regulate my conduct by that system of war which is received among civilized nations; being likewise aware of the advantages obtained by the privateers of the free governments of America: I have determined to give a suitable encouragement and extent to the hostilities by sea, in order to increase the losses which King Ferdinand himself, in his decree of the 8th of February of the present year, confesses to have already been caused to his subjects by this kind of warfare, which is to be vigorously prosecuted until Spain shall acknowledge the independence proclaimed by the Sovereign Congress of these provinces, with the direction and security of which I am entrusted.
And for the purpose of intercepting the navigation and commerce of both countries, by opposing the naval force equipped in regular form by the state or by private individuals, I have resolved, that privateering shall henceforth be continued against the subjects of Ferdinand VII. and their property, and that the same be done, strictly observing the provisions and regulations laid down and enacted in the following provisional Ordinance:
A Provisional Ordinance to regulate Privateering.
ARTICLE I. This government will grant commissions or letters of marque to those persons who may apply for the same, to arm any vessel, in order to act as a privateer against all vessels sailing under the enemy's flag; the requisite bond being previously given therefor at the naval department. In such application, a description must be given of the kind of vessel intended for that purpose, her tonnage, arms, ammunitions, and crew.
II. A commission being granted to arm any vessel as a privateer, the commandant of the marine will give, by all the means within his power, every facility to expedite the fitting out of any such vessel, allowing her to receive all the men she may require, excepting such as are enlisted for the service of the State, or actually employed therein. The equipment of the vessel being finished, the said commandant will deliver to her captain a copy of this ordinance, together with all other regulations made known to him through the private channel of communications of the naval department, touching the manner in which he is to act in particular cases with neutral vessels, more especially of such nations the flags of which may be entitled to certain immunities or privileges, arising from the treaties or agreements made with them for the punctual observance thereof in what concerns them.
III. The officers of the commissioned vessels or privateers are under the protection of the laws of these United Provinces; and they shall enjoy, even if foreigners, all the privileges and immunities of any other citizen thereof, whilst employed in their service.
IV. The owners of such privateers are at liberty to enter into any agreement they may think fit, with the officers and crew of the same, provided they do not contain any clause contrary to the laws and ordinances of the government. It being the duty of the owners, as aforesaid, to present a copy of the agreements they may make to the department of the General Commandant of the Marine, where care must be taken that the same be strictly fulfilled.
V. The owners of privateers, on giving bond, will be furnished from the public magazines of the State with the guns, muskets, gunpowder, and ammunitions, they may be in want of for the complete equipment of the privateer; under the condition to return, after the expiration of the cruize, the articles thus supplied; they not being obliged to make any allowance for the deterioration or consumption thereof, caused by their use in the service? And in case of either wreck or capturc of the privateer, the same being proved, they shall be discharged from all responsibility.
VI. The privateers are to be visited at the time of their departure by the Commissioners appointed by the Commandant General of the Marine, who shall read to them the penal laws, a copy whereof must be given to their commanders, with injunctions to read them to the crew once a week, mention of which circumstance is to be made in the certificate of the visit; should the privateers be cleared out in friendly ports, they shall be visited by the Consuls or agents of the government, in pursuance of their private instructions.
VII. All merchandize, liquors, and other articles fit for the consumption of the country, which may be imported as proceeding from captured cargoes, must be appraised by the Custom House, the same as any other cargo of commerce, and out of the sum total of duties which may result therefrom, a third part shall be deducted for the benefit of the captors.
VIII. All prizes must be sent to the ports of these United Provinces, there to be adjudged in the customary lawful way in such cases; but, should there occur any extraordinary circumstance to prevent it, the commander of the privateer, consulting his security, may exercise his own discretion in this respect, reserving documents justifying the same, in order to present them in due time before the competent tribunal.
IX. Silver and gold, whether coined or in bars, or in bullion, being a capital proceeding from capture, shall pay to the Treasury of the State at the rate of six per centum, as a compensation for the benefits granted in the fifth and seventh articles.
X. Silver and gold manufactured into articles of luxury, shall, on their importation, pay the same duties as any other commercial article, according to the particular valuation that may be made of them.
XI. The privateers that may take from the enemy important communications, officers of rank, &c. or that may cause similar damages to the enemy, shall be rewarded in a manner worthy the generosity of the government, and in proportion to the importance of the service they may have thus rendered.
XII. The government offers a reward to all privateers that shall capture a transport of the enemy with troops, ammunition, or other warlike accoutrements, destined to commit hostilities against the free countries of America, or to reinforce any part of the Spanish dominions: which reward shall be regulated according to the circumstances of the case, and in proportion to the amount of the capture.
XIII. The commanders of the privateers employed to destroy the Spanisb commerce, without being cruel in the treatment of the prisoners, shall burn and sink on the high seas every enemy's vessel which they may think proper not to man as a prize, owing to her small value. And they are prohibited, under the penalties which the case may require, either to restore or leave in the possession of the enemy, under any pretext whatever, any vessel of the said class; any favour of this nature being considered as an hostility against the United Provinces.
XIV. Captured vessels shall be free of all duties, those of the port excepted.
XV. All articles of war captured shall be free of duties. In case the same are wanted by this government, it may take them at the rate of ten per centum below the current prices in the market.
XVI. Should any negro slaves be captured, they must be sent to the ports of these United Provinces; and the government will allow as a bounty, the sum of fifty dollars for each of such slaves as may be fit to take up arms, from the age of twelve to forty years inclusively; they being obliged to serve four years in the armies, and then they shall be free of duties. Should they be either over or under that age, or unfit for the army, they will be absolutely free, and this government will distribute them in guardianship.
XVII. Any negroes captured, that, on account of the blockade or unfitness of the vessel, &c., cannot be brought into the ports of these United Provinces, shall be sent to those of the free nations of America, and there given up to the disposal of those governments, with the express condition not to sell them as slaves, under the penalties to the transgressors of being deprived of all their privileges, (whatever their services may be,) and also of the protection of the laws of these United Provinces, who detest slavery, and have prohibited this cruel traffic in human beings.
XVIII. The cognizance of the prizes which the privateers may bring or send into our ports shall exclusively belong to our courts.
XIX. Should it be declared by the sentence of the court, that the captured vessel is not a lawful prize, or that there is no reason to detain her, she shall be forthwith set at liberty, without causing her the least expense, being exempted even from the duties of the port. And, in case of said vessel being detained any longer, under that or any other pretext, all the damages which on that account may fall on her owners, shall be laid to the charge of the persons causing the same.
XX. If the captor does not acquiesce in the sentence of the court of prizes, and intends to appeal from it, having a special power from the parties interested, he is allowed so to do to the Supreme Director, on his giving, previously to the entering of such an appeal, the proper bond, to the satisfaction of the captured captain, to answer unto him for all the damages and detriments which he may have a right to claim of the said captor, after the confirmation of the first sentence, on account of the detention and demurrage, loss of time and freight, damages, and deterioration of both vessel and cargo, and any other occurrences. Which damages, together with the costs of the prosecution, shall be paid unto the captured captain by the captor, before his leaving the port; and in case of his not being able to make payment, recourse shall be had to the bonds or sureties he may have given, who, without any further step or delay, shall be compelled to do it by all the rigor of the law.
XXI. No person enjoying a salary from the naval department shall exact any fees, stipend, or contribution, for services rendered in the adjudication of prizes. They are also prohibited to take or appropriate to themselves any merchandise, or other articles of prize goods, under the penalty of confiscation, and of the loss of their employment.
XXII. Privateers and letters of marque are authorized to board all commcrcial vessels of any nation, and to oblige them to exhibit their sea letters, passes, commissions, and passports, together with the documents showing the ownership of the vessel, charter parties, or agreements of freight, the journal or log book, the roll d'equipage, and the lists of the crew and passengers. This examination shall be made without employing any violence, or causing any damage or considerable detention to the vessels on board whereof the same is to be performed, and whose master or captain, with the above said documents, shall be ordered on board the privateer, that her captain may attentively examine them himself, or cause the same to be done by the interpreter he may have for that purpose. And in case no cause be found to detain the vessel any longer, she shall be permitted freely to continue her navigation. Should any vessel resist this examination, the privateer may compel her to do it by force. But the officers, as well as other individuals belonging to the crews of said privateers, can in no case exact or require any contribution from the captain, sailors, or passengers of the vessels they may board, neither cause, nor permit to be caused, to them, any extortion or violence of any kind whatsoever, under the penalty of being exemplarily punished, even unto death, according to the enormity of the case.
XXIII. When the captain of the vessels on board of which there shall be any articles belonging to enemies, shall bona fide declare them so to be, the removal thereof shall be made, without interrupting the navigation or detaining them longer than it shall be necessary, the safety of the vessel permitting the same. In this case, the captains shall be furnished with a receipt for the articles thus removed, therein expressing all the circumstances attending the same; and, should the privateer be unable to pay them in cash the proportionate amount of freight of said articles up to the place of their destination, according to the bills of lading or agreement of freight, he will furnish them with a note or draft for the same amount on the owner or agent of the said privateer, who shall be obliged to pay it on its being presented; the captains or commanders of the privateers being hereby ordered to bring, in such cases, the declaration made by the captain of the detained vessel, signed by him, and authenticated in the most formal manner.
XXIV. All vessels found navigating without lawful passes, sea letter, or commissions from the republics, provinces, or states, having authority to grant them, shall be detained; as well as those that may fight under a flag other than that of the prince or state by which their commission may have been granted; as likewise such as may be found holding different commissions from several princes or states: all of which are declared a good prize; and in case of their being armed in war, their commanders and officers shall be considered as pirates.
XXV. Vessels of pirates, and such as may have been taken possession of by their revolted crews, shall be declared good prize, together with all the articles appertaining thereto or found on board the same; excepting such as may be proved to belong to persons who neither directly or indirectly have contributed to the piracy, and are not enemies.
XXVI. It being unlawful within the jurisdiction of this state to arm any vessel in order to act as a privateer without my permission, as likewise to admit for that purpose a commission or letters of marque from any other prince or republic, even if allied with this, any vessel found on the high seas with such commissions, or without any commission at all, shall be adjudged a good prize, and her captain or commander punished as pirates.
XXVII. All armed vessels, whether commissioned cruizers, or merchant vessels with letters of marque, navigating under the flag, or with a commission from princes or states enemies to this government, shall be good prize, together with all the articles that may be found on board thereof, even if belonging to citizens of these United Provinces, in case of their having shipped them after the declaration of war, and the requisite time being elapsed for their having notice thereof.
XXVIII. Merchant vessels belonging to any nation whatsoever, that may make any defence after the privateer's hoisting up her flag, shall be declared good prize unless her captain should prove that the privateer gave him sufficient motive for such a resistance.
XXIX. Such vessels as may be found without the papers and documents specified in the 22d article, or the most important of them, to wit, the sea letter, pass or commission, the bills of lading of the cargo, and other documents, in order to prove that it, as well as the vessel, are neutral property, shall be declared a good prize; unless on proof of their being lost by inevitable accident. All the documents that may be presented must be signed in due form in order to be admitted in proof.
XXX. Should the captains, or other individuals of the vessels detained by the privateers, or by any of the vessels belonging to the navy of the state, throw overboard any papers; if this fact be proved in due form, by that very act they shall be declared good prize. And the same construction is to be given to the foregoing, and any other articles touching the same matter.
XXXI. Privateers are prohibited to attack, to commit any kind of hostilities, or to capture, the vessels of the enemy, that may be found in the ports of allied or neutral princes or states; as likewise those that may be within cannon shot of their fortifications. It being declared, in order to remove all doubts, that the distance of the cannon shot must be observed, even if there should be no batteries on the spot where the capture may take place, provided the distance be the same, and that the enemy shall likewise respect this immunity in the territory of the neutral or allied powers.
XXXII. The vessels that privateers may capture in the ports, or within the reach of the cannon shot of the territory of allied or neutral powers, even in the case of their being in fresh pursuit, and attacking them from sea, are declared to be no prize, as taken in a spot which is entitled to immunity; provided the enemy respect the same in like manner.
XXXIII. Every privateer that may retake a national vessel, within twenty-four hours after her capture, shall be entitled to one half of the value of said prize for salvage, the other half being restored for the benefit of the original owner of said vessel; which division is to be made speedily and summarily, in order to diminish the costs as much as possible. But if the recapture capture should take place after the lapse of twenty-four hours from the capture, the privateer thus retaking her shall be entitled to the whole value of the same.
XXXIV. If a vessel should be found on the sea, or brought into our ports, without the bills of lading of her cargo, or other documents by which the ownership thereof may be ascertained, and not having on board persons belonging to her own crew, both the captor and the captain of said prize shall be separately examined, touching the circumstances in which the said vessel was found and taken possession of. Her cargo is likewise to be inspected by intelligent persons, and every possible means resorted to, in order to discover the true owner. Should this not be found out, an inventory of the whole shall be made, and every thing kept deposited, to restore them to whomsoever shall, within a year, prove to be such; unless there should be ground to declare the same good prize; giving, in all events, the third part of the value to the captors. If the owner does not appear in the above said term, the other two remaining third shall be divided, as derelict goods, into three parts; one of which is likewise to be given to the captors, and the other two to be applied to the use of the state.
XXXV. In any of the aforesaid cases, and when the privateer shall detain a vessel, care shall be taken to collect all her papers, of what kind soever they may be, and that the clerk shall make a correct memorandum thereof, giving a receipt to the captain or supercargo of the vessel thus detained, for them; and warning him not to conceal any papers he may have, it being declared that only such as he may exhibit shall be admitted in the adjudication of the capture. This being done, the captain of the privateer shall secure the papers in a bag, or package, sealed; which he must deliver to the prize master, with orders to deliver the same to the government. The captain of the privateer, or any individual of her crew, who, from any motive whatever, may conceal, break, or embezzle any of said papers, shall be condemned to corporal punishment, as the circumstances of the case may require; the captain being over and above obliged to make good the damages; and other individuals to be sent to the public works for ten years.
XXXVI. The captain of the privateer shall, at the same time, take care to have the hatches of the vessels thus detained, nailed up, and to seal them in such a manner as to render it impossible to open them without breaking the seals. He must secure the keys of the cabin, and other passages, and cause all the articles that may be found on deck, to be locked up -- taking down, if the time should permit it, a memorandum of every thing that may be easily mislaid, in order to put them under the charge of the person who shall be appointed to command the same vessel.
XXXVII. The articles that may be found on deck, or in the cabin, state rooms, or forecastle, shall not be permitted to be plundered, the right of so doing, (commonly called pendolage,) being absolutely prohibited; which, however, may be tolerated only in the case of the vessel's having shown resistance, even to the point of being boarded. But care must always be taken to prevent the disorders that an excessive license may produce.
XXXVIII. When the crew of a vessel, detained as aforesaid, shall be removed on board the privateer, the clerk shall, in the presence of the master, take a deposition from him, the mate, and other individuals of such detained vessel, touching the circumstances of her navigation, voyage, and cargo -- writing down every thing that may be necessary to the adjudication of the capture. He is also to interrogate them, whether they have on board any jewels, or other valuables, not expressed in the bills of lading of the cargo, in order that proper measures may be taken to prevent their being embezzled.
XXXIX. The prize master appointed to command any vessel detained as aforesaid, shall be furnished with a detailed information, comprizing every thing that may appear from the above-mentioned depositions -- making him responsible for whatever, owing to his omission or fault, may be lost. And it is hereby declared, that any person who shall, without license, break open the sealed hatches, trunks, bales, casks, packages, or lockers, where there may be any articles of merchandize, shall not only lose that part which of right might belong to him, should they be declared a good prize, but a prosecution shall be instituted against him, and he punished according to the result thereof.
XL. No other papers or documents are to be admitted, in order to decide upon the lawfulness or unlawfulness of the capture, but those that were produced and found on board the prize vessel. However, if, in case of a defect of papers to determine the cause, the captain of the captured vessel should offer to prove his having lost them by unavoidable accident, the court will grant him a sufficient term for that purpose; regarding the summary manner with which such causes are to be determined.
XLI. If, before sentence is pronounced on the prize, it should become necessary to unload the whole or part of the cargo, in order to prevent the loss thereof, the hatches are to be broken open in the presence of the commandant of the marine, or commissioners appointed by him, and of the respective parties concerned, who must be present at that act. An inventory shall then be made of all the articles that may be unladen; which, with the assistance and knowledge of the officer of the revenue, appointed by the collector of the customs, must be deposited either in the hands of a trusty person, or in store-houses, of which the master or supercargo of the captured vessel is to keep a key.
XLII. Should the sale of any articles be deemed necessary, owing to the impossibility of preserving them, such sale must be effected at public auction, with all the customary solemnities, in the presence of the captured captain, and with the assistance of the officer of the custom house, as aforesaid; and the proceeds thereof are to be deposited with a trusty person, to be delivered to whom the same may belong, after the sentence is pronounced on the capture.
XLIII. No person, whatever his rank or condition may be, is permitted secretly to buy or conceal any thing, knowing it to belong to the prize or detained vessel, under the penalty of making restitution for the same, and of a fine triple the value of the goods concealed or clandestinely bought, and even of corporal punishment, as the case may be; the cognizance of which causes shall exclusively belong to the courts of prize, as incidental thereto.
XLIV. If the vessel detained should not be condemned as good prize, her master or owner, together with her officers and crew, shall be forthwith reinstated in the possession of the same; restoring unto them whatever may belong to her, without retaining the least thing. She is to be furnished with a suitable safe conduct, in order that she may prosecute her voyage without any further detention; she is declared free of the duties of the port, and, before her departure, is to be indemnified by the captor for all the expenses, damages, and losses that may have been caused to her, and which she may have a right to claim with justice, should her case be comprehended among those specified in the 22d and 30th articles. But such claim is not to be admitted, if she should have given reasonable cause for suspicion to the capturing vessel, or incurred any other penalty comprised in this ordinance, in consequence of which a prosecution may have been instituted; all of which may appear from the proceedings had thereon.
XLV. Should the captured vessel be condemned as good prize, the captors shall be permitted the free use of her, previously paying the duties due to the treasury of this government.
The whole amount resulting from sales of the captures made by vessels of war, shall be divided into two parts; one of them containing three-fifths for the use of the crew and mariners, and the other two-fifths for the officers. No person, whether belonging to the navy or army, being a passenger, or going as a transport on board said vessels, at the time of the capture, shall, under any pretext whatever, be comprehended in the distribution. But it shall be the duty of the commander of such vessel to inform the chief officer of the naval department whether any of the persons going on board as passenger, or otherwise, has distinguished himself by a special service in the action: to the end, that if he should deem it just, he may order such person to share according to his rank, as if he had been comprehended amongst the number belonging to the complement of the vessel.
XLVI. Any other decrees, orders, or regulations, prior or contrary to this present provisional ordinance, are, by virtue hereof, declared void and without any effect.
Done at the Fortress of Buenos Ayres, on the 15th day of May, 1817.
JUAN MARTIN PUEYRREDON, MATHIAS DE YRIGOYEN, Secretary of War and of the Navy.
The foregoing is a copy from the original.
YRIGOYEN.
OFFICIAL REPORT, &C. OF THE SECRETARY OF STATE TO CONGRESS.
Washington, Jan. 29. I transmit to the house of representatives, in compliance with the resolution of the 14th of this month, a report from the secretary of state, concerning the applications which have been made by any of the independent governments of South America, to have a minister or consul general accredited by the United States, with the answers of this government to the applications addressed to it.
JAMES MONROE.
The Report.
The Secretary of State, to whom has been referred the resolution of the House of Representatives, of the 14th inst. requesting of the President information whether any application has been made by any of the independent governments of South America, to have a minister or consul general accredited by the government of the United States, and what was the answer given to such application; has the honour of submitting copies of applications made by Don Lino de Clemente, to be received as the representative of the republic of Venezuela; and of David C. De Forest, a citizen of the United Provinces, to be accredited as consul general of the United Provinces of South America, with the answers respectively returned to them. The reply of Mr. De Forest is likewise enclosed, and copies of the papers, signed and avowed by Mr. Clemente, which the President considered as rendering any communication between this department and him, other than that now enclosed, improper.
It is to be observed, that while Mr. Clemente, in March, 1817, was assuming, with the name of Deputy from Venezuela, to exercise with the United States powers transcending the lawful authority of any ambassador, and while in January, 1818, he was commissioning, in language disrespectful to this government, Vincente Pazos, in the name of the republic of Venezuela, to "protest against the invasion of Amelia Island, and all such further acts of the government of the United States, as were contrary to the rights and interests of the several republics, and the persons sailing under their respective flags, duly commissioned;" he had himself not only never been received by the government of the United States as deputy from Venezuela, but had never presented himself to it in that character, or offered to exhibit any evidence whatsoever of his being invested with it. The issuing of commissions, authorising acts of war against a foreign nation, is a power which not even a sovereign can lawfully exercise within the dominions of another in amity with him, without his consent. Mr. Pazos, in his memorial to the President, communicating the commission signed by Mr. Clemente, at Philadelphia, and given to General M'Gregor, alleges, in its justification, the example of the illustrious Franklin, in Europe; but this example, instead of furnishing an exception, affords a direct confirmation of the principle now advanced. The commissions issued by the diplomatic agents of the United States in France, during our revolutionary war, were granted with the knowledge and consent of the French government, of which the following resolution from the secret journal of Congress, of the 23d of December, 1776, is decisive proof:
"Resolved, That the commissioners (at the court of France) be authorised to arm and fit for war any number of vessels, not exceeding six, at the expense of the United States, to war upon British property; and that commissions and warrants be for this purpose sent to the commissioners: provided the commissioners be well satisfied this measure will not be disagreeable to the court of France."
It is also now ascertained by the express declaration of the supreme chief, Bolivar, to the agent of the United States at Angostura, "that the government of Venezuela had never authorised the expedition of General M'Gregor, nor any other enterprize against Florida or Amelia." Instructions have been forwarded to the same agent to give suitable explanations to the government of Venezuela, of the motives for declining further communication with Mr. Clemente, and assurances that it will readily be held with any person not liable to the same or like objection.
The application of Mr. De Forest, to be accredited as cousul general of the United Provinces of South America, was first made in May last: his credential was a letter from the supreme director of Buenos Ayres, Pueyrredon, announcing his appointment, by virtue of articles concluded, in the names of the United States of America, and of the United Provinces of Rio de la Plata, between persons authorized by him, and W.G.D. Worthington, as agent of this government, who neither had, nor indeed pretended to have, any power to negociate such articles. Mr. De Forest was informed, and requested to make known to the supreme director, that Mr. Worthington had no authority whatsoever, to negociate on the part of the United States any article to be obligatory on them, and had never pretended to possess any full power to that effect. That any communication interesting to the supreme director, or to the people of Buenos Ayres, would readily be held with Mr. De Forest, but that the recognition of him, as a consul general from the United Provinces of South America, could not be granted, either upon the stipulation of supposed articles, which were a nullity, or upon the commission, or credential letter of the supreme director, without recognizing thereby the authority from which it emanated, as a sovereign and independent power.
With this determination, Mr. De Forest then declared himself entirely satisfied. But shortly after the commencement of the present session of Congress, he renewed his solicitations, by the note dated the 9th of December, to be accredited as the consul general of the United Provinces of South America, founding his claim on the credentials from his government, which had been laid before the President last May.
A conversation was shortly afterwards held with him, by direction of the President, in which the reasons were fully explained to him upon which the formal acknowledgment of the government of Buenos Ayres, for the present, was not deemed expedient. They were also, at his request, generally stated in the note dated 31st of December.
It has not been thought necessary, on the part of this government, to pursue the correspondence with Mr. De Forest any further; particularly as he declares himself unauthorized to agitate or discuss the question with regard to the recognition of Buenos Ayres as an independent nation. Some observations, however, may be proper, with reference to circumstances alleged by him, arguing that a consul general may be accredited without acknowledging the independence of the government from which he has his appointment. The consul of the United States, who has resided at Buenos Ayres, had no other credential than his commission. It implied no recognition by the United States of any particular government; and it was issued before the Buenos Ayrean declarations of independence, and while all the acts of the authorities there were in the name of the king of Spain.
During the period while this government declined to receive Mr. Onis as the minister of Spain, no consul received an exequatur under a commission from the same authority. The Spanish consuls who had been received before the contest for the government of Spain had arisen, were suffered to continue the exercise of their functions, for which no new recognition was necessary. A similar remark may be made with regard to the inequality alleged by Mr. De Forest, to result from the admission of Spanish consuls, officially to protect before our tribunals the rights of Spanish subjects generally, while he is not admitted to the same privileges with regard to those of the citizens of Buenos Ayres. The equality of rights to which the two parties to a civil war are entitled in their relations with neutral powers, does not extend to the rights enjoyed by one of them, by virtue of treaty stipulations contracted before the war; neither can it extend to rights, the enjoyment of which essentially depends upon the issue of the war. That Spain is a sovereign and independent power, is not contested by Buenos Ayres, and is recognized by the United States, who are bound by treaty to receiver her consuls. Mr. De Forest's credential letter, asks that he may be received by virtue of a stipulation in supposed articles concluded by Mr. Worthington, but which he was not authorized to make; so that the reception of Mr. De Forest, upon the credential on which he founds his claim, would imply a recognition, not only of the government of the supreme director, Pueryrredon, but a compact as binding upon the United States, which is a mere nullity.
Consuls are, indeed, received by the government of the United States, from acknowledged sovereign powers, with whom they have no treaty. But the exequater for a consul general can obviously not be granted, without recognizing the authority from whom his appointment proceeds as sovereign. "The consul," says Vattel, (book 2. chap. 2. § 24.) "is not a public minister; but as he is charged with a commission from his sovereign, and received in that quality by him where he resides, he should enjoy, to a certain extent, the protection of the law of nations."
If, from this state of things, the inhabitants of Buenos Ayres cannot enjoy the advantage of being officially represented before the courts of the United States, by a consul, while the subjects of Spain are entitled to that privilege, it is an inequality resulting from the nature of the contest in which they are engaged, and not from any denial of their rights, as parties to a civil war. The recognition of them, as such, and the consequent admission of their vessels into the ports of the United States, operates with an inequality against the other party to that contest, and in their favour.
It was stated in conversation to Mr. De Forest, and afterwards in the note of the 31st of December, that it would be desirable to the United States to understand whether Buenos Ayres itself claims an entire, or only an imperfect independence. That the necessity of an explanation upon this point arose from the fact, that in the negociation of the supposed article with Mr. Worthington, the supreme director had declined contracting the engagement, though with the offer of reciprocity, that the United States should enjoy at Buenos Ayres the advantages and privileges of the most favoured nation. That the reason given by him for refusing such an engagement was, that Spain having claims of sovereignty over Buenos Ayres, the right must be reserved, of granting special favours to her for renouncing them, which other nations, having no such claims to renounce, could not justly expect to obtain. Without discussing the correctness of this principle, it was observed the United States, in acknowledging Buenos Ayres as independent, would expect either to be treated on the footing of the most favoured nation, or to know the extent and character of the benefits which were to be allowed to others, and denied to them; and that while an indefinite power should be reserved, of granting to any nation advantages to be withheld from the United States, an acknowledgment of independence must be considered premature.
Mr. De Forest answers, that this reservation must appear to every one contrary to the inclination, as well as interest of the government of Buenos Ayres; that it must have been only a proposition of a temporary nature, not extending to the acknowledgment by the United States of the independence of South America, which he is confident would have rendered any such reservations altogether unnecessary, in the opinion of the government of Buenos Ayres, who must have seen they were treating with an unauthorized person, and suggested the idea, from an opinion of its good policy; and, he adds, that Portugal is acknowledged by the United States as an independent power, although their commerce is taxed higher in the ports of Brazil than that of Great Britain.
It had not been intended to suggest to Mr. De Forest, that it was in any manner incompatible with the independence or sovereignty of a nation to grant commercial advantages to one foreign state, and to withhold them from another. If any such advantage is granted for an equivalent, other nations can have no right to claim its enjoyment, even though entitled to be treated as the most favoured nations, unless by the reciprocal grant of the same equivalent. Neither had it been intended to say, that a nation forfeited its character of acknowledged sovereignty even by granting, without equivalent, commercial advantages to one foreign power, and withholding them from another. However absurd and unjust the policy of a nation granting to one, and refusing to another, such gratuituous concessions, might be deemed the questions, whether they affected its independence or not, would rest on the concessions themselves. The idea meant to be conveyed was, that the reservation of an indefinite right to grant hereafter special favours to Spain, for the renunciation of her claims of sovereignty, left it uncertain whether the independence of Buenos Ayres would be complete or imperfect, and it was suggested with a view to give the opportunity to the supreme director of explaining his intention in this respect, and to intimate to him, that while such an indefinite right was reserved, an acknowledgment of independence must be considered as premature. This caution was thought the more necessary, inasmuch as it was known, that at the same time, while the supreme director was insisting on this reservation, a mediation between Spain and her colonies had been solicited by Spain, and agreed to by the five principal powers of Europe, the basis of which was understood to be a compromise between the Spanish claim to sovereignty, and the colonial claim to independence.
Mr. De Forest was understood to have said, that the Congress at Tucuman had determined to offer a grant of special privileges to the nation which should be the first to acknowledge the independence of Buenos Ayres. He stated in his notes, that he knew nothing of any such resolution by that Congress, but that it was a prevailing opinion at Buenos Ayres, and his own opinion also, that such special privileges would be granted to the first recognizing power, if demanded. It has invariably been avowed by the government of the United States, that they would neither ask nor accept of any special privilege or advantage for their acknowledgment of South American independence; but it appears that the supreme director of Buenos Ayres, far from being prepared to grant special favours to the United States for taking the lead in the acknowledgment, declined even a reciprocal stipulation, that they should enjoy the same advantages as other nations. Nor was this reservation, as Mr. De Forest supposes, defeasible, by the acknowledgment, on the part of the United States, of South American independence. The supreme director could not be ignorant, that it was impossible for this government to ratify the articles prepared by his authority with Mr. Worthington, and yet to withhold the acknowledgment of independence. He knew that if that instrument should be ratified, the United States must thereby necessarily be the first to grant the acknowledgment, yet he declined inserting in it an article, securing to each party, in the ports of the other, the advantages of the most favoured nation. It is, nevertheless, in conformity to one of those same articles, that Mr. De Forest claimed to be received in the formal character of counsul general.
With regard to the irregularities and excesses committed by armed vessels, sailing under the flag of Buenos Ayres, complained of in the note of the 1st of January, it was not expected that Mr. De Forest would have the power of restraining them, otherwise than by representing them to the supreme director, in whom the authority to apply the proper remedy is supposed to be vested. The admission of Mr. De Forest, in the character of consul general, would give him no additional means of suppressing the evil. Its principal aggravation arises from the circumstance, that the cruizers of Buenos Ayres are almost, if not quite, universally manned and officered by foreigners, having no permanent connection with that country, or interest in its cause. But the complaint was not confined to the misconduct of the cruizers. It was stated that blank commissions for privateers, their commanders, and officers, had been transmitted to this country, with the blanks left to be filled up here, for fitting out, arming, and equipping them, for purposes prohibited by the laws of the United States, and in violation of the law of nations. It was observed that this practice, being alike irreconcilable with the rights and the obligations of the United States, it was expected by the President, that being made known to the supreme director, no instance of it would again occur hereafter. No reply to this part of the note has been made by Mr. De Forest, for it is not supposed that he meant to disclaim all responsibility of himself, or of the government of Buenos Ayres, concerning it, unless his character of consul general should be recognized. As he states that he has transmitted a copy of the note itself to Buenos Ayres, the expectation may be indulged, that the exclusive sovereign authority of the United States, within their own jurisdiction, will hereafter be respected.All which is respectfully submitted.
JOHN QUINCY ADAMS.
Department of State, January 28, 1819.
Correspondence with Mr. Clemente.
No. 1. Lino de Clemente to the Secretary of State.
Most Excellent Sir -- Having been appointed by the government of the republic of Venezuela, its representative near the United States of North America, I have the honour to inform you of my arrival in this city, for the purpose of discharging the trust committed to me: to effect this, I have to request, that you will please to inform me at what time it will be convenient for you to afford me an opportunity of presenting my respects to you personally; and of communicating to you the object of my arrival in the federal city. I avail myself of this occasion to tender to you the assurance of the high consideration and respect with which I am, &c.
LINO DE CLEMENTE.
Washington, Dec. 11, 1818 -- 8th year of the Republic
The honourable John Q. Adams.
No. 2. The Secretary of State to Don L. de Clemente.
Department of State, Washington, December 16, 1818.
Sir -- Your note of the 11th inst. has been laid before the President of the United States, by whose direction I have to inform you, that your name having been avowedly affixed to a paper drawn up within the United States, purporting to be a commission to a foreign officer, for undertaking and executing an expedition in violation of the laws of the United States, and also to another paper avowing that act, and otherwise insulting to this government, which papers have been transmitted to Congress by the message of the president, of the 25th of March last, I am not authorized to confer with you, and that no further communication will be received from you at this department. I am, &c.
J. Q. ADAMS.
Correspondence with Mr. De Forest.
No. 5. Mr. De Forest to the Secretary of State.
I have the honour to announce to Mr. Adams, that I have again arrived in this district, in order to renew my solicitations to be accredited by this government as the consul general of the United Provinces of South America, founding my claim on the credentials from my government, in the month of May last.
The information recently acquired by this government, respecting the provinces of South America, 1 presume has established the fact beyond doubt, that Buenos Ayres, their capital, and a large portion of their territory, are, and have been, free and independent of the government of Spain, for more than eight years; and possess ample ability to support their independence in future. That a regular system of government is established by their inhabitants, who show themselves, by the wisdom of their institutions, sufficiently enlightened for self-government; and that they look up to this great republic as a model, and as to their elder sister, from whose sympathies and friendship, they hope and expect ordinary protection at least.
The messages of the President of the United States, as well the last as the present year, have created a general belief, that the United States have placed us on an equal footing with Spain, as it respects our commercial operations; but, Sir, it is found not to be the case. A consul of Spain is known and respected as such by your tribunals of justice, which enables him, ex officio, to protect and defend the interests of his countrymen. Whereas, the verbal permission I have to act in the duties of my office, will not avail in your tribunals; and a number of instances have already occurred, where the property of my absent fellow citizens has been jeopardized, for want of a legally authorized protector.The case of the Spanish schooner , a prize to our armed vessels Buenos Ayres and Tucuman, which was brought into Scituate, some time since, by her mutinous crew, after having murdered the captain and mate, by throwing them overboard, is a striking instance of the necessity of there being resident here an accredited agent, to superintend the commercial concerns of South America; and without such accredited agent, our citizens cannot be considered as completely protected in their rights.
I request you, sir, to lay this communication before the President of the United States, as early as may be convenient, and to assure him, that I duly appreciate the friendly reception I met with from his government, on my arrival in this country; and that, as circumstances have since materially altered, I have no doubt but I shall receive his permission to act, in the accustomed form.
While I remain, with the highest consideration and respect, Sir, your most obedient servant, D.C. DE FOREST.
Georgetown, Dec. 9.
The honourable John Q. Adams, Secretary of State.
No. 6. Mr. De Forest to the Secretary of State.
I took the liberty, on the 9th inst. of addressing a note to Mr. Secretary Adams, requesting to be accredited as the consul general of the United Provinces of South America; and have now the honour of informing Mr. Adams, that I have lately received an official communication from the government of Buenos Ayres, directing me to inform the government of this country, that the supposed conspiracy against the person of the supreme director, proves to have originated with an obscure and disappointed individual; who, to gain adherents, pretended to be connected with people of the first respectability and influence, several of whom he named, but who have convinced the government that they had no knowledge whatever of his base project.
The supreme director, anxious to do away any unfavourable impressions which the report of such an affair might cause at this distance, has ordered me to assure the President of the United States, that the government of South America was never more firmly supported, nor its prospects more brilliant, than at the present time.
I have the honour, &c.
DAVID C. DE FOREST.
Georgetown, December 12, 1818.
No. 7. Mr. Adams to Mr. De Forest.
Mr. Adams presents his compliments to Mr. De Forest, and has the honour of assuring him, by direction of the President of the United States, of the continued interest that he takes in the welfare and prosperity of the provinces of La Plata, and of his disposition to recognize the independent government of Buenos Ayres, as soon as the time shall have arrived, when that step may be taken with advantage to the interests of South America, as well as of the United States.
In the mean time, he regrets an exequatur to Mr. De Forest, as consul general of the United Provinces of South America, cannot be issued, for reasons stated in part by the President, in his message to Congress, at the commencement of the present session; and further explained to Mr. De Forest by Mr. Adams, in the conversation which he has had the honour of holding with him.Mr. De Forest must have seen, that any privileges which may be attached to the consular character, cannot avail in the judicial tribunals of this country, to influence in any manner the administration of justice; and with regard to the schooner brought into Scituate, such measures have been taken, and will be taken, by the authorities of the United States, as are warranted by the circumstances of the case, and by the existing laws.
With respect to the acknowledgment of the government of Buenos Ayres, it has been suggested to Mr. De Forest, that, when adopted, it will be merely the recognition of a fact, without pronouncing or implying an opinion with regard to the extent of the territory or provinces under their authority, and particularly without being understood to decide upon their claim to control over the Banda Oriental, Santa Fe, Paraguay, or any other provinces disclaiming their supremacy or dominion. It was also observed, that in acknowledging that government as independent, it would be necessary for the United States to understand whether Buenos Ayres claims itself an entire or only an imperfect independence. From certain transactions between persons authorized by the supreme director and an agent of the United States, (though unauthorized by their government,) after the declaration of independence by the Congress at Tucuman, and within the last year, it appears that the supreme director declined contracting the engagement, that the United States should hereafter enjoy at Buenos Ayres the advantages and privileges of the most favoured nation, although with the offer of a reciprocal stipulation on the part of the United States. The reason assigned by the supreme director was, that Spain, having claims to the sovereignty of Buenos Ayres, special privileges and advantages might ultimately be granted to the Spanish nation, as a consideration for the renunciation of those claims. It is desirable that it should be submitted to the consideration of the government of Buenos Ayres, whether, while such a power is reserved, their independence is complete; and how far other powers can rely, that the authority of Spain might not be eventually restored. It has been stated by Mr. De Forest, that the Congress at Tucuman had passed a resolution, to offer special advantages to the nation which should first acknowledge their independence, upon which the question was proposed, whether such a resolution, if carried into effect, would not be rather a transfer of dependence from one nation to another, than the establishment of independence? rather to purchase support than to obtain recognition? The United States have no intention of exacting favours of Buenos Ayres for the acknowledgment of its independence; but in acknowledging it, they will expect either to enjoy, in their intercourse with it, the same privileges and advantages as other foreign nations, or to know precisely the extent and character of the benefits which are to be allowed to others, and denied to them. It should, indeed, be known to the supreme director, that, while such an indefinite power is reserved of granting to any nation advantages to be withheld from the United States, an acknowledgment of independence must be considered premature. In adverting to these principles, it was observed to Mr. De Forest, that their importance could not but be peculiarly felt by the United States, as having been invariably and conspicuously exemplified in their own practice, both in relation to the country whose colony they had been, and to that which was the first to acknowledge their independence. In the words of their declaration, issued on the 4th of July, 1776, they resolved thenceforth "to hold the British nation, as they hold the rest of mankind, enemies in war, in peace friends;" and in the treaty of amity and commerce, concluded on the 6th of February, 1778, between the United States and France, being the first acknowledgment by a foreign power of the independence of the United States, and the first treaty to which they were a party, the preamble declares, that the king of France and the United States, "willing to fix, in an equitable and permanent manner, the rules which ought to be followed relative to the correspondence and commerce which the two parties desire to establish between their respective countries, states, and subjects, have judged that the said end could not be better obtained, than by taking for the basis of their agreement the most perfect equality and reciprocity, and by carefully avoiding all those burthensome preferences, which are usually sources of debate, embarrassment, and discontent; by leaving also each party at liberty to make, respecting commerce and navigation, those interior regulations which it shall find most convenient to itself; and by founding the advantage of commerce solely upon reciprocal utility, and the just rules of free intercourse; reserving withal to each party the liberty of admitting, at its pleasure, other nations to a participation of the same advantage."
In the second article of the same treaty, it was also stipulated, that neither the United States nor France should thenceforth grant any particular favour to other nations, in respect of commerce and navigation, which should not immediately become common to the other nations, freely, if the concession was free, or for the same compensation, if conditional.
In answer to Mr. De Forest's note of the 12th instant, Mr. Adams has the honour of assuring him, that the President has received with much satisfaction the information contained in it; and will derive great pleasure from every event which shall contribute to the stability and honour of the government of Buenos Ayres.
Mr. Adams requests Mr. De Forest to accept the assurance of his distinguished consideration. -- Washington, Dec. 31, 1818.
No. 8. Mr. Adams to Mr. De Forest.
Mr. Adams presents his compliments to Mr. De Forest, and in reference to the case of the schooner brought into Scituate, mentioned in Mr. De Forest's communication of the 9th inst. as well as to several others which have occurred of a similar character, requests him to have the goodness to impress upon the government of Buenos Ayres, the necessity of taking measures to repress the excesses and irregularities committed by many armed vessels, sailing under their flag, and bearing their commissions. The government of the United States have reason to believe that many of these vessels have been fitted out, armed, equipped, and manned in the ports of the United States, and in direct violation of their laws.
Of the persons composing the prize crew of the vessel at Scituate, and now in confinement upon charges of murder and piracy, it is understood that three are British subjects, and one a citizen of the United States. It is known that commissions for private armed vessels, to be fitted out, armed, and manned in this country, have been sent from Buenos Ayres to the United States, with the names of the vessels, commanders, and officers, in blank, to be filled up here, and have been offered to the avidity of speculators, stimulated more by the thirst for plunder than by any regard for the South American cause.
Of such vessels, it is obvious that neither the captains, officers, nor crews, can have any permanent connection with Buenos Ayres, and from the characters of those who alone could be induced to engage in such enterprizes, there is too much reason to expect acts of atrocity, such as those alleged against the persons implicated in the case of the vessel at Scituate.
The President wishes to believe that this practice has been without the privity of the government of Buenos Ayres, and he wishes their attention may be drawn to the sentiment, that it is incompatible both with the rights and the obligations of the United States -- with their rights, as an offensive exercise of sovereign authority by foreigners, within their jurisdiction, and without their consent -- with their obligations, as involving a violation of the neutrality which they have invariably avowed, and which it is their determination to maintain. The President expects, from the friendly disposition manifested by the supreme director towards the United States, that no instance of this cause of complaint will hereafter be given.
Mr. Adams requests Mr. De Forest to accept the renewed assurances of his distinguished consideration.
Washington, Jan. 1, 1819.
Sir -- It is not my intention to give any unnecessary trouble to the department of state; but having had the honour of receiving two notes from Mr. Secretary Adams, on the 4th instant, dated December 31st, and January 1st, some explanation appears to be necessary.
In the first place, I do not suppose "that any privileges which may be attached to the consular character, can avail in the judicial tribunals of this country, to influence, in any manner, the administration of justice." But, I suppose, that a consul duly accredited is, ex officio, the legal representative of his fellow citizens, not otherwise represented by an express power: and that the tribunals of justice do, and will, admit the legality of such representation. Mr. Adams has misunderstood me in another observation, which was in substance, that there was a general opinion prevailing at Buenos Ayres, that the power first recognizing our independence, would expect some extraordinary privilege or advantage therefor; and that in my opinion, the government of Buenos Ayres would readily grant it if demanded. I know nothing however, of any resolution having been passed on this subject by the Congress at Tucuman.
It appears, from the relation of a fact in Mr. Adams's note of the 31st ultimo, that the government of Buenos Ayres had intimated a desire (in the course of a negotiation with an agent of the United States) to reserve the right of granting more extraordinary privileges to Spain, on the settlement of a general peace, which must appear to every one contrary to their inclination, as well as interest; and it can be accounted for only by supposing that the proposition of the United States' agent was merely of a temporary nature, and did not extend to an acknowledgment, by the United States, of the independence of South America; which act, I am confident, would have rendered any such reservation altogether unnecessary in the opinion of the government of Buenos Ayres, who must have seen that they were treating with an unauthorized person, and must have thought it good policy at this time to suggest such an idea. Indeed, were the government of Buenos Ayres to pursue that course, they might plead the example of a neighbouring power, acknowledged to be independent by the United States; and its chief, both illustrious and legitimate. It is well known that the government of Brazil taxes the commerce of the United States about thirty per cent. higher than that of Great Britain. It may be, that Great Britain is entitled to this preference, on account of important services rendered by her to the king of Portugal; and permit me to ask you, sir, what services could be rendered to any nation already in existence, so great as would be the acknowledgment by Great Britain, or by the United States, of the independence of South America? Such recognition, merely, by either of these powers, would probably have the immediate effect of putting an end to the cruel and destructive war, now raging between Spain and South America, and crown with never fading laurels the nation thus first using its influence in favour of an oppressed, but high minded people.
The account given by Mr. Adams, in his note of the 1st instant, respecting the irregular conduct of vessels sailing under the Buenos Ayres flag, has caused me much mortification, and has already been transmitted to my government by the Plattsburgh; as also a copy of Mr. Adams' frank and friendly communication of the 31st ultimo. The supreme director will certainly be desirous to adopt the most prompt and efficacious measures within his power, to remedy the evils complained of. But pray, sir, what can he do more than has already been done? The government of Buenos Ayres have established the most just rules and regulations for the government of their vessels of war, as well as of commerce; and have sent me to this country, invested with the title and powers of their consul general; as well as to guard against any breach of those rules and regulations, by their citizens and vessels frequenting these seas, and the ports of these United States, as to protect them in their rights: but, sir, without a recognition of my powers, on the part of the government, I can have no right whatever to question any individual on the subject of his conduct; nor can any responsibility attach to me, nor to my government, during such a state of things, for irregularities committed.
A considerable number of our seamen are foreigners by birth, who have voluntarily entered our service; therefore, it is not a matter of surprise, that of the mutineers of the prize crew of the vessel at Scituate, three should have been born Englishmen, and one a North American. It is, however, an absolute fact, to which I am personally knowing, that the captors of that prize, (the Buenos Ayres, and Tucuman privateers,) were legally fitted out at Buenos Ayres, early in the last year, from which port they sailed on a cruize off Cadiz; and it will afford the government of South America much satisfaction, to learn that the United States will prosecute those mutineers, and punish such as are found guilty of crimes, according to the laws.
Before I close this note, I beg leave to make a few observations in answer to one of the reasons for not accrediting me, given by Mr. Adams, by direction of the President of the United States, in a conversation which I have had the honour of holding with him, viz.: "That the act of accrediting me as consul general, would be tantamount to the formal acknowledgment of the independence of the government which sent me." I do not profess to be skilled in the law of nations, nor of diplomacy, nor would I doubt the correctness of any opinion expressed by the President, for whose person and character I have entertained the most profound respect; yet, I must say, that I cannot understand the difference between the sending of a consular agent, duly authorized to Buenos Ayres, where one was accredited from this country, four or five years ago, and has continued ever since in the exercise of the duties of his office, and the reception of a similar agent here. I also beg leave to mention, that I was in this country soon after the arrival of the present minister of Spain, the Chevalier de Onis; and recollect to have heard it observed, that being a political agent, he was not accredited, because the sovereignty of Spain was in dispute; but, that the consuls, who acknowledged the same government, (one of the claimants to the sovereignty, and the one actually in possession of it,) were allowed to exercise their functions. If this was the case at that time, the government of the United States must have then had a different opinion on this subject, from what it now has. Mr. Adams will please to bear in mind, that I have only solicited to be accredited as a consular agent, having never agitated the question of an acknowledgment of our independence as a nation, which most certainly is anxiously desired by the government and people of South America, but which being a political question, I have never asked.
Mr. Adams will also be pleased to accept the renewed assurances of my most distinguished consideration and respect.
DAVID C. DE FOREST.
Georgetown, January 8, 1819.
No. 10.
The supreme director of the United Provinces of La Plata, to his Excellency the President of the United States of North America.
Most Excellent Sir -- The supreme government of these provinces have long exerted their zealous efforts to establish the closest and most amicable relations with the United States of America, to which the most obvious interests seem mutually to invite them. This desirable object has hitherto been frustrated by the events of the times; but the moment appears at length to have arrived, which presents to the people of these provinces, the flattering prospect of seeing their ardent wishes accomplished. In consideration of these circumstances, and in conformity with the 23d of the articles agreed upon with citizen William G. D. Worthington, the agent of your government in these provinces, I have nominated citizen David. C. De Forest, their consul general to the United States, with the powers specified in his commission and instructions respectively. I therefore request your excellency to grant him the attention and consideration, which in the like case will be afforded to the public agents of your excellency resident in these regions.
I avail myself of this renewed occasion of reiterating to your excellency, assurances of the sentiments of respect and consideration, with which I have the honour to be, your excellency's most obedient and most humble servant,
JN. MN. DE PUEYRREDON.