XXXVII. SPAIN.

The correspondence of Messrs. Carmichael and Short, United States ministers at Madrid in 1792, in reference to the Florida boundary, to Indian incursions aided by Spain, to commercial restraints, and to the navigation of the Mississippi, is given in 1 Am. State Papers, For. Rel. 260, 304.

The delays of Spain in making treaty with the United States are noticed in 7 John Adams's Works, 145, 385, 389, 485, 496, 517, 520, 565, 582, 644.

The papers in respect to the negotiations by Mr. Pinckney, minister of the United States, with the Spanish ministry in 1795 are given in 1 Am. State Papers, For. Rel. 535, together with the projects and counter projects.

The correspondence as to the ratification of the convention of August 11, 1802, is given in 2 Am. State Papers, For. Rel. 624; that connected with the boundary negotiations of 1805 in 2 Am. St. Pap. For. Rel. 613. The ratification of the treaty of 1795 is noticed in 2 Madison's Works, 73, 75, 86, 94.

1. TREATY OF October 27, 1795.

§ 883.

"From the middle of 1793 to the middle or close of 1794 the problem of preserving peace appeared to be difficult. Negotiations. Great Britain occupied military posts within the United States, on the northern frontier, and had pushed a garrison far south towards Cincinnati. Spain occupied Natchez, and proposed to support the Indians who dwelt within what are now the States of Mississippi, Alabama, and a large part of Georgia, in maintaining their independence. The Indians in the Northwest were in open hostilities. Genet set the administration at defiance in the Atlantic States, and appealed to the nation to support him. Washington solved the difficulty by asking the recall of Genet, by sending Jay to London, and by ordering Thomas Pinckney to Madrid with full power and authority for and in the name of the United States to meet, confer, treat, and negotiate with the ministers, commissioners, deputies, or plenipotentiaries of his said Majesty [the King of Spain], being furnished with sufficient authority of and concerning the navigation of the river Mississippi; and such other matters relative to the confines of the territories of the United States and His Catholic Majesty, and the intercourse to be had thereon, as the mutual interests and general harmony of neighboring and friendly nations require to be precisely adjusted and regulated; and of and H. Doc. 551-vol 5-54

concerning the general commerce between the United States and the Kingdoms and dominions of His Catholic Majesty; and to conclude and sign a treaty or treaties, convention or conventions, thereon." He also had a separate power to agree, treat, consult, and negotiate of and concerning all matters and causes of difference subsisting between the United States and his said Majesty, relative to the instructions of his said Majesty, or of any of the tribunals or authorities of his said, Majesty, to his ships of war and privateers, of whatsoever date, as well as of and concerning restitution or compensation in the cases of capture or seizure made of the property of the citizens of the United States by the said ships of war and privateers, and retribution for the injuries received therefrom by any citizen of the United States, and to conclude and sign a treaty or treaties, convention or conventions, touching the premises.'

"Pinckney arrived in Madrid on the 28th of June, 1795. Short, who was there as chargé, had written the government that the moment was opportune for concluding a treaty. Pinckney was met at the outset by a proposal for a triple' alliance between France, Spain, and ourselves, which he declined. He also declined to guarantee the Spanish possessions in America. By the 10th of August the parties began to put their ideas on paper. The first projét for a treaty came from Spain, and was handed Pinckney by the Prince of Peace before the 23d of September. On the 27th of October the parties signed a treaty, which has formed the basis of the relations between Spain and the United States from that day to this.

"It defined the southern boundary of the United States in accordance with the definitions in the treaty with Great Britain. It conceded the navigation of the Mississippi, and gave us a right of deposit and storage for our produce at New Orleans. It embodied many of the leading commercial provisions of the previous treaties with France or Prussia. And a provision was made for a commission to terminate all differences on account of the losses sustained by the citizens of the United States, in consequence of their vessels and cargoes having been taken by the subjects of His Catholic Majesty during the late war between Spain and France.' A copy of this treaty was sent to Congress by President Washington on the 29th of March, 1796, and an act was passed to carry it into effect. Though transmitted in the midst of debate on Jay's treaty,' it was considered and acted on without more than a casual allusion to it in that debate, and without discussion on its own merits.

"The provisions of this treaty respecting limits and the withdrawal of garrisons had not been carried out when Louisiana was acquired by the United States, and meanwhile disputes had arisen in consequence of the arbitrary order discontinuing the right to deposit and store American produce at New Orleans, and reclamations were made

upon Spain for losses suffered from this cause, and also for maritime spoliations before the peace of Amiens."

Davis, Notes, Treaty Vol. (1776–1887), 1383.

Article II.

"The United States have never claimed any part of the territory included in the States of Mississippi or Alabama under any treaty with Spain, although she claimed at different periods a considerable portion of the territory in both of those States. By the treaty between the United States and Spain, signed at San Lorenzo el Real, on the 27th of October, 1795, the high contracting parties declare and agree, that the line between the United States and East and West Florida, shall be designated by a line, beginning on the River Mississippi, at the northernmost part of the thirty-first degree of north latitude, which from thence shall be drawn due east to the middle of the Chatahuchee River,' &c. This treaty declares and agrees, that the line which was described in the treaty of peace between Great Britain and the United States, as their southern boundary, shall be the line which divides their territory from East and West Florida. The article does not import to be a cession of territory, but the adjustment of a controversy between the two nations."

McKinley, J., Pollard's Lessee v. Hagan, 3 How. 212, 225. See Hickey's
Lessee v. Stewart, 3 How. 750, 760.

The treaty between the United States and Spain of 1795 ascertained and
established an existing but disputed boundary line, and prior grants
made by the authorities of Spain within the territory of Georgia, as
ascertained by that treaty, were invalid. (Robinson v. Minor, 10
How. 627.)

After the outbreak of the Cuban insurrection of 1868 the Spanish government issued decrees embargoing the property Article VII. of certain citizens of the United States, and prohibiting the alienation of such property. The government of the United States complained of this and other oppressive actions as violating the 7th article of the treaty of 1795. The result was the reference of the questions involved to a mixed commission.

Senate Ex. Doc. 108, 41 Cong. 2 sess. 243.

For the history of the mixed commission, and a digest of the decisions thereunder, see Moore, Int. Arbitrations, II. 1019 et seq.

Whether or not the first clause of art. 7, wherein it is agreed that the subjects and citizens of each nation, their vessels or effects, shall not be liable to any embargo or detention on the part of the other for any military expedition, or other public or private purpose whatever," was originally intended to embrace real estate and personal property on land as well as vessels and their cargoes, the same

has been so construed by the United States, and this construction has been concurred in by Spain; and therefore the commission will adhere to such construction in making its decision."

Statement of Spanish Treaty Claims Commission, April 28, 1903, concurred in by all the Commissioners except Mr. Chandler.

The commissioners, except Messrs. Chambers and Maury, also concurred in holding that neither the first clause of art. 7, nor any other clause of the treaty, rendered either nation, while endeavoring to suppress an insurrection that had got beyond its control, “liable for damages done to the persons or property of the citizens of the other nation when found in the track of war, or for damages resulting from military movements unless the same were unnecessarily and wantonly inflicted."

Article IX.

In June, 1839, the schooner Amistad, the property of Spanish subjects, cleared from one Cuban port to another, having on board a number of negroes in charge of certain Spanish subjects, who claimed them as their property. When from seven to ten leagues from shore the negroes killed the captain and mate of the schooner and took possession of her. On August 26, 1839, she was discovered within a mile and a half of Montauk Point, Long Island, by the U. S. S. Washington, commanded by Lieutenant Gedney, and by him was taken and brought into the port of New London, Connecticut. The Spanish minister demanded the restoration of the vessel and cargo and also of the negroes, under Article IX. of the treaty between the United States and Spain of 1795, which provides that "all ships and merchandise, of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either state, and shall be delivered to the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof." Mr. Grundy, who was then Attorney-General, advised that the case fell within the provisions of the treaty, and that the President should order the delivery of the vessel, cargo, and negroes to such persons as might be designated by the Spanish minister to receive them. But, before this opinion was given, the vessel, cargo, and negroes were libelled by Lieutenant Gedney and certain other persons in the United States district court for salvage. Libels were also filed by two of the Spanish claimants, praying for restitution; and an information or libel was also filed by the United States district attorney, setting forth the demand of the Spanish minister and praying the court, on proof of the facts alleged in the demand, to issue such order for the disposal of the vessel, cargo, and slaves as would best enable the United States to comply with their treaty stipulations; but, if it should appear that

the negroes were not lawfully held as slaves, but were transported from Africa in violation of law, to order their removal to the coast of Africa, in conformity with the act of Congress of March 3, 1819, 3 Stat. 532. The negroes, with one exception, filed an answer denying that they were slaves and alleging that they were native-born Africans, unlawfully kidnapped in Africa and brought to Cuba in violation of the Spanish law. January 23, 1840, the district court rendered a decree awarding the vessel and cargo to their lawful owners, subject to claims of salvage of one-third their value, and directing that the negroes, with one exception, be delivered to the President of the United States to be transported to Africa. This decree was affirmed by the circuit court pro forma. On appeal the Supreme Court, whose opinion was delivered by Mr. Justice Story, Mr. Justice Baldwin dissenting, held that, in order to bring the case within Article IX. it must be shown (1) that the negroes fell within the description of merchandise; (2) that there had been a rescue of them on the high seas out of the hands of pirates or robbers, and (3) that the asserted proprietors were the true owners. The court said that negroes lawfully held as slaves under the laws of Spain, on board of a Spanish vessel, might be deemed merchandise, but not so native Africans, unlawfully kidnapped, as in the present case, and imported into a Spanish colony contrary to the laws of Spain. The decree of the circuit court was accordingly affirmed, except that the Supreme Court held that the act of 1819 had not been contravened, and directed the negroes to be set at liberty. It seems, however, that the vessel was sold in 1840 under the decree of the district court, probably to satisfy the claims of the salvors. After the case was decided by the Supreme Court the Spanish minister demanded indemnification for the vessel and cargo, including the negroes found on board. This claim Mr. Webster, then Secretary of State, refused to admit. The minister also demanded the surrender of the negroes as criminals. This claim, too, was refused. February 27, 1843, President Tyler, in a message to the House of Representatives, suggested that the amount allowed as salvage should be refunded, "as a proof of the entire good faith of the Government and of its disposition to fulfill all its treaty stipulations, to their full extent, under a fair and liberal, construction." March 19, 1846, Mr. Buchanan, Secretary of State, advised the payment of an indemnity, and President Polk, in his annual message of December 7, 1847, recommended that an appropriation be made for that purpose. President Fillmore, in a message to the Senate and House of Representatives of January 17, 1853, stated that in a letter to the Spanish minister of September 1, 1841, the opinion was confidently maintained by Mr. Webster that the claim was unfounded, but added that "the administration of President Polk took a different view of the matter,"