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part of the crews are American citizens, and that there is scarcely a single individual belonging to Buenos Ayres to be found among them.

*

I am aware, sir, that you will tell me that the courts are open to the recognizance of claims of this nature, and ready to apply the law to such cases as occur and are supported by suitable testimony; but I am under the necessity of declaring to you that it is in vain to seek such testimony, however clear it may be to everybody. I have demonstrated, in the most pointed manner, to His Majesty's consul the propriety of directing his attention to points of so much importance; but he has proved to me that a great portion of the commercial people of Baltimore being interested in the cases which produce my present reclamations, no one is willing to come forward and offer testimony against what is termed the general interest; and thus the wise measures of government are eluded, justice is paralyzed, and the suits procrastinated and deferred from court to court, with a view to deprive His Majesty's subjects of that justice which they have an undoubted right to seek in the tribunals on all their claims.

Having stated that the vessels, in addition to the object of "convey ing to the parties interested at Baltimore the proceeds of their spoliations on the Spanish commerce, and, among others, that of the Philippine Company's ship Triton, to the amount of $1,500,000, captured by the pirate Independencia del Sud, and carried to Buenos Ayres to be sold there, have a project in fitting out anew and of attacking some posses sions of the King, my master, on this continent, to which they may more easily send their prizes; that these same privateers have brought in two Spanish prizes, which are at this moment in the port of Baltimore, one of them a vessel belonging to the royal navy," he continues:

I, therefore, demand, in the name of the King, my master, the restoration of those prizes, as having been made by American citizens, and vessels fitted out in this country, in violation of the existing treaty between the two powers, and that the sailing of the said privateers be stopped, and they compelled to give security for the result of an expedition, of which, without knowing positively that they intend to execute it, I have the strongest grounds for presuming they mean to do.”

The correspondence closes with a letter of Don Luis to Mr. Adams of the 16th of November, 1818, in which he thus writes:

Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several parts of the Union against the vessels and property of the Spanish nation; and it is equally so that all the legal suits hitherto instituted by His Catholic Majesty's consuls in the courts of their respective districts for its prevention, or the recovery of the property, when brought into this country, have been, and still are, completely unavailing. The artifices and evasions by means of which the letter of the law has on these occasions been constantly eluded, are sufficiently known, and even the combination of interests in persons who are well known, among whom are some holding public offices. With a view to afford you and the President more complete demonstration of the abuses, aggressions, and piracies alluded to, I inclose you correct lists, extracted from authentic documents deposited in the archives of this legation, exhibiting the number of privateers or pirates fitted out in the United States against Spain, and of the prizes brought by them into the ports of the Union, as well as of those sent to other ports, together with the result of the claims made by the Spanish consuls in the courts of this country. Among them you will find the case of two armed ships, the Horazio and Curiazo, built at New York, and detained by His Majesty's consul there on the ground of their having on board thirty pieces of caunon concealed, with their carriages, and a crew of 160 men. On which occasion it was pretended that it could not be proved that these guns were not an article of commerce, and they finally put to sea without them, the extraordinary number of officers aud crew passing for passengers. The number of privateers or pirates fitted out and protected in the ports of this republic, as well as of the Spanish prizes made by them, ar exceeds that contained in the within list, but I only lay before your Government those of which I have certain and satisfactory proofs. The right of Spain to an adequate indemnity for all the spoliations committed by these privateers or pirates on the Crown and subjects of His Catholic Majesty is undeniable; but I now submit it to your Government only to point out the extreme necessity of putting an end to these continued acts of hostility and depredation, and of cutting short these enormous and flagrant abuses and evils, by the adoption of such effectual precautions and remedies as will put it out of the power of cupidity or ingenuity to defeat or elude them.”

British Appendix, vol. iii, p. 123. 2 Ibid., p. 124.

Ibid., p. 131.

The letter is accompanied by a list of thirty privateers belonging to the ports of New Orleans, Charleston, Philadelphia, Baltimore, and New York, with a formidable list of prizes made by them.

During this time similar complaints had been constantly addressed to the United States Government, on behalf of that of Portu

Complaints of Por

gal, by the minister of the latter power, the Chevalier Cortugal. rea de Serra. Portugal being at that time involved in war with the Artigas government, privateers were in like manner fitted out and manned by American citizens against the commerce of Portugal.

On the 8th of March, 1818, the Portugese minister writes to Mr. Adams that he is ordered to lay before the eyes of the United States Government the case of three Portugese ships, (of which he gives the details,)" captured by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors." He incloses an extract from the documents proving these facts, and offers to place the documents themselves at the disposal of Mr. Adams.1

Mr. Adams, setting, as it were, an example to future British foreign secretaries, answers:

The Government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved.

The documents to which you refer must, of course, be ex-parte statements, which in Portugal or in Brazil, as well as in this country, could only serve as a foundation for actions in dainages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction and found upon judicial inquiry to have been taken in the manner represented by your letter. By the universal laws of nations the obligations of the American Government extend no further.

Again, on the 15th of October, the Chevalier de Serra writes:

WASHINGTON, October 15, 1818.

SIR: This very moment I perceive the intelligence that a ship is fitting in the Patuxent to cruise against the Portuguese commerce, and the ship so fitting is no other than the Portuguese tine brig Soam Sexto, taken some weeks before by the Baltimorean privateer Fortuna, sent into Beaufort, North Carolina, and the goods shipped for New York and Baltimore where they are under reclamation. Captain Taylor left Baltimore on Sunday to take charge of her, and the night before the last a great deal of stores left Baltimore for this ship.

You know perfectly to what extent the supreme Executive can exert his power to prevent such a breach of all moral and international law; and I dare not doubt that it will be exerted, persuaded as I am of the honorable feelings of this Government. I am, &c.,

JOSEPH CORREA DE SERRA. P. S.-There exist now in Baltimore many persons who are able to identify the ship.3 The reply comes-that the vessel shall be seized? No.

WASHINGTON, October 23, 1918. SIR: I have had the honor of receiving, and have laid before the President of the United States, your letter of the 15th instant. I am directed by him to inform you

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that, if you will furnish a list of the names of the persons chargeable with a violation of the laws of the United States, in fitting ont and arming a vessel within the United States for the purpose of cruising against the subjects of your sovereign, and of the witnesses by whose testimony the charge can be substantiated, directions will be given to the attorney of the United States for the district of Maryland to institute suits against the persons complained of, in the proper court competent to their trial.

I pray you, &c.,

JOHN Q. ADAMS.

Yet there can be no doubt that, during this time, the United States Government were honestly sincere in their desire to put down the scandal occasioned by this wholesale system of privateering. Several vessels were seized, of which some were actually condemned, others released only on giving security; but the practice continued, vessels being enabled to elude all the vigilance and activity of the officials. As late as the 23d of November, 1819, the Chevalier de Serra writes in a disconsolate strain, representing the evil as increasing rather than diminishing:

PHILADELPHIA, November 23, 1819.

SIR: I have the honor of submitting the following facts and considerations: During more than two years I have been obliged by my duty to oppose the systematic and organized depredations daily committed on the property of Portuguese subjects by people living in the United States and with ships fitted in ports of the Union, to the ruin of the commerce of Portugal. I do justice to, and am grateful for, the proceedings of the Executive, in order to put a stop to these depredatious, but the evil is rather increasing. I can present to you, if required, a list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which have been taken by these people during the period of full peace. This is not the whole loss we have sustained, this list comprehending only those captures of which I have received official complaints. The victims have been many more, besides violations of territory by landing and plundering ashore with shocking circumstances.

One city alone on this coast has armed twenty-six ships which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise. Certainly, the people who commit these excesses are not the United States, but nevertheless they live in the United States and employ against us the resources which this situation allows them. It is impossible to view them otherwise than a wide-extended and powerful tribe of infidels, worse still than those of North Africa. The North Africans make prizes with leave of their government according to their laws and after a declaration of war; but these worse infidels of whom I speak, make prizes from nations friendly to the United States agains the will of the Government of the United States, and in spite of the laws of the United States. They are more powerful than the African infidels, because the whole coast of Barbary does not possess such a strength of privateers. They are numerous and widely scattered, not only at sea for action, but ashore likewise to keep their ground against the obvious and plain sense of your laws, since most generally, wherever they have been called to the law, they have found abettors who have helped them to invade the laws by formalities.

I shall not tire you with the numerous instances of these facts, but it may be easily conceived how I am heartily sick of receiving frequent communications of Portuguese property stolen, of delinquents inconceivably acquitted, letters from Portuguese merchants deeply injured in their fortunes, and seeing me (as often has been the case) oppressed by prayers for bread from Portuguese sailors thrown penniless on the shores after their ships had been captured.

The Executive having honorably exerted the powers with which your Constitution invests him, and the evil he wished to stop being found too refractory, it would be mere and fruitless importunity if I continued with individual complaints except by positive orders. This Government is the only proper judge of what constitutional dispositions or arrangements may be established for the enforcement of the laws, and he alone has the means of obtaining them, which are constitutionally shut to any foreign minister; I trust in the wisdom and justice of this Government that he will find the proper means of putting an end to this monstrous infidel conspiracy, so heterogeneous to the very nature of the United States.

Before such convenient means are established, the efforts of a Portuguese minister on this subject (the only one of importance at present between the two nations) are of little profit to the interests of his sovereign. Relying confidently on the successful efforts of the Government to bring forth such a desirable order of things, I choose this

British Appendix, vol. iii, p. 150, No. 8.

moment to pay a visit to Brazil, where I am authorized by His Majesty to go. My age and my private affairs do not allow much delay in making use of this permission, and I intend to profit by the first proper occasion that may offer. The arrangements for my departure will require my personal exertions, and it will not be consequently in my power to make an early or long residence in Washington this winter. As soon as I shall be able I will present myself there to pay my due obeisance to the President of the United States, and my respects to you.

Accept, &c.,

JOSEPH CORREA DE SERRA.1

The United States Government took the very proper step of getting an act passed prohibiting the entrance of privateers into certain ports of the United States; but this does not appear to have had the effect of stopping the evil; privateering appears, if we may judge by the continued complaints, to have gone on as before.

On the 8th of June, 1820, the Chevalier de Serra calls attention to a ship, taken by one of the privateers, having been sold by judicial authority in Baltimore, under the hammer, to Captain Chase, a notorious privateersman, standing under an indictment for piracy." He adds:

It is to be immediately fitted as a privateer (and a formidable one it will prove, by its size and strength, which are those of a good frigate) to cruise against the Portuguese Indiamen, and the command of it will be given, as it is assured, to the notorious Captain Taylor.

I have not the least doubt that the supreme Executive of this nation has both the power and the will of putting a stop to this hostile armament, particularly when, as in this case, he has timely information which will be successively put under his eyes, at the very stage of this inimical attempt on the Portuguese commerce.

Again, on the 16th of July:

WILMINGTON, July 16, 1820.

SIR: I am ordered by my sovereign to lay before this Government the names and value of nineteen Portuguese ships and their cargoes, taken by private armed ships, fitted in the ports of the Union by citizens of these States. The values have been ascertained by the proper courts of justice, and revised with all care and attention by the royal board of commerce. In proportion as the value of the other ships stolen is in the same manner ascertained, their names, and the amount of losses, will be laid before this Government.3

The value of the nineteen ships is stated at $616,158.

In this letter the chevalier proposes the appointment of commissioners to "confer and agree upon what reason and justice demand." The proposal was declined.

The reply was:

The appointment of commissioners to confer and agree with the ministers of Her Most Faithful Majesty upon the subject to which your letter refers, would not be consistent with the Constitution of the United States nor with any practice usual among civilized nations. The judicial power of the United States is, by their Constitution, vested in their Supreme Court, and in tribunals subordinate to the same. The judges of these tribunals are amenable to their country by impeachment, and if any Portuguese subject has suffered wrong by any act of any citizen of the United States within their jurisdiction, it is before these tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible. The proposal was renewed in 1822, but again declined. The Government had done all it could do. "Every attention, compatible with the rights of citizens of the United States and with the laws of nations, had been paid by the Government to the complaints of M. Correa of captures made by privateers fitted out within the United States and partly manned

1 British Appendix, vol. iii, p. 155.

2 Ibid., p. 156, No. 19.

3 Ibid., No. 20.

4 Ibid., p. 57.

by their citizens." "The laws for securing the faithful performance of the duties of neutrality had been revised and enforced; decrees of restitution had been pronounced by the judicial tribunals in all cases of Portuguese captured vessels brought within the jurisdiction of the United States; and all the measures within the competency of the Executive had been taken by that department of the Government for repressing the fitting out of privateers from United States ports, and the enlistment of citizens in them."

Mr. Adams adds, in a letter to the United States minister at Lisbon: "These measures, however, do not appear to have been altogether satisfactory to the Portuguese government, doubtless because they are not sufficiently understood by them." The Portuguese minister thought that the short and simple process would have been to seize the ships, by vir tue of the executive power; but the Mr. Adams of that day thought of the rights of American citizens and the law of nations."

The pleadings of the United States say little or nothing in answer to the facts relating to Portugal. As to those relating to Spain, they say in a somewhat off-hand way, "What then? if we did injury to Spain we repaired it." The British Counter Case answers that the reparation consisted in setting off, in a subsequent treaty between the two nations, some unascertained claims against the serious claims for actual losses sustained by the Spanish commerce through the acts of American privateers. I agree with the United States that Spain having consented to be satisfied with this reparation, nothing more is to be said on that head. Nor do I think that matters which happened half a century ago can with any fairness be brought forward to the prejudice of the United States in answer to the present claim, not even though provocation might have been given by the assertion of American superiority so ostentatiously obtruded in the pleadings of the United States. But these instances of infractions of maritime neutrality on so large a scale are important for a very different purpose; they show the difficulty of repressing offenses of this sort; they show that the asserted superiority of the American law is an empty boast; and they entirely bear out my view as to the alleged power of the President to make up for any deficiency in the ordinary law as administered by the courts. In the long series of complaints made by the representatives of Spain and Portugal as to the thirty privateers, of the issuing of which from the ports of the United States Don Luis de Onis thus incessantly complains, or as to the twenty-six which the Chevalier de Serra mournfully enumerates as capturing Portuguese vessels, no instance, so far as I am aware, occurs in which, when the Government officials alleged that the evidence was insufficient, the President intervened, by virtue of the discretionary power said to be vested in him to arrest a vessel.

1938.

The temporary act passed by the American Congress in 1838, on the American act of Occasion of the Canadian insurrection, has been more than once referred to in the course of the present controversy. The circumstances under which that act was passed are stated in the proclamation of President Van Buren, of the 5th of January, 1838, in which he said that information had "just been received that, notwithstanding the proclamation of the governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the pres

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*See Case of the United States, p. 134. Argument of the United States, p. 87.

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