The Diplomatic Correspondence of the American Revolution Volume VIII Part 4

You will be pleased to observe, that my last letter to the Minister was dated the 9th of October, and that there is a paragraph in it soliciting his speedy attention to the affairs on which he had promised to write to me. I received no answer. Some weeks elapsed and the same silence continued.

I consulted the Amba.s.sador of France, as to the propriety of my going to the Escurial, and endeavoring to prevail upon the Minister to proceed in our affairs, observing that the measures of Spain, with respect to us, might be important if not to this, yet to the next campaign, and that the sooner they were decided, the better enabled Congress would be to regulate their future operations. He was of opinion, that as the Minister had promised to give me notice of the time when he would be able to transact these affairs with me, it would be most prudent to wait with patience somewhat longer, and not by an appearance of too great solicitude, to give him uneasy sensations. All things considered, this advice appeared to me discreet, and I followed it.

Thus the month of October produced nothing but expectation, suspense, and disappointment.

About this time M. Gardoqui mentioned to me a singular ordinance which occasioned, and is explained in the following letter from me to the Minister, viz.

"Madrid, October 28th, 1781.

"Sir,

"M. Gardoqui informs me, that his Majesty was pleased in the month of March last to order, 'that when a prize taken by a French or Dutch vessel should arrive in a port of Spain, the Marine Judge of the District should reduce to writing the evidence of the capture, and deliver it to the French or Dutch consul, (as the case might be) to be by him transmitted to the Admiralty, from whence the commission of the captors issued in order that the legality of the capture might there be tried; and further, that the sentence which might there be pa.s.sed should, on being duly certified to the aforesaid judge, be executed under his direction.' I am also informed, that on the 12th instant, his Majesty was pleased to extend the abovementioned order to prizes taken by American vessels of war, and sent into any of the ports of Spain.

"So far as this order affects the United States of America, I take the liberty of representing to your Excellency, that the execution of it will necessarily be attended with the following inconveniences.

"1st. The distance of America from Spain is so great, and the intercourse between the two countries rendered so precarious by the war, that many months must unavoidably elapse before the sentence of an American Court of Admiralty can be obtained and executed here.

"2dly. That by these delays all cargoes, or parts of cargoes, which may be of a perishable nature, will be lost, and the value of the vessel and rigging greatly diminished.

"3dly. That as his Majesty has not as yet been pleased to grant the United States the privilege of having consuls in his ports, it is not in their power to provide for the transmission of the evidence of captures, in the manner specified in the abovementioned order.

"4thly. That in case the prize should be claimed as a neutral vessel, the claimants must either prosecute their claim in America, or the sentence given there could not be influenced by it; and yet it is more probable, that those claimants would endeavor to avoid that expense and trouble, by applying here for an order to suspend the execution of the sentence, as well as for a trial of the merits of their claim by a Spanish tribunal. In which case the same cause would become subject to two jurisdictions, and tried by two different independent courts, in two different countries.

"This order not being published, it is possible, that my information respecting it may not be right in all its parts; though I have reason to believe from the usual accuracy of M. Gardoqui, (from whom I received this information) that I am not mistaken.

"There is at present an American prize at Bilboa, and all judicial proceedings respecting it are now at a stand.

"The importance of this subject to the United States, and in some measure to the common cause, will I hope apologize for my troubling your Excellency with these remarks, and for requesting, that the embarra.s.sments in question may be removed, in such a manner as may be most agreeable to his Majesty.

"I have the honor to be, &c.

JOHN JAY."

To this letter I never received any answer whatever. After waiting six or eight days I asked M. Gardoqui, who almost daily applied to me on the subject, what could be the reason of so much delay in a case, that admitted of so little doubt. He said he could only account for it by supposing, that the Minister had sent for the original order to prevent mistakes. I asked whether these royal orders were not regularly recorded at the time they were issued. He told me they were not.

For my own part I rather suspect that this order treated us as an independent nation, and that the Minister found it difficult to establish any general regulations respecting our prizes or commerce, without meeting with that obstacle. M. Gardoqui informed me, that one of the Judges permitted him to read it, but would not let him take a copy of it, and that it only contained an extension to American prizes, of the regulations before ordained for Dutch and French ones.

As to the prize at Bilboa, a particular order was issued in that case for selling the ship and cargo, on the captors giving security to produce, within a year, an exemplification of a sentence of an American Court of Admiralty to justify it.

On the 5th of November, M. Gardoqui communicated to me certain letters and papers from which it appeared, that the Cicero, Captain Hill, had been stopped at Bilboa, by an order of the Minister, on a charge of improper conduct towards one of the King's cutters. Upon this subject I wrote the following letter to the Count de Florida Blanca, viz.

"Madrid, November 6th, 1781.

"Sir,

"It gives me much concern to be informed, that the conduct of Captain Hill, of the Cicero, an American private ship of war, towards one of his Catholic Majesty's cutters, has been so represented to your Excellency, as to have given occasion to an order for detaining him at Bilboa.

"This unfortunate affair is represented to me as follows.

"That Captain Hill, with a prize he had taken, was going from Corunna to Bilboa. That in the night of the 26th of October last, he discovered an armed vessel approaching the prize. Captain Hill suspecting it to be a Jersey privateer, hailed her, and ordered her to send her boat on board. They answered in English, that their boat was out of repair. This circ.u.mstance increased his suspicions that she was an enemy, and induced him to insist on their sending a boat on board; which not being complied with, he was persuaded it was an enemy, and accordingly gave them a broadside. Upon this they sent a boat to the Cicero and convinced Captain Hill, that the vessel was a Spanish cutter.

"If this is really a true state of the fact, and I have reason to believe it is, I am persuaded, that your Excellency will not think Captain Hill's conduct was unjustifiable, or contrary to the common usage in such cases. Having a valuable prize under his care, it was his duty to protect it, and as it was impossible for him at night to discover an enemy from a friend, in any other manner than the one he used, the Captain of the cutter certainly appears to have been remiss in not sending out his boat at first as well as at last.

"Both the Cicero and her prize now lie at Bilboa, laden with valuable cargoes, and expected to sail from thence for North America on the 16th instant. The privateer alone, has one hundred and forty men on board, and should they not be permitted to sail at the time appointed, a very considerable expense must inevitably be incurred, because they would be obliged to wait for the next spring tides.

"As no American vessel can have the least temptation to violate the rights of Spain, but as on the contrary it is the well known interest, as well as disposition, of the United States to cultivate the friendship of his Catholic Majesty, I am convinced, that there was not in this case the least intention of disrespect to the Spanish flag.

Permit me therefore to hope, that your Excellency will be pleased to permit the departure of these vessels by a general order, or on Captain Hill's giving security for the payment of such damages, as he may become chargeable with, on the issue of a judicial inquiry into this transaction.

"I a.s.sure your Excellency, that no citizen of America will be countenanced by the United States in any improper conduct towards his Catholic Majesty, or any of his subjects, and if I had the least reason to think, that Captain Hill was in this predicament, it would give me much more pleasure to hear of his being punished than released.

"I have the honor to be, &c.

JOHN JAY."

The Count's answer to the above.

Translation.

"The Count de Florida Blanca has the honor to present his compliments to Mr Jay, and to a.s.sure him, that the information he has received relative to the affair of the Cicero privateer, as set forth in his letter of the 6th instant, is not correct, the Count having received from persons of respectability and entirely worthy of credit very accurate statements. It is therefore necessary, that some suitable satisfaction should be given, in order to serve as an example to restrain the captains of the American privateers within proper bounds.

This is the more necessary, as it is not the first time that we have had reason to complain of their conduct, and to demand reparation.

"_St Lorenzo, November 8th, 1781._"

REPLY TO THE ABOVE NOTE.

"Madrid, November 12th, 1781.

"Sir,

"I have received the letter, which your Excellency did me the honor to write on the 8th instant.

"It gives me pain to hear, that the conduct of an American vessel of war should be so reprehensible as that of the Cicero has been represented to be. It is proper that I should inform your Excellency, that the captains of all American private ships of war give bond with sureties, to fulfil the instructions they receive with their commissions; and that these instructions enjoin them to behave in a proper manner towards friendly nations.

"As the honor and interest of the United States render it highly necessary, that their officers and citizens should, upon all occasions, pay the most scrupulous regard to the rights of other nations, I must request the favor of your Excellency to communicate to me a state of the facts charged against Captain Hill, that by being transmitted immediately to America, Congress may be enabled to take such measures relative to him, as to deter others from the commission of the like offences.

"Your Excellency would also oblige me, by informing me how the satisfaction demanded of Captain Hill is to be ascertained, and to whom it is to be paid. As his remaining much longer in his present situation would be a great loss to his owners, I wish, for their sakes, that he may be released as soon as possible; and, I am persuaded, that your Excellency will not think it necessary to detain him longer than until the satisfaction in question can be ascertained and paid.

"I greatly regret that other American privateers have also given occasion to complaints. I a.s.sure your Excellency, that nothing on my part shall be wanting to prevent the like in future, and I am sure that Congress would consider themselves obliged, by your Excellency's putting it in my power to convey to them exact details of any complaints against their officers.

"I have the honor to be, &c.

JOHN JAY."