No. 398. [2d Session.
PIRACY AND OUTRAGE ON COMMERCE OF THE UNITED STATES BY SPANISH PRIVATEERS.
COMMUNICATED TO THE HOUSE OF REPRESENTATIVES, JANUARY 31, 1825.
Mr. Forsyth, from the Committee on Foreign Relations, to whom was referred so much of the President's message to Congress, at the opening of the present session, as relates to piracy and the outrages committed upon our commerce by vessels hearing Spanish commissions, and the memorials from different quarters of the Union on the same subjects, availing themselves of the documents accompanying the President's message to the Senate, of the 13th of January, which have been printed by order of that body, present to the House the result of their deliberations upon the subject submitted to them:
From the commencement of the revolution which has terminated in the separation of Spanish continental America from Old Spain, the commerce of the United States, in common with that of all other nations, has suffered frequent outrages from the vessels of the adverse parties duly commissioned, with doubtful commissions, and from pirates who sought to conceal their true character by the use of the flag of some one of the belligerents. Constant efforts have been made by this Government to redress injuries suffered and to prevent future outrage. Congress has at all times been prepared to give, and has afforded, all the means necessary for these purposes within its province.
The act of the third of March, 1819, was passed specially to protect the commerce of the United States and punish the crime of piracy. It gave to the President power (a power, however, which the President possesses without an act of Congress) to employ the public armed vessels of the United States to protect our merchant vessels and their crews from piratical aggression and depredation; to authorize the detention, capture, and trial of any armed vessels which attempted any piratical depredation, search, seizure, or restraint of an American vessel. It authorized our merchant vessels to capture armed ships not commissioned by a friendly power, and to recapture vessels taken by them, and it directed the condemnation of the vessels so captured or recaptured; it provided for the punishment of the pirates, when convicted by the competent tribunals. This act was limited to one year, but was continued in force by the act of May 15, 1820, for two years, and the first four sections made perpetual by the act of the 30th January, 1823.
The re-establishment of the constitutional Government in Old Spain, in March, 1820, inspired the strongest hope that the contest between Spain and Spanish continental America would be soon amicably terminated in a manner satisfactory to the parties at war, to the commercial and civilized world, and to all the lovers of humanity, justice, and liberty. The first movements of the regenerated government promised a speedy realization of this hope.
The Cortes of Spain directed negotiations to be opened with Spanish America; Commissioners were appointed, but the contending parties did not take the same view of the great questions between them. Old Spain would not admit the recognition of the independence of the Spanish American Governments as the basis of negotiation; and the Spanish American Governments would not negotiate without that preliminary recognition. While these abortive attempts at negotiation were made, there was a temporary cessation of hostilities in Venezuela. The war, however, was renewed in Venezuela before the negotiations were broken off. Fortune favored the Americans, and the European Spaniards were driven from the continent. During this desperate contest, General Morales, the commander of the Spanish forces, issued his extraordinary proclamation declaring a coast of twelve hundred miles in a state of blockade, and interdicting all foreign commerce with the Spanish Main as inconsistent with the colonial law of Old Spain. This proclamation has been the fruitful source of most of the evils since suffered by all commercial nations in the West Indies and in the Gulf of Mexico. Numerous pirates and swarms of privateersmen (subsequently degenerated into pirates) have preyed upon all neutral commerce. Protection to that of the United States should have been, if it has not been, afforded against pirates by the use of all the necessary means under the control of the Executive; by a vigorous exertion of the naval power; by incessant watchfulness on the seas, and on the coasts infested by them; rigorous examination of all suspected vessels of every size; ardent pursuit of the persons found flagrante delicto, wherever they sought refuge; careful prosecution before the competent tribunals of all the accused who were taken; unrelenting severity in inflicting punishment, where guilt was judicially established, against privateersmen; by appeals to the Government of Spain, requiring immediate redress for the past and security for the future; if made in vain, application should have been made to Congress to authorize reprisals, or to declare war, as the extent of the injury and a due regard to the condition of the Spanish Government should have required. A further reference, however, to the past would not be useful. For the present and for the future, if legislative provisions are necessary, they should be made.
Piracy at present exists in the same form as in the year 1822, when a species of naval force, supposed to be particularly adapted to suppress it, was placed at the disposal of the Executive. This force was believed to have answered the expectations entertained of it, as the President at the opening of the last session of Congress announced that "it had been eminently successful in the accomplishment of its objects." If further experience has shown that this species of force is inadequate to the accomplishment of the object, and that another may be advantageously substituted, there can be no doubt of the propriety of the substitution. This is a point, however, that the committee do not consider it their duty to examine; it belongs properly to another committee, the result of whose deliberations on it has been already presented to the House. The merchants of the United States who have, with the exception of our seamen, the deepest interest in this subject, suggests the propriety of suffering the owners of vessels to arm for their own defence. There is no law forbidding such defensive armament, nor is any law required to justify it. It is, however, asserted that the restraints upon the armament of merchant vessels are inconvenient and oppressive, and that they ought to be removed. The only provision on this subject is that which requires bond and security to be given to prevent an unlawful use of the armed vessel; a provision which should not be changed—an adherence to which the best interest of commerce requires.
The propriety of authorizing by law the pursuit of the pirates on land has also been a subject of consideration. The committee do not deem an act of Congress for this purpose necessary. The rule of international law is, that fugitives from the justice of one nation are to be considered in another as
strangers entitled to protection, and having a right of residence, on the common principle that no nation has a right to punish a person who has not offended itself, nor is it bound to assist its neighbor in the execution of its criminal laws. Pirates are criminals against all nations, punishable in every tribunal; the common enemies of mankind; the duty of all nations and every man is, to hunt them down, that they may be delivered up to offended justice. Fresh pursuit of enemies into the territory of a common friend is not universally admitted to be a right of war. Powerful nations never permit feeble neighbors to enter their territory for this purpose, but enter without scruple in pursuit of their enemies the territory of such neighbors, unless restrained by the apprehension that the mutual friend seeks a fair occasion to become an ally against them in war. Practically, the question is one not of right, but of relative power. The pursuit of a mutual enemy into the territory of a friendly or allied power is a right of war; it cannot be deemed a violation of the sovereignty of that power; it confers a favor, and imposes upon him an obligation of gratitude.
The common enemy cannot avail himself of the protection of the territory of the third power but by surrendering himself as prisoner of war, and in that event, if the force of the pursuer was the cause of the surrender, the pursuer might rightfully claim the benefit of the surrender. Under this rule the pursuit and capture of pirates anywhere and everywhere may be justified. The Executive has acted upon it. Instructions have been given to our naval commanders to pursue and capture on Spanish territory pirates who seek refuge or concealment there. The Government of Spain has been duly warned of the existence of these orders; it knows that they will be obeyed. No remonstrance has been made by it; no objections have, as far as the committee have been informed, been urged. The acquiescence of Spain is all that should be desired. A distinction is supposed to exist between pursuit of pirates on lands uninhabited and those inhabited; and it is imagined that the authority of Congress is necessary to justify pursuit in the latter case, while in the former the power of the Executive alone is sufficient. The committee do not admit the correctness of this distinction. Fresh pursuit is justifiable in either case, if necessary to the capture of the pirate. There is greater danger of collision with the friendly power when the object of pursuit flies into a settled country, and greater care is requisite to avoid giving offence; but the same principles apply to either case, and it is just as necessary that Congress should legislate to justify the capture of pirates as to authorize the pursuit of them into any place of refuge inhabited or unsettled.
From an attentive examination of the letters of the agent who was sent to Cuba to obtain information relative to pirates who have long infested the coast of that island, it would seem that no fresh pursuit on land will eradicate the evil. Authority must exist to search in the suspected settlements for persons believed to be guilty of piracy, and for the evidence of their guilt, and to bring them before our tribunals for trial and punishment. This authority Congress cannot give without making war upon Spain. It cannot be used without wresting from Spain her municipal jurisdiction. The evil lies too deep to be reached by any ordinary measures which foreign powers can apply to it.
The Government of Spain must give to the local authority what it is said to want—sufficient strength to prevent and to punish crimes; it must perform its duties, or those who suffer from its neglect or weakness will be driven by the necessity of the case to apply the corrective. The committee would bring more distinctly into view the only efficient remedy, and recommend a resort to it, if they believed sufficient time had elapsed since remonstrances were made by our Government to Spain to prove incontestably that she wanted either the power or the will to do her duty, although they are aware that the conduct of any Government in applying that remedy without previous concert with other nations alike interested in the question would be liable to misconception, and excite well founded jealousies. The committee cannot doubt that the Executive, applying all proper means to prevent, to detect, and to punish the crime of piracy, and pressing upon Spain and her local authorities that the honor and the interest of Spain requires their best exertions for the same purpose, will not fail to confer with the great commercial nations on the extraordinary measures to be used, if the object is not speedily accomplished by the faithful exertion of the powers of Spain.
The danger to which our commerce is exposed, and the injuries it has suffered from privateers acting under regular or irregular commissions, are of a different character, and require a different remedy. The committee understand that outrages of this kind have almost, if not entirely, ceased; for those which have been inflicted, or which may hereafter be inflicted, Spain is directly responsible. Reparation must be had, by negotiation or by the exercise of such powers as may, for that purpose, be vested in the Executive by Congress.
To guard against future injury, the safest resource is to enforce, promptly, ample redress for that which has been suffered. The committee have already referred to the injuries suffered in consequence of the proclamation of Morales. Those injuries are not yet redressed. The Government of Spain has not attempted to justify a proclamation declaring, with a naval force insufficient to shut up the smallest port on the coast, a seacoast of twelve hundred miles in a state of blockade, nor the absurd pretension that the property of all neutral nations is, under the colonial law of Spain, liable to confiscation if taken on its way to Spanish America; but the property of American citizens captured by privateers from the islands of Porto Rico and Cuba, and from Porto Cabello, is now withheld under these pretensions. The Spanish Government, having formally revoked the blockade, gives to the tribunals of Spain an excuse for the condemnation of all property seized prior to that revocation; an excuse of which they do not hesitate to avail themselves. Acting under instructions from the President, of the 28th April, 1823, the minister of the United States at the court of Spain demanded satisfaction in January, 1824, from that Government for the outrages committed from Porto Cabello and the islands of Porto Rico and Cuba upon the commerce of the United States, and for the wanton murder of one of our gallant officers in the harbor of St. John, by the officer commanding the fort at its entrance. In September of the same year Spain was again called upon to indemnify those who had suffered in person or property under the proclamation of blockade, or from the interdiction of neutral commerce to the Spanish Main. In October the just reclamations of our Government were, for the third time, formally made to the Government of Spain. No satisfaction has been given; no indemnity has been promised; nor has there been even a satisfactory excuse given for the delay to answer the just demands of the minister of the United States.
The character of the injury sustained, its origin, the period elapsed since it was inflicted, the formal and fruitless demand for reparation for more than twelve months, justify reprisals. An anxious desire not to act harshly to a Government embarrassed by internal difficulties and enfeebled by recent revolutions, the distance of the seat of the Spanish Government from the places in which the evils complained of originated, the death of the minister appointed by the Spanish Government on the eve of his departure
to this country, and the recent selection of another minister, whose appointment and intended departure for the United States has been communicated in an official letter, a translation of which is herewith presented to the House, induce the committee not to propose any legislative enactment, under the firm conviction that this forbearance will give to Spain a new motive to make speedily ample reparation for the injuries sustained, and that, if it does not produce this desired effect, it will justify, in the eyes of all nations, any and every step Congress may hereafter be compelled to take.
Department of State, Washington, January 24, 1825.
Sir: I have the honor of inclosing herewith a translation of the only answer yet received from the Spanish Government to Mr. Nelson's notes on the subject of piracy and outrages on our commerce. It has been received since the communications to Congress of the previous documents were made.
I am, with great respect, sir, your very humble and obedient servant,
JOHN QUINCY ADAMS.
Hon. John Forsyth,
Chairman of the Committee of Foreign Relations, H. R. U. S.
Mr. Zea Bermudez to Mr. Nelson.
San Lorenzo, November 19, 1824.
Sir: From the middle of September last, when I took possession of the appointment which the kindness of the King, my august master, deigned to entrust to me, I dedicated, by order of his Majesty, my attention to the different notes presented by you relative to the claims of the American subjects who thought themselves entitled to be indemnified by Spain for the losses which they have suffered in the seas of America. A business so complicated, in which considerable interests are involved, presented so much more difficulty, by how much there were intermingled with it other interests and other claims of Spanish subjects against the Government and subjects of the United States.
His Majesty, desirous of preserving the friendship and good harmony which happily subsists between both nations, and that, in faithful observance of existing treaties, both Governments should terminate, in a friendly manner, this delicate question, the legitimate rights and just pretensions of both being mutually conciliated, has thought that the most proper means for gaining this desired end is to send immediately a minister plenipotentiary to reside near the American Government, who, by his information, prudence, and practical knowledge of the relations between both countries, may be, at the same time, the interpreter and the executor of the just intentions of the King. In consequence, his Majesty has been pleased to appoint Don Jose de Heredia his Envoy Extraordinary and Minister Plenipotentiary in the United States of America. He will set out for his new destination as soon as possible.
I hasten to inform you of this, that you may be pleased to lay it before your Government; and I avail myself of this occasion to repeat to you the assurances of my most distinguished consideration. God preserve you many years.
Your most obedient servant,
FRANCISCO DE ZEA BERMUDEZ.