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GALLATIN TO BARON PASQUIER. - Albert Gallatin, The Writings of Albert Gallatin, vol. 2 [1879]

Edition used:

The Writings of Albert Gallatin, ed. Henry Adams (Philadelphia: J.B. Lippincott, 1879). 3 vols.

Part of: The Writings of Albert Gallatin, 3 vols.

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GALLATIN TO BARON PASQUIER.

Paris, 28th June, 1821.

Sir,—

Although your Excellency is already possessed of the principal facts relative to the seizure of the French ship Apollon, Captain Edou, I beg leave, in conformity with the intentions of my government, to recapitulate the grounds on which that seizure was made.

As the right of a government to seize a vessel within its own jurisdiction for an actual or presumed violation of the laws, and to bring her to a trial before the competent tribunal, cannot be denied, my observations will be confined to that circumstance on which the remonstrances and complaints preferred by the diplomatic agents of France appear to have been founded, namely, the seizure of the vessel whilst in Florida, and, as it is alleged, without the jurisdiction of the United States.

The obvious answer is that the United States had, as is well known, taken possession of Amelia Island, in Florida, more than two years before the incident in question, and that they had at the same time extended their jurisdiction over the whole of St. Mary’s harbor, including the place where the Apollon was seized.

Strictly speaking, the last point is the only one which can be subject to discussion. For the motives which induced the United States to occupy Amelia Island and the adjacent waters, and for the manner in which the occupation was effected, they are accountable only to Spain. A third nation, unless she should think proper to become a party in the question, considers only the fact of actual possession, and her vessels and subjects must submit to the jurisdiction of the occupant so long as the possession is maintained.

It has indeed been suggested that there were but two modes of obtaining possession of a foreign territory which could be recognized by other nations, that is to say, cession by virtue of a treaty, and conquest in time of war. This assertion does not appear tenable. A third nation has no more concern with the manner in which the possession is taken than with the motives of the act. There may be cases which would justify a remonstrance, but in the mean while the possession and incident jurisdiction must be and are always respected. Without recurring to more remote instances, although some could be found in the annals of France, particularly under the reign of Louis the Fourteenth, it is sufficient to mention that of Montevideo. That seaport and the adjacent territory were taken possession of by Portugal whilst at peace with Spain, and if not from the same motives, at least in the same manner as Amelia Island and the Spanish port of the adjacent harbor were occupied by the United States. It does not belong to me either to justify or to impugn that act. But the fear it might disturb the general peace drew the attention of the principal European powers towards it; and although their interposition was unavailing and the possession is still maintained, the temporary jurisdiction of Portugal over the occupied territory has not been disputed, and is still respected.

There is not, however, when offering amicable explanations to a government whose friendship and opinion are highly valued by the United States, any hesitation to communicate the causes which led to the occupation of a part of Florida. This act was the unavoidable consequence of the inability of Spain to fulfil those duties which, as possessing a territory adjacent to the United States, she was by the law of nations and by express treaty stipulations bound to perform.

During the late war between the United States and Great Britain, Spain permitted or could not prevent a British force from landing at Pensacola itself, the principal port of Florida, although its entrance was defended by forts and batteries, and from invading thence the territory of the United States. At two different times during that war and subsequent to its termination, though expressly bound by treaty to do it, even by force, she did not or could not restrain the Indian tribes inhabiting Florida from violating twice the peace with the United States and from carrying twice a savage war against their frontiers. Although the ports of Florida were under the colonial system generally shut up against foreign vessels, she permitted the harbor of St. Mary’s and Amelia Island to become the resort of all those who frequented it for the sole purpose of violating the laws of the United States during the period (1808 to 1812) in which they were endeavoring by the pacific measures of embargo, non-importation, and non-intercourse to obtain a revocation of the unlawful decrees of the belligerent powers and to avert the necessity of a recourse to war. Finally, she could not prevent a band of adventurers, led by McGregor and acting under color of the pretended commission of a government which did not exist, from occupying that same Amelia Island with the intention to make a harbor, one-half of which did belong to the United States, an asylum for smugglers, slave-traders, and sea-robbers.

It was then that the government of the Union, after having expelled the intruders, determined to keep possession of that portion of territory, for the immediate purpose of preventing similar outrages, and with the intention to continue the occupation until they had obtained reparation for the injuries sustained and security against their recurrence. The moderation of the United States in not resorting to more efficient measures and in not extending the occupation beyond what was absolutely necessary for their protection, their forbearance under the vexatious delays which attended the ratification of the treaty for the cession of the whole province which had been soon after concluded, are well known to the world; and it must be acknowledged that these circumstances did not at least lessen their right to exercise that jurisdiction which the occupancy had given to them.

That the place where the Apollon was seized was embraced in the occupation by the United States is equally evident.

The middle of the river St. Mary’s, from its source to the Atlantic Ocean, was the boundary established by treaty between the United States and the Spanish colony of Florida. A spacious harbor, through the middle of which the boundary-line extended, is formed by the waters of the ocean at the mouth of that river. It is bounded on the Florida side, first, in coming from the sea, by Amelia Island (on which is the village, fort, and port of Fernandino), and higher up by the southern side of the river, on which are found only a few scattered farms; and on the opposite side, first by Cumberland Island, and higher up by the northern side of the river, on which is situated the American town and port of St. Mary’s. The spot where the Apollon was seized, and where she had proceeded after having anchored for some days opposite Fernandino, was higher up within the said harbor, on the southern side of St. Mary’s River, in an inlet of the same called Bell’s River, and about midway between the Spanish town of Fernandino and the American town of St. Mary’s.

It would have been absurd on the part of the United States, when forcibly taking possession of Amelia Island and of the only fortified portion of the harbor, not to have extended their occupancy and jurisdiction to the whole. They had occupied and continued their occupation not for the protection of Spain against McGregor, but for their own against the repeated outrages and injuries which they had experienced. If, as has already been stated, they were cautious not to extend the occupation beyond what was requisite, they would at least carry it as far as was necessary for the attainment of the object in view. The placing a garrison in the only fortified place of the harbor, by giving them, combined with the naval force stationed there, the command of the whole, was sufficient for that purpose, and unless that purpose was attained there would have been no object in maintaining a partial and useless possession. It would be preposterous to suppose that after having taken that strong measure they should have suffered another McGregor, or British vessels coming from the West Indies, which were and still are excluded from the ports of the Union, or vessels laden with slaves intended to be landed on their shores, to pass under the cannon of Fernandino, to proceed quietly one or two leagues higher up within the same harbor, and there undisturbed to carry into effect the same illegal practices or criminal acts to prevent which had been the object of the occupation.

The military occupation of Amelia Island and its avowed object are, therefore, alone sufficient to establish the fact of the occupancy of the whole harbor and of the extension of a corresponding jurisdiction. But of this there is also direct and incontrovertible evidence. After a deliberate examination of the subject by the government of the United States, and with a full knowledge of the intentions of some foreigners in that respect, it was deemed proper to remove any doubts which might still be entertained; and the collector of the customs of St. Mary’s was accordingly, as early as the 6th of May, 1818, directed by instructions emanating from the President “to enforce the revenue laws upon all vessels entering the river St. Mary’s, without regard to the side of the river in which they might anchor.” This order, which was strictly enforced, and to which there was but one exception, dictated by motives of courtesy, in favor of Spanish vessels, did effectually prevent any illicit attempt to evade in that quarter the revenue laws of the United States, and, although affecting particularly the British commerce, had always been submitted to without opposition or remonstrance till the arrival of the Apollon. It is evident that although neither the assumption of jurisdiction nor the corresponding instructions had any special reference to French vessels, they were clearly embraced in both, and could not consistently have been excepted.

The Apollon having, for a presumed violation of the revenue laws of the United States, and for the purpose of being brought to a trial for that presumed offence, been seized, after having entered the river St. Mary’s, and whilst at an anchor on the southern side thereof, in a place which, though in Florida, was included in that portion of the province which had been occupied by the United States and over which they had exercised exclusive jurisdiction for more than two years preceding, there has not been in that act any infraction whatever of the acknowledged law of nations; the complaint preferred on that occasion having, it is presumed, been grounded on the erroneous supposition that the place where the seizure was made was without the actual jurisdiction of the United States.

Whether Captain Edou had actually committed any infraction of the revenue laws of the United States, which made his ship liable to confiscation, is another question, within the exclusive competence of the tribunals, and altogether distinct from that which has been here considered. Supposing, what is not admitted, that he had committed no such infraction, the seizure, if made, as it is believed has been demonstrated, within the actual jurisdiction of the United States, could give rise to no other species of complaint than if a similar process had on strong presumption, although founded in error, taken place in the port of New York.

It is not believed that any serious argument will be attempted to be drawn from the alleged creation by the Spanish authorities of a pretended port, subsequent to the arrival of the Apollon in St. Mary’s River, and for the special purpose of enabling her to evade the laws and regulations of the Union. It was the natural effect of the occupation and assumption of jurisdiction by the United States to exclude any other concurrent authorities or jurisdiction. They were accordingly excluded; and if any attempt had been made by Spain herself to re-establish them, or, in other words, to resume the exercise of her authority in the territory occupied, the attempt would have been utterly disregarded, and either treated as a nullity or repelled by force, as the case might require. It happens, however, that even that suggestion cannot be supported. Florida was a dependence of the government of Cuba. The governor-general of that island, who was alone authorized to relax from the colonial system and to open new ports to foreign vessels, had been repeatedly applied to for that purpose by some inferior agents, who, blinded by their eagerness for illicit profits, had, it seems, absurdly supposed that the United States would acquiesce in that extraordinary project. But that superior officer, well knowing that this was tantamount to an attempt to resume possession of the territory occupied by the Union, had uniformly refused his assent. That pretended port was therefore established, if at all, by officers who had no authority to that effect; and the Apollon was, in fact, found and did land her cargo in a place from which foreign vessels were excluded by the Spanish laws and regulations then in force.

The motives of the agents alluded to will best appear from the letters of the principal amongst them (the Spanish consular agent at St. Mary’s) to a correspondent, which were forwarded to my government, and copies of which have, I believe, been given to Mr. Hyde de Neuville. That consular agent represents the establishment of that pretended new port as a continuation of the arrangement which had supported them (the smugglers and illicit traders) during the American embargo and non-intercourse and the war with Great Britain, and under which they had acted to a vast extent from 1805 to 1815; and he further expresses his hope that the information, when it has reached France, may have a great tendency there to delay the negotiations on an adjustment of the tonnage difficulties. How far Captain Edou participated in these expectations I will not pretend to say. But he made himself a party to the plan by acting, so far as related to his ship, under the guidance of, and in concert with, that consular agent, and by going in person to St. Augustine to solicit the establishment of the pretended port.

The first decision of the American government in his case had no reference to any presumed infraction of the revenue laws of the United States, and did not, therefore, direct that his ship should be seized. It bears date the 9th of September, 1820, and simply states, what was sufficiently obvious, that the Apollon was embraced by the instructions already quoted of the 6th May, 1818,—that is to say, that the revenue laws should be enforced upon her without regard to the side of the river in which she might anchor. But after the ship had been seized for a presumed infraction of those laws, and when application was made for her release, government was in possession of the above-mentioned letters of the Spanish consular agent; the question was not whether the ship was embraced by the instructions, but whether an exception should be made in her favor; and it will not certainly be deemed harsh that under all the circumstances of the case, such as they were then known, it should have been left to be decided by the ordinary tribunals.

The ship has since been acquitted by a decision of the court for the district of Georgia. I have not seen the decree, but, from the manner in which it is mentioned in the despatches from my government, I am authorized to say that the inference which seems to have been drawn, that the decision implied that the seizure was illegal, or in any degree affected the main question, is erroneous. Indeed, there are many other obvious grounds on which an acquittal might have been pronounced in the first instance. Sufficient proof of the facts may not have been adduced; the facts proven might constitute an attempt to infringe the laws, and not a positive infraction; the infraction, if any was proven, might subject the captain to a penalty, and not the ship to be forfeited; there might be an omission or defect in the revenue laws, which rendered the provisions supposed to have been violated inapplicable to the case in question. In either of those cases, or if there was a doubt in the mind of the judge, who knew that there was an appeal from his decision, he would pronounce an acquittal.

Whatever may have been the grounds of the decree of that court, certain it is that the government of the United States was of opinion that on an appeal to the superior tribunal a decision would be had against the vessel; and that the President, in declining a further prosecution of the case, has been impelled by no other motive than that of removing what might be made an obstacle to pending negotiations, and of giving an additional proof of the earnest desire of the United States to entertain the most friendly relations with France, and to terminate by amicable arrangement the difficulties which have arisen in the commercial intercourse between the two countries.

I request your Excellency to accept the renewed assurances of the distinguished consideration with which, &c.