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The Memorial of JAMss S. POTi, Agent, by l
And a few other residents of Pensacola, all inhabitants of
Sthe Floridas, claiming compensation from the British Go-
vernnent, for losses occasioned to then by the acts of the
Commanders of the British forces employed on the southern
frontier of the United States of America, in the years 1813
That the parties on whose behalf your memorialist aip
pears,' are most of them British-born subjects; and in the
years 1813 and 1814, were all merchants or planters, dwelling
in the Floridas, provinces then belonging to Spain, a power
ip amity with Britain; at which time the British Government,
then at war with the United States of America, employed a
hqqtile armament, commanded by'Admirals Sir Alexander
CGorane and Sir George Gockburn, to act upon: tie south
easteq frontier of the said States: which, the more effectually
to aatiy, the said British commanders took possession of
Pensacola, the capital of West Florida, and of an island at
4 STATEMENT OP THE FACTS OF THE CASE.
the mouth of the river St. Mary's, which separates East Flo-
rida from Georgia, called Cumberland Island, where Admiral
Sir George Cockburn fixed his head-quarters.
That in order to harass the enemy, and at the same time
to recruit the British forces, inducements were held out to
the Indian and negro population to join the British ; in con-
sequence of which, negroes, not only from the United States,
but also from both the Floridas, an away from their masters,
and placed themselves under British protection, of whom,
many from'West Fl6ridh were' enlidfed and formed into a
corps under Colonel Nicholls,-and many from East Florida
were carried away to Bermuda, or elsewhere, by Sir George
Cockburn.-(See Appendi.r A, Nos. l and 2.)
That it appears from a letter, dated Bermuda, January 22,
1816, and addressed by Admiral Griffiths, at that time com-
mander-in-chief of the British naval forces in North America,
to the Spanish Governor of East Florida, that the said
British Admii'al, acting in pursuance of instructions received
from the Government: at home, requested to be' informed by
the Spanish authorities what was theextent of the losses
which ihe Florida proprietors had sustained'on the occasion,
and in the manner above stated; and what compensation for
such losses the sa'idGovertior would consider reasonable.-
(See. Ap)endi': A, No. 3.)
That, Iby th treaty of amity, settlement, and limits, bee
teen the United States of America and the King:of Spain,.
dated February. 22, 1819, Spain ceded to the United States,
in full property and sovereignty, the provinces of East and
West Florida, together with all adjacent islands dependent
thereon: that it appears from the message of the President
of that republic to Congress, dated December 3, 1821, that at
the dale'of the message referred to, Spain had given to the
United States possession of the said ceded provinces ( Vide-
Extracts F and G); and, consequently, that, from the date of
such cession and possession given, the inhabitants of the
Floridas had ceased to. owe .any allegiance to, or to have
any title to protection from, the'King of Spain.
That the said sufferers patiently waited cight years, in ex-
pectation that, as Admiral Griflliths had, by direction of
ile British Government, applied to be informed respecting
the l ses which they had sustained, his application would
be followed up by some tender to them, on the part of the'
British Gbvernment, of compensation for such losses. Bit
no such' tAnder having been made, at length, in the' year
18'2, ih drdbi to try the right of al the said sufferers to
cpoipensatib'n., ope case out of the many, that of Mir. John
idrbes, of Pendshcola, was selected, and made the subject of
STATEMENT OF THE PACTS OF THE CASE." 5
a-ii action; which was brought by him in the Court of Kihi'Sq
Bench, against Admirals Sir Alexander Cochrane and Sir
George Cockburn, for the amount of his individual losses,:
the result of which action was, that a verdict was given
for damages to the amount of 38001., subject, however, to
the opinion of the Court, whether negroes, on reaching the
British fleet, did not become free; and, if so, whether they
were property ; and, if not property, whether an action would
lie on account of them : which points being argued early in
1823, before the three J udges of the said Court, those Judges'
decided that the objections were valid, and the said verdict.
was set aside.
That yod memorialist,'thereupon, determined to appeal to'
a superior court, and was on the point of acting on that de-
termination, bit was arrested in that course by the conclu-
sion at that very time of a Convention between the British
and Spanish Governments, intituled "A Convention be-
tween their Catholic and Britannic Majesties, for the ami,
cable adjustlrent of complaints respecting the capture and
detention of British vessels and property by Spanish autho-
rities;" which Convention appeared at that time to your
memorialist to offer to him an unobjectionable mode, of ob-
taining compensation to his employers' for their losses, and a.
far readier and less expensive one than a course of litigation
in the superior courts of law.
That by the first article of the said Convention, it was sti-
pulated that a mixed commission, to consist of two English
and two Spanish subjects, should be appointed and meet in
London, within ten weeks after the signature of the said
Convention, or sooner, if possible, to take into consideration
and decide, in a summary manner, according to equity, upon
all cases that should be brought before it properly authenti-
cated, of the capture and seizure of British.vessels, or deten-
tion of property belonging to subjects of his Britannic Ma-
jesty, from the declaration of peace between England and
Spain of July 4th, 1808, to the date of the then Convention;
and also upon all cases that should be brought before it, of
the capture or seizure of Spanish vessels, or detention of
property belonging to subjects of his Catholic 31Mjesty,
during the same period : and further, by the 4th article, that
the claims of Spanish subjects, which by the said commission
should be acknowledged to be just, should be paid, either in
stock of the public funds of England, or by an equivalent in"
money : and further, by the 5th article, that as soon as the
commissioners should have'admitted any claim tis valid, a'nd
determined the amount due to the claimant, they should assign
6r transfer; in-favour of such claimant, a. portion of the said
,. STATEMENT OF THE FACTS OF THE .CkSE.
"re*s" equivalent to th amount awarded: and further,
by he 6tharticle, thatno claim should be admitted which
should not be submitted to the commission within six
months after the fist, meeting of the commission.
That uich commission did meet, and did issue a notice,
dated London, ,11. October, 1823, stating that.they were
ready to receive,.har, and determine, at their office inMan-
chester-buildings, ia claims of the nature aforesaid, which
might'be submitted to them within six months after the said
nojtge,-(See Appendix 1B, No. 1).
'hat your y emorialist sent in, within the time limited by
the said notice of the commission, the claims of his said. em-
gloyers,.and registeredthe same, which claims were of the
Nature, and( to he amount, hereunder set forth :-
Claim of John.Forbes, for loss of 46 barrels of
gunpowder, esloyed. by Captain Gordon,
of his Majesty's ship Sea4:arse, on the 8th
November, 1 :814 ,r- ,.,. 1,175 12 6
Ditto for iqsd of 6.62.aegroesi .. ..
East Florida, barbonred and
carried away by the forces un,
der Admirals. Coeakane and
Cockburn, same period 6,200 0 0.
Lindsay Todd, for lossof 4d.. 400 0 0
Charles Seton 112 10. 0
Henry Yonge 3." 337 10 0
Wm. Christopher 4, 450 0 0
Robert Harrison ". 2 i 225M 0
John Fraser li 1,687 10 0
Spicer Christopher 2" 225 0 0
James Smithh ,'" 4" 450 0 0
i 10,087 10 0
'J~Ie fol!.wiqg, included in the
above claim, supposed to be
Aitonio Snarez, for.
loss of I.negro 11210 0
Santiago Caebe, I, do. At2 10 0
Pedro Capo,2 do.. 25 0 0
4 --- 450 0 0 .. .
----~- 087 10 0
.hn Innerarity, .r.tsh-born
object,) merchant and planter,
p.iacola, .West FloIida, for .
STATBMBMT OF THRE FACTT O4V 'TUH K"R.
.., Brought forward
.23 negroes, carried away by the .
forces under Col. Nicholls .21 19
Victoria Villiers, sup-
posed.to b Spanish
born, for3 negroes 571 19 0
A good ipanyother in-
hakit~ of Pensa-
,qc( 4zelieved from
.t.ames to he
r 60 negroes 6518 5 0
i .j . . . 7090 ,4
S,Ad4diionaljBit.sElorida claims .
uidbr. No. 74
Z. Kingsley, British-born, planter
, in LEast Florida, for 23 negroes 2868 15
Lucy FitzgeMald do. 11 do, 1237 10
John M'Clure, do. 7do. 87Z.10
Antonio Snarez, sup-
posed to be Spanish
horn, for 1 negro,
omitted .in former
claim 11210 0
SantagioCashen,2do.225 0 0.
6 i.a .
Total 26,966 11 0
That your memorialist received, from the Foreign- office in
Downing-street, an official copy of the claims of Spanish
subjects upon the British Government, as registered .under
thpesaid Convention, from which it appears that the claimasof
Spanish subjects on the British Government amounted to
about 1,200,0001.; and he has beard and believes, that the
claims of British subjects upon the Spanish Government, regis-
tered under the said commission, amounted to aboit @,000,Q00/.
That no investigation whatever into the validity of any
claim, or into the circumstances out of which any claim
arose, took'place at the time of preferring or registering the
same; but the registration was nothing more than an ac-
:knowledgment by the commission,.that the claim had been
preferred within the time by them appointed.
4-Fhat, so far. as your memorialist is informed, none of the
di4ims which were preferred and registered before the said
L : I
S ` .I:t
.8 $-TATEIfNT OB THE FACTS OF TUEi'4E. ;
commissiond were taken into consideration op. aUji
by the said commission, as it had been. stip lularub6
said Conveniodb, .that they should be. : '.wa abai J
That more than live years after your memorialist llAt
gistered his said employers' claims, that is to say,idft |
1828, a rumour that a new Convention between the saiditw
Governments was about to be entered into, wholly atvai-
ynce with, and annulling the said stipulations of theb salt
former Convention, reached your memorialist: n hereupon
ie addressed the letters to the Earl of Aberdeen, then Secre
tary of State for Foreign Affairs, of which copies are htrr- ,
unto appended (see Appundir C, Nos. 1, 2, & -), theremi,
remoustrating, dn the part of his employers, against the sup-
poied provisions of the contemplated new Convention, and
pointing out the injurious consequences to their interests,
which would result from such an arrangement, if carrieditnto.
effect. In answer to which renionstrancesi your MAemneial:iAt'
received their rely fromh MrA. Backhronseo.ti4hanlhr.Fotfkigr
Office, appended lh'r'6'dnto, (ride Appendi t roa3.) w.hihbi
to your memeiritdltls tas highly unsafisfae&ntya i.t'. *i d,,
That a new Geiwen*ion was entered into between the said';
two Governmen~l ,iawas ratified onrmthet iLhl-'Ddeember,,
1828, whereby Great Britain agreed ainra wme.by way of'
compromise, th.iqs.u of 700,000/., being the Iglance,lbtweenc
the twoabums of900,0001., on the one.,han~uagtfeed4.to be4,
accepted hby Great Britain', for claims preferred b0jBlitislt.
subjects. and of 200,0001.i'ou'lhe other handO6egae lttbe
accepted by Spait. .ferlclaims preferred by Spanish subjects
I Thd61h the-.provisions of the 3rd article of the said last-
--mentioned-onvention, it is stipulated, "That it shall beo.
" lawfliPM~ftither of thd high'contracting parties, to cause. to
" be adjudged' !w.ihintheir respective territory the clainis ofr'
"' their. own subjects,iin order to satisfy, wit h intwel'vemontlis
"from -the. dateof.the exohainge of the ratification qt the
" present Convention, 17th December, 1828, such claims as
' shall appear to be just and; legitimate, out of the sums
'"which one of the high contracting parties shall receive
" from the other; or it shall be lawful for the Government'".
A'. 9f either of the said high contracting parties to agree will
ltht6fi persons interested, or their assigns, upon any..other
-ntode of arrangement; which may be deemed most expe-
4*1it0Eai lfor satisfying within the same time, without thelne-
*".ce iqwof any previous; and. formal adjudicatioN pq.id
"furitsar yby. the 4h 'article of-the said Convent -is
"expressly declared, that the: compensation tob of 1
,2,00,000;,.'is .stipulated on the understanding -,"t' his
1 Catholic' Majesty, within the period specified, in. the pre-
S0ITEMENT OF THE FACTS OP THE CAM"l' 9
article, (I? months from the date of the ratificatl6h
1teoyI'rdaty) shall pay to his own subjects the amount of
ItWr fegitilnate claim against England, preferred uider the
mention of the 12th March, 1823, in specie, or in other
flttive value, and in such a manner that his Britannic
'E iajesty may be exempted from every responsibility for the
OR"1oti nt offs"ul claims."
it'bTht.- all 4AeC of Parliament, in confirmation of the 2nd
?onventiorn'was passed in the Session of 1829, whereby it
*as enacted~,' "'1That the said sum of 200,0001., stipulated to
be paid, tothe King of Spain, as compromise of the claim
of the Spanish subjects registered by the mixed coin-
"t mission, id~ duld be considered and taken as a full compen-
"* satiori- fo al, such claims: and tht' th'e said stipulation
f" tniht Itbe pledded'i 'bar in every'court, in any action for
5" restitution of any loss, for which compensation had been
(s'oughl by any claimant on his Majesty, preferred to or re-
g'istered by-the mixed commission.- (See AppendixD,No.1.)
That the Spanish Government, in pursuance of the said
S st cited Convention, appointed a commission to sit at
'1atiarid, in- the year 18?9, for the purpose of adjudicating
tb the claims of Spanish subjects, preferred andd registered
BefolreFthe said mixed commission.
STi at ydih memorialist, not from' any expectation he had
ofh'obtaiiinglt favourable adjudication from any commission
6o'appointed, but rather with a view of showing. that he had
btneglected applying for justice to any tribunal that might
'any possibility he deemed competent to investigate his
players' claims, did, in ihe autumn of 1829, prefer their
'*ainhs before the said commission, sitting at Madrid : who
id, forthwith hear, and adjudicate on, and did reject the said
claims, for reasons, some of which appear to your memorial-
tfs'tisfactory and conclusive, why, consistently with the
Att[inlaatonsof the said second Convention, it would not have
I'e'lt l~iful' for the said commission to entertain the said
S l'cihUOI V 6i' the statenirit of which reasons your memorialist
b.H' h i~ rfei fo the translated copy of the adjudication
reto appended. (See Appendix D, No. 2.)
hat since- the rejection of the' said claims by the com-
ssion at Madrid, your memorialist has not ceased to me-
rialize the British1 Government, through the Secretary of
utte for the Fo'reign Department, urging on his iaind their
nti'on the injustice-with which your memotrialist'aid his
Iyers have'-been treated, and claiming oPt the British
nent cdiffiensatiorffor their losses.
.~Yar mdmorialist 'has incurred heavy expenses, and
& Itrge shrns of money'in bringing ,-heabove-ni'n-
(1~ REASONINGS4 ON' THE FACTS OF1 THp CASE.
tioned action against the said British Commanders, and in prti-
ferring his said employers' claims, and in causing them to be
registered before, the said mixed commission; and also in-
preferring the said claims before the said commission, sitting-.
at Madrid; for which said advances your memorialist has
not been reimlfursed. '
That your memorialist having now, in the first place, stated
the principal facts of his .employers' case, begs permission$
in the second place, to adduce a few short reasoning 0o
those facts, showing why his employers are entitled to coni-
pensation from the British Government for the losses they
First-Your ;memorialist submits that losses were sus-
tained at the time and place, and in the manner hereinbefore
set forth, by certain owners in Florida; and that such losses
were of a nature to call for restitution at the hands of the
British Government; and in conclusive proof of these two
positions, your meemorialist refers to the letter of Admiral
Grifliths.--r-(Appendis A No b. 3
In further proof of the last of the former positions, that
the injury: was of a nature to, entitle the sufferers to
restitution at the. hands of the British Government, your
memorialist refers to the compensation paid by England to
the United States,.under the stipulation of the treaty of
Ghent, for injuries of.identically the same description, occa-
sioned by identically the same Commanders, at the same
time and in the very.same quarter, with this difference only,
that those injuries were inflicted on the citizens of a State
engaged in actual hostilities with this country, whereas the
wrongs complained of in the present case were done to in-
dividuals, then the subjects of a Monarch at peace and in
amity with Great Britain. ; ,
In further proof of the two first of the former three posi-
tions, and also in proof of this other position, that the par-
ties whom your memorialist represents, were among the
sufferers referred to in the said letter of Admiral Griffiths,
your memorialist refers to the verdict obtained in the Court
of King's Bench, by one of the sufferers; and although, op
a reserved point of law, the said verdict was rendered abor-
tive of any advantage to the plaintiff in the case, yet thoe
truth of the alleged facts, out of which the injury grew, anF
the fact of the plaintiff being one of the sufferers referred to
by Admiral Griffiths, and, as such, being entitled to compeR-
sation, were points clearly established by that verdict. f
Your memorialist, therefore, submits that it is incqotro-
yertibly established, that frpm the time of the completion of
the acts complained of, there thenceforth subsisted in the said
:' iW ONGSG6 ON THE FACTS OF THE CASE. 11
1ntars an equitable title to restitution, at the handy
ti8h Government, for all the losses they had susa
t t the time and place, and in the manner hereinbefore
p Ondly-Tour memorialist begs to ask the question,
er the restitution due to the said sufferers has ever
Made by the British Government? If so, it must have
made either directly, in the way of payment to the
erers; or;indirectly, by virtue of one or both of the two
fore recite Conventions.
:That,-a direct compensation has ever been made to the
suffererais a matter not in controversy.
Your- penorqialist, therefore, begs their lordships to con-
Ssider attentively, the question, whether restitution has been
made to his employers:in virtue of either or both of the said
Stwo Conventions. First, as regards the said first Conven-
i,. your memorialist submits, that his said employers,
ptgh, at the time of sustaining the injury complained of,
ey were for the most part British-born, and not Spanish-
e s, subjects, yet, as living on Spanish territory, under the
otection of, and in obedience to Spanish laws and autho-
they were de facto subjects of the Crown of Spain;
ha& they continued so to be until the date of the said first
Convention, your memorialist acknowledges that they would
be. been the proper objects of a convention between
at Britain and Spain, and would have come within the
visions of the Convention in question; but long before
g :4ate of the said first Convention, Spain having ceded in
Sovereignty to the United States the provinces of the
tf)lridas, and having given possession of the said ceded
jp9 .s to the said States, his said employers, who after
t cession still continued to dwell in the said provinces,
pame de facto citizens of the republic of the United
tats;. and such they were and continued to be at the time
of thconclusion of either of the said two Conventions; and
leqqfptly being, de facto; not subjects of the King of
ai,4Ut citizens of a third and independent State, they
Siot, consistently with public law, become the subject
ter of any Convention between Great Britain and Spain,
b their rights as creditors of Great Britain would be
t should be objected, that the said Florida owners, on
tof their having preferred and caused to be regis.
ir claim before the mixed commission, appointed in
of the said first Convention, had waved or for-
ir right to.demur, at any subsequent period, to the
of Great Britain and Spain to make their claii~
I 1~EASONINGS ON THE FACTS Of 't1A CASE.
the subject matter' df negotiation, your memorialist arrns"hi,
that had the condTl?7trfs hel forth in the said Conventidih A
those who should preler dnd cause to be registered tiret
claims, been observed; that is to say, had the said- cddi-
mission take into consideration, and adjudicated upon -the
claims so preferred and registered, and paid and satisfied
such of those claims as-t:hey had found to be just, the tre-
serint objection is of a nattire that might deserve serious con'-
sideration';' but the- promises heldforth to the claimants
under that Convention, which induced your memorialist rt
prefer his employers' claims before them, were broken: the
said commission was dissolved, without prod6eding~"to coni:.
sider' or adjudicate upon any of the said claims; and as
regards your' memorialist's employers, therefore, the said
commission, and the proceedings under it, ought to be held
as (hough they hAd'ndver existed. '
YbuF tiembrialis now filly admits, that it wias inder a
mistak'enitiew oP tMb p0d ers' derived front the said Conven-
tioiithrait-hd Wi' l d'lY-:prefer and register:his employers'
claihis before tli'''sdid' n mied m commission;, and that -he' is
ifin fully-persuAdded&e. that lhad the said'co'mmission, instead
6f being dissolvdl A'stthey' wee, without 'adjudicating, pro-
coedd to adjudui&46,'t6' nhi.ss~aid' employers' claims, they
could only have *t .ed,.!'that on account of his said em-
pldyers'n6t iaviihg been Spanishl subjects at the time when
thb Convendtibn 'waY concluded, the commission had noju-
risdictibn wbhtever '"err'heir tcse. d
: On these-t*d'.gt mndNs, then; first, that the said mixed
cohmiibsion udid' t ft proceed to adjudicate; secondly,
on the gtounid,I'ha't if they'had proceeded to adjui'i.eatd,
they woilldd'- hh'v'eadi nbo jurisdiction whatever :6~i' the
case of his said eihployers, your memorialist subtitiw that,
under the first'Coirvention, the British Governinert has not
made, norcari 'it be deemed' to have made, any restitution
to them for their losses.
SWith regard to the second Convention, your, memorialist
submits, that it was competent for Great Britain and Spain,
by mutual Convention, the former to. surrender any claimS
whichh British subjects might have against the Spanishi~tl-
Wrn'ment, the latter to surrender any claims which Spanish
subjects might have against the British government ; it
not to either of the two to make over and assign to the diher
a liability; under which either stood to the citizens of-a t'idti
and independent state. To assert the contrary wailPube
as unreasonable as to assert that a debtor might'#cjuit
himself to-his'creditor, by' assigning totanotlhesi p(Fy his
liability to pay.- Unless, therefore, it can be showfn'that the.
SONINGS ON THE FACTS OF THi CASE.
eida' owners, or the Government of the United4
.n their behalf, formally consented to the substitution
tecdrity of the one Government for that of the other,
l.t ntion entered into between Great Britain and Spain,
ing, onAthe one hand, for Great Britain's assigning to
1the liability she had incurred, and, on the other hand,
ains releasing Great Britain from that liability, can
st thoseowners of that title to obtain restitution from,
eat Britain)or, which they originally stood possessed.
Further, your memorialist submits, that so far were he or
is saihdl omptoyars from giving his or their consent to accept
e liabitydiofiSpain in lieu of the liability of Great Britain,
to nakeg.fnlbd their losses which. his said employers had sus-
tainled(ih tloy~ ',,eemorialis sent into the F oreign-office of
t#seto;bF';t yrowittea cemonstrance, on.the part of himself and
this employers,against the contemplated stipulations of the
second Convention.-(Sce Appendix C, Nos. 1,, & 4.)
b th'eri' your memorialist submits, that no pretensions
dljudicate oh claims preferred against either of the said
h-vernments by the subjects or citizens of any third
area contained in the stipulations of either of the
-b .Conventions; and that the second Convention
tipulates, that the parties having claims against
Id; sc claims the King of Spain shall cause to
Mtntffd within his own territory, and the amount
ib.-,claims, if found to be legitimate, the said King
4'pay,, are to be the King of Spain's own subjects:
the- said owners of the Floridas,. at the time of signing
fhiwfC'bnvention, were not: and therefore, by the very
i:bsaid second Convention, the said owners are utterly
IUft4romn any benefit or restitution to arise out of the
ltifurther, your memorialist submits, that the very
ado'whicl~ he contends, that restitution to his said em-.
kiatetprovided under either Convention, namely,
*drinpioyers were not Spanish subjects, is the
Sti chiefly, the practical interpreters of the
4 dGnr'vention, the Spanish commission sitting at
;idia ptrsmuance of the said Convention, have rejected
r memorialibst'fully anticipated that they must,and
rhis,>said employers' claims.
regard$ tfefdfeei to the question, whether restitu-
bdeosbn enatetohis said employers under either of the
nVention0y: your amemorialist has endeavoured to
b,-e-'Dbfitisuchb. would not be the. case; because,
'pt ibitllpublic.lari)tbe title to. restitution of which
oyessgwere possessed, could net, after the ces-
14 SEASONINGS ON THE FACTS OF THE CASE.
sion by Spain of the Floridas, form the subject matter of-,
any Convention between' Great Britain and Spain.
. Secondly-That restitution to his employers did not f6nt
the subject matter of the only one of the said two Conven-
tions which has been carried into effect, namely, the' second
of the two Conveitions; inasmuch as it is therein expressly
stipulated, that none but the King of Spain's own subjects,
shall be included amongst the parties claimants against
England, whose claims the King of Spain shall cause to be'
Thirdly-That the practical interpreters of the said last-
mentioned Convention, the said Spanish commission, have
construed the said Conventions in the sense last adverted
to, denying thereby that restitution can arise to your me-
morialist's said employers out of theisaid Convention.
SIf restitution to the said Florida owners could not be, and
was not stipulated to arise, and has not arisen, out of the
said Conventions, or either of them, can it arise out of the
hereinbefore mentioned Act
causing restitution, that Act has been the chief impediment
to his said employers obtaining any restitution at all: for
the said Act provides, that-
The mere fact of having preferred' and registered a claim
before the said mixed commission, might be pleaded in bar,.
in every court, in every action brought for restitution of any
loss, for which loss compensation had been sought before
the said mixed commission." Now impediment to restitution
is not restitution itself.
Your memorialist will here remark, that the said Act forms-
an exception to the course almost uniformly pursued in all
cases, where, with a view to public advantage, the community
are debarred of theirusual remedy by suit, action, or appeal.
In' all 'good' precedents of the kind, it is usual to make ex-
ceptions in favour of parties, by whom legal proceedings have
been commenced; but no such exception was made in the case
of Mr. Forbes, by whom the action had been brought, and
the verdict had been obtained, as has been before stated.
Your memorialist submits, that since the British Govern-
ment were fully apprised of the wrong which had been
done by their Commanders, to the said owners in Florida,
and admitted such wrong to have been done, (as; appears
fiom the correspondence of Admiral Grifiths) it would not
Bave been unreasonable to expect, when the said sufferers,
ndt on the merits of their case, but on a mere point of law,
were foiled in their endeavours to obtain compensation by
ordinary process, that the said Government, of its own ac-
cord, and from its own sense of what was equitable, should
S'3V *REAOL01NOS ON THnt'CACTS OF THEal -CASS.
oa&ke. a tender of amends t ;the parties injufed; but if
That was not to be expected, at least common justice Ie-
qitpd. this at the; hands of that Government, by wipse
aetiaund ,or wh6se supposed advantage the injury b hi
beeK done; 'namely, that the said Government should -ntt,
thiing to the sufferers some other way to restitu-
*nU those sufferers of the only means remaining to
th obtaining amends, that is to say, of access to the ordi-
nDa .als of the country. This,however,by its introduc-
i Parliament, and by its support in Parliament, of the
afterwards passed, and became the statute above
o, the British Government did: and this it did knowing
or having the means of knowing, that under
atis and Act of Parliament, no way to com-
b.enor could be provided for the said suf-
fbrers, i 'of that which the said Act deprived them of.
Your memorialist has said, "knowing or having the means
of knowing;" for that the British Government were aware
that the injury happened in the Floridas, appears from the
correspondence of Admiral Griffiths. That the Floridas,
at the time of either Convention, had ceased to be a pos-
egsioni of Spain, must have been known to the Secretary for
eign Affairs in this country, since the treaty for the cession
ithe Floridas was a public document, patent to all the
Wird4i and that no claimants against the British Govern-
mnt, but such as were the King of Spain's own subjects,
could obtain restitution under the said second Convention,
inmst equally have been known to the said Secretary for
Foreign. Affairs. The British Government have, therefore,
fist,:inflicted a wrong, and have then devised the means of
depriving the sufferers of the remedy for that wrong: acts,
which, if committed by any other Government, would be
characterized as acts of tyranny and oppression.
iJ consideration, then, of all the premises, by which your
t has endeavoured to show, first, that. the British
t.hs inflicted a wrong: secondly, that. the same
t has made no restitution ,for that wrong: thirdly,
ha' theisafl Government has itself devised the means of
deb "E.g: the sufferers from obtaining restitution: and,
lastly,.'t i., i~fr the honour of the Crown and of the
country, bt restitution be made, whether obtainable by
ordinary s~pfw or not: your memorialist.claims com-
pensation t1t hands of the British.Government, and of
their Lordships, for the losses occasioned to the said owners
tihe Flor~id by the acts of the said British Commanders.
your m alistats in dutybound will ever pray, &c.&c.
'f.4-a,. MHarcA t3. 1.
DR. PHILLIMORE'S OPINION.
There can be no doubt; I apprehend, but that Spain pos-
sessed the Floridas in full sovereignty; and if that fact be
admitted, it seems to follow as a necessary consequence, that
it was competent to Spain to alienate those provinces, a'nd
to transfer any dominion she might have over them to a fo-
The exercise of such a right was incident to the very na-
ture of the title by which she held them, as Vattel concisely
expresses it: Ce droit est une consequence n6cessaire du
domaine plein et absolu.
Secondly-~-No resistance was offered on the part of the
inhabitants of the Floridas to the cession, and the United
States were put by Spain into quiet possession of the two
In any view, therefore, I can take of the question, I am
clearly of opinion that, on the exchange of the ratifications
of the treaty of 22d Feb. 1819, all the sovereignty and do.
minion, which up to that period had been exercised by Spain
over the Floridas, became; ipso'facto, vested in the United
States. The doctrine of the law of nations, as to the nature and
extent of such a transfer, is thus laid down by Grotius: De
B et P., liber 1, chap. iii. sec. 12: Propri6 tamen, cum popu-
lus alienatur, non ipsi homines alienantur sed js perpefuum
eos regendi, qui populus sunt.
Thirdly--As to the competency to Spain and England to
stipulate by treaty respecting the title of restitution to pro,
perty claimed by the subject of a third state, which was in
no way a party to the treaty.
Here I must first observe, that the two contracting states
do not profess to enter into any stipulation of this descrip-
tion; ,the utniost they stipulate for is, that they will adjudge
within their respective territories the claims of their own sub-
jects; and the inhabitants of the Floridas having ceased to
be subjects of Spain, can, in my judgment, by no latitude of
interpretation be brought within the scope of the convention
they are not included in the terms of it; but if they had, npX
opinion is very decided, that any provision respecting them
wduld have been null and void, because neither of the con-
tricting parties can, under the law of nations, represent the
interests of people who were connected to neither of these by
any lie of obligation whatsoever.
(Signed) JOSEPH PHILLIMOR'E.
Doctors' Commons, 18th Feb. 1839.
(A) No. 1.
Tonnant, off Pensacola, 5th Dec. 1814.
Surprised to hear from the Governor of
t a number of slaves, belonging to that place,
en from thence, by the detachment under your
4 dcazied to Apalachicola.
'instructions permitted of your enlisting
tUnited States, they never could convey to
to interfere with the slaves of persons in
t Britain, and as the further detention
e'of the most serious consequences, I have
ng them to be immediately secured and
Svessel of war coming to join me, whose
Application, will receive them on board,'
Son his-way down.
I I am, sir,
F obedient and humble servant,
^-t tlEnI> ALEX. COCHRA1E,
i Vice-dmiral and Commander in Chief.
L Miholls, Royal Marines,
d i4 betachmint, &c. &c..
(A) No. e.
MOST EXCELLENT SIR,
The support and protection which the subaltern officers of
the troops under your command, now on Cumberland Island,
afford to the runaway slaves of this province under my
charge, inviting them to desert their masters and enlist as
soldiers, with the tempting promise of the liberty which they
will enjoy, when once they are transported to his Britannic
Majesty's colony, has filled with consternation the peaceable
inhabitants, subjects of his Catholic Majesty, to which may
be added the aggravation offered them by the manner in
which the restoration has been eluded: as to answer the
claim which their masters make personally, by saying that
they might take those that would accompany them volunta-
rily, is the same thing as to refuse their restoration: for
where is the slave that will voluntarily return to slavery, if
left to his election? For my part, even if there did not
exist that good understanding, cobcord, and friendship be-
twixt our respective nations, I should feel very averse to
suppose that the British Governmerit, generous England,
would tolerate in its subjects the spoliation of the property
belonging to the pacific, industrious, and defenceless planter,
not.only of a friendly power, but(excepting in certain cases)
I conceive, they would not permit it towards an enemy. I
pronounce it as undeniable, that this laudable maxim has
ever been so religiously observed by civilized and enlight,
ened people, that natil now it has always been considered'
as an inviolable principle of the laws of nations.
'This abuse or disorder, Most Excellent Sir, from its inw
portant nature, demands from your Excellency the most
prompt and effcacious remedy in your power, in order to do
away with those appearances of hostility which such uun
usual proceedings manifest; as well as to avoid the conse-
quences which must result from them, and which, for my
part, I shall endeavour to obviate by every means in my
power, requesting your Excellency again to order the resto-
ration, without restriction, of the aforesaid Spanish property,
which I now demand of you officially for the second time.
Permit me to offer to your Excellency, personally, my sen-
timents of high consideration, whose life, I pray God, to
preserve many years.
(Signed) SEBASTIAN KINDELAN.
St. Augnstin, East Florida, 18th February, 1815.
His Excellency George Cockburn, &c. &c.
(A) No. 3.
His Majesty's Ship Akbar, Bermuda, 22 Jan. 1816.
Having been ordered by my Government to open a com-
munication with your Excellency respecting some people of
colour, who ran away from East Florida to Cumberland
Island, during the late war between his Britannic Majesty
and the United States of America, and were from thence
received on board of some of his Majesty's ships as Ame-
rican refugees, I have to request that your Excellency will
do me the honour to inform me if you have knowledge of
the individuals of this class, belonging to any persons sub-
jects of his Catholic Majesty, and residing under the Go-
vernment of your Excellency, who have ran away and taken
refuge in that manner; and if so, be pleased to communicate
it, for the information of my Government, with all the parti-
culars of the case, and what compensation your Excellency
thinks reasonable to the owners of the said people of colour,
for whatever losses they may have sustained.
I have the honour to be, with much consideration, your
Excellency's most obedient and humble servant,
(Signed) EDWARD GRIFFITHS,
Rear-Admiral of the White, and Commander-in-chief of
the ships and naval forces of his Britannic Majesty
in North America.
To his Excellency theGovernor ofE. Florida, at San Augustin.
(B) No. 1.
The commissioners appointed in pursuance of the said Con-
vention hereby give notice, that, under the power vested in
them, they are ready to receive, hear, and determine, at their
office, No. 12, Manchester-buildings, Westminster, all
claims of the nature aforesaid: and all persons, whom it
may concern, are hereby desired to observe the stipulation
contained in the 6th article of the said Convention, whereby
no claim will be admitted which is not submitted to the com-
mission within six months after the present notice.
London, llth Oct, 1823.
E. J. DAWKINS. DIEGO COLON.
ROBERT ALB. COX. JUST DE MACHADO.
(C) No. .
London, 20th August, 1828.
To the Right Honourable the Earl of Aberdeen.
We, the undersigned correspondents of subjects of Spain,
from whom we hold powers of attorney, to enable us to pro-
secute their claims for compensation under the Conventioin
with this country of the 12th March, 1823, beg most respect-
fully to apply to your lordship, as the organ of his Majesty's
Government, under whose direction, as we are given to un-
derstand, those claims are now in a course of adjustment:
we do not for a moment doubt, that your lordship will be
guided in the settlement of those claims, so important to the
parties interested, in a way to secure the gratitude of all the
claimants; but the bare possibility that the agents of his
Catholic Majesty;may press upon your lordship the conve-
nience on the part of Spain of striking a balance of account,
or, in other words, of deducting the amount of the claims of
their own subjects, from the amount due to those of this
country, fills us with the utmost apprehension and alarm;
for looking at the conduct of Spain in every similar transac-
tion (and particularly in the affair of the 400,0001. paid by
'this country to the Spanish Government, for losses under
the slave treaty, not 'one farthing of which ever reached
those who sustained the loss) we are morally certain, that
the same would happen in the present instance, and that
the poor Spaniard would never obtain one fraction of his
S claim, if left to seek payment from his own Government,
We most earnestly, therefore, entreat your lordship to take
this point into your benevolent consideration, for many, very
many, of these claimants are poor in the extreme, and re-
lying on the faith of the British Convention, as expressed in
article the 4th, have been put to considerable expense and
trouble in getting their proofs together, so as to establish
their claims, according to the prescribed form. It is not our
business to touch on the policy of showing any forbearance to
the Spanish Government, and thereby the better enable it to
direct more of its resources to a quarter inimical to British
interests, such considerations are safe in your lordship's
hands, but we may be permitted to mention, that a great
part of the Spanish claims we now advocate, arise out of
losses sustained in the furtherance of British views and
British interests exclusively; and, therefore, the more en-
titled, as we hope your lordship will agree with us in thinking,
to the absolute protection of the British Government, with
whom, therefore, under such circumstances, there cannot but
exist a kind of obligation to see direct justice done to the
suffering parties, as, indeed, the provisions of the Convention
of the 12th March, 1823, would appear to prove.
We, therefore, respectfully entreat that your lordship will
be pleased to take the circumstances we have stated into
your favourable consideration, and that however small may
be the amount found to be due to the Spanish claimants on
this country, your lordship will not leave them to seek for
payment on the Spanish Government, not only for the rea-
sons before stated, but that it would be contrary to the faith
of Article 4 of the Convention, and utterly deprive them of
all hope of ever receiving the smallest portion of what they
may be entitled to.
We have the honour to be,
Your lordship's most obedient servants,
(Signed) J. S. POTT, Pancras-lane,
Agent to the Spanish claimants of East and West Florida.
(Signed) CHARLES BARRY,
(Copy.) Agent for upwards of 60 claimants.
(C) No. 2.
London, 27th October, 1828.
To the Right Honourable the Earl of Aberdeen.
Not having received any answer whatever to the applica-
tion I had the honour to make to your lordship, under date
of the 20th August last, respecting the adjustment of the
claims under the Convention with Spain, but gathering, from
what I have learnt in your lordship's department, that part
of the plan is to send the Spanish claimants to their own
Government, for payment of their claims upon this country, I
most respectfully, but earnestly, implore your lordship to re-
consider the effect of such a measure, and the consequences
which must result from it; the notorious want of ability or
good faith, on the part of the Spanish Government, to fulfil
their pecuniary obligations, is known to all the world; and
if that Government has never yet distributed one fraction
(which it is well known they have not done) of the 400,0001.,
paid it by this country, under the slave treaty, as an indem-
nity for losses sustained by their own subjects in that trade,
what possible hope, permit me to ask your lordship, what
chance, however remote, is there, that they will act differently,
on the present occasion, when the funds are to emanate from
themselves ? It is not, I am sure, that because such an ar-
rangement may be convenient to this country that your lord-
ship would agree to it, for national faith and honour must
weighwith your lordship over every other consideration; and
it has been in this view of the case, and considering the
British Government bound under the Convention with Spain
to fulfil what it therein solemnly undertook, and has since
so repeatedly acknowledged, that I have, individually, in-
curred a considerable outlay of money and time in the fur-
therance of these claims,, and for which, as I relied on the
British Government fulfilling their undertaking, as expressed
in Article 4 of the Convention, I thought myself sure of
reimbursement, so soon as Spain had satisfied the English
The situation of the Florida claimants, too, in particular,
my lord, is well worthy of consideration, for many of these
possess proofs sufficient to sustain their loss in our courts of
law, to say nothing of what may arise out of national obliga-
tion, and any arrangement, therefore, differing from the terms
of the Convention, short of the guarantee of his Majesty's
Government, will be sure to raise a number of litigants,
besides bringing into question the national character, a
point too important to a Bfitish Statesman, to escape your
I have powers of attorney from my correspondents, em-
powering me to adjust and give discharges for their claims
on this country, as I shall see fit; do but, therefore, I pray
your lordship, effectually secure us from any dependence
upon the Spanish Government for these claims upon this
country, and I will enter into almost any equitable compro-
mise for the settlement of them with his Majesty's Govern,
ment, to whom I am enabled to give such full and effective
discharges, as the British commissioners, or the law-officers
of the Crown,, can possibly require.
I have the honour to be,
My Lord, &c. &e.
J. S. POTT.
(C) No. 3.
Foreign Office, 19th Nov. 1828.
I am directed by the Earl of Aberdeen to acknowledge
the receipt of your letter of the 27th ult., and of the previous
letter therein referred to of the 20th of August, and I am to
inform you, in answer thereto, that in the measures now in
progress, it has been the object of his Majesty's Government
to make such arrangements as they have reason to trust
will, within a limited time, obtain from the Government of
his Catholic Majesty a satisfactory adjustment of those
demands of the Spanish claimants, which, upon examination
by a competent authority, shall be found just.
I, am, sir,
Your most obedient and humble servant,
(Signed) J. BACKHOUSE.
J. S. Pott, Esq.
(C) No. 4.
London% 26th Nov. 1828.
I have received the letter which your lordship did me the
honour to direct should be addressed to me, in answer to
mine of the 20th August and 27th ult. respecting the adjust-
ment of the claims under the Convention with Spain of March,
I cannot, of course, but have seen the statements in the
public papers on this subject, and I am desired also to un-
derstand that the sum of 200,0001. is assumed to be due by
this country to the Spanish claimants, which sum, if to be
distributed under the superintendence of his Majesty's Go-
vernment, who owe it, amongst the claimants who are en-
titled to it, as would be done in all the common and ordinary
modes of business, not one of the Spanish claimants, I ven-
ture to pronounce, will complain, even if it falls short of their
just expectations. It has been, I assure your lordship, under
the full persuasion thatit would be so arranged, and as ar-
ticle the 4th of the Convention of 1823 would inevitably
imply, that I undertook the conducting the Florida claims,
and although I have been many years connected in business
with those provinces, yet I should most certainly never have
come under the advances, or incurred the trouble and labour
I have for these four years past in their superintendence, If
I had not had the most implicit reliance on his Majesty
Government, that this country at least would fulfil an eii-
gagement so solemnly contracted, and repeatedly acknow-
ledged and confirmed: I therefore do humbly submit to your,
lordship, that I have a just claim to the protection of his Ma-
jesty's Government therein, for to no other source, as I have
always been aware, is there the least hope to look, as
although Spain may even give a security for its engagement
to his Majesty's Government to satisfy the Spanish claimant,
within a given time, yet, if it is left to the Spanish Govern*
ment to decide what claims are just on the British Governi
ment, it cannot but be feared that they will show a preference
to those of their present subjects, (the least tenable, too, as I
should suppose, of the whole of the claims,) to the prejudice
of the Florida claimants, whom I do not hesitate to pro-
nounce amongst the most just of the whole, and whom, as I
have before had occasion to observe to your lordship, have a
just and equitable claim upon his Majesty's Government, in-
dependent altogether of the Convention: I beseech your
lordship, therefore, to take what I have stated into your con-
sideration, while the matter is yet in progress, and either to
cause the distribution of the 200,0001. amongst the Spanish
claimants who are alone justly entitled to it, or at all events
to procure the bonds of the Spanish Government for that
amount, in lieu thereof, to be distributed on a principle simi-
lar to what I perceive is to be done towards the English
claimants, and under such joint or separate superintendence,
as your lordship may deem proper.
I have the honour to be, &c.
(Signed) J. S. POTT:P
(D) No 1.
And be it further enacted, that the sum of 200,0001. stipu-
lated to be pai. by the said treaty, in the mode and at the
time before mentioned, to his Catholic Majesty, as a com-
promise of the claims of the Spanish subjects registered by
the mixed commission, acting under the Convention of the
12th day of March, 1823, shall be considered and taken to be a
full compensation for all such claims as aforesaid: and that
the said stipulation, as in this act recited and contained,
may be pleaded in bar, or given in evidence upon the general
issue, and shall be, and be deemed and adjudged in every
court whatever, to be good and complete bar in any and every
action, suit, or proceeding, brought or instituted for restitu-
tion of any loss or payment of any debt, or for any damage or
injury for which compensation hath been sought, by any
claim or claims upon his Majesty, preferred to and registered
by the mixed commission acting as aforesaid. ,
(D) No. 2.
Decision of the Madrid Commission on Claim No. 65.
Don Fabricio Potestad, secretary to the Royal Junta of
examination and liquidation of Claims against England.
I certify, that in the session of the 19th inst., the Junta of
examination and liquidation of Claims against England, ex-
amined that of Don Juan Forbes, who claims the sum of
11751. 12s. 6d., amount of 45 barrels of gunpowder, burnt
by the English troops in the fort St. Carlos, in West Florida,
and seeing the opinion of the treasurer and secretary, it de-
cided, that from the documents newly presented, with per-
mission of the Junta, it appears that the claimant had always
been considered as a foreigner, without having acquired the
privileges of a Spanish subject, according to the laws, he
cannot claim against the Government of his British Majesty,
and the Junta cannot take his demand into consideration,
because the compensation proceeding from the treatyof 1823
must be given only to Spanish claimants; let it be commu-
xnated to him in the form. prescribed by the regulations
(signed) Jose de Heredia, president, Mateo de la Serna,
Lewis Noelis, Joaquin Rasnoram, before me, F. Potestad,
secretary, used in compliance of the resolution of the Junta,
and agreeably to the article No. 5 of the regulations. I issue
the present that it may serve.
(Signed) FABRICIO POTESTAD.
Madrid, 24th Nov. 1829.
S:, Ulqston on Claim No. 71. -
I Cetif in the session of the 4th currnt the
Somns.sio ~ the examination and liquidation of the CIia
on' iah examined that of Don James Pott, citized'V
Lihurtw, dcing as agent of Don John Forbes, and of offOf
hinMitants of ast Florida, in which he solicits the sum dt
'1 0,68Mt 10s. for losses which they pretend to have incurred,
ii"cbnsqizence.of a number of slaves having fled to tib
'ifrard.POhii3mierland and to the English ships, and havin*
* seen-the opinions of the clerk and secretary, declared, thit
'he present claim is not comprehended in either of thb tw6v
Categories of the capture of ships and detention of property
which the treaty of 1823 mentions, since, setting aside that
the proofs have not been established, that the property re- ,
claimedbelonged to Spani rdp it)tas appeared that the Isle of
Cutiberland belonged byktrigt df bbnquest to Great Britain,
whose lI~s gra t liberty to such slaves as stop on her terri-
tory r Thft Il tH li'' lb (W tb widfrth'tbBitacIr of
;detaoId, r dje ttUibated ontly yTfiorce;in-
terpr o f t:tji,) were not taw4, he profit of
.the Brioi o t pr were stimulated tq flight by the
e'fibti o'rt itibs, but liurel t h -h eery ha-
turald wis fiIvedry, arid by ca eesfdb of tih
prop (dr 'e tWbve tiein the nicaessar ad
traVe I tt:' i tese and dblr e
the 6 Imiso on' hat 1id clahaiints 6 eunb
to te dem'la ig' t(ihe~ dEnldnd.
,. (.i.gner- ^P'Ot, f Sb,:
SMadrid, 19tb ec. 189. ,.
(Extracts F and G.)
EBIrsct from the Treaty between Spain and the United Stat'
SA flimeica, dated 22d Feb. 1819, as presented to Congre~a
in December of that year.
His CatloUc Majesty cedes to the United States, in full
property th biavfeeignty, all the territdries which belong to
1dm situate to the eastward of the Mississippi, known by the
.ame of East and West Florida, the adj eenBisltids, de-
pendent on said provinces, all public lots and squares, vacant
lands, public edifices, fortifications, barracks, and other
buildings, which are not private property, archives and docu-
ments, which relate directly to the property and sovereignty
of said provinces, are included in this article; the said
archives and documents shall be left in possession of the
commissioners or officers of the United States duly authorised
to receive them.
Extract from the Message of the President of the United
States of America, presented to Congress Dec. 1821.
With Spain, the treaty of 22d Feb. 1819, has been partly
carried into execution. Possession of East and West Flo-
rida has been given to the United States; but the officers
charged with that service, by an order from his Catholic
Majesty, delivered by his minister to the Secretary of State,
and transmitted by a special agent to the Captain-general of
Cuba, to whom it wag directed, and in whom-the government
of these provinces was vested, have not only omitted, in .
contravention of the orders of their sovereign, the performn-
ance of the express stipulation to deliver over the archives and
documents relating to the property and sovereignty of those
provinces, all of which it was expected would have been de-
livered either before or when the troops were withdrawn, but
defeated, since every effort of the United States to obtain j
them, especially those of the greatest importance. This
omission has given rise to several incidents of a painful na-
ture, the character of which willbe fully disclosed by the
documents which will hereafter be communicated.
J. Cunningham, PriFater, Crowji.Ceurt, Meet-stroet,
FLORIDA STATE UNIVERSITY
3 1254 02941 6175
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