In the letters which I had the honor of writing you on the 2d of November and 31st of December last,1 you were informed that a definitive answer to the complaints against certain proceedings of General Andrew Jackson, while governor of Florida, which were contained in a letter to this Department from Don Hilario de Rivas y Salmon, before your arrival in this country, and in your letters of the 18th and 22d of November, would be given, after the substance of those complaints should have been made known to General Jackson, and his explanations of the motives and considerations by which he had been governed in adopting the measures complained of should have been received.
In performing this province I am commanded by the President of the United States to repeat the assurance of his deep regret, that the transactions which formed the subject of those complaints should ever have occurred, and his full conviction, upon a review of all the circumstances which have attended them, that they are attributable entirely to the misconduct of the Governor and Captain General of Cuba, and of the subordinate officers of Spain, in evading and refusing the fulfilment of the most express and positive stipulations of the treaty, both of evacuating the province within six months from the exchange of the ratifications of the treaty, and of delivering the archives and documents relating directly to the property and sovereignty of the provinces.
At the time of the exchange of the ratifications of the treaty your predecessor, General Vivés, delivered an order from his Catholic Majesty to the Captain General and Governor of the island of Cuba, and of the Floridas, informing him of the cession to the United States of that part of the provinces of which he was the governor, that was situated on this continent, and instructing him as follows:
I command you and ordain, that after the information which shall be seasonably given you by my minister plenipotentiary and envoy extraordinary at Washington of the ratifications having been exchanged, you proceed on your part to make the proper dispositions, in order that, at the end of six months, counting from the date of the exchange of the ratifications, or sooner, if possible, the Spanish officers and troops may evacuate the territories of both Floridas, and that possession of them be given to the officers or commissioners of the United States, duly authorized to receive them. … You shall arrange in proper time the delivery of the islands adjacent and dependent upon the two Floridas, and the public lots and squares, vacant lands, public edifices, fortifications, barracks, and other buildings, which are not private property; as also the archives and documents which relate directly to the property and sovereignty of the same two provinces, by placing them at the disposal of the commissaries or officers of the United States, duly authorized to receive them.
This order, thus clear and explicit, was dispatched, together with letters from General Vivés to the Governor of Cuba and the Floridas, notifying him of the exchange of the ratifications of the treaty, by Col. James G. Forbes, who war, commissioned "as agent and commissary of the United States to deliver to him the royal order, to arrange and concert with him, conformably to instructions committed therewith, the execution of the above stipulations, and to receive from the said governor, and from any and every person possessed of the said archives and documents, all and every one of the same, and to dispose thereof in the manner prescribed by his instructions." Col. Forbes' authority thus was to receive the documents and archives, and to concert and arrange with the governor of the Floridas, the delivery of those provinces, which General Jackson was commissioned to receive, take possession of and occupy; and of which he was further commissioned to be the governor, when surrendered to the United States.
The royal order was delivered by Col. Forbes to the governor of the Floridas at the Havanna on the 23d of April, 1821. There has been shown by that governor no cause or reason which could justly have required him to delay the delivery of the documents and archives, and the arrangements for the delivery of the provinces, beyond the term of a single week. There were twenty boxes of those archives and documents, the whole, or with very few exceptions the whole of which ought, by the positive stipulation of the treaty, and by the express order of the King of Spain, to have been immediately delivered to Col. Forbes. Not one of them was delivered to him; nor has one of them been delivered to this day.
[On the most frivolous pretences]1 the orders for the surrender of the provinces were delayed from day to day, notwithstanding the urgent and continual solicitations of Col. Forbes, for the term of six weeks; at, the end of which, to avoid further indefinite procrastination, he was compelled to depart without receiving the archives and documents, but with repeated promises of the governor that they should be transmitted to this government, promises which have remained to this day unperformed.
The orders for the delivery of the provinces themselves were not only thus unreasonably withheld, but when made out, though not furnished to Col. Forbes till the last week in May, were made to bear date on the fifth of that month: nor were they prepared conformably to the stipulation of the treaty, or to the royal order of his Catholic Majesty. For instead of directing the surrender to be made to the commissioners or officers of the United States, duly authorized to receive them, the instruction to the commanders in East and West Florida was to deliver those respective provinces to Col. Forbes himself, who had from the United States no authority to receive them. And although expressly advised by Col. Forbes with the request that the orders of delivery might be amended and made conformable to the treaty, and to the royal command, Governor Maby did not so amend it, but reduced Col. Forbes to the alternative of submitting to further [prevaricating]1 delays, or of departing with an imperfect and ambiguous order of delivery of West Florida, authorizing its surrender to the legally constituted authorities of the United States (that is, as Governor Maby well knew, to General Andrew Jackson) only, in case of any accident happening to Col. Forbes, whom he still affected to consider, notwithstanding his own express declaration to the contrary, as the commissioned agent of the United States to that effect.
The twenty boxes of documents and archives, which were at the Havanna, as has been mentioned, had been transmitted thither from Pensacola, and contained all the most important records of property in West Florida. The possession of them was in the highest degree important to the United States; not only as the vouchers of individual property, but as protecting guards against the imposture of fraudulent grants. [The longer they were withheld the stronger continuance must be given to the suspicions which their intention could not but occasion that it was with improper views. It is known that the governors and captains general of Cuba and of the Floridas have exercised the power of granting lands in those provinces; and there is more than conjecture for the belief that to the injury of withholding those documents has been added the still more exceptionable act of intruding among them grants made since the delivery of the provinces to the United States, and antedated to give them a semblance of validity. The delicacy due to the character of an officer of distinguished rank would forbid the imputation to him of motives so dishonorable, were it possible to ascribe his conduct in this wanton violation of the rights of the United States, of the obligations of Spain, and of the commands of his sovereign, to more justifiable purposes.]1 But the same persevering system of withholding documents which it was their duty to deliver, has marked, I am deeply concerned to say, the conduct of both the commanders of East and West Florida, who were charged respectively to deliver those provinces to the United States.
It is to this cause, and to this alone, as appears from a review of all the transactions of which you have complained, that must be traced the origin of all those severe measures which General Jackson himself was the first, while deeming them indispensable to the discharge of his own official duties, to lament. Charged as he was with the trust of receiving the provinces in behalf of the United States, of maintaining their rights of property within them, of guarding them to the utmost of his power from those frauds, to which there was too much reason to apprehend they would be liable, and to which the retention of the documents gave so great and dangerous scope; entrusted from the necessity of the case, during the interval of time while the general laws of the United States remained unextended to the provinces, with the various powers which had until that time been exercised by the Spanish governors, and which included the administration of justice between individuals, it was impossible that he should not feel [with all the ardor of a soul devoted above all other things to the fulfilment of his duties,]2 the necessity of exercising, under circumstances thus exasperating and untoward, every authority committed to him by the supreme authority of his country, to preserve inviolate, so far as on him depended, the interest of that country, and the sacred obligations of individual rights. In the proceedings connected with the delivery of the province, he had as little reason to be satisfied with the [candor and good faith]1 of Col. Callava, as with that of the Captain General. On a plea of indisposition that officer had, on the day of the surrender, evaded the performance of a solemn promise, which General Jackson had considered an indispensable preliminary to the act: and afterwards the Colonel positively declined its fulfilment. He had however completed the surrender of the province with which he had been charged. He had declined producing to General Jackson any credential as a commissioner for performing that act, but had informed him that he should make the surrender as the commanding officer of the province, by virtue of orders from his superior. This service had been consummated, and Col. Callava, whom General Jackson had formally notified that he had closed with him his official correspondence forever, was, bound by the special stipulation of the treaty, to have evacuated, as one of the Spanish officers, the province, before the 22 of August. If General Jackson had, in courtesy to Col. Callava, considered him, notwithstanding his own disclaimer of the character, as a commissioner for the delivery of the province, there can be no pretence that he was entitled to special privileges under it, after he had avowedly performed all its duties; after he had been informed by General Jackson that their official correspondence was finally closed, and after the date when, by the public engagements of the treaty which he was to execute, he was bound to have departed from the province. From the time when his functions for the surrender of the province were discharged, he could remain in Pensacola no otherwise than as a private unprivileged individual, amenable to the duly constituted American authorities of the place, and subject to the same control of General Jackson as a private citizen of the United States would have been to that of the governor of the Floridas before the surrender had taken place.
That this was the opinion of Col. Callava himself and of his friends who applied to Judge Fromentin for the writ of habeas corpus to rescue him from the arrest under which he was placed by the order of General Jackson, is apparent from their conduct on that occasion. It is stated by Judge Fromentin, that before granting the supposed writ of habeas corpus, he required that Col. Callava should enter into a recognizance for twenty thousand dollars, with two securities, each for the amount of ten thousand dollars; the condition of which recognizance was that Col. Callava should personally be and appear before the judge of the United States for West Florida, etc., whenever required so to do; that he should not depart from the city of Pensacola without the leave of the said court, nor send away, remove, or otherwise dispose of, unknown to the said court, any of the papers in question. It was only upon the promise of his friends that this recognizance should be executed, that Judge Fromentin consented to issue the writ of habeas corpus; and this recognizance renounces in fact every pretension of exemption from the judicial authority of the country, and consequently of the diplomatic privileges of a commissioner.
It has been seen that the most important documents relating to the property of West Florida had been transmitted to the Havanna. There remained, however, a portion of them, particularly of judicial records relating to the titles of individual property. Some of these Col. Callava did deliver up with the province. Others of the same description and character indispensable for the administration of justice in the province, and useless at the Havanna, whither it was his intention to have transported them, were retained; not in his possession, but in that of Don Domingo Souza, a Spanish officer, who by the stipulation of the treaty ought also to have departed from the province before the 22d of August.
The day immediately preceding that date, the Alcalde of Pensacola, at the suit of a woman in a humble walk indeed of life, but whose rights were, in the eye of General Jackson, equally entitled to his protection with those of the highest rank, or the most commanding opulence, had represented to him that a number of documents belonging to the Alcalde's office, and relating to estates at that place, and to suits there instituted, were in the possession of Domingo Souza; that the necessity for obtaining possession of those documents was urgent; and therefore he requested the governor to authorize some one to make a regular demand of them, and to ascertain what they were. Governor Jackson, accordingly, forthwith commissioned the secretary of the territory, the Alcalde of Pensacola himself, and the clerk of the County Court of Escambia, to proceed to the dwelling of Souza, to make demand of all such, papers or documents belonging to the Alcalde's office as might be in his possession; and in case of Souza's refusal to exhibit or deliver the same, immediately to report the fact to him, the governor, in writing. These commissioners the next day reported to the governor, that they had examined the papers in the possession of Souza; that they had found among them four sets of papers of the kind which belonged to the office of the Alcalde, and among them those in which the woman, from whom the first application had proceeded, was interested; that they had both verbally and in writing demanded of him the delivery of those documents which no private individual had a right to keep, as they related to the rights of persons holding or claiming property in the province; but that Souza had refused to deliver them, alleging that he was but the servant of Col. Callava, and could not deliver them without his order. In the transactions of Souza on this occasion is manifested the same consciousness that the claim of diplomatic privilege set up by Col. Callava, to screen him from the operation of the authority of Governor Jackson, was without foundation. For although he refused to deliver up the papers conformably to the governor's command, he submitted to the examination of them by the commissioners in obedience to the same authority; and though he declined receiving from them the letter demanding the delivery of the papers, he told them that to relieve himself from the responsibility of keeping them, he should deliver them to Col. Callava himself.
They were accordingly sent to the house of Col. Callava, and put into the possession of his steward, Fallarat. It is clear however, that if the papers, while in Souza's possession were privileged from delivery up at the command of Governor Jackson, they were equally privileged from examination by the same authority; and if they were not lawfully screened from his process in the custody of Souza, they could not be made so by removing them to the house of Col. Callava. The truth is that the removal of the documents, at that time and in such a manner, was a high and aggravated contempt of the lawful authority of the governor. It not only claimed for Col. Callava diplomatic immunities, but assumed that he was still the governor of the province, and that Souza was amenable for his conduct only to him. Col. Callava might on the same pretence have retained the whole body of the Spanish officers and troops under his command at Pensacola, and insisted upon exercising over them all his extinguished authority as governor and commander in chief after the 21st of August, as he could to exercise any official authority, within the province, over Domingo Souza, or to extricate him from the lawful jurisdiction of Governor Jackson.
It is under these circumstances [under this prevaricating and insulting contempt of his just authority, exercised in the pursuit at once of humanity, beneficence, and justice,]1 that the subsequent measures of Governor Jackson are to be considered. He immediately issued an authority to Col. Robert Butler and Col. John Miller to seize the body of Souza, together with the papers, and to bring them before him, that Souza might answer such interrogatories as might be put to him; and comply with such order and decree touching the said documents and records as the rights of the individuals, secured to them by the treaty, might require, and the justice of the case might demand. By virtue of this order Souza was brought before Governor Jackson, and again recognized the authority under which he was taken, by answering the interrogatories put to him. But he had already put the papers and documents out of his possession, and thus, as far as was in his power, baffled the ends of justice, and set at defiance the lawful authority of the governor. In this transaction Col. Callava was avowedly the principal agent; and altogether unjustifiable as it was, whatever consequences of inconvenience to himself resulted from it, must be imputed to him. It was an undisguised effort to prostrate the authority of the United States in the province; nor had Governor Jackson any other alternative to choose, than tamely to see the sovereign power of his country, entrusted to him, trampled under foot and exposed to derision by a foreigner, remaining there only upon his sufferance, or by the vigorous exercise of his authority to vindicate at once the rights of the United States and the just claims of individuals to their protection.
Governor Jackson could consider Col. Callava in no other light than that of a private individual, entitled indeed as the officer of a foreign power to courtesy, but not to exemption from the process of the law. Notwithstanding [the exasperating character of]1 his contemptuous2 conduct, Governor Jackson in the first instance authorized Col. Butler and Dr. Bronaugh, accompanied by Mr. Brackenridge, the Alcalde, to wait upon him and his steward, and to demand from them the specified papers, which Souza had declared in his answer to the interrogatories to have been delivered to the steward at Governor Callava's house. It was only in case of the refusal to give up the papers that the order extended to the seizure of the person of Col. Callava, that he might be made to appear before Governor Jackson, to answer interrogatories, and to abide by and perform such order and decree as the justice of the case might demand.
This demand was accordingly made; and although at the first moment peremptorily refused, yet upon Col. Callava's being informed that his refusal would be considered as setting at defiance the authority of the governor of the Floridas, and of the consequences to himself which might ensue upon his persisting therein, he [declared that if he should be furnished with a copy of the memorandum setting forth the documents required, he would deliver them to Col. Butler and Dr. Bronaugh].3
[This promise was another manifestation of Col. Callava's consciousness that he had no claim to the immunities of a commissioner at that time. Happy would it have been for him, and for all, if he had performed it. The copy of the memorandum was accordingly furnished him,]1 but when the delivery of the papers was again demanded of him, he repeated the refusal to deliver them, and attempted both to avoid the personal approach of Col. Butler and Dr. Bronaugh, and to exhibit a resistance by force of arms to the execution of the governor's order. And it is not a little remarkable that among the persons who appeared thus arrayed against the authority of the United States, to accomplish the denial and removal of the papers, was a man, against whom the most important of those papers were judicial decisions of Governor Callava himself in behalf of the orphan children, for the establishment of whose rights they were indispensably necessary and at whose application they had been required.
Standing thus in open defiance to the operation of the law, Col. Callava was taken before the governor, and there refusing to answer the interrogatories put to him, and asserting the groundless pretension of answering only as a commissioner, and by a protest against the acts of the governor, he was by his order committed to prison until the documents should be delivered to the Alcalde. On the next day a search warrant for the papers was issued by the governor, upon which they were actually obtained, and delivered to the Alcalde; whereupon Col. Callava was immediately released.
In all these proceedings you will perceive, sir, that not one act of rigor, or even of discourtesy towards Col. Callava was authorized by Governor Jackson, which was not indispensably necessitated for the maintenance of his authority, and the discharge of his official duty, by the unjustifiable and obstinate resistance of Col. Callava himself.
President of the United States to say that he considers the documents in question as among those which by the stipulation of the treaty ought to have been delivered up with the province to the authorities of the United States; that they were on the 22d of August, when in the possession of Domingo Souza, within the jurisdiction of the United States, and subject to the control of their governor, acting in his judicial capacity, and liable to be compulsively produced by his order; that the removal of them from the possession of Souza after the governor's order to him to deliver them had been served upon him, could not withdraw them from the jurisdiction of Governor Jackson, and was a high and aggravated outrage upon his lawful authority; that the imprisonment of Col. Callava was a necessary, though by the President deeply regretted consequence of his obstinate performance in refusing to deliver the papers [even after having given his promise to deliver them,]1 and of his unfounded claim of diplomatic immunities and irregular exercise even of the authorities of a governor of Florida, after the authority of Spain in the province had been publicly and solemnly surrendered to the United States.
That the documents were of the description of those which the treaty had stipulated should be delivered up with the province is obvious from the consideration of their character. They related to the property of lands in the province. They were judicial records, directly affecting the rights of persons remaining in the province--rights which could not be secured without them; rights over which the appellate tribunal of the governor of Cuba, to which Col. Callava proposed to remove the papers, thenceforth could have no authority or control. They had become definitively subject to the jurisdiction of the United States [and it was the duty of General Jackson, at the demand of the person interested in them, to prevent the removal, and to exact the delivery of them].1 The only reason assigned by Col. Callava for the pretension to retain them is that they related to the estate of a deceased Spanish officer, and had thereby been of the resort of the military tribunal. But it was for the rights of the living and not for the privileges of the dead that the documents were to operate. The tribunal of the captain general of Cuba could neither need the production of the papers, nor exercise any authority over the subject-matter to which they related. To have transferred to the island of Cuba a question of litigated property concerning land in Florida, would have been worse than a mockery of justice. Indeed, Mr. Salmon in his note appears to have been aware of the weakness of this allegation, declines the discussion of the question, and in justification of the refusal of Col. Callava to deliver up the documents, merely rests its defence upon the plea, that the papers had not been demanded of him officially. It has been seen that Col. Callava had no official character which could then exempt him from the compulsive process of the governor. But Mr. Salmon alleges that the Spanish constitution, as well as that of the United States, separates the judicial from the executive power exercised by the governor or captain general.
Neither the constitution nor the laws of the United States, excepting those relating to the revenue and its collection, and to the slave-trade, had at that time been extended to Florida. And as little had the Spanish constitution been introduced there, in point of fact, however, it might have been proclaimed. But be this as it may, the cause, in relation to which the documents required in the case of Vidal had been drawn up and were needed, was one of those which, under the Spanish constitution itself, remained within the jurisdiction of the governor. This is declared by Col. Callava himself, in the third observation of the appendix to his protest, transmitted with the letter of Mr. Salmon. It is the reason assigned by him for having withheld these documents from the Alcalde. And one of them was a judgment rendered by Col. Callava himself after the time when the proclamation of the Spanish constitution in the provinces is alleged to have been made. The cause therefore was on every hypothesis within the jurisdiction of the governor; the papers were indispensable for the administration of justice in the cause, and when once applied for by a person entitled to the benefit of them, it was the duty, the inexorable duty of Governor Jackson, to put forth all the authority vested in him necessary to obtain them. Nor less imperative was his obligation to punish, without respect of persons, that contempt of his jurisdiction which was manifested in the double attempt of Col. Callava, to defy his power and evade the operation of its process.
With regard to the proclamation of General Jackson of the 29th of September, commanding several Spanish officers who, in violation of the stipulation of the treaty, had remained at Pensacola after the expiration of the six months from the day of the ratification of the treaty, to withdraw within four days from the Floridas, which forms the subject of complaint in your letter of the 18th of November, it might be sufficient to say that it did no more than enjoin upon those officers to do that which they ought before, and without any injunction to have done. The engagement of the treaty was that they should all have evacuated the province before the 22d of August. If they remained there after that time, it could only be as private individuals, amenable, in every particular to the laws. Even this was merely an indulgence, which it was within the competency of General Jackson at any time to have withdrawn. From the extract of a letter from him, of which I have the honor of enclosing a copy, it will be seen that he was far from being disposed to withdraw it, had they not, by their abuse of it and by open outrages upon his authority, forfeited all claims to its continuance.
This extract furnishes a satisfactory answer to your question, why, if the fulfilment of the article was the object of the proclamation, it was confined to the eight officers by name, and not extended to all other Spanish officers in the Floridas? It was because the deportment of the others was as became them, decent, respectful, and friendly towards the government, under the protection of which they were permitted to abide. In the newspaper publication, which gave rise to the proclamation of General Jackson, the Spanish officers avowedly acted, not as private individuals, but as a distinct body of men, speak of Col. Callava as their chief, their superior, and arrogating to themselves, as a sort of merit, the condescension of knowing what was due to a government (meaning the American government), which was on the most friendly footing with their own. This is language which would scarcely be proper for the ambassador of one nation, upon the territory of another, to which he would owe not even a temporary allegiance. From persons situated as those Spanish officers were, it was language of insubordination and contempt.
In alluding to the fact that officers of the American squadron in the Mediterranean are sometimes received with friendly treatment on the territories of Spain, to make a case parallel with the present it would be necessary to show that some superior officer of the said squadron should, while enjoying the hospitality of the Spanish I nation, upon their shores, first attempt to evade and to resist the operation of process from the constituted judicial tribunals of the country, and then pretend as an American officer to be wholly independent of them; and that some of his subalterns should not only countenance and support him in these attempts, but should affect to consider him, while on Spanish ground, as their only superior and chief, and by unfounded and inflammatory publications in the daily journals to rouse the people of Spain to revolt and insurrection against the judicial tribunal of their own country. If the bare statement of such a case would be sufficient to raise the indignation of every honorable Spaniard, let it be observed that even this would be without some of the aggravations of the conduct of these Spanish officers at Pensacola. For such outrage would be far less dangerous committed against old established authorities, which might rely upon the support of the whole people surrounding them, than in the presence of a people whose allegiance had been but just transferred to a new government, and when the revolt to which they were stimulated would seem little more than obedience to the authorities to which they had always been accustomed to submit. The very power, which the Spanish governor and officers had exercised before the surrender of the province, ought to have been a most urgent warning to them to avoid every semblance of authority in themselves, or of resistance to that of the United States, after the transfer of the province had been completed.
In forbearing particularly to reply to that part of your note, in which you think yourself authorized to pronounce the charge of General Jackson against these Spanish officers, of having attempted to excite discontent in the inhabitants, false, I shall barely express the hope that the term was admitted into your communication inadvertently. The conduct of the officers at the time of Col. Callava's conflict with the authority of the governor, as well as in their insulting newspaper publications, was of a character and tendency too strongly marked to leave a doubt of the truth with which it is described in General Jackson's proclamation; and in passing unnoticed this and other mere invectives against an officer whose services to this nation have entitled him to their highest regard, and whose whole career has been signalized by the purest intentions and the most elevated purposes, I wish to be understood as abstaining from observations which, however justified by the occasion, could but add to the unpleasantness of a discussion already sufficiently painful.
That this conduct on the part of the Spanish officers was criminal,1 cannot reasonably be denied, and had General Jackson been disposed to animadvert upon it with severity, his course would undoubtedly have been that which you have pointed out as appropriate to the offence. They would have been cited before the proper tribunal, heard upon specific charges, allowed time and liberty to make their, defence, and punished by commitment to prison. General Jackson preferred a milder and more indulgent measure; and without prosecuting them as criminals, only withdrew from them the privilege of a protracted infraction of the treaty, by requiring them forthwith to depart from the province. To justify him in this requisition neither arrest nor trial was necessary or proper. The facts were of public notoriety and could not be denied. The proclamation only required of them the execution of the treaty by the removal of their persons. Had their conduct even been unexceptionable, this measure would have been within the undoubted authority of General Jackson. As their deportment had been, it was the most lenient exercise of his power practicable to vindicate the insulted honor and justice of his country.
I pass to the consideration of the complaints contained in your letter of the 22d of November. In order to take a correct view of this subject, it is again necessary to advert to the royal order of his Catholic Majesty to the Captain General and Governor of the island of Cuba and of the Floridas, commanding him to cause to be placed at the disposal of the commissaries or officers of the United States, duly authorized to receive them, the archives and documents relating directly to the property and sovereignty of the two provinces.
On the 16th of May, the said Captain General and Governor wrote to Col. Forbes, that "respecting East Florida, where there ought to be found all her archives, he, Governor Maby would direct Governor Coppinger to make a formal delivery of that Province, as well as of the documents belonging to it."
On the 24th of May Col. Forbes wrote to the Captain General, reminding him of the repeated promises made by his excellency, to dispatch him with the archives which were to be delivered and then were at the Havanna, and with the orders for the delivery of the provinces, and of the archives deliverable there; of the continual disappointments to which he had been subjected by the failure of performance to those provinces; and of the necessities which urged his immediate departure. He therefore proposed, "that if further researches should be necessary for the discovery of the said archives, they might be delivered when more convenient to the Spanish government; that he (Col. Forbes) should be allowed to proceed immediately to West Florida with the commissary appointed to carry the final order to the sub-governor there; and lastly, that a duplicate order be given at once, as agreed upon, to the governor of East Florida, for the delivery of that province to the constituted authorities of the United States, together with the archives which were declared to be on the spot."
On the 29th of May the Captain General answered this letter and enclosed to him the orders to the several governors of East and West Florida, for the delivery of the provinces, antedated as I have already mentioned, with a declaration that the archives then at the Havanna, and which ought to have been delivered to Col. Forbes, should be transmitted to the government of the United States as soon as they were selected--a promise, as I have before observed, yet unfulfilled.
These orders of the Captain General to the commanders of East and West Florida are further remarkable by the omission of any direction in them for the delivery of the archives and documents. It had been expressly agreed by him with Col. Forbes, that the order for the delivery of East Florida should include that of the archives. But it was not sufficient for Governor Maby to avoid the performance of the promise. By the letter from Col. Butler to General Jackson of 21 January last, a copy of which I have the honor to enclose, it appears that with regard to the greatest and most important part of those documents, he had expressly instructed Col. Coppingernot to deliver them. And hence, when on the 18th of June Col. Butler, the officer of the United States authorized to receive the province, notified Col. Coppinger that he had designated Major Cross to receive the archives relating to the sovereignty and individual property of the province, he was answered by Col. Coppinger, "as respects the delivery of the public archives containing the records of individual property of this province, that will be delayed, until various doubts that occur are cleared up; but they will not be removed until then, nor will I leave this place until all matters are regulated and concluded between us that demand my personal assistance."
Thus upon the pretence of doubts, the nature of which was not explained, Col. Coppinger declined positively to deliver up documents conformably to the express stipulation of the treaty. Col. Butler immediately proposed to him a conference on the subject, which was held on the 21st of June. At that conference Col. Coppinger told Col. Butler, that "as an individual he believed those archives should be given over to the United States, but that his orders precluded him from turning them over." Colonel Butler therefore assented, as indeed no other alternative seemed to be left him, that Col. Coppinger should have time to write to the Captain General of Cuba for the decision of his doubts, and mentioned to him the opportunity of a vessel then about to sail for the Havanna, whence she was to return to St. Augustine, and might bring the answer of the Captain General. Col. Coppinger on the 22d of June informed Col. Butler that he had that day written to the Captain General for the solution of his doubts, and until he received his answer, the archives should not be removed from St. Augustine, and should remain precisely as they were. Col. Butler, by his letter of 26 June, agreed to remain silent on the head of the archives until the answer should be received from the Captain General; but within one week from that time Col. Butler received information that a large portion of these documents were packed for transportation. He wrote therefore on the 3d of July to Col. Coppinger, enumerating specifically several kinds of records relating directly to the property of the province, and declaring that he considered them among those which were not to be removed. The reply to which by Col. Coppinger is especially to be remarked, as expressing his opinion, that several of those documents were excluded from delivery. There can be no reasonable doubt that all the papers specified by Col. Butler's letter were of those which the treaty had stipulated should be delivered up. When therefore General Jackson considered and compared together the express and positive order of the King of Spain to the Captain General and Governor of Cuba, that he should faithfully see to the delivery of the documents, the [shifting and frivolous]1 pretences on which he evaded the delivery to Col. Forbes of those which were at the Havanna, within his own control; the promise that he would direct the delivery by Col. Coppinger of those that were at St. Augustine; the peremptory postponement of Col. Coppinger to deliver up any documents or records relating to individual property; his engagement that none of them should be removed until he should receive further instructions from the Captain General, and within one week after, his attempt to pack up for transportation to Cuba a large portion of them; and finally his pretension that many papers, manifestly having direct relation to the property of the province, were excluded from delivery; and his recurrence to the literal sense of his orders from the Captain General, with the verbal avowal to Col. Butler of his own opinion, that the documents ought to be delivered, though he was forbidden by his instructions to deliver them; it was impossible for General Jackson to close his eyes against [indications so demonstrative of tarnished faith and violated engagements].2 He therefore gave instructions to the officer commanding at St. Augustine to take possession of the papers which the treaty had stipulated should be delivered.
The necessity for taking possession of them had indeed arisen before the instructions of General Jackson were received. Most of the records relating to individual property had been left in possession of Don Juan de Entealgo; who, on the pretence that he had purchased at public sales under the Spanish government, not only these documents, but the office of register of them, openly advanced the claim of retaining the records as his private property, and of continuing the exercise of the office, and receiving fees for granting copies of the papers.
These pretensions were raised on the 5th of September, nearly three months after the doubts of Col. Coppinger had, with the consent of Col. Butler, been referred to the Captain General and Governor of Cuba. Long before that time the answer of that officer ought to have been received, peremptorily commanding the delivery of the papers. It was impossible that the United States should acquiesce in the claims of Mr. Entealgo. They were unquestionably entitled to the documents; and whatever injury he might sustain by the delivery of them, it might give him a fair demand of indemnity from his own government, but certainly not from the United States.
Yet the secretary and acting governor, Mr. Worthington, allowed a further delay of nearly a month, before taking the decisive measures necessary to obtain the documents. He then, on the 3d of October, authorized three persons of respectable character to obtain them, with the use of force if necessary; but with all suitable delicacy and respect towards the persons who had been the officers of Spain in the provinces. I have the honor of enclosing herewith copies of the orders from the Secretary Worthington to the commissioners appointed by him to receive, and affidavits to examine and assort the papers, and of their reports to him, exhibiting the manner in which both those services were performed. They will prove that every regard was shown towards Col. Coppinger and Mr. Entealgo, compatible with the execution of the duty, and after the assortment of the papers, all those which were not of the description stipulated to be delivered over by the treaty have ever been and yet are ready to be returned to Col. Coppinger, or to any person duly authorized to receive them.
Such is the view which I am instructed to say has definitively been taken by the President of the United States, in relation to the transactions which formed the subjects of your letters of 18 and 22 of November last, and of that of Mr. Salmon of 6 October. He is satisfied that by the proceedings of the Governor of Florida towards Col. Callava on the 23d of August last, and towards certain individuals, presuming to act as a body of Spanish officers in Florida, in contempt of the authority of the United States, on the 29th of September; and by those of the Secretary of East Florida, acting as governor, on the 2d and 3d of October, towards Col. Coppinger and Don Juan de Entealgo, no intention of injury or insult to his Catholic Majesty or his governor was intended; and that no just cause of complaint by them was given. That those measures were all rendered necessary by the total disregard of the Captain General and Governor of Cuba and the Floridas, and of his subordinate officers in the Floridas, not only of the solemn stipulation in the treaty for the delivery of the archives and documents directly relating to the property of the provinces, but of the royal order of their sovereign, commanding the said Captain General to see to the faithful execution of that engagement -- an engagement, in the fulfilment of which the rights not only of the United States, but of every individual inhabitant of the provinces and proprietors in them were deeply and vitally interested. The mere enumeration of the documents as specified in the demands of them made by the officers of the United States before resort was had to any measure of rigor for extorting them, proves that they were indispensable for the establishment of public right or for the security of private property. To Spain not one of those documents could after the transfer of the provinces be of the slightest interest or utility. To the United States they were all important. If the governor and secretary had so little understood their duty to the public rights of their country, committed to their charge, as to have suffered the removal of records essential to guard the interests of the nation against the insatiate greediness and fraudulent devices of land speculators, they had yet a sacred duty to perform to the people of the country, by retaining the common vouchers of their estates. What individual would have been secure in the tenure of his land, in the evidences of his debts, or in the very shelter over his head, if Col. Callava could have carried to Cuba his own judgments in favor of the Vidals, because their father, when alive, had been an auditor of war; and if Don Juan de Entealgo could have transported to the same island all the title deeds of East Florida, because he had bought his office of recorder at public auction?
The delays [and evasions]1 of the Captain General of Cuba, with regard to the fulfilment of the royal order transmitted to him by Col. Forbes, were so extraordinary, and upon any just principle so unaccountable, that the minister of the United States in Spain was by letters from this Department, Of 13 and 16 June last, instructed, upon his return to Madrid, to represent the same to your government, and to request new and peremptory orders to that officer for the delivery of the archives in his possession, conformably to the stipulation of the treaty. The renewal of the order was declined upon the ground of entire confidence on the part of your government that the Captain General would, before it could be received, have completed the delivery of the archives and documents, as he had been commanded by the King. I regret to be obliged to state that this just expectation of his Catholic Majesty has not yet been fulfilled. Captain James Biddle, commander of the United States frigate Macedonian, has therefore been commissioned to repair to the Havanna there to receive the documents and archives which Col. Forbes was obliged to leave, and which, it is hoped, the Captain General and Governor of Cuba will cause to be delivered without further delay.
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