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relations with this Union. Although Col. Callava was not clothed with the character or credentials of a public minister, it is readily admitted that in the execution of his trust as a commissary for the delivery of the province, he was entitled to all the protection and all the immunities necessary for the discharge of that duty. But it is not less true, that in the treaty itself it had been stipulated that the whole transaction of the surrender of the provinces, and the evacuation of all the officers of his Catholic Majesty within it, should be completed within six months from the exchange of the ratifications of the treaty, which six months had elapsed at the time when these incidents occurred. It is also true that the surrender had been completed; that the authority of Spain within the Provinces had more than a month before ceased, and that of the United States had taken its place. The troops of his Catholic Majesty had been removed, and if Col. Callava and other officers of Spain remained there after the consummation of that event, they could no longer claim the immunity of public agency, or any other privileges than those of strangers permitted to reside in the place—strangers, not only amenable to the common judicial tribunals, but who, conformably to the Spanish laws existing before the cession of the province, would have been liable to removal from it, or to imprisonment at the discretion of the governor for the mere act of being there.
It is asserted by Col. Callava that the postponement of his departure from Pensacola had been necessary, because it was impossible for him to terminate the business incident to the surrender on that day; because he was sick; and because the question whether the artillery belonging to the fortifications was or was not included in the cession, had been referred to the decision of the two governments. Το this the reply is obvious, that without now referring to the
delays which protracted till the 17th of July the surrender which might have been effected more than two months before, there was yet ample time between that day and the 22d of August for the discharge of any business incidental to it; that the personal indisposition of Col. Callava neither disqualified him on the 17th of July from the transaction of business, nor on the 22d of August from being present at a festive entertainment, nor immediately afterwards from undertaking and performing a long and fatiguing journey, from Pensacola to New York, and thence to embark upon a voyage by sea. And that, with regard to the question concerning the cannon, which was reserved for the decision of the two governments, it furnished no sufficient motive for the continuance of Col. Callava there; a particular receipt for them having been given by Governor Jackson, and the right of Spain to remove them, whatever its merits might be, being in no manner affected by the departure of the Spanish commissioner.
It appears, therefore, that both by the limitation of time stipulated in the treaty for the surrender of the province, and by the nature of the functions assigned to Col. Callava, his immunities of exemption from the ordinary process of the law had ceased before the 22d of August. The allegation that Governor Jackson had nineteen days before that time recognized his commissarial character as yet existing, will not affect the principles here advanced: first, because the limited six months had not then expired, and secondly, because the only transaction of General Jackson on that day recognizing Col. Callava as a commissioner, was by writing him a letter complaining of a signal breach of faith by that officer, in evading, on the plea of indisposition, the performance of a stipulated promise, on the morning of the 17th of July, before the surrender, and afterwards refusing
to perform it at all. Which letter, after an expostulation against that proceeding suited to the aggravation of its character, finished by a declaration of General Jackson that it closed the correspondence between him and Col. Callava on the subject forever.
Far would it be from the intention of the American government to draw within its rigorous limits the exemption from ordinary legal process of a foreign public officer. It would extend to them a liberal measure of time, and a full portion of indulgence for the execution of the trust, and for departure after its completion. But it cannot perceive the justice of extending these privileges beyond their limits as sanctioned by custom, for purposes of injustice and wrong. And here we are led to the inquiry what was the immediate occasion of the summons to Col. Callava, his resistance against which prompted the subsequent rigorous measures in reference to his person, house, and papers, complained of in the note of Mr. Salmon? He had withheld, and caused to be packed in boxes for transportation, public records relating to the property of the province, judicial documents, indispensable for vindicating the titles to succession of infant and orphan children. Application was made to General Jackson in behalf of those orphans, for the legal judicial process to obtain these papers. He had proof that they had been removed, after a summons from him to the person in whose possession they had been to produce them, to the house and possession of Col. Callava, for the avowed purpose of subtracting them from the process issued by his authority. Had that officer's personal immunity been complete and unquestionable, what greater abuse of it could have been made than thus to wrest from the course of justice the vouchers on which depended the rights and the subsistence of orphans? General Jackson, considering that Col. Callava
was not entitled to such exemption from legal process, issued the ordinary summons, which would have been applicable to any other individual, and on his refusal to answer the interrogations put to him, committed him, as others in like cases would have been committed, to prison. By the same order he issued a commission for securing the papers which ought to have been delivered up before, with all suitable caution to prevent the taking of any others; and immediately after the satisfactory return of that commission, ordered the release of Col. Callava. Such appears to have been the character of the transaction upon the report of it made by General Jackson; and although the President cannot but contemplate with unfeigned regret this occurrence, he thinks that blame should be imputed to the party deserving it, and whose misconduct produced it; and that it is a justice due to General Jackson to make him acquainted with the objections in the note of Mr. Salmon to his conduct, and to receive his full explanation of the motives and considerations which governed him.
In concluding this letter I cannot forbear reminding you, Sir, that not only this, but all the other transactions of a painful nature, which have arisen in the execution of that treaty, which it was hoped would have terminated all the differences, and have led to the most harmonious intercourse between the United States and Spain, have proceeded from the unjustifiable delays and evasions of the officers of his Catholic Majesty, in direct contravention, as it is understood, of his orders and intentions, in withholding the documents, archives, and vouchers, of which the delivery had been expressly stipulated-vouchers, indispensable both for the dispensation of private justice, and for the establishment of public right, to the United States, but utterly useless to Spain, and the detention of which by the Captain General
and Governor of Cuba, and by the Spanish governors of both East and West Florida, however intended, and by whatever motive induced, can subserve no purposes but those of fraud, injustice, and oppression. After a succession of delays, for a period of six weeks, at the Havana, in a climate noted for its unhealthiness to strangers, of the commissioner of the United States, authorized to receive those documents, and of the vessel which had conveyed him, he was compelled to depart without them, nor have they yet been delivered. The attempts to carry away, both from Pensacola and from St. Augustine, many of those papers, can be viewed in no other light than as flagrant violations of the treaty. The President relies that they will be so considered by his Catholic Majesty; and that he has ere this given the most positive and effectual orders for the faithful execution in this respect of that instrument.
I pray you, etc.1
TO JOHN THORNTON KIRKLAND
WASHINGTON, 12th December, 1821.
I have had the honor of receiving your printed circular letter of the Ist instant, with the annexed memorial to Congress, praying for the repeal of the duties upon imported books. I hereby authorize you so far as I am, or may be authorized myself, to affix my name as President of the
"By yesterday's mail from the East I received a letter from Mr. Adams, Secretary of State, accompanied with Callava's protest, Mr. Salmon's (Chargé d'Affaires of Spain) letter to Mr. Adams, and Mr. Adams' letter to the Minister of Spain in reply to Mr. Salmon. . . . Mr. Adams' letter is just like himself, a bold, manly and dignified reputation of falsehood, and justification of justice and moral rule." Jackson to Henry M. Brackenridge, November 22, 1821.