James Madison Papers

From James Madison to Robert R. Livingston, 6 October 1803

To Robert R. Livingston

Department of State October 6. 1803


My last was of July 29th. written a few days before my departure for Virginia, whence I returned as did the President ten or twelve days ago. Your letters received since that date are of May 20. June 3. & 25. July 11. 12 & 30th.

In the reply to the communication made by the French Government on the subject of the war, you are charged by the President to express the deep regret felt by the United States at an event so afflicting to humanity. Deploring all the calamities with which it is pregnant, they devoutly wish that the benevolent considerations which pleaded in vain for a continuance of peace may have their due effect in speedily restoring its blessings. Until this happy change shall take place the French Government may be assured that the U States will forget none of the obligations which the laws of neutrality impose on them. Faithful to their character they will pay to every belligerent right the respect which is due to it; but this duty will be performed in the confidence that the rights of the U States will be equally respected. The French Government will do justice to the frankness of this declaration, which is rendered the more proper by the irregularities of which too many examples have been heretofore experienced. The President does not permit himself to doubt that the French Government, consulting equally its own honor and the true interest of France will guard by effectual regulations against every abuse under colour of its authority whether on the high seas, or within French or foreign jurisdiction which might disturb the commerce or endanger the friendly relations so happily subsisting and which the United States are so much disposed to cherish, between the two nations.

Your interposition against the arrette of 1st Messidor An 111 was due to the just interests of your fellow citizens. It is to be hoped that the strong views which you have presented of the subject, will lead the French Government to retract or remodify a measure not less unjust to foreigners than injurious to the interests of France. Regulations which by their suddenness ensnare those who could not possibly know them, and who meant to observe those naturally supposed to be in force, are to all intents retrospective, having the same effect, and violating the same principle, as laws enacted subsequent to the cases to which they are applied. The necessity of leaving between the date and the operation of commercial regulations an interval sufficient to prevent surprize on distant adventurers, is in general too little regarded, and so far there may be room for common complaint. But when great and sudden changes are made, and above all, when legal forfeitures as well as mercantile losses are sustained, redress may fairly be claimed by the innocent sufferers. Admitting the public safety, which rarely happens to require regulations of this sort, and the right of every government to judge for itself of the occasions, it is still more reasonable that the losses should be repaired than that they should fall on the individuals innocently ensnared.

Your suggestion as to commercial arrangements of a general nature with France2 at the present juncture has received the attention of the President; but he has not decided that any instructions should be given you, to institute negotiations for that purpose; especially as it is not known on what particular points sufficiently advantageous to the United States the French Government would be likely to enter into stipulations. Some obscurity still hangs on the extra-duty exacted by the Batavian Government.3 The state of our information leaves it doubtful, whether the interest of the United States would be promoted by the change authorized by our Treaty with that republic.

Mr. Pinckney will doubtless have communicated to you his conversation with Mr. Cevallos, in which the latter denied the right of France to alienate Louisiana to the United States; alledging a secret stipulation by France not to alienate. Two notes on the same subject have lately been presented here by the Marquis D’Yrujo. In the first dated Sept. 4 he enters a Caveat against the Right of France to alienate Louisiana, founding it on a declaration of the French ambassador at Madrid in July 1802, that France would never part with that Territory, and affirming that on no other condition Spain would have ceded it to France. In the second note dated Sept. 27 it is urged as an additional objection to the Treaty between the United States and France, that the French Government had never completed the title of France, having failed to procure the stipulated recognition of the King of Etruria from Russia and Great Britain, which was a condition on which Spain agreed to cede the Country to France. Copies of these notes of the Spanish Minister here, with my answer, as also extracts from Mr. Pinckneys letter to me and from a note of the Spanish Minister at Madrid to him, are also inclosed.4

From this proceeding on the part of Spain, as well as by accounts from Paris, it is not doubted, that whatever her views may be in opposing our acquisition of Louisiana, she is soliciting the concurrence of the French Government. The interest alone which France manifestly has in giving effect to her engagement with the U States, seems to forbid apprehensions that she will listen to any entreaties or temptations which Spain may employ. As to Spain it can hardly be conceived that she will, unsupported by France, persist in her remonstrances, much less that she will resist the Cession to the United States by force.

The objections to the Cession advanced by Spain are in fact too futile to weigh either with others or with herself. The promise made by the French ambassador, that no alienation should be made, formed no part of the Treaty of retrocession to France and if it had, could have no effect on the purchase by the United States, which was made in good faith without notice from Spain of any such condition, and even with sufficient evidence that no such condition existed. The objection drawn from the failure of the French Government to procure from other powers an acknowledgment of the King of Etruria is equally groundless. This stipulation was never communicated either to the public, or to the United States, and could therefore be no bar to the contract made by them. It might be added, that as the acknowledgment stipulated was according to the words of the Articles to precede possession by the King of Etruria, the overt possession by him was notice to the world that the conditions on which it depended had either been fulfilled or been waved. Finally, no particular powers, whose acknowledgment was to be procured, are named in the Article; and the existence of war between Great Britain and France at the time of the stipulation, is a proof that the British acknowledgment, the want of which is now alledged as a breach of the treaty, could never have been in its contemplation.

But the conduct of the Spanish Government both towards the United States and France, is a complete answer to every possible objection to the Treaty between them. That Government well knew the wish of the United States to acquire certain territories which it had ceded to France, and that they were in negotiation with France on the subject; yet the slightest hint was never given that France had no right to alienate, or even that an alienation to the United States would be disagreeable to Spain. On the contrary the Minister of his Catholic Majesty in an official Note bearing date May 4th. last5 gave information to the Minister of the U States at Madrid that the “entire province of Louisiana with the limits it had when held by France, was retroceded to that power and that the U States might address themselves to the French Government in order to negotiate the acquisition of the Territories which would suit their interest.” Here is at once a formal and irrevocable recognition of the right as well of France to convey as of the U States to receive the territory, which is the subject of the Treaty between them. More than this cannot be required to silence forever the cavils of Spain at the title of France now vested in the U States; yet for more than this, she may be referred to her own measures at New Orleans preparatory to the delivery of possession to France; to the promulgation under Spanish authority at that place, that Louisiana was retroceded and to be delivered to France; and to the orders signed by his Catholic Majesty’s own hand, now ready to be presented to the Government of Louisiana for the delivery of the province to the person duly authorized by France to receive it.

In a word, the Spanish Government has interposed two objections only to the title conveyed to the U States by France. It is said first, that the title in the U States is not good, because France was bound not to alienate. To this it is answered that the Spanish Government itself referred the U States to France as the power capable and the only power capable of conveying the territory in question. It is said next that the title in France herself was not good. To this, if the same answer were less decisive the orders of the King of Spain for putting France into possession, are an answer which admits of no reply.

The President has thought proper that this view of the case should be transmitted to you, not doubting that you will make the proper use of it with the French Government, nor that that Government will feel the full force of its stipulated obligation to remove whatever difficulties Spain may interpose towards embarrassing a transaction, the complete fulfilment of which is as essential to the honor of France as it is important to the interests of both Nations. ⟨In the mean time we shall proceed in the arrangements for taking possession of the Country ceded, as soon as possession shall be authorized; and it may be presumed that the provisions depending on Congress, will be sufficient to meet the discontents of Spain in whatever form they may assume.⟩6

The U States have obtained by just and honorable means a clear title to a territory too valuable in itself and too important to their tranquility and security not to be effectually maintained and they count on every positive concurrence on the part of the French Government which the occasion may demand from their Friendship and their good faith.

The rightful limits of Louisiana are under investigation. It seems undeniable from the present state of the evidence that it extends Eastwardly as far at least as the River Perdigo and there is little doubt that we shall make good both a western and northern extent highly satisfactory to us.

The considerations which led Mr Monroe to decline his trip to Madrid, having the same weight with the President, the Mission is suspended until other instructions shall be given, or until circumstances shall strongly invite negotiations at Madrid for completing the acquisition desired by the U. States.

The American Citizens detained at Jacmel, have been restored to their liberty and returned to the UStates, as you will find by a letter from one of them, of which a copy is inclosed.7

Permit me to request your particular attention to the inclosed communication from the Secretary of the Treasury respecting a balance due from Mr Joseph Miller to the UStates.8 Should there be danger of his assigning the award, so as to require the Bills to be issued by you in the name of another person, it will deserve your consideration how far it is practicable to have recourse to the authorities competent to give the award, that they may modify the terms of it in such manner as to secure the public claim. If no such danger exists and Mr Miller is yet unwilling to enter into a proper arrangement it seems best that the set off claimed by the US. should be endorsed by you upon the Bills previously to their delivery in order to prevent a transfer without notice. With high consideration & respect I remain Sir, your most Obt Sert

James Madison

P S. Oct 14 Since the above was written I have received a third note from the Marquis D’Yrujo in reply to my answer to his two preceeding. A copy of it is herewith inclosed.9 It requires no comment beyond what may be applicable in the above observations on his two first notes; being probably intended for little more than a proof of fidelity to his trust, and of a zeal recommending him to the favor of his Sovereign.

Be pleased to cause the Books referred to in the inclosed slip from the Moniteur of the 29th. July last to be purchased and transmitted to this office.10 They may doubtless be had at Paris or Amsterdam. You may add to them any other reputable and valuable treatises and also collections of modern treaties you may think proper.

It having been thought proper to communicate to Mr Pichon the French Charge d’Affaire here the tenor of the notes from the Marquis D’Yrujo he has presented in a note just received, a vindication of his Government and its treaty with the UStates against the objections proceeding from the Spanish Government. A Copy of this note is herewith inclosed.11

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