James Madison Papers

From James Madison to Robert R. Livingston, 31 January 1804

To Robert R. Livingston

Department of State January 31st. 1804


The two last letters received from you bear date on the ——1 and 30th September,2 so that we have been now four months without hearing from you. The last from me to you was dated on the 16. day of January,3 giving you information of the transfer of Louisiana on the 20th of December by the French Commissioner Mr Laussat to Governor Claiborne and Genl Wilkinson the Commissioners appointed on the part of the U States to receive it. The letters subsequent to that date, from Governor Claiborne who is charged with the present administration of the ceded territory, shew that the occupancy by our troops of the military posts on the Island of New Orleans and on the Western side of the Mississippi was in progression; and that the state of things in other respects was such as was to be expected from the predisposition of the bulk of the inhabitants, and the manifest advantages to which they have become entitled as Citizens of the U States.4 A Bill providing for the Government of the Territory has been some time under the deliberation of the Senate, but has not yet passed to the other branch of the Legislature. The inclosed copy shews the form in which it was introduced.5 Some alterations have already been made and others may be presumed. The precise form in which it will pass cannot therefore be foreknown; and the less so as the peculiarities and difficulties of the case give rise to more than the ordinary differences of opinion. It is pretty certain that the provisions generally contemplated will leave the people of that District for a while, without the organization of power as dictated by the Republican Theory; but it is evident that a sudden transition to a condition so much in contrast with that in which their ideas and habits have been formed, would be as unacceptable, and as little beneficial to them, as it would be difficult for the Government of the United States. It may fairly be expected, that every blessing of liberty will be extended to them as fast as they shall be prepared and disposed to receive it. In the mean time the mild spirit in which the powers derived from the Government of the United States will under its superintendance be administered, the parental interest which it takes in the happiness of those adopted into the general family, and a scrupulous regard to the spirit and tenor of the Treaty of Cession,6 promise a continuance of that satisfaction among the people of Louisiana, which has thus far, shewn itself. These observations are made, that you may be the better enabled to give to the French Government the explanations and assurances due to its solicitude in behalf of a people whose destiny it has committed to the justice, the honor and the policy of the United States.

It does not appear that in the delivery of the province by the Spanish authorities to M Laussat anything passed denoting its limits either to the east the west or the north. Nor was any step taken by M Laussat either whilst the province was in his hands or at the time of his transfering it to ours calculated to dispossess Spain of any part of the territory east of the Mississippi. On the contrary in a private conference he stated positively that no part of the Floridas was included by the eastern boundary France having strenu[ously] insisted to have it extended to the Mobile which was peremptorily refused by Spain.7 We learn from M Pinkney that the Spanish government holds the same language to him. To the declaration of M Laussat however we can oppose that of the French minister made to [you]8 that Louisiana extended to the River Perdido9 and to the Spanish government as well as to that of France if it should have changed its ground10 we can oppose the treaties of St Ildefonso and of [September]11 30 1803 interpretted by facts and fair inferences. The question with Spain will enter into the proceedings of M Monroe on his arrival at Madrid whither he will be instructed to repair as soon as he shall have executed at London the instructions lately transmitted to him in relation to the impressment of seamen from American vessels and several other points which call for just and stipulated arrangements between the two Countries.12 As the question relates to the French government the President relies on your prudence and attention for availing yourself of the admission by M Marbois that Louisiana extended to the River Perdido and for keeping the weight of that government in our scale against that of Spain. With respect to the western extent of Louisiana M Laussat held a language more satisfactory. He considered the Rio Bravo or del [Norde] as far as the 30 N latitude as its true boundary on that side. The northern boundary we have reason to believe was settled between France and Great Britain by Commissioners appointed under the Treaty of Utrecht who separated the British and French Territories West of the Lake of the Woods by the 49 of latitude. In support of our just claims in all these cases it is proper that no time should be lost in collecting the best proofs which can be obtained. This important object, has already been recommended generally to your attention. It is particularly desirable that you should pro[cure]13 an authenticated copy of the commercial charter granted by Louis Fourteenth to Crozat in 1712 which gives an outline to Louisiana favorable to our claims at the same time that it is an evidence of the highest and most unexceptionable authority a copy of this charter is annext to the English translation of Joutel Journal of La Sales Last Voy[age] the French original not containing it.14 A record of the charter doubtless exists in the archives of the French govern[ment]15 and it may be expected that an attested copy will not be refused to [you]. It is not improbable that the charter or other Documents relating to the Mississippi project16 a few years after may afford some light and be attainable from the same source. The proceedings of the Commissioners under the Treaty of Utrecht will merit very particular research as they promise not only a favorable northern boundary but as they will decide an important question involved in a convention of limits now depending between the UStates and Great Britain. To those may be added whatever other documents may occur to your recollection or researches including maps &c. If the secret treaty of Paris in Seventeen hundred & sixty two or three between France & Spain17 and an entire copy of that of St Ildefonso in [1800]18 can be obtained they may also be useful. An authentication of the precise date at least of the former, is very important. You will be sensible of the propriety of putting M Monroe in possession of all the proofs and information which [you] may obtain should he take Paris in his way to Madrid you will have the best of opportunities for the purpose.

In my letter of the 9th of Novr. last I communicated the ideas entertained by the President with respect to the pecuniary provision in the last Convention with France in behalf of our Citizens. It is presumed that you will have found no difficulty in obtaining the concurrence of the French Government in suspending drafts in favor of any, until the claims of all shall have been ascertained. Should the sum of 3,750,000 dollars be insufficient for the payment of all, as becomes daily more probable, the least that ought to be attempted, will be an apportionment of it among them. Perhaps more than this may now be attended with great difficulty; altho’ it is clear that the patronage of the Government of the U States, is due on prior considerations to some classes of the claimants, than to others, to those for example whose property was wrongfully taken on the high seas by force, than to those who by voluntary contracts placed a confidence in the French Government which was disappointed. It seems requisite nevertheless that some effort should be made in behalf of those whose claims were embraced by the Convention of Sept 30. 1800. and not provided for by that of April 30. 1803. With this view the President thinks it proper that you should adjust with the French Government a provision for comprehending in the Convention of 1803 the claims still remaining under the Convention of 1800. and for apportioning the money payable at the Treasury of the UStates among the claimants under both. Or as the object next to be pursued, a provision for apportioning among the whole the money so payable, and also the balance chargeable on France according to the tenor of the last Convention. Or as the object next in order, a provision for apportioning among the whole the money payable at the Treasury of the United States, leaving to the claimants under the last Convention, the balance from France, to which it entitles them. Or lastly, a provision for apportioning among the claimants under the last Convention the money so payable, instead of paying it in the order of settlement or according to any other rule of preference.

The first arrangement takes for granted that France considers herself bound, notwithstanding the last Convention to satisfy all the claims provided for by the first Convention and pretermitted by the last. The supposition is founded on several expressions and implications of its text, as at the head of the 5th Article “all agreements &c” and particularly in the closing words of Art X and with respect to debts the provision is express in Art XII. This construction is the more reasonable also, inasmuch as the reciprocal stipulations of the Convention of 1800 in this particular were carried into immediate and full effect on the part of the U States; and as a contrary construction would imply the relinquishment, without equivalent, of vested rights, never formally contested by France.

Should France however be unlikely to admit her responsibility for the pretermitted claims, and there be danger that by urging her responsibility at this time, an equitable modification of any sort may be rendered more difficult, it will be best to pass over the question for the present, taking care that no waver be made which may either still further weaken the claims against France, or give colour for turning them over against the UStates.

Neither of the succeeding alternatives will increase the balance payable by France, nor is it contemplated that in these or any other modifications whatever the Treasury of the United States is to be made chargeable with more than 3,750,000 dollars; or rather with more than so much of that sum as would satisfy the debts to which it is subjected by the last Convention.19

The object of each of the proposed modifications is to distribute whatever is to be paid by the U States and by France, among all the claimants, as well those omitted as those included in the last Convention, and in such a manner, that every claimant of both descriptions shall receive a fair proportion from the Treasury of the UStates, as well the balance to be paid by France.

The claimants who were provided for in the last Convention cannot justly complain of any arrangement that will replace on the same footing with themselves, their fellow claimants left by the last, under the first Convention, as being a retrospective measure, working a disadvantage to them. The retrospective proceeding will be found to be in the last Convention, so far as it is disadvantageous in its operation to those claiming under the first only. An act superseding a retrospective act, is not itself retrospective. The effect of it is to restore and enforce the original rule of justice.

Should the French Government refuse to concur in any proposition that will restore the latitude given to claims as defined by the first Convention, and which is narrowed and obscured by the text of the last, it will be proper to settle with the Government if it can be done, such a construction of this text as will be most favorable to all just claims, particularly those for freights, indemnities, property put in requisition and the separate property of individuals, who are concerned in the disqualifying partnerships mentioned in the Convention, which are said to be threatened with rejection by the Board at Paris. It is to be kept in view however, that in case the whole sum of 3,750,000 dollars should not be absorbed by the construction of the Board, the construction settled with the French Government, is not to enlarge the sum to be paid by the Treasury of the UStates beyond that to which the Treasury would be made liable by the Construction of the Board.

It will occur to you that in case the field of Claims should be enlarged, the time for presenting and settling them ought to be lengthened. You can yourself best decide how far a prolongation of the time necessary for the claims now admissible before the Board may be necessary and ought to be attempted. There is reason to believe that not a few of this description are yet to be forwarded from this side of the Atlantic.

The Island of St Domingo having been evacuated by the French troops, and the black chiefs, having declared it to be in a state of Independence,20 the trade between it and the U States falls under some delicate considerations. Had the British taken possession of the Island, it would have followed that their regulations on the subject would be entitled to the respect of neutral nations. It does not appear however, that any such plan is meditated by them, or indeed that it would be permitted by the black inhabitants. It has even been signified thro’ a respectable tho’ not official channel that no monopoly or restrictions in favor of British commerce will be attempted by means of Treaties or arrangements with the inhabitants. Be this as it may, the question will remain, in what light our trade with the Island is to be regarded and treated by France.

This question may be considered first, as it relates to her rights, next as it relates to her interest.

As it is not the purpose of the UStates to discuss the Controversy between France and St Domingo, much less to espouse at the expence of a war with the former, the station which has been or may be taken by the latter, the rights of France in the present case will be admitted to be the same, as they were prior to the evacuation of the Island by her troops. What were then her rights on the subject of neutral commerce with the Island? They were first, to intercept on the high seas, contraband of War, destined to the place with which she was at war. For altho’ the war be a civil and not a national war, the application of this principle has not been contested by the U States. Secondly—To intercept a trade with any ports or places which may be actually besieged or blockaded by her forces—Thirdly—to execute within the territorial jurisdiction of the Island, the municipal laws enacted by her authority against the trade of neutrals.

Thus far her rights will continue to be admitted, and thus far only. She cannot of right require the Government of the United States to enforce her claims on the high seas, with respect to contraband of war, or to blockades, by prohibitory and penal statutes of their own. Neither can she of right seize or disturb in any manner on the high seas, and beyond the limits of territorial jurisdiction, a neutral commerce in articles neither contraband of war, nor about to enter a blockaded port; nor expect the U States to cooperate by their municipal, with her municipal laws, in preventing such a commerce. It is sufficient in all those cases, that they do not either enter themselves into this commerce; or protect their Citizens engaging therein against the legal consequences to which they are liable.

The rights here acknowledged to France go in fact beyond the doctrine maintained by her against Great Britain during our revolutionary war. You will find in the reply to the justifying memorial of the British Government in the year  21 that she even contested the application of the law of nations concerning contraband of war,22 to the case of a civil war insisting that in such a case, articles of that character, were exempt as in time of peace, from seizure or search until they should arrive within the operation of the municipal regulations.

Thus much as to the rights of France. It is next to be considered how far her interest and her best policy may require her to enforce or suspend them, during the present situation of St Domingo.

Should France at any time undertake a blockade of any part of the Island, it is not to be presumed that she will omit the means of enforceing it, which are authorized against neutral commerce by the law of Nations. She may be expected equally to avail herself of that law as it relates to a trade with the Island in contraband of War.

But with respect to a trade which merely exchanges a supply of the ordinary wants of the Island, for the surplus of its productions, it cannot be for the interest of France to forbid the trade to a neutral and friendly nation.

In the first place, if it were her wish to try the expedient of distressing the inhabitants into submission by cutting off that resource, the experiment would be defeated by her enemy whose naval force and commercial faculties are abundantly sufficient for the purpose.

In the next place, the tendency of such a prohibition, is not only to transfer the advantages of this commerce from her friends to her enemy, but to give to the latter all the means it affords for embittering the minds of the inhabitants against France, and for attaching them to her enemy.

Lastly: If the prohibition of the trade of neutrals, could not be frustrated, nor its place supplied, by a forced trade between Great Britain and the Island, what would be the effect? To starve the inhabitants into a return under the French authority? Far from it. It would have no other effect, than to turn their labour from the culture of articles, exchangable for imported food, to the culture of food for which their own soil and climate are adapted; thereby rendering them more independent of all external authority and connections, and lessening the Commercial value of the Colony to France, in case it should be finally reduced to subjection; at the same time that it would render this subjection the more difficult.

With the aid of such observations, the President wishes you to present the subject to the favorable attention of the French Government. They have occasionally been used in conversations with Mr Pichon, who has probably conveyed the subject to his Government. It is the more important that France should see her interest in its true light, not only as a free trade with St Domingo will be profitable in itself, but as the sanction of the French Government to it will preclude spoliations and disputes, not more injurious to our Citizens than unfriendly to the harmony between the two nations.

The Convention with Spain which was not agreed to at the last Session of Congress; has been resumed and ratified during the present.23 The objection to it was that it did not provide in sufficient extent, for repairing the injuries done to our commerce, particularly in omitting the case of Captures and condemnations by French cruizers and Consuls within Spanish responsibility. As the Convention does not abandon the omitted cases, but merely leaves them for further negotiation, it was judged best on the whole not longer to deprive that class of our Citizens who are comprehended in the Convention of —— the benefit of its provisions.

The claims of the others will be pursued with due attention and may perhaps be advantageously brought into the negotiation with which Mr Monroe and Mr Pinckney will be jointly charged. Such of them as Spain refused to submit to arbitration as proceeding from French Citizens and not from Spanish subjects are clearly supported by strict justice and by the soundest principles of public law. French Citizens within the jurisdiction of Spain were for the time subjects of Spain. Spain had a right to their allegiance and was responsible for their conduct. As well might she say, that a murder or robbery committed by a Frenchmen on an American, in the streets of Madrid was to be punished or redressed by France alone and not by her; as pretend that the illegal proceedings of Frenchmen within Spanish jurisdiction in the case of spoliations on our commerce are to depend on France, not on her for indemnification. Supposing France to be liable eventually, Spain is liable in the first resort; and can be relieved from it only, by shewing that she exerted all the reasonable means in her power for preventing and correcting the wrong, without being able to succeed in either. At first she seemed sensible of this. Her plea was in substance that circumstances did not permit her to controul the conduct of French Agents and Citizens within her jurisdiction. This plea being not very honorable to her sovereignty, nor sufficiently established by proof, and being not very consistent with the satisfaction which she may find it expedient to yield other nations particularly to Great Britain, whose commerce is at this time suffering like injuries from French cruizers and Consuls, it has given place to the plea that the erasure of the 2d. Article of our Convention with France in 180024 releases Spain as well as France, because France being liable in justice to Spain for the indemnities paid by the latter to the UStates would indirectly be deprived of the benefit of that release to her. To this the reply is given by the remarks already made. The injury proceeded from Spain. To Spain we look for reparation. Her claim for reimbursement on France is a question between her and France. It may be just or not just, according to circumstances, unknown to the U States. Spain may have found for any thing we know an equivalent for this use of her ports and her permissions, in advantages yielded by or expected from France. To this the fact may be added that indemnification has throughout been claimed from Spain, and not from France; or if from France, the application has been neither patronized nor authorized by the Government of the U States. Applications of this sort may have been made by individual sufferers: but it is believed that they have in no instance received the countenance of the American Legation at Paris. It is maintained however, on the part of Spain that a resort in form has been had to the French Government in such cases. Will you make the enquiry and communicate the result? It will not be amiss to know the truth, as it may the more effectually silence the Sophistry of Spain. But should the result justify the assertion on her side, it will not vary the merits of the question. The resort of individuals to the French Government, could not be pretended to have that effect. If made under the voluntary auspices of an American Minister it might have been unknown to or disapproved by the Government here. Nay, if made by order of the Government itself, it would not preclude a just resort to Spain, unless accompanied by a positive or clearly implied discharge of the latter from her responsibility.

It has been thought proper to give you this view of the subject that it may guide the communications thereon which it may be expedient for you at any time to hold with the French Government. I have the honor to be, Sir, with great respect & Esteem Your Most Ob Sert.

James Madison

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