James Madison Papers

To James Madison from Carlos Martínez de Yrujo, 7 March 1804

From Carlos Martínez de Yrujo

Washington 7th. March 1804


I take up my Pen to communicate to you in Writing, what I had the Honour of expressing to you verbally the Day before yesterday.

I shall begin by calling your Attention to the Act of Congress published in the enclosed Gazette, entitled “An Act for laying and collecting Duties on Imports and Tonnage within the Territories ceded to the United States by the Treaty of the 30th. April One thousand Eight hundred and three, between the United States and the French Republick and for other Purposes.”1

I confess, that after having read the Eleventh Section of this Act, although I saw it published in the National Intelligencer in which Paper the newly-enacted Laws of the United States usually appear first, I regarded the Section alluded to, as an atrocious libel against the Goverment of this Country.

In reality, how could I imagine, after you had given me on the 1st. instant,2 in the Name of the President of the United states, the most positive assurances of his Desire to preserve the Ties which happily Subsist between the King of Spain and the United States, that this Goverment had Six Days before offered to his Catholic Majesty one of the greatest Insults which one Power can be guilty of towards another? How could I expect, that the American Goverment, which prides itself so much on its good Faith, which is so Zealous in the Preservation and Defence of its own Rights, would have violated, with all the Solemnity of a Legislative Act, those of the King my Master by usurping those of his Sovereignty? It appears, nevertheless, that the Act alluded to is Authentic, and there results from it consequently, in the first Instance, the most clear and manifest contradiction between the friendly Assurances, which you gave, and the conduct of this Goverment. I can therefore have no doubt of the Offence committed against my Sovereign in the pretended Jurisdiction of the United States over the Terretories Rivers an⟨d⟩ Shores, mentioned in the said Eleventh Section,3 and which unquestionably belong to the Crown of Spain.

As well as I recollect Sir, you remarked in Answer, to the observations, which I made to you, on this Subject, that the Persons, who had drawn up the said Act, might possibly presume, that the said Territories might belong to the United States in Virtue of the Treaty of Paris of the 30th of April last. But, Sir is it to be supposed that the Congress of the United States, which is so justly esteemed for the Wisdom of its Laws, would venture to usurp the Jurisdiction of a neighbouring and friendly Sovereign, merely upon Vague and uncertain conjectures? What would have been the Sensations of the People of America if, soon after the Treaty made by Spain with the United States in the Year 1795, by which the Boundary Line, between the Territory of the Two powers was fixed at the Thirty first degree of Latitude,4 the King my Master had authorised any of His Chief Officers in America to divide a Part of Georgia into Districts, and to establish Custom Houses in various Points of them, simply because it was imagined that the Terretory, in which He chose to place them, belonged to that Portion, which would remain to Him according to the Boundary Line which had not then been drawn? The Right, which the United States arrogate of Legislating in the Terretories mentioned, in the said Eleventh Section, is not better founded, than would be that of His Catholic Majesty to have made Laws in the former Instance for a great Part of Georgia. But even if the Treaty of the 30th of April had given any Ground or Appearance of Foundation for the Establishment of such Pretensions, it was natural that the United States from a sentiment of Justice, of Delicacy and of that Decorum and respect, which nations owe to each other, should have proceeded by the Ordinary Way of Negociation, to clear up their Doubts and to establish their Conduct upon a Basis which would not be in contradiction to their Principles.

The Congress, however, so far from observing the established Usages in cases of this Nature, proceeds at once to a Decision, and not only authorises the President to execute certain Acts in West Florida, which indisputably belongs to the King my Master, but expresses this in such vague and indefinite Terms, that the President may consider himself authorised by the said Act to annex a Part of East Florida to the District of which Mention is made in the Eleventh Section, and to place a Collector of the Customs in Apalache5 or Pensacola, To convince you, Sir, that these Inferences are not exaggerated I will take the Liberty of transcribing a part of the Eleventh Section as follows: Sect 11th. “And be it further enacted, that the President be, and he hereby is, authorised, whenever he shall deem it expedient to erect the Shores, Waters, and Inlets of the Bay and river Mobille and of the other Rivers, Creeks Inlets and Bays emptying into the Gulph of Mexico, East of the said River Mobille and West thereof to the Pascaguola inclusive, into a seperate District, and to establish such place within the same, as he shall deem expedient, to be the Port of Entry and Delivery for such District, and to Designate such other Places within the same District, not exceeding Two, to be Ports of Delivery only. Whenever such seperate District shall be erected, a Collector shall be appointed to reside at the Port of Entry and a Surveyor shall likewise be appointed, to reside at each of the Ports of Delivery which may be established &ca.” It is evident therefore that according to these Expressions the Authority given to the President is unlimited to the East of the river Mobille, and that it comprehends indirectly the Power of declaring, or rather of making, War, since it is not to be presumed that any Nation will patiently permit another to make Laws within its Territories without its Consent.

If the Act, on the Part of the United States, of legislating in the Possessions enumerated in the abovementioned Section, be a real Insult towards the King my Master, even if their could exist any Doubts, as to the true limits of Louisiana, acquired by the Treaty of the 30th. of April last, how much greater must that offence appear, when there does not exist any wellfounded Reason by which the United States can establish any Pretension to West Florida—allow me, Sir, to make some observations on this Point, which appear to me conclusive.

The Limits, between the United States and the Spanish Possessions immediately to the South of them, having been very distinctly defined by the Treaty signed at San Lorenzo El Real on the 27th. of October 1795 no alteration whatever with respect to them can be conceived, unless it be in Virtue of the Treaty of Sale of Louisiana Signed at Paris on the 30th. of April last. By this Treaty the United States have acquired the Rights which France might have to Louisiana in Virtue of the Treaty of Retrocession of that Province signed at San Ildefonso between His Catholic Majesty and the French Republic. The Stipulation, therefore, which must serve as the Basis of the Pretensions of the United States, is that of the Third Article of the Treaty of Retrocession which is in these words “Sa Majesté Catholique promet et s’engage de son Coté à rétrocéder a la Republique Françoise, six Mois après l’Execution pleine et entière des Conditions et Stipulations cidessus relatives à Son Altesse Royale le Duc de Parme, la Colonie ou Province de la Louisiane avec la même Etendue qu’elle a actuellement entre les Mains de l’Espagne qu’elle avoit lorsque la France la possedoit, et telle qu’elle doit être, apres les Traites passes subséquemment entre l’Espagne et d’autres Etats.6

The first Observation which presents itself is, that this is a Contract between Spain and France, and that consequently it belongs to the latter alone to make Representations in the Case of the non Delivery of all the Territories agreed upon in the above recited Stipulation. The Prefect M. de Laussat, who was charged with the Execution of this Treaty, being perfectly apprised of its meaning, and being the Depositary of the real Intentions of his Goverment, has expressed himself satisfied with the Manner in which it has been carried into Execution; France has received Louisiana in all the Extent Specified in the Third Article, and if the United States believe themselves entitled to new Pretensions, or think that the Article above-quoted has not been verified in all its Extent. France is the only Power with whom they ought to enter into Explanations—Spain has restored to France all the Territory which she had received from her; and assuredly the word rétrocedér, which is made use of in the Third Article, discovers at once its real Object and Extent.

A clause immediately follows, which is clear, evident, and by no means liable to misinterpretations, It is that Louisiana is retroceded to France “avec la même Etendue qu’elle a actuellement entre les Mains de l’Espagne.” It is well Known, that the latter possesses West Florida not as Louisiana, but as Florida. The Notoriety of this Circumstance derives Confirmation from the Titles of the Governors of Louisiana, who are called Governors of Louisiana and of West Florida, thus distinguishing that Part of the Territory in Question, which from the Circumstance of its Situation was also placed under their command. In Fact, under a Treaty of Retrocession France could not hope, that what we had never received from her should be returned to her; and the American Goverment oughtnot to forget the Epoch, at which the King of Spain made the Acquisition of this Province at the Expence of his Treasures, of the Blood of his Subjects, and for the Benefit of the American People.

The Expression which follows is less explicit, but its meaning is evident, from that of the Passage which precedes it, and from the Improbability and even Impossibility, which would result from its being taken in a vague and general sense: I allude to ⟨the⟩ following: “Et qu’elle avoit lorsque la France la possedoit.” It is manifest that this indefinite Expression can only refer to the Period at which France delivered Louisiana to France,7 because if a greater Extent were sought to be given to it, the other Part of the Third article, could not take place, which says that it be delivered “avec la meme Etendüe qu’elle a actuellement entre les Mains de l’Espagne,” It is clear that if it were to be given with more Etendüe it could not be “la memequ’elle a actuellement entre [“]les Mains de L’Espagne.” Moreover any Person who has any Knowledge of the History of this Country Knows that France possessed formerly under the Name of Louisiana a great part of the Territories which now form the Western States. If therefore the sense of the said Expression were to be admitted in its greatest Latitude, it would follow that Spain had obliged herself by the above mentioned Third Article to deliver to France a Part of the States of Kentucky, Tennessee, the whole new State of Ohio, the Indiana Territory &ca. An absurd but necessary Consequence if the Interpretation were taken which some Persons seem inclined to give to the Expression “lorsque la France la possedoit.” The last sentance of the Said Article is too clear to require from me any further Explanations.

Hitherto I have only presented some observations which arise immediately out of the Third Article of the Treaty of San Ildefonso, and out of the History of certain facts, in order to prove that in the Cession of Louisiana we have not ceded West Florida, nor can it be so pretended by the Goverment of the United States. I shall now lay before you, Sir, the respectable opinion of the first Geographer of this Country Mr. Ellicott, of whose ardint and even excessive Patriotism no Doubt can be entertained, and the Reputation of whose Talents and Knowledge in Astronomy and Geography caused him to be appointed by the Goverment of the United States to run the Boundary Line between their Territories and those of the Spanish Possessions to the South of them in conformity to one of the Articles of our Treaty of 1795. This Agent of the United States, perhaps the most intelligent and best informed American of ⟨w⟩hat related, to the said Territories, in the Preface of his Journal, published about two or three months ago and being then informed of the Treaty of Purchase of Louisiana, by which it was to pass into their Hands, expresses himself in the following Terms “It does not appear by the Cession of Louisiana to the United States that we obtain the whole of both sides of the Mississippi: for by consulting No 5 of the Maps it will be seen that the Isle of New Orleans which lies on the East side of the Mississippi only extends North to Manchac⟨:⟩ from thence Northerly along the East side of the River to the Southern Boundary of the United States is still held by his Catholic Majesty as a part of West Florida and which Separates the Island of New Orleans from the other Possessions of the United States on the East side of the river” And further on he continues “By the Cession of Louisiana to the United States, we gain but little on the Gulph of Mexico, and are but little benefited as a Maratime People. The important and Safe Harbours in both the Floridas still remain in the possession of his Catholic Majesty &ca.”8 Finally in the Map which he lays down of those Territories he calls them West Florida a⟨nd⟩ not Louisiana.

I have entered into this Detail in order to Demonstrate that a great portion of the Country situated between the Waters which a⟨re⟩ mentioned in the Eleventh Section, alluded to belongs incontes[t]ably to th⟨e⟩ King my Master, and to render it more and more sensibly felt, that the resolution, which the Goverment of the United States have adopted of Legislating for them, is as contrary to the indisputable rights of His Catholic Majesty as it, is to the Principles of Justice, of Moderation and good understanding, which in their Name you have so recently professed to me.

I do not conceive that any additional reflexions can be necessary to place the proceeding of the American Goverment in this Instance in its true Point of View: and apprehensive that a wrong Interpretation may be given to my motives, I shall likewise refrain from Anticipating the Natural sensation which it must excite in some of the Cabinets of Europe.

Having proved the offence and having demonstrated the Insult which has been offered to the Sovereignty of His Catholic Majesty, it is my Duty as His Minister and as the Guardian of His Interests in this part of the World, to ask, as I now do, of the Goverment of the United States Satisfaction proportionate to the Injury offered to my Sovereign and to Demand that the said Eleventh Section be annulled and revoked or at least that part of it which so manifestly violates the rights of His Catholic Majesty. God preserve you many years.

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