To Carlos Martínez de Yrujo
Department of State October 15th. 1804.
Your letter of the 13th. inst: communicating certain conditions which His C. Majesty considers as proper to be annexed to his ratification of the Convention of August 11th. 1802, now depending between the two Governments has been laid before the President.
One of these conditions refers to a section in an Act of Congress passed on the 24th day of Feby. last, regarded by His Catholic Majesty as disrespectful to his sovereignty and requires as a reasonable prelim[in]ary to the ratification of the depending instrument, that the said Act should be freed by an authentic exposition from the apparent import at which umbrage has been taken.
It could not be Learnt by the President without some surprize that the Law in question should have given rise to complaint and much more that it should be made a reason for suspending the final sanction of His C. Majesty to an instrument deliberately formed and awaiting that single formality only for its completion. The President had certainly a right to expect that a Legislative Act depending essentially for its effect in the particular case on his discretion would have been left to the regular exposition & execution, before it should become the object of criticism & complaint from any Foreign Government. He had a right consequently to prescribe this answer when the Act above cited was first made a subject [of] representation: and he might even now be justified in resting on this sound principle the reply to the representation which is repeated in the communication just received from you. Yielding nevertheless to the disposition of the U. States to maintain the most friendly understanding with Spain, and that frankness which is dictated by the integrity of his views, he charged me with the candid explanations which were contained in my Letter of March 19th. last.1 Those explanations when received by his C. Majesty cannot fail to satisfy him that the UStates, not less careful to forbear than ready to resent real insults, could not have meditated by the Act complained of, the slightest disrespect to his right or his sovereignty. And as the most definite proof of the sentiments entertained for His C. Majesty, I am now charged to inclose for his information, the executive Act of the President2 founded on and of a nature equally public with the act of Congress aforesaid, by which it will be seen that in expounding and applying the latter, there is the most exact conformity to the assurance given in the letter of March 19th.: that the operation of the 11th. Secn: would take place within the acknowledged limits of the United States, and would not be extended beyound them, until it should be rendered expedient by friendly elucidations and adjustments with the Spanish Government.
In order to hasten those, a special Mission to Madrid was some time since provided for: and if the destined Minister extraordinary has not already repaired thither, the instructions which will now be repeated if no unfavorable considerations present themselves, may be expected soon to have that effect. In the mean time the President concurs with the Spanish Government in the expediency of leaving things precisely in Statu quo. And he persuades himself that it will be deemed equally expedient on both sides to give this precaution its full effect by a mutual forbearance to increase unnecessarily either within, or on the borders, of territories, the limits of which remain to be adjusted, military provisions of any kind, which by exciting jealousies on one side or the other, may have tendencies equally disagreeable to both.
The other condition proposes to remodel the terms of the 6th. Article of the Convention which leaves for subsequent discussion the particular claims therein described. The President does not conceal his regret at seeing the ratification of the Convention clogged with a condition which if persisted in could not easily be reconciled with that delicacy in such transactions which he has always felt a pleasure in ascribing to His C. Majesty, or with that desire which His C. Majesty has so often professed to multiply proofs of his friendly sentiments towards the U. States. If the preceeding condition had not been the result of a misconception which can now no longer exist, it might have had a natural source in the sensibility not unbecoming a magnanimous Government, and might have been urged by the considerations that it had reference to an event subsequent to the first assent given by His C. Majesty, and which altho’ distinct from the intrinsic merits of the Convention might raise a question how far the completion of it was permitted by a new state of things. The Condition relating to the 6th. Art. is of a character altogether different. The art as it now stands was negociated under the eye, and with the approbation of the Spanish Govt. All the principles, all the facts, all the authorities of public law were at that time the same as at present. And there can be the less reason for attempting to unsettle what was then decided, as the period of negociation was sufficiently protracted for the most minute examination and the maturest reflection. If it be said that the alteration ⟨proposed⟩ would be in the words only and not in the meaning of the article⟨:⟩ may it not with greater propriety be answered that on that supposition it cannot be of such importance as to be pressed as a condition which would require all the delay and all the forms of a new stipulation and which might have the effect of frustrating the convention altogether⟨?⟩ ⟨For,⟩ without entering into a comparison of the article in its present terms with the substitute proposed, it is obvious that the difficulty of adjusting a form of ⟨expression⟩ a difficulty not inconsiderable originally, would be much increased by the necessity of seeking in the relation of the new to the old article, as well as in the terms of the new, the precise construction which ought to be given to it.
Were it necessary to enforce these observations by an enquiry into the right of His C. Majesty to withhold his ratification in this case, it would not be difficult to sh⟨o⟩w that it is neither supported by the principles of public law, nor countenanced by the examples which have been cited. According to the former, such a refusal ought to be founded either on a departure of the negociating Minister from his instructions, or on intervenin⟨g⟩ occurrences or on some surprize or deception. Neither of these can be alledged. The Spanish Govt. itself was privy to the negociation, leaving consequently its final act of ratification the merest ceremony. No new facts connected with the subject have come to light. The negociation was so long on foot and so fairly conducted that neither surprize nor deception can possibly be pretended. In every such case besides the motive for refusal ought to be of great & evident importance. In the present case, the very argument for the change destroys the importance of it, since the change is alle⟨d⟩ged to be in the words and not in the meaning of the Article. As to the examples cited, they bear no analogy to the case to which they are applied. In that of the Treaty of Paris in 1763, the plea on the British side, is understood to have been a matter deeply interesting which was discovered & declared by the negociator himself on the very day of his signing the instrument.3 The example the conditional ratification here of a late Convention with G. Britain is still more dissimilar, being occasioned by an important event, the acquisition of Louisiana by the U. States, which might have given to one of the Articles, a scope contemplated by the instructions of neither party, nor within the knowledge or intention of either when signed by the negociators. Another distinction absolutely decisive, is, that the conditional ratification proceeded from the Senate, who sharing in Treaties on the final ratification only, and not till then even knowing the instructions pursued in them, can not be bound by the negociation, like a sovereign who holds the authority in his own hands. When peculiarities of this sort in the structure of a Government are sufficiently known to other Governments, they have no right to take exception at the inevitable effect of them.
With respect to the enlargement of the time for the assembling of the Commissioners, which can be done without any remodification of the convention, the Presidents respect for the wishes of His C. Majesty will not permit him to refuse his concurrence; altho’ he does not himself perceive the necessity or advantage of it. The Commissioners who may be appointed on the part of the U. States will accordingly be apprized that their proceedings are not to be commenced till the Month of May next; unless further enquiry shall satisfy His C. Majesty, that an earlier day will not be inconvenient.
On a view of the whole subject as it now presents itself, the President infers with confidence, that His C. Majesty, recollecting that the claims to be adjusted under the Convention are of the most incontestable character, and finding that a disappearance of every other obstacle to his ratification, leaves to him the sole decision between adhering to or relinquishing a condition for which there cannot be a reason now which did not exist and was not known at first, and which is represented on his part would otherwise be of too little importance to be turned against the Act of his own Plenipotentiary entered into with his own privity, will pursue the course which is prescribed not less by his delicacy or rather his good faith, than by his love of justice & the friendship subsisting between Spain & the UStates. In pressing, thus, the consummation of the suspended instrument, the President cannot be influenced by any peculiar advantage given by the terms of it to the U. States. He well knows, as has been just noticed that the claims therein provided for cannot ultimately be disallowed; and that the Convention if carried into effect in its present f⟨or⟩m, will still leave for subsequent accomodation severa⟨l⟩ questions deeply interesting to the subsisting relation⟨s.⟩ If he indulges a solicitude on the occasion, it is because the state of the transaction has justly led the claiman⟨t⟩s into preparations and expectations which would involv⟨e⟩ many in useless expence, and all in disappointment and disgust; because he regards the Convention as a step towards a satisfactory adjustment of other depending and accruing questions; because a completion of it will dissipate appearances which have already begotten inquietudes on both sides, and may embarrass an intercourse desirable & valuable to both; because in a word, it will be a pledge of future justice at the same time that it guaranties the present harmony, between the two Nations. These are considerations which cannot surely be entitled to less weight, with the Spanish Government than is allowed to them by the U. States.
It will be added only that considering the disadvantages of every kind incident to the present state of uncertainty and particularly that the arrangements here preparatory to the execution of the Convention, must be regulated by something more positive than an inference however reasonable that the instrument will receive from his Catholic Majesty an unqualified ratification, I need not remind you of the utility which would result from such assurances, as your knowledge of the views of your Government may enable you to express to this, that the event may now be relied on. On this point I Shall hope for the favor of as early an answer, as you can make it convenient to transmit for the information of the President. With great consideration I have the honor to be &c.
(Signed) James Madison
Tr (DLC: Monroe Papers). Tr is a letterpress copy in the hand of a State Department clerk; sent as enclosure in JM to Monroe, 26 Oct. 1804.
2. JM presumably enclosed a copy of Jefferson’s 20 May 1804 proclamation establishing the Mobile collection district (James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents [20 vols.; Washington, D.C., 1897], 1:357).