James Madison Papers

To James Madison from Daniel Clark, 22 June 1802

From Daniel Clark, 22 June 1802

New Orleans 22 June 1802


In compliance with your direction, to point out such objects as would require the interference of our Government, with this of Spain, to ascertain our rights, and procure redress, and at the same time to have your instructions to regulate my own conduct, as well, towards the Spanish Government, as in the intercourse with our own Citizens; I now have the honor to lay before you the Situation of affairs, and earnestly intreat, you will as soon as possible, take the same into consideration, being of importance to the welfare & commerce of the Western States, and indeed of the U. States in general.

You are already advised, of the disagreable predicament in which I am placed, by the refusal of the Spanish Government, to recognize a Consul for the U. S., in any port in their American dominions, and of the new order from the Governor of Luisiana, to the Vice Consul, to Suspend the exercise of his functions: Copy of which, with his answer, has been transmitted to you. The indispensable necessity of an official character, duly recognized here, to protect the Commerce & Citizens of the U. States, is too well known to you, to need any comment on my part. I therefore content myself with merely mentioning the point, confident, that the Government will not fail to insist on it with the Court of Spain.

To give you an idea of the Trade of the Country, and the manner in which it has been carried on for many years, it may be necessary, to refer you to the communications, I made to Coll. Pickering, when Secretary of State, which I beleive are in your possession. Under the regulations there mentioned, and covered by the Spanish flag, our Vessels traded to Luisiana till 1798, when, in consequence of an application I made to the Intendant, & by him referred to the Chamber of Commerce, our vessels, were put on the same footing, with respect to imports and exports, as their own, and the duties reduced from 21, to 6, perCt. This privilege, we have enjoyed without interruption ever since, except in two instances, Viz: an attempt to prohibit the importation of Sugar & taffia, and the exportation of boards & lumber to Havana; in order to encourage the growth of the former, & to limit the carriage of the latter to their own bottoms; from both of which, the Government was obliged to relax, on account of the inconvenience resulting from it to the Province.

Since the publication of the preliminary articles of Peace with Gt: Britain, the Intendant has signified, his intention, of Shutting the Port as soon as the Definitive Treaty is officially promulgated, against Importations for the use of the Province of Luisiana in our bottoms, & the exportation of its produce in the same way; limiting our Commerce in this quarter, to the Supplying of our own Settlements on the River, & exportation of their produce deposited in New Orleans. Of this Order we have no right to complain, however we may Regret the narrow policy of the Government, which prohibits an intercourse, as advantageous to the inhabitants of Luisiana as to ourselves.

But Justice to our Citizens forces me to Protest against the measures pursued by the Intendant, in Requiring a security on the importation of Produce, from our settlements on the River, intended to be put in deposit; this security must be given by, two residents Merchants of New Orleans, to be answerable for duty, in case of Sale, which for the most part is never intended, & the importer, is, by this means, forced to consign his property to the Persons becoming his Security, who exact a commission, which, in the present State of the markets, is a great hardship and very Severely felt. The pretext for this imposition, which likewise brings a fee to the Custom House officers, was, that Certain Spanish Merchants, who had received Consignments from our Citizens, had instead of Shipping, sold a part of them in the Country, and had not accounted for the duties; tho’ they were charged to the owners of the property. This was very easy for them to effect, as there exist no Public deposit-Stores, & the produce of the upper Country, was suffered to be stored by each individual, where he found it most convenient for his interest. If the Spanish Merchants have acted amiss, our Citizens should not suffer for it; the present measure, forces them indispensably, to pay a heavy Commission & Custom House fees for the Bonds, in addition to Storeage, the only charge contemplated in the Treaty with Spain, whose duty it was to provide Stores, or suffer them to be taken by our Citizens, without annexing to it, a condition, as burdensome, as it is unjust, & which often lays them entirely in the power of men, with whose characters they are not acquainted, & from whom they consequently may suffer.

Another abuse, & imposition more injurious, than the foregoing, is, a duty of three perCent, exacted by order of the Intendant, since the 20th. March last, on all money whether imported by Sea, in our vessels, or in Boats, from our Settlements on the River, & entered in New Orleans for deposit, to be Shipped to the U. S. from the one part, in return for goods purchased there, or, on the other, Sent into the Settlements to purchase their produce. The duties collected to this day, have already amounted to ($552) five hundred fifty two Dollars, as will appear by Paper No. 1. herewith, & would have been infinitely greater, had not the Captains and Consigners of Boats & vessels importing Cash, in general avoided making an entry of it.

Judging from this, it will appear, that this duty is a matter of the utmost importance in itself, independently of the principle on which it is exacted; & which ought by no means to be Submitted to, as the Same authority which pointed out 3 perCt. as the ratio of duty, may, ad libitum, increase it to 50 perCt. or, absolutely prohibit the introduction, of it or any thing else, if the right is once acknowledged. On no pretence whatever, can this duty be demanded. It is not warranted by Treaty; it never could be Supposed, that the liberty of depositing our produce, and merchandize, in New Orleans, was limited merely to the Storeage of these articles, until an opportunity offered of exporting them to foreign Countries, or supplying our back Settlements. It never could be supposed, that the Farmer, who raised the produce, must turn Merchant, & ship it; nor that the Merchant, who imported for the use of the Upper Country, must follow his adventure to the place where it was consumed. The Place of Deposit must have been intended, for a mart, where the commodities of the interior settlements, might be Sold to, or exchanged with, the American Merchants, & where value must be given for them; this principle, is opposed by the Spanish Government, which pretends, that every thing reported for deposit, must be imported & exported by the same person; that no transfer may be made, from a Citizen of the Western, to one of the Atlantic States—that the latter, has no right to bring Cash free of Duty to purchase the produce of the former, nor the former, in like manner, to purchase the Merchandize deposited by the latter: the extension of this principle, if not avoided by the Merchants, will at once put a stop to all Commerce, and requires the immediate interference of Government. It is an abuse of too great a magnitude to admit of delay, as it may take root & require a violent remedy. The People of the Western States, & Merchants from the Atlantic Ports, are loud in their Clamor against it, & hope that redress, will early be procured them, for the Past, & for the future, Security against Such intolerable abuses.

The Paper No. 2, the Protest of a Mr. Cushing, is intended as an official document on ye. subject. The Intendant of Luisiana, has imposed this arbitrary duty, of his own accord, without any authority from his Court so to do, as he himself informed me, but he has given advice of the measure, & will continue to exact it, until, the pleasure of the King of Spain is Known.

Should the Court approve of it, it will be rigorously adhered to, until our Government interferes, & forces the Ministers to punish the Officers, who dare commit an outrage of this nature, on our property—violate the Treaty, & insult the nation, by usurping a power of dictating to it, in its most important concerns.

I would beg leave to suggest, that our Government should insist, that in future, no duty or fee of any Kind, should be imposed, without its concurrence—If this is not done, we shall be constantly exposed, to new impositions, on new pretexts, & neither our persons, nor our property, will be in safety.

Prevented from remonstrating officially, I waited on the Intendant, as an Individual, whom he knew to possess the confidence of his Government, manifested the injustice of the proceeding, reminded him, that he had last year, consulted me to know, whether I thought our Citizens would agree to pay 1/2 perCt: to an Officer, whom he should appoint to take charge of all specie imported, & who should be responsible for it; that I had then replied, that I thought the charge exorbitant, that it would not be submitted to, & desired him to recollect, that in consequence of the reasons then alledged, he gave up the point & requested me not to mention it. I asked him, why, after this, he had so enormously encreased, the Ratio of duty? He replied that 3 perCt., was a fee paid in Spain, to the Person appointed to receive all public deposits, & that he could do no less than allow the same here—In vain did I observe that the Case was different, as there were here two Parties, the American, & Spanish Governments, & that without the consent of the former, the latter had no right to impose any duty whatever. He spoke of the Storeage mentioned in the Treaty, to which I replied, that he had not the right of saying how much it was to be—that Cash required but little Room & could pay but little storeage, were the U. S. even to consent that any should be paid for it.

At same time assured him, that this would probably occasion a very serious misunderstanding between the Countries, if persisted in; towards the close of our conversation, he admitted that it might, but seemed regardless of it, as he said the matter would then concern the Court, as its approbation before then, would relieve him from all responsibility. When I mentioned my surprize, that he could think it possible, that the Court would approve of such a measure, he said, there would be nothing extraordinary in it, as the Prince of Peace, had some time since, ordered him, to impose a duty of Six perCt: on all produce which might be exported from our settlements, & on merchandize which might be imported for their use; which he had not complied with, as he supposed the Prince of Peace had in this case, forgot the Stipulations of the Treaty, & that the thing was too glaring to be submitted to.

From this you may Judge, Sir! of the necessity of making such Representations to the Court of Spain as will put it in mind of its engagements with us & will induce it, to give orders more agreable to its Stipulations, & which the officers shall be obliged punctually to comply with. I need not comment, on the Ignorance manifested on the part of the Minister, nor on the power usurped by the Officer in Luisiana. You will perceive the necessity of having the latter limited in future, in all matters, which regard the Citizens of the U. States.

I regret, that circumstanced as I am, I could not address the Intendant officially on the subject, which would have compelled him, to answer me in writing, so that I might have transmitted you his letters, as proofs, of what I advance; you may however rely, that I have literally advised you of what passed between us on the subject.

In addition to what I have already said, he mentioned, that he thought his Government authorized, to prohibit the residence of our Citizens, even for a few days at a time, in New Orleans, who might come there for the purpose of carrying on business, and that they might be restricted to their shipping; so preposterous an idea, required but little ingenuity to refute, yet I am fully persuaded the thing may one day be attempted, & I think it necessary to give you this timely notice, to be prepared & to guard against the evil consequences that would result from attempting to carry it into execution.

I told him when speaking on this subject, that our Government would insist upon having a deposit elsewhere, than at New Orleans, in some convenient place, where our Citizens would erect Stores to receive & to ship their produce from, & make their Exchanges at, which would be very injurious to that City. He Seemed Sensible of it and I think a demand of this kind made by our Ambassador, & the reasons for doing so made public, even if the point were not insisted on, would be productive of much benefit, would procure us better treatment, & would deter Officers, from doing many things, when they found their Conduct attracted the notice of the Government of the United States.

The situation of the Inhabitants on the Tombigbee, and the very serious inconveniencies they labor under, in being denied the right of importing or exporting in American bottoms by way of Mobille, must I presume be known to you. They are at present obliged to supply their wants from New Orleans, where the Merchandize they consume, has already paid a duty, and the productions of the Country, not being allowed to be shipped direct for any market but that of New Orleans, are there subjected to a duty of 6 perCt: on importation & as much more on exportation. This expence is the more sensibly felt, as their fellow Citizens of the Western part of the same territory, can send their produce to market, by way of the Mississippi, & are not subjected to it, & the principle being admitted with respect to that River, must, I think, of necessity, be extended to all others in similar cases.

I was in hopes that the Member, from the Mississippi Territory, to Congress, had been instructed by the Legislature, to bring this matter before the Executive, but hearing nothing on the subject, suppose that his Death prevented it.

The want of American Pilots at the Balize, is much felt by all those who navigate to this Country; delays, & losses, have often arisen, which can be imputed to this cause alone. There are none, but open boats, employed by the Spaniards, and vessels must arrive at the very mouth of the Pass, before a Pilot ventures off to them. Strangers arriving, are often in sight of the land a week, before they discover, what particular point, they should steer for; & very frequently, it is only by the departure of some vessel, or the arrival of one, whose Captain is well acquainted with the navigation, that they at last come near the Bar where the Pilot boards them. If desirous of sounding the pass, they are prevented, altho’ the Treaty expressly provides for the free navigation of the River from its Source to the Sea. In case of grounding, there is no assistance to be procured nearer than N. Orleans; the delay that takes place before it can be obtained, exposes to Shipwreck, and the scenes which in some of these occasions, have taken place, are shameful, beyond description. Every thing which could be, was plundered; and such difficulties thrown in the way of the sufferers, that all attempts at procuring redress, proved ineffectual.

The right of laying Embargoes, & detaining our shipping in the Mississippi, is another vexation to which our Commerce is exposed, & from which, it can only be releived, by the interference of our Government. On the slightest pretence, these Embargoes have repeatedly taken place. Did an English Privateer, appear before the Balize, the American Shipping were detained from a fear of giving information. Was a spanish ship, expected to arrive, or preparing to sail, our Shipping were still the victims of their prudence, and no entreaties, no expostulations could prevail, to have these Embargoes taken off till the object for which it was laid on was obtained. A low species of cunning and duplicity, unworthy even of those who practised them were made use of. Vessels were allowed to depart from New Orleans, furnished with the usual Pass, but when arrived at the Balize, the Pilots, had orders to detain them. On complaint being made, the blame was laid on the pilots, but it was in vain to expect redress; & this farce, being from time, to time, renewed, as was found necessary, plainly shewed, that the pilots always acted by order of Government, as this conduct was never pursued by them except on the particular cases before mentioned. To shew how our Citizens were treated on these occasions & what they were exposed to, I forward you No. 3, a statement drawn up by Mr. Robert Lowry, of Baltimore, of what he himself witnessed & experienced; this is not a singular instance. The arrest and imprisonment of Mr. D. W. Coxe of Philadelphia & the detention of two of his ships some time since, in consequence of a dispute with the Pilots, is another instance of their arbitrary & unjust proceedings.

The intercourse, between our settlements on the waters of the Mississippi, & New Orleans, is now very great, & must in the natural course of things, daily increase. Great numbers of people are employed in navigating the Boats, which transport our produce to the place of Deposit. Yet, not one, even of these, is suffered to depart, tho’ it be in an American Vessel, without a Passport, for which a dollar & a half is expected, & which, it is often difficult to pay among boatmen. However trifling this tax may appear, when collected from each person, yet in the aggregate it forms a large sum, which the People of the Western Country, already find oppressive, & have often, tho’ in vain, refused to pay.

On the death of a Citizen of the United States on the Mississippi, a misfortune, which but too frequently occurs in the summer, his property if he die intestate, falls into the hands of Justice or the Administrators of it, and before the formalities can be complied with, the expences that accrue, often consume nearly the whole, nor is this all. The Government names the Administrator, in whose hands the proceeds are placed, & instances may occur where these depositaries prove unfaithful. During Governor Gayoso’s administration, the Consul being recognized, took the Steps pointed out by Law, to secure all property so left for the Heirs; but his successor, suspended the Consul from his functions, & ordered that in future all property left by Persons dying in Orleans should be disposed of as above Related.

I flatter myself, that it will be required only to make these points known, to procure the interference of the Government of the United States, in favor of our Commerce, which stands, at present, so much in need of its care & protection.

As in future, the American vessels which navigate the Mississippi, will be prohibited from trading with the Spanish part of the province, and their Commerce will be confined to a traffic with our own settlements, whose productions are deposited in New Orleans, Should not the river be considered as common to the two nations, and our Vessels while in it, as in our own waters? The Spaniards already so far acknowledge this principle, that no Custom House officer, is put on board of a vessel, whose sole object is to deposit a Cargo in Orleans, for the upper Country, or to receive produce entirely of its growth. But should it not be further extended, so that our Vessels in no case whatever should be subjected to visits, searches, or the Crews, or Passengers, to arrest? As Public Vessels in foreign Ports are exempted from Searches, under the idea that national property is a part of the territory of the nation, to which it belongs, & that consequently no foreign nation has a right to exercise a jurisdiction over it, so I look upon our Merchant Vessels, on the Mississippi, as in our territory, & entitled to the priviledges of national ships, in foreign ports. How far I should insist on this principle being acknowledged, on any future occasion, will be with you to determine, & if, as I wish, it ought to be asserted, I will not fail to do it strenuously, when exertions shall be called for.

It has lately become a practice with many traders & planters, bringing their produce to market, to navigate their boats with their Slaves, when hirelings could not be had. They have often met with difficulties, from the officers of the first Spanish forts below the Natchez: on some occasions, the Slaves have been taken out of the boats, & detained until the owner Returned; on others, they have been compelled to find Securities to reproduce the Slaves there, on their way home, at a stated time, & this has even occurred in New Orleans. To prevent a Sale of Slaves in their territory, is the Pretext for this abuse of power, when the penalties annexed to such a practice, are I think, sufficiently severe, amounting in case of conviction, to Confiscation of the Slave & imprisonment of the parties interested.

During the late War shipments of money (which are forbid by the laws of Spain) were often made for account of our Citizens, & under different pretexts, the vessels in which such shipments were made, were carried into British ports, where, for want of proofs of property, they were often detained, until the Merchants of the U. S. could forward them.

I solicit your advice to know, whether on any occasion I should grant a Certificate of Property when I know a Shipment to be made contrary to the existing laws; serious inconveniencies have often resulted from the want of them, but as the case appears to be delicate, I shall not presume to Judge of it, but await your decision, for the rule of my conduct.

As the Trade of Luisiana, is now an object of importance, & we shall in future be altogether excluded from it, measures might probably be taken with the Court of Spain, to procure us a participation in it, were it only on the same terms, on which, the inhabitants are allowed to trade with the Nations of Europe. They are now at liberty, to carry on a Commerce, under the Spanish flag, with any European Country, with which Spain is at Peace, to Receive from thence, every thing they stand in need of, & ship off all the produce of the Country on paying duty of 6 perCt: on Imports & Exports. With the U. States, this Commerce was interdicted, because Spain at that time had no Consuls in our Ports & the Regulation still exists; altho’ a great many articles, of India manufacture especially, and some of the produce of the Country, must for a long time take a circuitous route by way of Europe from the U. S. before they reach the Province, which, from long use, they cannot & will not do without. Spain being neither a manufacturing, nor Commercial Country, derives no benefit whatever from Luisiana; a few small vessels with fruit & wines, keep up the only direct communication she has with it, & the returns for these Cargoes are often made to the Ports of France. As the trade is therefore open to the nations of Europe, the exception seems singular in respect to us, & on application might be done away. If this were the case, the facility of masking our Vessels under the Spanish flag, the cheapness of our navigation compared with theirs, the industry, activity & Capitals of our Citizens who in the name of resident Citizens of New Orleans could carry on trade there, would not fail to engross a large Share of the business of the Country to the great advantage of the United States. I have the Honor to remain with Sentiments of respect & Esteem Sir Your most obedient & most humble Servant

Daniel Clark

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