James Madison Papers
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From James Madison to John Armstrong and James Bowdoin, 13 March 1806

To John Armstrong and James Bowdoin

Department of State March 13th 1806

Gentlemen,

I have duly received from time to time your several letters bearing dates 3 July 10 & 15 Augt. 10 Sepr. 3 & 25 Octr & 26 Novr.1

Previous to the arrival of Mr Skipwith with your dispatches of Sept 10th2 our affairs with Spain had undergone the particular consideration of the President; with a reference as well to the change in the state of things in Europe, as to the approaching Session of Congress; and it had been determined 1 that the manner in which the negotiations at Madrid had been closed by Spain, forbade any application whatever to her for a renewal of them; 2d that the case should be presented to Congress for such provisions as it might be thought to require on their part; 3d That in the mean time you should be charged to place before the French Government the necessity to which Spain by refusing to concur in a diplomatic adjustment of her controversies with the United States, had reduced the latter of seeking justice by those ulterior measures which the occasion called for. It had also been determined by the President, that with a view to enable the French Government, if it should be so disposed, to hasten by its mediating influence on Spain the change in her Councils necessary to an Amicable adjustment with the United States, and to bring Spain forward for the purpose, that you should be furnished with the terms which Spain might obtain from the U States.

On the receipt of your communications by Mr Skipwith the ideas disclosed by the French Government were considered as forming a sufficient basis for an anticipating provision by Congress, such as was made in reference to the Convention of the 30 April 1803, and it was accordingly determined in pursuance of that example to await the meeting of Congress and lay the subject before them. This was done, and the Act and Resolutions of which copies are inclosed3 were the result of their discussions; a result which has been delayed by the forms of proceeding, and some variances of opinion on the occasion longer than might have been wished.

I now inclose the outline and substance of a Conventional arrangement adapted to the views expressed, by Congress, and such as the President authorizes you to conclude. You will lose no time in imparting it to the French Government in the manner you may deem most expedient; letting it know, at the same time that no direct communication on the subject has been made to the Spanish Government; that after the reception given by Spain to the overtures made thro’ an Extraordinary mission to Madrid, followed by her military and menacing indications within and near the controverted territories as explained in the annexed extracts,4 the United States tho’ ready to meet Spain in negotiation under the auspices of a common friend do not consider it belonging to them to Court a further negotiation in any form; that consequently the steps necessary on the part of Spain must be the result either of her own reflections or of the prudent counsel which France may undertake to give her.

The President leaves to your own management the expression of those sentiments which without any improper condescensions on the part of the United States will best conciliate the French Government to our objects. The ascendency which it will have over that of Spain, if no change of circumstances intervene, and the preference of an amicable termination of our differences with Spain, to an appeal to force, require that every honorable use should be made of the occasion which seems to offer itself.

Should the Emperor still be absent, without authority in any hands at Paris to take measures in concert with you for instituting the business, it must remain with you to decide according to the probable course of his movements on the most expedient and expeditious mode of holding the necessary communications with his Cabinet. Rather than risque a delay which may lose a favorable crisis, it may be even advisable to repair to his military quarters. This is a step however, to which there may be so many objections, that it will require very strong considerations to recommend it.

As5 soon as any authority at Paris shall be ready on the part of Spain, you will enter on the subject and press it to a conclusion with as much celebrity and decision as circumstances will justify. The terms stated as your guide require little explanation: more than accompanies the several articles. The object with the United States is to secure West Florida which is essential to their interests and to obtain East Florida which is important to them, procuring at the same time equitable indemnities from Spain for the injuries for which she is answerable; to all which the proposed exchange of territory and arrangement of the Western boundary may be made subservient. The desire manifested by the House of Representatives in the Resolution herewith inclosed that such an exchange and arrangement may be found sufficient, without any price in money, will engage all your attention and exertions. If the exchange stated in the Resolution, with the Sabine river for our Western boundary below the ridge dividing the Waters running into the Mississippi from those running into the gulph Westward of the mouth of that river can be obtained, the exchange will be satisfactory, especially if accompanied with a reasonable provision for the indemnities due from Spain to Citizens of the United States. If the exchange can be obtained even without this last provision or without, including the territory Eastward of the Perdido, or any pecuniary payment for the territory Westward thereof, it is not to be rejected; but in that case it will be extremely desirable to make the authorized establishment of an interval of territory not to be settled for a given period, subservient to a provision for indemnities.

In order to determine the price and the payments to Spain for the cession of Territory, and to provide indemnities for the Spoliations and other injuries for which Spain is responsible, you will add to the preceding articles, others proper on those subjects. For the several modifications which will best comport with the conveniency of our Treasury and the sentiments of the Secretary of that Department, I refer to copies of a letter and paper from him herewith inclosed; stating to you generally for your guide. lst6 That the sum to be made payable to Spain for her Cession is not to exceed  7 millions of dollars. 2d That as little as possible, and in no event more than two millions are to be paid prior to the delivery of possession or the ratification. 3d. That as ample a provision as possible be made for indemnities either by constituting a Board of Commissioners for settling them or by a sum in gross sufficient to cover their probable amount which is not less than four millions of dollars, and distributable by the United States to such claimants and in such proportions as may be decided under their authority. This last mode of providing for the object will be much the best, if the sum in gross be equal to the amount of claims likely to be allowed by a Board of Commissioners. 4th It is particularly desirable that in defining the cases to be indemnified the terms should be such as will embrace those where French subjects or Citizens, as well as those where Spanish subjects were the wrong doers. If a sum in gross be stipulated, it may be expected that Spain will not object to a definition which will authorize the U.States to apply it to both cases, especially if terms be chosen which will not expressly designate the contested French cases. 5 In defining the cases it will be proper to have in view those of every description which exist, more particularly depredations on the high seas, and unjust or unlawful injuries within the Spanish jurisdiction whether in old Spain or her Colonies; in a word all injurious acts either to the United States or to their Citizens, for which the Spanish nation is responsible according to the principles of justice, equity, treaty or the law of nations. I have the honor to be &c

James Madison

P.S. Particular care must be taken in case a Convention shall be made which does not provide for the spoliations or for the portion of them subsequent to the Convention of Augt 1802, to guard against an abandonment either express or constructive of the just claims of our Citizens on that account.8


Project of a Convention.
The United States and His Catholic Majesty being desirous of terminating amicably all controversies now Subsisting between them, and of providing more effectually for the maintainance of their future harmony, have appointed &c.
Art I Observations on Art I
Spain acknowledging and confirming to the United States West Florida cedes to them forever the same and East Florida with the Islands and Waters thereon respectively depending. (Or if unattainable in that form) Spain cedes and confirms forever to the United States East & West Florida with the Islands and waters thereon respectively depending. The object in these forms of expressing the Cession is to date that of West Florida, as far at least as to the perdido, from the date of the Cession of Louisiana by France and thereby invalidate the intervening sales of land, which it is understood have taken place corruptly or unfairly to a very great extent. If spain should appear to acquiesce in a more explicit acknowledgment of our right under the French Convention as far as to the Perdido, it may be well to divide the territory Eastward of the Mississippi by a reference to that river instead of referring to it as divided into East and West Florida.
Art II
Possession of the said Territory shall be delivered to a person or persons authorized by the United States to receive the same within  9 days or less, if practicable, after the exchange of the ratifications of this Convention. With the said Territory shall be delivered all public property excepting ships and military stores, as also all public archives belonging to the same.
 
Sec 2 Within 90 days after delivering possession, or sooner if possible, the Spanish troops shall evacuate the territory hereby ceded.
Sec 3 The inhabitants of the ceded territory shall be entitled to the same incorporation into the United States, and to the same protection in their religion, their liberties and their property, as were stipulated to the inhabitants of the territory ceded to the United States by the Treaty of the 30th April 1803 with the French Republic.10
Sec 4 With the same motives in view which led to the VII & VIII Articles of the Treaty above mentioned, it has been agreed between the contracting parties, that the ships of France and Spain shall enjoy in the ports of the hereby ceded territory, until the term of the twelve years therein mentioned shall be expired, the same privileges as to trade and duties as are therein stipulated; and during the same space of time no other nation shall have a right to the same privileges in the ports of the hereby ceded territory.
Sec 5 In future and forever after the expiration of the said term of 12 years the vessels of Spain Shall be treated upon the footing of the most favored nations in the ports of the hereby ceded territory.
Art III Observations
The boundary between the Territory of the United States on the Western side of the Mississippi and the possessions of Spain shall be the Colorado (or the Guadaloupe if attainable) from its mouth to its most northerly source, thence a right line to the nearest high-lands, inclosing all the waters running directly or indirectly into the Mississippi or Missouri, and along the said high lands as far as they border on the Spanish dominions. Altho’ it may not be amiss to urge the claim of the U States to the Rio-bravo, and to propose that for the boundary, it is not expected that one more westwardly than the boundary delineated in this Article will be favored by France or admitted by Spain.
 
Art IV Observations.
It is agreed that a space extending thirty leagues on each side of the said boundary shall be kept by the parties respectively unsettled for the term of years These descriptions of a barrier interval are to be successively yielded, according as spain may be willing to cede therefor her territory Eastward of the Mississippi, or to abate in the sum of money to be paid for East Florida, or to be liberal in her engagements and provisions for indemnifying our Citizens. It being impossible to foresee the various modifications and combinations which the subject may take in the course of negotiation, much must necessarily be left to your own judgment. It is to be understood that in no event the Country Eastward of the Sabine and the line from its source as above referred to is to be included in the unsettled interval.
Or
that a space of 30 leagues on the side of the U States shall be unsettled for the term of
Or
A space between the said boundary and some boundary beginning with a river Eastward of the Colorado & Westward of the Sabine
Or
A space between the said boundary and the boundary beginning with the Sabine and running thence from the source of the Sabine a straight line to the confluence of the Rivers Osage, and Missouri, and from the said confluence a line running parrallel with the Mississippi to the latitude of its northernmost source and thence a maridian to the northern boundary of Louisiana.
Art V
(Here was inserted a copy of the provisions contained in the project of 1804 as to the interval not to be settled.)11

Letterbook copy (DNA: RG 59, IM, vol. 6); extract (MHi); extract (MeB). Both extracts addressed to Armstrong; first extract marked at top margin: “Instructions common to J. A. & J. B.”

1See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (11 vols. to date; Charlottesville, Va., 1986–). description ends 10:7–8, 195–97, 212–13, 313, 394–96, 468, 589–91.

2For Skipwith’s arrival at Washington, see ibid., 539.

3Enclosures not found. For the “Act making provision for defraying any extraordinary expenses attending the intercourse between the United States and foreign nations,” see U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:349–50. For the House resolutions that an exchange of territory between the United States and Spain met with the approbation of the House and that funds be appropriated for expenses incurred in the purchase of Spanish territory, see Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 9th Cong., 1st sess., 1125–27.

4The enclosures have not been found, but they were probably the documents dealing with Spanish activities in North America that were submitted to Congress. See Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 9th Cong., 1st sess., 1156–216.

5First extract begins here.

6Second extract begins here.

7Left blank in letterbook copy; “five” in both extracts.

8First extract ends here.

9Left blank in letterbook copy and second extract.

10For article 3 of the Louisiana Purchase Treaty, see Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:501.

11Second extract has here: “Art. V. Insert the provisions contained in the Project of 1804 as to the Interval not to be settled, according to the extract annexed.

“Sec. 2. Such of the settlements, as were not prohibited by [left blank], as were not under the authority of the Govt. of Louisiana, shall continue under the authority of Spain, Such as were under that authority shall continue under the authority of the U.States [sic]. But the parties agree, that they will respectively offer reasonable inducements without being obliged to use force to all such settlers to retire from the Space above limitted and establish themselves elsewhere.

“Sec III. The Indian Tribes within the said limits shall not be considered as subject to or exclusively connected with either party. Citizens of the U States and Spanish Subjects shall be equally free to trade with them, and to sojourn among them as far, as may be necessary for that purpose and each of the parties agrees to restrain by all proper and requisite means its respect⟨ive⟩ Citizens and subjects from exciting the Indians, whether within or without the said limits from committing hostilities or aggressions of any sort on the subjects or Citizens of the other party. The parties agree moreover each of them in all public transactions and communications with Indians to promote ⟨in⟩ them a disposition to live in peace and friendship with the other party.

“Sec. 4. It shall be free for Indians now within the territories of either of the Parties to remove to and settle within the said limits with⟨out⟩ restraint from the other party. And either party may promote such a change of settlement by the Indians within its territories taking due care not to make it an occasion of war among the Indians, or of animosities in any of them against the other party.

“Sec. 5. The U States may establish garrisons sufficient as security against the Indians, and also trading Houses at any places within the said limits where garrisons existed at any times under the Spanish Govt. of Louisiana. And Spain may continue Garrisons for the like purpose at any places, where she had them at the date of her cession of Louisiana to France, and establish trading Houses thereat. Either Party may also cause or permit any part of the Country within the said limits to be explored and surveyed with a view to Commerce or science.

“Sec. 6. It shall be free for either of the parties to march troops within the said limits against Indians at war with them, and for the purpose of driving or keeping out invaders or intruders.

“Art. VI. It is agreed that within [left blank] years previous to the expiration of the aforesaid term of [left blank] years, due provision shall be made for amicably adjusting and tracing the boundary between the territories of the UStates Westward of the Mississippi, and the territories of his Catholic majesty; which boundary shall then be established according to the true and just extent of Louisiana, as ceded by Spain to France and by France to the U. States: uninfluenced in the smallest degree or in any manner whatever by the Delay or by any arrangement or circumstance contained in or resulting from this Convention.” (The second extract ends here.)

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