To James Madison from Robert R. Livingston, 24 April 1802
From Robert R. Livingston
Paris 24th. Apl 1802
Dear Sir
I send with this duplicates of my two last letters & the notes that have since passed between me & the minister on the subject of prizes1 tho I found much clamor on my arrival I confess I have found less reason for it than I expected there are not more than four or five cases on which we have any just cause of complaint. The Winyaw mentioned in my note was evidently british property covered by one Thompson a scots merchant at New York & I was very doubtful w[h]ether I shd have noticed the case but for the danger of the precedent.2 The Ann & the Commerce were taken carried into a spanish port & there condemned by the french consul who declined recg any appeal none therefore was brought.3 After the treaty the question was whether they were finally condemned the owners insisting that tho no actual appeal existed yet it would have existed had the consul permitted one to be lodged. The court here determined that no appeal being actualy lodged & the decree carried into effect before the convention whether the decission of the consul was right or wrong the business was ended by the convention. The Rodolph Frederick was condemned for having fought after the flag was struck.4 The Hope was taken in the West indies after the convention [was] signed the Council of prizes have orderd the proceeds to be placed in the public treasury till the owners of the privateers can be notified of the appeal.5 These are all the cases in which I have had cause to complain & except the case of the Rodolph Frederick I think it at least very doubtful if the decissions are such as we have reason to be dissatisfied with. The notes I send you shew you however that I have neglected nothing that it lays with me to do. I find myself extreamly at a loss from having not one of the papers of our different coms. & diplomatic members here they having been all carried away by Mr. Elsworth (as Mr. Montflorence informs) so that I know not the points of difference at the time of the negotiations which would throw much light upon doubtful parts of the treaty or at least furnish arguments. I have ventured to guess at them but you will find that the strict words of the 2d article are certainly against my construction of it & the 5th Article by having united two different subjects is not so clear as I would wish. It is singular too that the word condemnation shd. be translated confiscations—which certainly does not carry its true meaning.6 I had yet had the pleasure of but one dispatch from you & duplicates of the same being that of the 18th. decr.7 Papers come to me from no port but New York tho arrivals from the eastern ports are very frequent particularly from Salem & Boston.
The business most interesting to us that of Luissania still remains in the state it was the minister will give no answer to any enquiries I make on that subject. He will not say what their boundaries are what are their intentions & when they will take possession. And what appears very extraordinary to me is that by a letter I have just red from Mr. Pinkney I find that he still supposes that the floridas are not included in the cession & he writes me that he has made a proposition to purchase them which lays before the minister with whom he is to have a conferance on the subject.8 You may however be fully assured that the floridas are given to France that they are at this moment fiting out an armament from here to take possession this will be commanded by genl Bernadotte the number of troops designed for this object are between 5 & 7000 they will shortly sail for New Orleans unless the state of affairs in St Domingo shd. change their destination you may act upon this information with absolute certainty since I have no doubt of the channel thro’ which I have red And if I had they would have been removed by the Spanish minister to whom a few days ago at Tallerands table I expressed my surprize in a jesting manner at their finding the Americans such bad neighbourgs as to have exchanged their lodgings he shruged up his shoulders and told me he was sorrey for it. We were too near to the Minister & in too large a circle to continue the conversation. I wish our government had been explicit in their instructions to me on this subject I forsee so much mischief in the measures that france will or may adopt if they once take possession that I could have wished to have been empowered to employ some millions in warding it off whether I could have effected it by those means is doubtful but they are the only ones that present the smallest prospect of success. It would be wise immedeatly to take measures to enable the Natches to rival New Orleans I have suggested the means & I hope they will not be neglected by the Congress that is now siting. That you may Judge of the light in which this country is viewed by some here I send you the extract of a paper that now lays before the minister.9 If Congress make the Natches a free port & if the state of affairs in St Domingo shd. employ the troops designed for Luissania time will still be left for gold to operate here but it must be plentifully & liberally bestowed not barely in the assumption of debts but in active capital afforded in supplies to aid their armaments in the islands. Give me your instructions as to the utmost amount if as you will be better able to judge than I can the affrs of St Domingo are like to be protracted.
You will find by the enclosed papers that the concordat has been adopted with very great ceremony & stile 10 the whole corps. diplomatic assisted & we were specialy requested to put four horses to our carriages. Sunday is again observed at the public offices instead of decadi11 every thing here is going back fast to the old order of things. The greatest expence is expected at Court in dress &c. In so much that the Northern courts have very wisely diminished that of their Ambassadors &c. by giving them a uniform dress. You may live here as you please but to have any influence or consideration in the present state of things you must live as they do & for this purpose you must expence three times your appointment—every thing being in Paris at the most extravagant rate more so by much as I am informed than in London.
I find that I was misinformed relative to Martinique there is no reserve of it in the Treaty.
Some measures should be taken relative to the expences incurred for seamen by our commercial agents. Caps. shd not be alowed to discharge them & ship new crews at a foreign port or to leave them sick in Hospitals without making provission for them. The accounts of Mr Lee amount to upwards of 8000₶. It would I believe be much better to have their accounts audited in America where some enquiries can be had from the Caps & seamen than here where the minister must receive every voucher without the possibility of examination. I have the honor to be D sir with the most respectful essteem & the highest consideration Your Most Obt hum: Servt.
RRL
Draft (NHi: Livingston Papers); letterbook copy and copies of four enclosures (NHi: Livingston Papers, vol. 1). Italicized passages are underlined in the draft and numbered 1–7; Livingston apparently intended them to be encoded. Extracts from the missing RC are printed in , Foreign Relations, 2:515–16. The enclosures, according to a list in Sumter’s hand headed “sent to Sey. of State with letter No. 10” (DNA: RG 59, DD, France, vol. 8), included duplicates of Livingston’s 27 Mar. dispatch and his earlier correspondence with Talleyrand and Decrès; copies of his correspondence with Talleyrand since his 27 Mar. dispatch; “Copy of extract alluded to in letter No. 10”; and “Moniteurs from 28th. Ventose to 5 floreal inclusive—a few exceptions.” Of these, only the duplicate copy of Talleyrand’s 20 Mar. 1802 note survives (see Livingston to JM, 22 Mar. 1802, and n. 1), but for Livingston’s letterbook copies of his correspondence with Talleyrand, see n. 1.
1. Two of the notes concerned the settlement of claims under the Convention of 1800. Talleyrand to Livingston, 17 Germinal an X (7 Apr. 1802) (2 pp.; in French), reiterated the French government’s understanding of the suppression of article 2 of the convention; he also noted that he had written a report to the first consul on Livingston’s proposal for the liquidation of the debt France owed U.S. creditors and would inform Livingston of the result of Napoleon’s decision. Livingston to Talleyrand, 17 Apr. 1802 (7 pp.), argued that article 5 of the convention “amounts to an express stipulation to pay every debt due to individuals except such as they might claim for indemnities for captures and condemnations” and with the absence of article 2, “the 5th. Article stands alone as a promise to pay.” Livingston went on to object that “while you limit the treaty to the narrowest possible construction on one part you allow to the Council of Prizes a latitude which renders it nugatory on the other” (see n. 2). Also enclosed were copies of two more letters from Talleyrand to Livingston. In a second letter dated 17 Germinal an X (7 Apr. 1802) (1 p.; in French), Talleyrand acknowledged Livingston’s letter of 27 Mar. 1802 on the subject of actions taken by Leclerc against U.S. merchant captains in Saint-Domingue and reported that he had passed the note on to the minister of marine; and in a letter dated 26 Germinal an X (16 Apr. 1802) (1 p.; in French), Talleyrand invited Livingston to attend the Easter service at Notre Dame with Napoleon and his ministers.
2. It was argued by Talleyrand that in judging prize cases the rules of the Convention of 1800 should be supplemented by maritime regulations mutually agreed on by the nations of the world. The example he gave was the case of the Winyaw, in which the Council of Prizes was forced to examine not only whether the ship’s papers were in order, according to article 4 of the convention, but also if the ship carried papers that proved it was not American. Livingston took issue with the wide latitude given to the courts by Talleyrand’s construction, calling for a strict adherence to “the rules prescribed by the treaty” and arguing that if fraud had taken place in the case of the Winyaw, it was for U.S. courts to decide (Talleyrand to Livingston, 29 Ventôse an X (20 Mar. 1802), and Livingston to Talleyrand, 17 Apr. 1802 [letterbook copies, NHi: Livingston Papers, vol. 1]).
3. The ship Ann, William Robinson master, of Baltimore was owned by R. Oliver & Brothers and carried a cargo of wine and $40,000 in specie. The ship Commerce, Gideon Gardner master, also of Baltimore, carried $50,000 in specie. The two ships were captured by the French privateer Fly—the Ann on 25 June and the Commerce on 4 July 1799—and taken to Cadiz (, Foreign Relations, 2:450, 451).
4. For the case of the Rodolph Frederic, see Fulwar Skipwith to JM, 29 Oct. 1801 (, 2:211 and nn.).
5. For the case of the ship Hope, which had not been decided, see Livingston to JM, 15 Feb. 1802 (, 2:468 n. 1).
6. The conflict over the interpretation of article 2 of the Convention of 1800 is discussed in Livingston to JM, 27 Mar. 1802, n. 4. Article 5 required the payment of “debts contracted by one of the two nations, with individuals of the other, or by the individuals of one, with the individuals of the other,” but it excluded “indemnities claimed on account of captures, or confiscations [condemnations in the French text]” (, 2:462).
7. Livingston referred to JM’s letter of 19 Dec. 1801, a duplicate of which was dated 18 Dec. (see , 2:322–24 and n.).
8. See Pinckney to Livingston, 4 Feb. 1802 (NHi: Livingston Papers). For Pinckney’s efforts to purchase the Floridas, see his letter to JM, 20 Apr. 1802.
9. This extract has not been identified.
10. The text of the Concordat between Napoleon and Pope Pius VII was published in the Paris Moniteur universel, 17 Germinal an X (7 Apr. 1802). The agreement was celebrated on Easter Sunday, 18 Apr. 1802, with a mass in the cathedral of Notre Dame in Paris (see the program for the day’s solemnities printed in the Moniteur, 27 Germinal an X [17 Apr. 1802]).
11. Décadi: the tenth day of a décade, or group of ten days, in the French revolutionary calendar was a day of rest.