James Madison Papers

From James Madison to Robert R. Livingston, 28 September 1801

To Robert R. Livingston

Department of State, September 28th 1801.

Dear Sir,

You have already been informed of the intention of the President that your departure for France should be hastened, and that you would be furnished with a passage in the Boston Frigate, which after landing you at Bourdeaux, is to proceed to the Mediterranean. When this intention was communicated, it was understood that some difficulty had arisen in obtaining from the French Government a ratification of the Convention as altered by the Senate. We now learn by letters from Mr. Mountflorence that the ratification took place on the 31st. of July, and that Mr. Appleton is on his way with it to the United States. As This change in the state of things equally coincides with the other reasons for your speedy departure, the President wishes it to take place as soon as your preparations and those of the Frigate will admit.

You will herewith receive your commission as Minister plenipotentiary from the United States to the French Republic, and your letter of Credence.1

In presenting the latter, the President authorizes and charges you to give the fullest assurances of the friendship of the United States towards the French Republic, of their disposition as well as his own to cultivate a perfect harmony and good correspondence between the two nations, and of the sincere pleasure resulting from a termination of the late painful differences, in a manner that promises a return of mutual confidence, and beneficial intercourse. These sentiments you will convey in the terms best calculated to give cordiality to the reconciliation which has taken place, and to prepare a favorable way for such further discussions and arrangements as the interest of the United States may require.

As you will be able to assure the French Government of the good faith with which the Convention will be executed on the part of the United States, an execution of it with equal punctuality on theirs may with the greater propriety and effect be insisted on. The restitutions in behalf of the United States stipulated by the 4th article of the Convention, will claim your particular attention. They embrace three descriptions of claims; 1. cases of capture wherein no judicial proceedings have been had; 2. Cases carried before French Tribunals and not definitively decided on the 30th of September 1800; 3. Captures made subsequent to that date.

Considering the very great irregularities practised by French Cruisers, especially in the West Indies, it is probable that the first description comprehends a large amount of property. For disclosing and verifying captures of this description, the exertions of the Claimants must be chiefly relied on. Some few cases of the last description are known to have arisen in the West Indies before the signature of the Convention was known. In other quarters similar captures may have been made from the same cause. In these instances also, the requis[i]te information may be expected from the sufferers. Of the second description, a tolerably comprehensive detail can no doubt be obtained from the Council of prizes, and from Mr. Mountflorence, if remaining at Paris, who seems to have had the superintendence of most of them.

It seems to admit of no question that all captured property (except contraband destined to the port of an enemy) proved to be American in the manner prescribed by the 4th article of the Convention, whether depending at the date thereof in the Council of prizes or removable thither according to the then laws of France, and consequently not definitively condemned, must be restored specifically, or paid for, either by the Captors, or by the French Government.

We cannot but consider as unfortunate in relation to both parties, the order of the Minister of exterior relations to the Council of prizes in January last,2 for suspending, indefinitely and indiscriminately, decisions on every species of property captured under the flag of the United States; which suspension was continued at the date of our last advices from Paris. We are indeed informed by Mr. Pichon, on the authority of the Minister, that as soon as the Convention should be ratified on both sides, he would move a decree of the Consuls, for surrendering this property, without the intervention of the Council. But, in the mean time, captures which would have been restored according to laws applicable thereto, without the aid of the Convention, being involved in the general suspension, we are justified in complaining that the funds of our merchants have been unnecessarily withheld from them. Nor is this all. The rest of the property, so far as it remained in kind, may have partially decayed, or where reduced to money, may have been converted more or less, to public or private use. Hence, when the restitutions are to be liquidated, less may be received than the value which would have been recovered if the Council had been permitted to take its course; or if the restitutions had been immediately made: Whilst the French Government will be bound to pay out of its Treasury, for other property which has melted in the hands of privateersmen. This subject will claim your attention, and justify the representations most likely to obtain equitable arrangements for carrying into effect this part of the Convention.

As it cannot be expected that you or your Secretary should be burthened with soliciting all these claims, the President authorises you, when it shall become necessary, to assign that Agency to Mr. Skipwith, the Consul at Paris; and to make him a reasonable allowance for his services, which is under no circumstances to exceed two thousand dollars per annum. To yourself will remain the duty of settling general principles with the French Government, and of affording the necessary patronage, superintendance and instructions to the Agent in the discharge of his trust. This Agent is to be forbidden to Act in any case as private Agent or Attorney for claimants, or to charge any commission on his recoveries; the proceeds of which, when neither the proprietor nor his Attorney is present, you will cause to be placed in some safe depository, with a notification to the party having a right to draw the money.

From different sources, information has been received that by some transaction concluded or contemplated between France and Spain, the mouth of the Mississippi with certain portions of adjacent territory is to pass from the hands of the latter to the former nation. Such a change of our neighbours in that quarter, is of too momentous concern not to have engaged the most serious attention of the Executive. It was accordingly made one of the subjects of instruction to Mr. Charles Pinckney, our Minister plenipotentiary to the Court of Spain. You will find an extract of the passage hereto annexed No. 1. A paragraph connected with the same subject, in a letter to Mr. King, is also extracted and annexed No. 2.3 In these extracts you will see the ideas entertained by the Executive, and the general considerations, which it is presumed, will have most tendency to dissuade the parties from adhering to their object. As soon as you shall have prepared the way by the necessary enquiries at Paris, it will be proper for you to break the subject to the French Government, and to make the use of these considerations most likely to give them their full weight. You will probably find it advantageous, to press in a particular manner, the anxiety of the United States to maintain harmony and confidence with the French Republic, the danger to which these will be exposed by collisions more or less inseparable from a neighbourhood under such circumstances, and the security which France ought to feel, that it cannot be the interest of this Country to favor any voluntary or compulsive transfer of the possessions in question from Spain to Great Britain.

Among other topics to be employed on the occasion, you may perhaps find it eligible to remark on the frequent recurrence of war between France and Great Britain, the danger to which the Western settlements of the United States would be subject of being embroiled by military expeditions between Canada and Louisiana, the inquietude which would be excited in the Southern States, whose numerous slaves have been taught to regard the French as the patrons of their cause, and the tendency of a French neighbourhood, on this and other accounts, to inspire jealousies and apprehensions which may turn the thoughts of our citizens towards a closer connection with her rival, and possibly produce a crisis in which a very valuable part of her dominions would be exposed to the joint operation of a naval and territorial power. Suggestions of these kinds must be managed with much delicacy, or rather the expediency of hazarding them at all, as well as the manner of doing it, must be left to your own information and discretion.

Should it be found that the cession from Spain to France has irrevocably taken place, or certainly will take place, sound policy will require, in that state of things, that nothing be said or done which will unnecessarily irritate our future neighbours, or check the liberality which they may be disposed to exercise in relation to the trade and navigation through the mouth of the Mississippi; every thing being equally avoided at the same time, which may compromit the rights of the United States beyond those stipulated in the treaty between them and Spain. It will be proper, on the contrary, to patronize the interests of our Western fellow citizens, by cherishing in France every just and liberal disposition towards their commerce. In the next place it will deserve to be tried whether France cannot be induced to make over to the United States the Floridas, if included in the cession to her from Spain, or at least West Florida, through which several of our rivers, particularly the important river Mobille, empty themselves into the Sea. Such a proof on the part of France of good will towards the United States would contribute to reconcile the latter to an arrangement in itself much disrelished by them, and to strengthen the returning friendship between the two countries; and by affording a fund for indemnifying and soothing our fellow citizens who have suffered from her wrongs, would in that view also be a measure founded not less in an enlarged policy, than in solid justice. The great importance of West Florida to the United States recommends to your patriotism the prudent use of every fair consideration which may favour the attainment of the object.

These ideas suppose that the Cession to the United States is to be obtained from the single will of France. But it may happen that the Floridas are so far suspended on unfinished negotiations between her and Spain, as to admit or require a concurrence of both in gratifying the wishes of the United States. In this state of things, France may yield to the considerations suggested with less of concession and reluctance; and as Spain too must feel an interest in the good will of the United States, and is responsible in justice for very considerable depredations on their commerce, there may be the greater possibility of her joining in the measure.

Should the Floridas neither have been ceded to France, nor be an acquisition contemplated by her, still it will be material, considering her intimate and influential relations to Spain, to dispose her to favor experiments on the part of the United States, for obtaining from Spain the cession in view. The interest which the latter has in cultivating her4 friendly dispositions, and the obligation she is under to satisfy our claims for spoliations, for doing which no other mode may be so convenient to her, are motives to which an appeal may be made with no inconsiderable force. Mr. Pinckney is accordingly to avail himself of the most auspicious occasions for sounding and exciting the dispositions of the Spanish Government on this subject; and your efforts at Paris cannot be too attentively combined with his at Madrid, as well on the last supposition that Spain alone is to make the cession, as on the former that France is to have a direct share in the transaction. Mr. Pinckney’s instructions will relate to each alternative, and you will be sensible of the advantage of such a correspondence between you as will give the proper concert to your operations. For this and other purposes you are furnished with a common cypher.

In various instances unlawful captures of American vessels have been made from Spanish ports by French vessels under French flags and condemned in Spain, sometimes by her Tribunals, sometimes by French Consuls. The Spanish Government has shewn a disposition to elude our demands of indemnity, by turning us over to the French Republic for satisfaction. In justice they are both liable, and it will be proper not to lose sight of our claim on either, without an indemnification or security from the other. A pertinent consideration may be drawn from this double responsibility, for a union of the two Governments in making Florida a fund for discharging it.

The peculiar and equivocal attitude taken by the Island of Saint Domingo, makes it proper that you should fully understand the present relations of the United States to it. For this purpose you are herewith furnished with copies No. 3. and 4. of the Commission and instructions under which Mr. Lear went to that Island as Successor to Doctr. Stevens.5 It may be proper to remark that no letter was addressed to the Chief of the Island, either from the President or from this Department; it being thought right to avoid every form of intercourse that could excite suspicion or give offence to the French Republic. A strict and honorable neutrality has guided the President in this case, as it has done and will continue to do, in all his other decisions and transactions relating to foreign nations. As you will be enabled by these explanations to relieve the French Government from any doubts or errors they may be under as to the proceedings or views of the United States towards St. Domingo, it is desirable that you should on the other hand transmit to us those of the French Government as they may from time to time develope themselves. The situation and destiny of that Island is in several points of view deeply interesting to the United States.

In referring you to the annexed circular lately written to the Consuls and Commercial Agents of the United States,6 it is necessary to say something with respect to the accounts which they are instructed to settle with you. It is not recollected that any ordinary service is authorized for which it would be necessary for them to expend public money, except for the relief of seamen. In any emergent cases, they are referred to your sanction for their expenditures. You will give it according to your discretion, having always in view the appropriation laws. Vouchers must of course, always accompany their accounts, and you may according to the practice hitherto pursued, allow them if they chuse to ask compensation, a reasonable commission not exceeding five per cent on their expenditures. Your letter of credit will enable you to draw funds to pay these accounts. In your draughts on the Bankers you will specify the purposes for which they are made.

With a view to the convenience of this office, I request you to cause your dispatches addressed to it, to be written on paper of uniform dimensions, viz: twelve and an half inches long and seven and three quarters broad; with an inward margin of three quarters of an inch for stitching, and an outward one of half an inch for the more compleat preservation of the text. By an attention to these circumstances we shall be able to bind the originals in suitable volumes, and to avoid the labour and inaccuracies incident to copying. With sentiments of respectful consideration I have the honor to remain Your Most Obedt. hble servt.

James Madison

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