[Enclosure]

1st. October 1800. Treaty between France and Spain of St. Ildephonso. His Catholic Majesty promises and engages on his part to cede back to the French Republic, six months after the full and entire execution of the conditions and stipulations above mentioned, relative to His Royal Highness, the Duke of Parma “the Colony or Province of Louisiana; with the same extent that it actually has in the hands of Spain, that it had, when France possessed it, and such as it ought to be after the Treaty passed subsequently between Spain & other States.”

30 April 1803.

France ceded to the United States all the Territory which she had thus acquired of Spain. Of what extent is the acquisition? The question is suggested by a doubt whether it comprizes the territory which was called by the British West-Florida: to decide it, a view must be taken of the facts & principles on which it depends.

When france possessed Louisiana formerly, that is, prior to the Year 1762, its eastern boundary extended to the River Perdigo. All the country which she possessed in that quarter was called & Known by the name of Louisiana, and it is a well established fact that it extended Eastward to that limit. Vide charts, authorities &c.2

By a secret Convention bearing date 3d. of November 1762, between France & Spain, the former ceded to the latter the Island of New-Orleans, and the west-bank of the Mississipi, that is all that part of Louisiana, which lies East-ward3 of what was called by the British W. Florida. This Convention has not been published that I kno⟨w⟩ of, for I have not been able to get a Copy of it.

On the 21 April 1764, the King of France gave an order to his Governor Monsr. d’Abbadia, at N. Orleans, to surrender the said territory to such officer as the King of Spain might appoint to receive it. The surrender did not take place till some years afterwards, according to an account which I have seen, the 18 of August 176⟨9⟩.

10 Feby. 1763. In a treaty to which France, Britain, Spain & Portugal were parties, France ceded to Brita⟨in that⟩ territory lying Eastward of the Island of N. Orleans, that is, the territory calle⟨d⟩ afterwards by Britain West-Florida, & Spain ceded to Britain in ⟨the⟩ same treaty Florida, that is the territory which Britain afterwards called East-Florida. It was after Britain had thus become possessed of this territory that she laid off that portion of Louisiana, which lies between the Island of N. Orleans & the River Perdigo, into a separate province, & called it W. Florida, calling the other Ea⟨st⟩. The preliminary articles of this Treaty bear date on the 3 Nov. 1⟨762⟩ the same day with the secret Convention. See Martin’s Coll. vol. 1 p. 17.4

3 Sept. 1783. In a Treaty between Britain & Spain, the former cedes to the latter East & West-Florida.

27. Octr. 1795. In a Treaty between the United States & Spain, the latter stipulates in favor of the former the free navigation of the Mississipi, with the right of deposit at N. Orleans.

The above are all the facts which belong to the question, on which it remains to decide whether W. Florida is comprized in the Cession of Louisiana, lately made by Spain to France, & by the latter to the United States.

The intention of the parties is to govern in all treaties, as in other contracts; to ascertain that intention in the present Case, it is necessary to take into view the whole article, & construe it so as to give to each part its fair & obvious import.

The article consists of three distinct parts or members, the 1st. stipulates that the Cession shall comprize Louisiana in the same extent that it actually has in the hands of Spain: 2d. that it had when France possessed it: 3d. as it ought to be after the treaties passed subsequently between Spain & other powers.

The import of the first member of the article seems to be clear & distinct, & to depend on a single fact, what Louisiana was in the hands of Spain, at the time this Treaty was made. To establish that fact, it seems to be necessary only to ascertain what the limits of the Province then were, by the Regulations of Spain, respecting it, which it is presumed may be easily done. Has Spain considered West-Florida, since her Treaty with Great-Britain, in 1783, as a part of Louisiana? What is the extent of the jurisdiction of the Governor established at N. Orleans? Does it go to the river Perdigo, or is it confined to the island of New-Orleans, and western bank of the river Mississipi? What is the extent of the jurisdiction of the Governor of St. Augustine? Does it comprise E. Florida only, or both the floridas? I am informed by good authority that since the Treaty of 1783, between Britain & Spain, by which the latter became possessed of the whole of Louisiana, & also of East-Florida, that she has governed it as it was governed by France, comprizing W. Florida, as a part of Louisiana, or in other words, that the distinctions between East & W. Florida, which was created by and Known only to the British, ceased.

The import of the 2d. member of the article “that Louisiana shall comprize the same extent that it had, when France possessed it,[”] is also obvious. That also depends on a fact which it is presumed is not controverted. We are however led to inquire why were two clauses, which are supposed to mean the same thing, introduced into the article. To this question, a very satisfactory solution may be given, one which tends more fully to shew the intention of the parties, as to the territory ceded to France by this Treaty. That Spain should cede the Province of Louisiana, as she held it, is not strange; her motive for inserting a clause to that effect is therefore too obvious to require explanation. But why insert the other? Had the Cession of that part to Britain, which was by her afterwards called West-Florida, and the subsequent transfer or Cession of it by Britain to Spain, created any doubt of what was meant by the Province of Louisiana, or was it likely to create any? The apprehension that such a doubt might exist, suggested the propriety of the second Clause, to reduce to certainty what might otherwise be uncertain. With that view it was thought expedient to go back to an anterior state of things, to a period which, by preceeding the possession of G. Britain, would preclude all reference to that power, or her regulations relative to the territory. This was done by stipulating that the limits or extent of Louisiana should be ascertained by reference to what they were, when France possessed the Province; and that was the motive for introducing the clause.

It is a sound doctrine in the construction of Treaties, which is equally applicable or indeed more so to a single article, that where there are too [sic] passages having in view the same object, the one of equivocal or doubtful import, the other clear & explicit, the latter should prevail. Indeed this is the obvious dictate of common sense; there can be no motive for introducing a second passage in a treaty, or an article of a Treaty, on the same subject, for the same purpose, but to explain what was doubtful in the first: that the second member was introduced into this article with this view, & for the reason above stated, is obvious; It would be absurd to attempt to construe an intelligible passage in a treaty by an unintelligible or doubtful one. This doctrine is fully illustrated by writers on the Law of Nations, particularly by Vattel, p. 235–6.5

Thus it appears clear by the obvious import of the two first members of the articles referred to, that W. Florida is comprized in the Cession made by Spain of Louisiana to France, & by the latter to the United States. Is then the import of those Clauses detracted from or changed by the 3d. or last one, which stipulates “that it shall be such as it ought to be after the Treaties passed subsequently between Spain and other powers?” Let us examine the Treaties referred to, and their effect on the point in question.

The only Treaties which Spain formed after the secret Convention with France, of 3d. Nov. 1762, relative to Louisiana or any part of it were that of 1783, with G. Britain, whereby that portion called by her W. Florida was ceded to Spain, and that of 1795, with the United States, whereby the free navigation of the River Mississipi, & the right of deposit at New-Orleans were stipulated in favor of the latter. The term subsequently is relative & refers to the possession of france, prior to that Treaty or secret Convention. These therefore were the Treaties contemplated by the parties in this member of the article.

If either [of] those Treaties is relied on as exempting W. Florida from the said Cession of Louisiana, it must be the British treaty, since that alone can be considered as having any reference to the subject. But how can that Treaty justify such a pretention, a Treaty which did not sever W. Florida from, but united it to Louisiana in the hands of Spain? By it the two first clauses of the article referred to are made to have their due effect; since by it spain became possessed of Louisiana, in the same extent that France held it, except what portion the United States had lawfully acquired by their independence. Had that Treaty not been formed, the contrary would have been the Case; the description given in the most important & ruling Clause in the article, would have been inapplicable. Does not this then prove that the two first Clauses, especially the second, were introduced into the article on due consideration, and for a definite object; that the British Treaty was referred to in the third, on account of the Cession of the W. Florida made by it to Spain, and with a view to comprize it in the Cession of Louisiana, then made to France?

If the Treaty between Spain & England had dismembered Louisiana by separating W. Florida from it for ever, the pretention would be well founded, because Spain could not cede Louisiana otherwise than as she held it, after the Treaties passed between her and other powers. There might be some pretext to the claim, even had W. Florida afterwards been returned to Spain by another Treaty, tho’ in my opinion not a solid argument in its favor against the obvious intention of the parties, as expressed in the two first Clauses. But that Treaty, as already mentioned did not separate W. Florida from, but united it to Louisiana in the hands of Spain.

Let us suppose this clause standing alone and unconnected with any other; what would its import be? Spain cedes to France Louisiana “such as it ought to be after the treaties passed subsequently between Spain and other powers.” Could the Treaty with Britain, which enlarged the limits of the Province in her hands, be construed as lessening the extent of the Cession? No part of Louisiana was hers by discovery: she acquired it of France and Britain, making the last acquisition of the latter nation: the Treaty making which, with that with the United States, which imposed on the territory certain Conditions, the observance of which it was proper to stipulate in their favor, were the Treaties referred to in the last member of the article.

When a Cession is made of a tract of country or territory, comprehended under a certain description or name which con⟨ve⟩ys an idea of definite limits, from which Cession it is ⟨int⟩ended to except a certain portion of said territory, the restrictive Clause should be made explicit, as well to shew the intention of the party ceding, to make the exception, as the part he intends to except. Such exemption can never be made by inference against the positive terms of the Cession. In the present case there is not the slightest ground to infer that an exemption was contemplated, while the terms of the Cession are general, positive & clear. Is it presumable, if Spain had intended to exempt West-Florida from the Cession of Louisiana, that she would have used the terms adopted in the article, to accomplish it, Terms that would fail of the Object, if they stood alone in the Treaty? Is it not more presumable that she would have restricted the Cession in express terms to that portion of the territory which she had received from France? As that Cession was made in a Treaty to which those powers alone were parties, it was natural to expect that in a subsequent Treaty between them on the same subject, they would confine themselves to the Treaty and Cession formerly made, if such had been their intention. It was the more to be expected as by so doing it was the readiest mode of expressing in the clearest manner what their present intention was. Or if Spain had intended to make the exception, and to rely on the British Treaty distinction as the Rule & limit of it, would she not have me⟨ntio⟩ned it in express terms, by reserving W. Florida by name from the Cession? Would she have used terms which instead of detracting from or exempting any portion of the Territory from the Cession, tended essentially to illustrate the construction, and confirm the import contended for in the preceding clauses?

It remains to examine whether France had so dismembered Louisiana, while she possessed it, that the reference to the state in which it was in her hands, applied to a part & not the whole of the province. By the Treaties above referred to, by which she ceded it to Spain & Britain, the first bearing date on the 3d. Novr. 1762, the 2d. on the 10th. Feby. 1763, I was led to apprehend that some doubt might exist on the point; but fortunately there is room for none, since the preliminary Articles of the Treaty of 1763 were entered into & dated on the 3d. of November 1762, the same day with the secret Convention. France therefore parted with the whole territory at the same time; the treaties which transferred, dismembered it, but that was in the hands of other powers, not in those of France. It was Known in her possession as the entire province of Louisiana, & not otherwise.