James Madison Papers

To James Madison from Robert R. Livingston, 3 May 1804

From Robert R. Livingston

No. 105

Paris 3d. May 1804.


Mr Leonard delivered on the 26th. April your favor of the 31. January1 together with a triplicate of the Same. The duplicate, which I suppose has been Sent by some other conveyance, has not yet reached me, so that till his arrival I had had no letter from you Since the 15th. January.2 I also recd. by the same Messinger your favor of the 7th. Feby.3 Nothing could be more happy than the arrival of the Stock—its delay had occasioned great anxiety, as the Bankers were on the Spot ready to take up their bills which the present State of things made the Treasury very anxious to turn into money. I have happily got rid of this very burdensome deposit, and paid over the bills & the stock & got a full discharge by triplicate rects., one of which I forward to Mr. Gallatin.4 I should be happy if the business of the Commission had been as readily terminated, and am sorry that you have not been able to find leisure fully to consider it, as I think you would not have found many real difficulties in the way of its Settlement. Your instruction to negociate a new explanitory Treaty5 proceeds upon the idea That the convention does not include all the bona fide debts provided for by the Convention of Morefontaine.6 Whatever inaccuracy there may be in the expressions, it was certainly the intention to make it co-extensive, except so far as to preclude forreigners & forreign property from its provisions. The first Article shews clearly that this was the object of the Treaty, nor do I think that the [subsequent] words controul, tho’ they certainly somewhat obscure the sense. The fact [was] I had drawn the Convention with particular attention. It did not exactly meet Monroe’s ideas, to whom the subject was new, this produced some modification and these again, which would have fully answered our purposes, were struck out by Mr. Marbois’ wish to give a preference to debts that had a certain degree of priority in the French Bureaux’s. The moment was critical, the question of peace or war was in the ballance, and it was important to come to a conclusion before either Scale preponderated. I considered the Convention as a trifle compared to the other great object, and as it had already delayed us many days, I was ready to take it under any form, being persuaded, that when the intention was fully declared and the interest of both nations concurred with the justice due to individuals in giving it a liberal construction that the principles on which it was to be settled would meet with no difficulty, and had it not been for an unfortune7 Selection of Commissioners, the whole would have been determined before now, near two millions of interest would have been saved to the public & much distress to the creditors.

My idea of the manner in which this business should have been taken up is fully detailed in my former letters, and in a bargain of such advantage to our Country and what has astonished all Europe, I think we should have no hesitation, to comply with it liberally, and even to take upon ourselves the Satisfaction of our citizen claimants if it should exceed the amount a million of Dollars, and render ourselves creditors to the French Government for the excess. But my sentiments can have no weight in this business, it is my duty & my intention as far as possible to comply with your instructions. Your letter suggests two modes of rendering the construction of the Convention sufficiently extensive to embrace all the objects of the Convention of 1800. The first is a new negociation, and next such an explanation by the French Government as will do away the doubts that narrow the construction. As I know that the French Government believe the last Convention embraces all the objects of the first, if I were to propose a new Convention on these points, they would tell me that it was unnecessary. They would insist on executing it in the most liberal manner which they can force us to do as the ultimate decision lays with them, and they would call upon us to pay the accumulating interest. Besides which the whole business would in that case be suspended till the new Convention was ratified to the great injury of the public Creditors, and the manifest loss of interest. The second mode of removing doubts had early suggested itself to me, and had the Commissioners at Paris consulted me, these doubts would have been dispelled as soon as mentioned. This however they refused to do, when after some time, I was informed of the nature of them, I made the application to the French Government contained in my Note of the 24th. Feby. last transmitted you.8 You find the answer [was] such as the President wishes to have. The Commissioners have not however thought fit to act upon it. I have since the rect. of your favor, written them the enclosed letter (to the Commissioners 3 May)9 transmitting an extract of your direction, and should they after this refuse to conform to the explanations given by the French Government, I shall probably find it necessary to comply with the general wish of the creditors, and of this Government and suspend [them], for as the Treaty reserves the final decision on every question to the French Government, it would be very absurd to say that our board shall not be governed by their construction of the Convention, when that Construction is such as does the most ample Justice and is most conformable to the wish of our own Government. Indeed the easiest & simplest way to arrive at a just construction of the Treaty and a termination of all difficulties is to remove the present Commissioners and to substitute others who have no picques or predjudices to satisfy, and whose principles are sufficiently liberal to lead them to do ample justice instead of Splitting hairs like caviling attornies. There is a passage in your letter on this subject which is so repugnant to my own feelings that I believe I have misunderstood the sense of it. After directing me to get such a construction of the Convention, as will be most favorable to all just claims particularly for freight &c. you add “It is to be kept in view however that in case the whole sum of 3750,000 $ should not be absorbed by the Construction of the Board, the Construction settled with the French Govt. is not to enlarge the sum to be paid by the Treasury of the United States beyond that to which the Treasury would be liable by the construction of the Board.”10 The only sense in which I can understand this is, that you are willing that Justice should be done, if it costs you nothing, but if after having made a bargain which you acknowledge to be good, you can still make a Saving out of the purchase money at the expence of the just claims of our fellow citizens or of France by setting up the unjust and illiberal construction of the Board, I must adhere to such construction. I believe sir, I must have misapprehended your intentions in this paragraph which I should find the utmost pain in carrying into effect, as repugnant to the liberal spirit which has hitherto governed our Negociations. The attempt too would add as little to our pecuniary acquisitions as to our character for candor & liberality. The French Government foresaw that as the Commissioners were mere agents of our Government that a great proportion of the twenty Millions given by them for the payment of their debts might go into our Treasury if our agents chose to narrow the construction of the convention and the creditors be left unsatisfied or turned over upon them, They therefore insisted (and we could not dispute the propriety of the demand) That as we were only their bankers till the debt was paid they should have the ultimate decision in cases which our agents thought proper to reject. Now it is certain that France will take care if there are any claims due under the convention of 1800 Unsatisfied by the narrow construction of our agents, to extend the last convention to all such Claims. The attempt therefore to save any part of the purchase money, at the expence of France or the creditors to which the ingenuity of our agents appears to be at present directed would be as futile as it is disreputable. You see in Mr. Marbois letter the light in which our board are viewed,11 and you may therefore be persuaded that little attention will be paid to their construction, which therefore it will be more honorable as well as more Just, for us to render as liberal as possible in the first instance—for as the board are considered as mere examining secretaries their illiberalities will be imputed to a wish in our Government to make a saving out of the money of France intrusted to us for the most fair and just objects—& that at the expence of our citizens whose distresses we have so often and feelingly described.

I have in my former letters explained to you my reasons for not directly applying to the Government for more time as you instruct me. Hapily the Ministers have yet neglected to make the arrangements that are necessary to precede the drawing of the bills, and tho’ this arrises from mere inadvertance, and I could have the order in 24 hours, yet I have thought it better to leave the delay at their door than at ours, because it will not only afford us an apology, but give a reason for not charging ourselves with the interest. I shall still pursue this policy till they have themselves removed every obstruction to the drawing of the bills, after which I shall in compliance with your order, ask for further time, tho’ I apprehend many inconveniences from the request. I mentioned to you the necessity of instructing me on the subject of the interest that shall accumulate on account of our delay. I am very sorry you are not explicit on that subject, unless I am to understand as implied in your direction that our Treasury will in no case be charged beyond the 20 Millions. If so what reply am I to make if the French Government agree to give a farther time, but insist on our paying the accumulating interest? If I refuse it they will think it very extraordinary that we should retain their money in our Treasury after having recd. a full equivalent for it, and that they should for our convenience pay interest on their own Capital, Can I ask this? or if I do, can I expect that so unreasonable a demand will be granted? Will they not impute all the past and future delays to very improper Motives? If they will only grant the delay on those terms what am I to do? I am totally uninstructed, unless as I have mentioned, the [not] charging the Treasury further is as I understand it a possitive & overruling instruction that is to supercede the other if they cannot both be obtained. I shall act upon this supposition, & to avoid bringing that question to a point soon take no steps to make the necessary arrangements for drawing the bills and avail myself of this moment for going to England, so much time will be gained by this as will enable you to reply to the difficulties stated in my Several letters, and afford me some precise and decided instructions thereon. I do not think with you that there are any just claims which have not yet been brot in. After the Convention of Morefontaine most people expected payment and sent their claims, and more particularly since the last Convention. The claims that have lately come in, are for the most part very doubtful ones and a longer time will only open a door to frauds, nor does it seem reasonable that the whole Mass of creditors should be distressed by the witholding of their debt on account of the negligence of those who have not brot forward their demands in four years from the year 1800. It is to be considered sir, that all our difficulties have arisen from that negligence. We calculated the demand upon the debts brot forward, and we much more than covered them—now a great excess of new ones increase the Mass. Will it not also be a question whether we have a right to diminish the payments of those whom the Treaty provides for, by letting in others who have neglected to avail themselves of its advantages? As therefore your instructions on this head are discretionary, I shall wait your ulterior order for its execution. I have taken measures for ascertaining as far as possible the amount of the demands now in the French bureaux, it has struck me as the simplest way, to attain the object the President has in view (a distribution of the debt) with the least distress to the Creditors and without accumulation of interest will be to get the French Govt. to certify only the principle in the first instance, and to leave the interest unsatisfied—by this means I may satisfy all the creditors the amount of their principal, and the apportionment may take place on the interest, for which if a new negociation is necessary and a ratification of a new Convention there will be no accumulation of Interest and much distress avoided. There is a circumstance attending all these delays which is very unpleasant, we have always represented the finances of the United States as being in the most flourishing State. The Government will naturally conclude however that if we had the money ready to meet the demand, we would not incur an accumulation of interest and they will view the whole conduct of the Commissioners as a chicane on the part of our Government to defer the payment—and more particularly if we endeavour to throw the interest upon France, or act in such a way as to appear to approve of their measures. The first consul has already informed the minister that he expects the business will be brot to a close and expressed some resentment at the delay. I attribute a considerable part of my weight here to the frank and open manner, that I have on all occasions endeavoured to maintain, and which I have declared t[o] be the leading character of the President & administration of my country. This has created a confidence of which I feel the good effect in every transaction. I shall be distressed to take a step which may bear another face. In settling the sums due for the Embargo—the French Govt. have contrary to all expectation granted more even than was asked in many cases by applying one general principle of an old law to the cases, so that you will have to correct in the estimate I gave you the deduction I had made on that Account, so that it is not impossible12 that there will be an excess of debt beyond the 20 Millions besides the interest which we have suffered to accumulate, but what the amount of the excess will be I cannot yet ascertain.

I believe you may entertain no uneasiness as to any interest France will take in the measures you adopt for the organization of the Government of Louisiana. They will be satisfied with what you find expedient on that head. On the question of boundary, there can I think be no doubt of your right to go to mobile, the country between that and the Perdigo has been always somewhat unsettled between France & Spain—at least so I judge from the Maps I have examined. Arrow Smith13 whom Mr. Monroe can consult in London can afford him the proofs upon which the Perdigo is laid down, as the Boundary which Mr. Barlow tells me he told him he could fully establish. If France recd. by the Treaty of Ildefonzo all that she formerly possessed I think Spain will hardly contest that she possest West florida since the fact is too notorious to admit of a doubt. If she elludes the claim it must be under the words “or as it should be after the Treaties &c” but I believe it is true that at the time of the Treaty of St Ildefonzo the french negociater had formed no precise ideas upon the subject, and that you will be left free from the interference of France in making out your claim. I shall endeavor to get the papers you refer to, and such others as may throw light on the subject, & hold them at the orders of Mr. Monroe. I do not think that any use can be made of what passed between Mr. Marbois & me,14 since it was a private and not an official conversation and founded as he afterwards [informed] me and as I wrote you upon the general notoriety of the fact.

It will be too soon to touch upon any thing formally with respect to St. Dominge the wound is still too Fresh. I shall however pave the way for it by some general observations upon the advantages that Britain will derive from the island if the rivalry of the United States is not encouraged and I shall avail myself of the Strong and conclusive reasons you furnish me with for our participation in the trade, but they still expect to reconquer the Island in case either of peace or a successful enterprize against England, in the meantime our trade will be winked at as arising out of present circumstances, but a supply of millitary stores from us would not be well recd. till the hopes of conquest are abandoned. I shall sound the Minister on the business of Commercial agents in the Islands & Send you his sentiments thereon.

I shall cause the enquiry you direct as to applications here for spoliations committed in Spanish Ports. I do not myself recollect any, yet it is very possible that they may have been made even by me since I should not have hesitated had I been applied to, to have made them upon the presumption that both Governments were liable where the spoliation was made in one country under a Commission granted by another.

I have long since informed you that this Government would assume another form, and saw that steps for it were gradually taking. The late conspiracy has accelerated them by convincing the people that till the Succession was permanently settled the life of the first Magistrate would be continually exposed to the dagger of the assassin & that a Succession which is to depend on the will of a dead man would not be like to meet with much attention from powerful pretenders. Before this reaches you France will be governed by an Emperor, and a new dynasty will be established in his family. The enclosed papers will give you the debates on the subject. I have recd. letters from Commodore Prebble of 18th. March15 from Syracuse whither he had just arrived, was taking in provisions and expected to sail the next day for Tripoli. He had recd. my Dispatches with the first Consuls instructions from which he appears to have formed hopes of a successful negociation. He had sent a vessel for Colo. Lear. But in the mean while he requests me to assist him in procuring from the King of the two Sicilies the loan or hire of some Gun Boats with which he engages to lay the whole Coast in ashes & force the Dey to a peace. I have spoken to the Neapolitan Ambassador here, and shall get him to press his Court to comply with Commodore Prebbles request in case a peace is not made. He says the Bashaws demand for peace and the Ransom of the Prisoners was three Million of dollars but he has lately offered a truce for five years without money. The Commodore has taken two prizes and seventy prisoners whom he has proposed to exchange but this is too contrary to their practice ever to be done. I enclose you his account of the burning the Philadelphia which was a very gallant action. He writes that there is a strong reason to apprehend a war with Tunis, so that an additional force will be absolutely necessary. I have the honor to be Sir, with the most respectful attatchment your Most obt. Svt.

Robt R Livingston

RC and enclosures (DNA: RG 59, DD, France, vol. 9); draft (NHi: Livingston Papers); letterbook copy (NHi: Livingston Papers, vol. 1). RC docketed by Brent as received 10 Aug. Words in brackets were omitted by the clerk in copying the RC and have been supplied from the draft and letterbook copy. For surviving enclosures, see nn. 4, 9, and 15.

1PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 6:406–14.

2The letter Livingston referred to here was probably JM’s Circular Letter to American Ministers, 16 Jan. 1804, ibid., 6:349.

3Ibid., 6:446–47.

4In the draft Livingston made a marginal notation opposite this sentence: “triplicate rect. enclosed.” He enclosed a receipt, dated 27 Apr. 1804 and signed by Barbé-Marbois and Pierre César LaBouchère (1 p.; in French), for the stock created for the payment of the Louisiana Purchase.

5See PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 6:408–10.

6For the Convention of 1800, 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 , 2:457–82. For the April 1803 convention for the payment of debt owed U.S. citizens, see ibid., 2:516–23.

7The draft and letterbook copy read “our unfortunate” here.

8For Livingston to Talleyrand, 24 Feb. 1804, and for Talleyrand’s answer, see Livingston to JM, 31 Mar. 1804, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 6:649, 652–53 nn. 2–3.

9The enclosed copy of Livingston to the commissioners is dated 1 May 1804 (2 pp.; printed in ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 6:193–94). In the letter, Livingston enclosed an extract (1 p.) of JM’s 31 Jan. 1804 letter to him and directed the commissioners, on the authority of the president, to exercise a liberal construction of the claims convention of 1803 to include all the just claims of the Convention of 1800.

10PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 6:410.

11Livingston referred here to Barbé-Marbois to Talleyrand, 8 Mar. 1804, in which the former wrote: “The results of the Board of American Commissaries cannot be definitive.… They can only give opinions upon which Mr. Livingston and I will confer, and in case of disagreement the French Government will decide” (translation printed in ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 6:188).

12This word is “improbable” in the draft and letterbook copy.

13For Aaron Arrowsmith, see PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (7 vols. to date; Charlottesville, Va., 1986–). description ends , 3:613 n. 2.

14For a report of the conversation between Livingston and Barbé-Marbois on the limits of Louisiana referred to here, see Livingston to JM, 20 May 1803, ibid., 5:18–20.

15Filed with the RC are copies of three letters docketed by Brent as received with this dispatch: Preble to Livingston, 16 Feb. 1804 (2 pp.), describing the destruction of the Philadelphia in Tripoli harbor; Preble to Livingston, 19 Mar. 1804 (2 pp.), warning of war preparations against the U.S. by the bey of Tunis; and Talleyrand to Livingston, 24 Germinal an XII (14 Apr. 1804) (1 p.; in French), acknowledging Livingston’s letter that had informed Talleyrand of efforts by Russia to intercede with the Ottoman Porte on behalf of the U.S. to free the crew of the Philadelphia at Tripoli. Talleyrand noted also that the French ambassador at Constantinople had been charged by Napoleon to employ his good offices with the Porte in support of this object.

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