James Madison Papers

To James Madison from Robert R. Livingston, 25 July 1804

From Robert R. Livingston

No. 109

Paris 25 July 1804


Since my last 24 June,1 I have in pursuance of your instructions put in the enclosed notes2 on the Subject of the Convention,3 I have yet received no Such official answer as will Justify my further proceedings, since till they determine either to open the negotiation you require, or reject it or till they consent to a partial draft. Mr Talleyrand is now absent, & Mr Marbois’s powers do not go to this object, so that I have been compelled to write again to Mr Talleyrand for some precise answer: In the mean time the French Board are making every exertion to get thro’ the accounts, & have set at my request Some additional clerks at work.

In a conversation I had with Mr Talleyrand, I find that they have no inclination to open any new Negotiation and that the Emperor has taken up the idea that the 20 millions was to cover the whole demand under the Convention, & for this reason he will make it embrace as many objects as possible. Marbois finds himself in a disagreable Situation, because tho’ this was also his intention & he induced the Emperor to believe so, yet he admits that the words do not Justify his construction[. But the words justify another construction] that he proposes to set up: to wit, that the Convention only applies to accounts that had actually been presented at the time: if so, which is indeed the fact, for we had no conception that any thing due before Septr. 1800 could remain unasked 30th April 1803—the 20,000,000 will not only cover the whole demand but also have4 a considerable excess in the hands of our Govt, that he sees also, & has proposed to me to confine the sense of the Convention to the debts actually presented, but to add that as there may be others which tho’ not Standing so favorably from the neglect, which induces a presumption against them, that yet we consent to admit them. To this I tell him, that I can only construe the Convention agreably to its letter; that if as he Supposes, & as it is strictly the fact, this [is] only confined to debts actually presented, it must rest with the generosity of our Government to apply the overplus money, which they may possibly do in confidence that the French Government will also make provision to cover any deficit. Thus the matter rests at present.

With respect to the debts that have come in since the Convention [to the enormous amount of near 12 millions], I own I have very little charity for them. The creditors, either put no value on them or were conscious their claims could not be supported: Is it possible to suppose that a mercht at Baltimore, one of the most intelligent men there in trade, in constant connection with the French agent & receiving large sums of money at different times in payment Should have a debt of near a million of livres, that has, by his statement, been due above 7 years, & never have even made the demand of this Government till subsequent to the last Treaty? These new demands have excited great Suspicions with those who know the frauds that have been committed by their officers in St. Domingo.5

I enclose you the copy of a letter from Mr Defermon on that subject with my answer:6 If the French persist in this construction of the Treaty, I believe some just claims & many fraudulent ones will be postponed: But I can see no injustice in the Convention on that account. It was the neglect of these persons in bringing in the accounts, that induced in7 the error in our calculation, (if there is one), & the Convention, tho’ it does not embrace, has bettered their condition; because by reducing the general mass of debt, it facilitates the payment of what remains, without weakening them.

I informed you of my conversation with the Minister & Mr Hauterive on the Subject of St Domingo;8 I inclose the notes that have passed on the subject.9 After the reference to the Minister of the Marine, I sent him the note enclosed,10 called upon him, & had several conferences which he reported to the Emperor: he told me that the Emperor thought no Convention was necessary, that he would connive at our Commerce, & that strict orders should be immediately sent to restrain the depredations. I desired that these shd pass thro’ my hands to which he consented. But I have not yet received them, tho’ I shall press for them as much as possible. But it is extremely difficult at this moment to do any business. The emperor’s head is filled with his new dignity and they are all occupied to the very great dissatisfaction of the nation with arrangements for the organisation of the new court and the coronation &c. Last Sunday was a great fete for the installation of the Legion of honor, which is to be the germ of the new Nobility. The Emperor is now at Boulogne—Mr Talleyrand at the watering places—The Minister of war at Boulogne where he is to be followed in a day or two by the Minister of the Marine & Treasury: the moment is by no means without its difficulties. The nation are not satisfied with the new arrangements and the expence that attends them. Everything depends on the good disposition of the army and a breath may change this. They have been so long kept together upon the coast that it is almost equally dangerous to defer or to undertake the expedition. Should it fail (as I own from what I saw in England I think it will) new trouble will arise here and a new combination will take place on the continent. It is generally thought that if any fair opening offers while the Emperor is on the Sea coast that the attempt will be made. The day after he arrived at Boulogne, he ordered a strong division to put to Sea, & remain at, with a view to attack the ennemy’s ships the next morning, the admiral advised in the evening to recall them as the Storm was rising, he chose to risk it rather than derange his plan: The Storm came, 12 Boats Sunk & 800 men have been drowned. This however is not known here nor will be but circumstances of this kind cannot but have an effect upon the army many of whom will also be disgusted at the badges of the Legion of Honor since all will think they have pretensions to partake of them. I enclose a letter from Comr. Preble11 from whom I have not since heard. I have received a letter from Mr Pinkney enclosing Mr. Cevallos’ remonstrances,12 of which you have doubtless been informed, as he gives me no account of the line he has taken in reply, I know not therefore what notice or whether any should be taken of it here: I have written to him by a Safe conveyance, & Shall do nothing till I receive his answer. Indeed the absence of the Emperor & Minister renders it impracticable to do any thing at this moment: my private letter13 has given you my sentiments very fully on this subject. To this I have nothing to add, but my fear that your negotiation in Spain will produce nothing, & my conviction that it can not succeed while they possess West Florida unless you are disposed to give a much greater price than that contained in our Instructions.

I have foreborn to make any application on the subject of new claims till the old are satisfied, first because having no money, I know the application will be useless, & next because it is very ungracious to appear in the light of a perpetual Dun. If our merchts knowing the risk, & proportioning the profit to that risk, chuse to trade, I think now that they can no longer plead ignorance, they should be left to prosecute their own claims without embarrassing the great objects of the Negotiation.

All the Ministers here have received new credentials & letters of credance and compliment except the Turkish Ambassadour, owing to his distance & Portugal only, for the same reason, & the Austrian who told me three weeks ago that he expected them every hour, because his master wishes I believe to see what turn things take here and with Russia but principally because he wishes some security that an hereditary right (which would almost amount to a consolidation) should not take place in Italy.

I hope no delay will take place in forwarding the new Commission & letters here, as any unnecessary delay would not be well received. It will be proper to bear in mind that the new court which was before sufficiently expensive will exact new and very great expences in dress equipage &c. These minutia have already been under consideration and the court dress is as is said already arranged both for males and females and the equipage not to be less than four horses14 and what will appear more extraordinary all these trifles occupy the attention of the man who almost governs Europe.

You will See the necessity, my Dear Sir of extreme caution in decyphering my letter, or Suffering them to be seen in your office except by those in whom you have the utmost confidence.

Mr Lee at Bordeaux by detecting some frauds committed under the cover of our flag, & refusing to connive at others has made ennemies of many of the French & some of the American merchts who are partners in British houses, or agents in frauds that hurt us extremely. They will probably endeavour to injure him with our Government. His conduct has appeared to me very correct & proper. His own affairs are reestablished, & I hope he will have your protection should any complaints be brought against him.

You will hear possibly of the Anne & Phœbe that has been seized here & is now under trial & will probably be discharged for want of proof—Tho’ the fact is, as I had in London from Mr Murdock the British consignee that the cargo had been sold there to an English-house on condition that it should be delivered as American property to the partner of a British house, till which it was at the risk of the original owner. They therefore say that the property was not changed, tho’ in fact it differs in no Sort from a change of property & the seller becoming the insurer—the British Courts of admiralty have determined in the case of ludlow where the Ship was taken at Sea under similar circumstances that she was good prize, & certainly the French Courts will do the same, otherwise the property of English merchts will enter their very harbours in security. Knowing these facts from the very agent of the Ship in London, I have not thought it proper to interfere further officially in the behalf of the owners, but as I think it probable that the custom house will not be able to prove them, the ship will perhaps be finally discharged. The great number of similar cases, & the consignment of cargoes to American partners of British houses at Bordeaux after touching in England, contrary to the laws of France, occasions our fair traders, as well as myself much trouble & vexation since it induces suspicions against all. Some means should be fallen upon to put a stop to these abuses. I have the honor to be Sir With the most respectful attachment Your most obt hum: Servt

Robt R Livingston15

RC and enclosures (DNA: RG 59, DD, France, vol. 9); draft (NHi: Livingston Papers); letterbook copy (NHi: Livingston Papers, vol. 1); letterbook copy of enclosures (NHi: Livingston Papers, vol. 5). RC in a clerk’s hand, signed by Livingston; docketed by Wagner as received 22 Oct. Words in brackets were omitted by the clerk in copying the RC and have been supplied from the draft and letterbook copy. Italicized words are those encoded by Livingston’s secretary and decoded here, with periods added, by the editors (for the code, 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 , 2:304–5 n.). RC decoded interlinearly by Wagner. Draft and letterbook copy dated 24 July 1804. For enclosures, see nn. 3, 6, 9–11, and 15.

1Livingston’s no. 108 is dated 22 June 1804.

2In the draft and letterbook copy, this word is “note.”

3Livingston enclosed a copy of his letter to Talleyrand, 27 June 1804 (2 pp.), proposing an “explanatory Convention” that would render the Convention of 1800 “coextensive” with the Louisiana Purchase Claims Convention of April 1803, in order to “do away all doubts” about the “ground of payment to the creditors of France.”

4In the draft and letterbook copy, this word is “leave.”

5For American claims against France for bills drawn by French agents in Saint-Domingue that were never honored, see JM to Livingston, 27 Oct. 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 , 5:579–80.

6The enclosures are copies of Joseph Jacques Defermon to Livingston, 22 Messidor an XII (11 July 1804) (2 pp.; in French; docketed by Wagner; two copies), expressing surprise at the number and size of the claims recently submitted for liquidation, especially those purportedly for supplies to the French authorities at Saint-Domingue in 1797, and requesting information about them; and Livingston to Defermon, 15 July 1804 (2 pp.; docketed by Wagner), acknowledging Defermon’s request and expressing “with as much surprise as you have and not without much regret” that the submission of additional claims “has tended to deceive us in the estimate we made … in forming the late convention.” Livingston noted that the fact that some of the larger claims had not been submitted “till lately” was “extraordinary, and perhaps would Justify ⟨a⟩ very strict examination into the … foundation of such claims.”

7This word is omitted in the draft and letterbook copy.

9The enclosure is a copy of Talleyrand to Livingston, 17 Messidor an XII (6 July 1804) (2 pp.; in French; docketed by Wagner), acknowledging Livingston’s letter of 27 June on U.S. commerce with Saint-Domingue and informing him that he had passed the letter to the minister of marine for his judgment about what arrangements might be made to regulate the commercial interests therein expressed.

10Livingston enclosed a copy of his letter to Denis Decrès, 8 July 1804 (6 pp.), explaining the importance of reaching an agreement on U.S. commerce with Saint-Domingue and why the continuance of such commerce was “a real advantage” to France. Livingston proposed a convention in which the French would grant the U.S. a free trade to Saint-Domingue “for any limited number of years … & Such restriction upon the privateers in the Islands as will prevent a renewal of that partial hostility” ended by the Convention of 1800, in exchange for “such laws for preventing contraband of war being carried to St Domingo, as the Government of France shall suggest.”

11In the enclosure, a copy of Edward Preble to Livingston, 26 May 1804 (1 p.; docketed by Wagner), Preble reported that while the gunboats on loan from the king of Naples were ready for sea, the “Bomb-vessels” required repairs, and he estimated that he would begin operations against Tripoli in two to three weeks.

12Charles Pinckney’s 24 June 1804 letter to Livingston (NHi: Livingston Papers) enclosed a copy of Cevallos to Pinckney, 31 May 1804, protesting Congress’s passage of the Mobile Act. For Cevallos’s remonstrance, see Pinckney to JM, 4 June 1804, and n. 9.

14For “horses,” Livingston’s secretary mistakenly encoded “becauses”; left blank in Wagner’s decoding.

15Also enclosed in this dispatch were copies of Livingston to Johann Philipp von Cobenzl, 19 June 1804 (3 pp.; docketed by Wagner as received in Livingston’s no. 109), acknowledging Cobenzl’s letter of 26 May complaining of the seizure of the Paolina by Andrew Sterett, captain of the Enterprize, and promising to transmit it to his government; Fulwar Skipwith to Livingston, 22 June 1804 (3 pp.; in French) and 28 June 1804 (1 p.), and Livingston to Skipwith, 25 June 1804 (2 pp.), discussing the case of the ship Rover, taken by a French privateer and condemned in a Spanish port; Barbé-Marbois to Livingston, 11 Messidor an XII (30 June 1804) (2 pp.; in French), with translation (2 pp.), acknowledging Livingston’s letter to Talleyrand, 19 [18] June 1804, promising to comply with its request for “an approximate estimate of the debt” in order to “ascertain by how much it will exceed the 20 millions fixed upon for its liquidation,” reminding Livingston that the convention of April 1803 stipulated that twenty million francs would extinguish all American claims and interest, and stating that “in consequence of the stagnation of funds” in the U.S. Treasury, “there can be … no room for an accumulation of interest,” accompanied by Livingston’s memorandum as to why he did not reply to this letter; an undated extract of a letter from Barbé-Marbois to Talleyrand (1 p.), noting that he had “quieted the solicitude of the American Ministers” with a letter, and that “this letter and their answer determine the spirit of this Convention with all the precision a like matter is susceptible of, and yet reciprocal confidence can alone do away all difficulties”; John Purcell to Livingston, 2 July 1804 (1 p.), thanking Livingston for his intervention in freeing him from prison in Valenciennes and requesting a protection or the return of his discharge from a British man-of-war; and William Rogers to Livingston, 3 July 1804 (1 p.), thanking Livingston for his letter of 22 June.

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