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Subject Area: Political Theory
Topic: The American Revolution and Constitution

OBSERVATIONS ON THE PLAN. - James Madison, The Writings, vol. 7 (1803-1807) [1908]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 7.

Part of: The Writings of James Madison, 9 vols.

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OBSERVATIONS ON THE PLAN.

1st As the Cession to be made by France in this case must rest on the Cession made to her by Spain, it might be proper that Spain should be a party to the transaction. The objections however to delay require that nothing more be asked on our part, than either an exhibition and recital of the Treaty between France and Spain; or an engagement on the part of France, that the accession of Spain will be given. Nor will it be advisable to insist even on this much, if attended with difficulty or delay, unless there be ground to suppose that Spain will contest the validity of the transaction.

2d The plan takes for granted also that the Treaty of 1795 between the United States and Spain is to lose none of its force in behalf of the former by any transactions whatever between the latter and France. No change it is evident will be, or can be admitted to be produced in that Treaty or in the arrangements carried into effect under it, further than it may be superseded by stipulations between the United States and France, who will stand in the place of Spain. It will not be amiss to insist on an express recognition of this by France as an effectual bar against pretexts of any sort not compatible with the stipulations of Spain.

3d The first of the articles proposed, in defining the Cession refers to the South pass of the Mississippi, and to the Islands North and East of that channel. As this is the most navigable of the several channels, as well as the most direct course to the sea, it is expected that it will not be objected to. It is of the greater importance to make it the boundary, because several Islands will be thereby acquired, one of which is said to command this channel, and to be already fortified. The article expressly included also the Islands appertaining to the Floridas. To this there can be no objection. The Islands within six leagues of the shore are the subject of a British proclamation in the year 1763 subsequent to the Cession of the Floridas to Great Britain by France, which is not known to have been ever called in question by either France or Spain.

The 2d Article requires no particular observations.

Article 3d is one whose import may be expected to undergo the severest scrutiny. The modification to be desired is that, which, whilst it provides for the interest of the United States will be acceptable to France, and will give no just ground of complaint, and the least of discontent to Great Britain.

The present form of the article ought and probably will be satisfactory to France; first because it secures to her all the commercial advantages on the river which she can well desire; secondly because it leaves her free to contest the mere navigation of the River by Great Britain, without the consent of France.

The article also, in its present form violates no right of Great Britain, nor can she reasonably expect of the United States that they will contend beyond their obligations for her interest at the expense of their own. As far as Great Britain can claim the use of the river under her Treaties with us, or by virtue of, contiguous territory, the silence of the Article on that subject, leaves the claim unaffected. As far again as she is entitled under the Treaty of 1794 to the use of our Bank of the Mississippi above the 31st degree of N. Latitude, her title will be equally entire. The article stipulates against her only in its exclusion of her commerce from the bank to be ceded below our present limits. To this she cannot, of right object, 1st because the Territory not belonging to the United States at the date of our Treaty with her is not included in its stipulations, 2dly because the privileges to be enjoyed by France are for a consideration which Great Britain has not Given and cannot give 3dly because the conclusion in this case, being a condition on which the Territory will be ceded and accepted, the right to communicate the privilege to Great Britain will never have been vested in the United States.

But altho’ these reasons fully justify the article in its relation to Great Britain, it will be advisable before it be proposed, to feel the Pulse of the French Government with respect to a stipulation that each of the parties may without the consent of the other admit whomsoever it pleases to navigate the river and trade with their respective shores, on the same terms, as in other parts of France and the United States; and as far as the disposition of that Government will concur, to vary the proposition accordingly. It is not probable that this concurrence will be given; but the trial to obtain it will not only manifest a friendly regard to the wishes of Great Britain, and if successful, furnish a future price for privileges within her grant; but is a just attention to the interests of our Western fellow citizens, whose commerce will not otherwise be on an equal footing with that of the Atlantic States.

Should France not only refuse any such change in the Article; but insist on a recognition of her right to exclude all nations, other than the United States, from navigating the Mississippi, it may be observed to her, that a positive stipulation to that effect might subject us to the charge of intermeddling with and prejudging questions existing merely between her and Great Britain; that the silence of the article is sufficient; that as Great Britain never asserted a claim on this subject against Spain, it is not to be presumed that she will assert it against France on her taking the place of Spain; that if the claim should be asserted the Treaties between the United States and Great Britain will have no connection with it, the United States having in those treaties given their separate consent only to the use of the river by Great Britain, leaving her to seek whatever other consent may be necessary.

If, notwithstanding such expostulations as these, France shall inflexibly insist on an express recognition to the above effect it will be better to acquiesce in it, than to lose the opportunity of fixing an arrangement, in other respects satisfactory; taking care to put the recognition into a form not inconsistent with our treaties with Great Britain, or with an explanatory article that may not improbably be desired by her.

In truth it must be admitted, that France as holding one bank, may exclude from the use of the river any Nation not more connected with it by Territory than Great Britain is understood to be. As a river where both its banks are owned by one Nation, belongs exclusively to that Nation; it is clear that when the Territory on one side is owned by one Nation and on the other side by another nation, the river belongs equally to both, in exclusion of all others. There are two modes by which an equal right may be exercised; the one by a negative in each on the use of the river by any other nation except the joint proprietor, the other by allowing each to grant the use of the river to other nations, without the consent of the joint proprietor. The latter mode would be preferable to the United States. But if it be found absolutely inadmissible to France, the former must in point of expediency, since it may in point of right be admitted by the United States. Great Britain will have the less reason to be dissatisfied on this account as she has never asserted against Spain, a right of entering and navigating the Mississippi, nor has she or the United States ever founded on the Treaties between them, a claim to the interposition of the other party in any respect; altho’ the river has been constantly shut against Great Britain from the year 1783 to the present moment, and was not opened to the United States until 1795, the year of their Treaty with Spain.

It is possible also that France may refuse to the United States, the same commercial use of her shores, as she will require for herself on those ceded to the United States. In this case it will be better to relinquish a reciprocity, than to frustrate the negotiation. If the United States held in their own right, the shore to be ceded to them, the commercial use of it allowed to France, would render a reciprocal use of her shore by the United States, an indispensable condition. But as France may, if she chuses, reserve to herself the commercial use of the ceded shore as a condition of the cession, the claim of the United States to the like use of her shore would not be supported by the principle of reciprocity, and may therefore without violating that principle, be waved in the transaction.

The article limits to ten years the equality of French citizens, vessels and merchandizes, with those of the United States. Should a longer period be insisted on it may be yielded. The limitation may even be struck out, if made essential by France; but a limitation in this case is so desirable that it is to be particularly pressed, and the shorter the period the better.

Art IV. The right of deposit provided for in this article, will accommodate the commerce of France, to and from her own side of the river, until an emporium shall be established on that side, which it is well known will admit of a convenient one. The right is limited to ten years, because such an establishment may within that period be formed by her. Should a longer period be required, it may be allowed, especially as the use of such a deposit would probably fall within the general regulations of our commerce there. At the same time, as it will be better that it should rest on our own regulations, than on a stipulation, it will be proper to insert a limitation of time, if France can be induced to acquiesce in it.

Art. V. This article makes a reasonable provision for the commerce of France in the ports of West and East Florida. If the limitation to ten years of its being on the same footing with that of the United States, should form an insuperable objection, the term may be enlarged; but it is much to be wished that the privilege may not in this case, be made perpetual.

Art VI—The pecuniary consideration, to be offered for the territories in question, is stated in Art. VI. You will of course favor the United States as much as possible both in the amount and the modifications of the payments. There is some reason to believe that the gross sum expressed in the Article, has occurred to the French Government, and is as much as will be finally insisted on. It is possible that less may be accepted, and the negotiation ought to be adapted to that supposition. Should a greater sum be made an ultimatum on the part of France, the President has made up his mind to go as far as fifty — million of livres tournois, rather than lose the main object. Every struggle however is to be made against such an augmentation of the price, that will consist with an ultimate acquiescence in it.

The payment to be made immediately on the exchange of ratifications is left blank; because it cannot be foreseen either what the gross sum or the assumed debts will be; or how far a reduction of the gross sum may be influenced by the anticipated payments provided for by the act of Congress herewith communicated and by the authorization of the President and Secretary of the Treasury endorsed thereon. This provision has been made with a view to enable you to take advantage of the urgency of the French Government for money, which may be such as to overcome their repugnance to part with what we want, and to induce them to part with it on lower terms, in case a payment can be made before the exchange of ratifications. The letter from the Secretary of the Treasury to the Secretary of State, of which a copy is herewith inclosed, will explain the manner in which this advance of the ten Millions of livres, or so much thereof as may be necessary, will be raised most conveniently for the United States. It only remains here to point out the condition or event on which the advance may be made. It will be essential that the Convention be ratified by the French Government before any such advance be made; and it may be further required, in addition to the stipulation to transfer possession of the ceded territory as soon as possible, that the orders for the purpose, from the competent source, be actually and immediately put into your hands. It will be proper also to provide for the payment of the advance, in the event of a refusal of the United States to ratify the Convention.

It is apprehended that the French Government will feel no repugnance to our designating the classes of claims and debts, which, embracing more equitable considerations than the rest, we may believe entitled to a priority of payment. It is probable therefore that the clause of the VI article referring it to our discretion may be safely insisted upon. We think the following classification such as ought to be adopted by ourselves.

1st. Claims under the fourth Article of the Convention of Sept. 1800.

2ndly. Forced contracts or sales imposed upon our citizens by French authorities; and

3rdly. Voluntary contracts, which have been suffered to remain unfulfilled by them.

Where our citizens have become creditors of the French Government in consequence of Agencies or Appointments derived from it, the United States are under no particular obligation to patronize their claims, and therefore no sacrifice of any sort, in their behalf ought to be made in the arrangement. As far as this class of claimants can be embraced, with [out] embarrassing the negotiation, or influencing in any respect the demands or expectations of the French Government, it will not be improper to admit them into the provision. It is not probable however, that such a deduction from the sum ultimately to be received by the French Government will be permitted, without some equivalent accommodation to its interests, at the expence of the United States.

The claims of Mr. Beaumarchais and several other French individuals on our government, founded upon antiquated or irrelevant grounds, altho’ they may be attempted to be included in this negotiation have no connection with it. The American Government is distinguished for its just regard to the rights of foreigners and does not require those of individuals to become subjects of Treaty in order to be admitted. Besides, their discussion involves a variety of minute topics, with which you may fairly declare yourselves to be unacquainted. Should it appear however, in the course of the negotiation, that so much stress is laid on this point, that without some accommodation, your success will be endangered, it will be allowable to bind the United States for the payment of one Million of livres tournois to the representatives of Beaumarchais, heretofore deducted from his account against them; the French Government declaring the same never to have been advanced to him on account of the United States.

Art. VII is suggested by the respect due to the rights of the people inhabiting the ceded territory and by the delay which may be found in constituting them a regular and integral portion of the Union. A full respect for their rights might require their consent to the Act of Cession; and if the French Government should be disposed to concur in any proper mode of obtaining it, the provision would be honorable to both nations. There is no doubt that the inhabitants would readily agree to the proposed transfer of their allegiance.

It is hoped that the idea of a guarantee of the Country reserved to France may not be brought into the negotiation. Should France propose such a stipulation it will be expedient to evade it if possible, as more likely to be a source of disagreeable questions, between the parties concerning the actual casus federis than of real advantage to France. It is not in the least probable that Louisiana in the hands of that Nation will be attacked by any other whilst it is in the relations to the United States on which the guarantee would be founded; whereas nothing is more probable than some difference of opinion as to the circumstances and the degree of danger necessary to put the stipulations in force. There will be less reason in the demand of such an Article as the United States would [put] little value on a guarantee of any part of their territory and consequently there would be no great reciprocity in it. Should France notwithstanding these considerations make a guarantee an essential point, it will be better to accede to it than to abandon the object of the negotiation, mitigating the evil as much as possible by requiring for the casus federis a great and manifest danger threatened to the Territory guaranteed, and by substituting for an indefinite succour, or even a definite succour in Military force, a fixed sum of money payable at the Treasury of the United States. It is difficult to name the proper sum which is in no posture of the business to be exceeded, but it can scarcely be presumed that more than about — dollars, to be paid annually during the existence of the danger, will be insisted on. Should it be unavoidable to stipulate troops in place of money, it will be prudent to settle the details with as much precision as possible, that there may be no room for controversy either with France or with her money, on the fulfillment of the stipulation.

The instructions thus far given suppose that France may be willing to cede to the United States the whole of the Island of New Orleans, and both the Floridas. As she may be inclined to dispose of a part or parts, and of such only, it is proper for you to know that the Floridas together are estimated at ¼ the value of the whole Island of New Orleans, and East Florida at ½ that of West Florida. In case of a partial Cession, it is expected, that the regulations of every other kind so far as they are onerous to the United States, will be more favorably modified.

Should France refuse to cede the whole of the Island, as large a portion as she can be prevailed on to part with, may be accepted; should no considerable portion of it be attainable, it will still be of vast importance to get a jurisdiction over space enough for a large commercial town and its appurtenances, on the Bank of the river, and as little remote from the mouth of the river as may be. A right to chuse the place, would be better than a designation of it in the Treaty. Should it be impossible to procure a complete jurisdiction over any convenient spot whatever, it will only remain to explain and improve the present right of deposit, by adding thereto the express privilege of holding real estate for commercial purposes, of providing hospitals, of having Consuls residing there, and other Agents who may be authorized to authenticate and deliver all documents requisite for vessels belonging to and engaged in the trade of the United States to and from the place of deposit. The United States cannot remain satisfied, nor the Western people be kept patient under the restrictions which the existing Treaty with Spain authorizes.

Should a Cession of the Floridas not be attainable your attention will also be due to the establishment of suitable deposits at the mouths of the rivers passing from the United States thro’ the Floridas, as well as of the Free navigation of the rivers by Citizens of the United States. What has been above suggested in relation to the Mississippi and the deposit on its Banks is applicable to the other rivers; and additional hints relative to them all may be derived from the letter of which a copy is inclosed from the Consul at New Orleans.

It has been long manifest, that whilst the injuries to the United States so frequently occurring from the Colonial offices scattered over our hemisphere and in our neighbourhood can only be repaired by a resort to their respective Governments in Europe, that it will be impossible to guard against the most serious inconveniences. The late events at New Orleans strongly manifest the necessity of placing a power somewhere nearer to us, capable of correcting and controuling the mischievous proceedings of such officers toward our citizens, without which a few individuals not always among the wisest and best of men, may at any time threaten the good understanding of the two Nations. The distance between the United States and the old continent, and the mortifying delays of explanations and negotiations across the Atlantic on emergencies in our neighborhood, render such a provision indispensable, and it cannot be long before all the Governments of Europe having American Colonies must see the necessity of making it. This object therefore will likewise claim your special attention.

It only remains to suggest that considering the possibility of some intermediate violence between citizens of the United States and the French or Spaniards in consequence of the interruption of our right of deposit, and the probability that considerable damages will have been occasioned by that measure to citizens of the United States, it will be proper that indemnification in the latter case be provided for, and that in the former, it shall not be taken on either side as a ground or pretext for hostilities.

These instructions, tho’ as full as they could be conveniently made, will necessarily leave much to your discretion. For the proper exercise of it, the President relies on your information, your judgment, and your fidelity to the interests of your Country.