Front Page Titles (by Subject) 1804 - TO JAMES MONROE. d. of s. mss. instr. - The Writings, vol. 7 (1803-1807)
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1804 - TO JAMES MONROE. d. of s. mss. instr. - James Madison, The Writings, vol. 7 (1803-1807) 
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.
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TO JAMES MONROE.d. of s. mss. instr.
Department of State, January 5, 1804.1
The information and observations which you have as yet, received from me since your arrival in London, on the impressment of our seamen, and other violations of our rights, have been in private letters only. The delay in making these injuries the subject of official communications, proceeded, first, from an expectation that the British Government would have notified formally to the United States as a neutral power, the state of War between Great Britain and France; which would have been an apt occasion, for combining with assurances of the fairness with which our neutral obligations would be fulfilled, our just claims on a correspondent respect for our neutral rights, and particularly of those which had been least respected during the last war: secondly, from the expected arrival of Mr. Merry, which, if he should not be charged with such a notification, might be a favorable opportunity for commencing the explanations and discussions which must precede a thorough correction of the wrongs which we experience.
Since the arrival of Mr. Merry, accordingly, no time has been lost in calling his attention to the subject; and in preparing both it and him, for the negotiation which is now to be committed to you. If appearances are to be trusted, his impressions and representations will be friendly to it. In my conversations with him, which have been free and full, he has expressed the best dispositions, has listened with candor to the appeals made as well to the considerations of justice, as of the solid interest of his nation; and altho’ he suggests serious difficulties on certain points, he will, I believe, sincerely co-operate in lessening them, and in bringing about an arrangement which will be acceptable to this country. The only topic on which any thing has passed in writing between the Department of State and him, is that of the pretended blockade of St. Domingo. Copies of my letter to him and of his answer, are herewith inclosed; as also of the letter written to Mr. Thornton some time before, and referred to in that to Mr. Merry, in relation to a like blockade of Martinique and Guadaloupe.
Altho’ there are many important objects which may be thought to invite conventional regulations between the United States and Great Britain, it is evidently proper to leave for subsequent consideration, such as are less urgent in their nature or more difficult in their adjustment; and thereby to render the way plainer and shorter to an agreement with respect to objects which cannot be much longer delayed without danger to the good understanding of the two nations. With this view the plan of a Convention contemplated by the President, is limited to the cases of impressments of our seamen, of blockades, of visiting and searching our vessels, of contraband of War, and of the trade of hostile Colonies, with a few other cases affecting our maritime rights; embracing however, as inducements to Great Britain to do us justice therein, a provision for the surrender of deserting seamen and soldiers, and for the prevention of contraband supplies to her enemies.
The plan digested for your use is subjoined. The first column contains the articles which are to be proposed in the first instance, and which are considered as within our just expectations: The second modifies the articles into the concessions which the British Government may possibly require, and which it may be expedient for us ultimately to admit.
A Convention between the United States and Great Britain.
Second and Ultimatum.
No person whatever shall, upon the high seas and without the jurisdiction of either party be demanded or taken out of any ship or vessel belonging to citizens or subjects of one of the other parties, by the public or private armed ships belonging to or in the service of the other, unless such person be at the time in the Military service of an enemy of such other party.
No seaman, seafaring or other person shall upon the high seas and without the jurisdiction of either party be demanded or taken out of any ship or vessel belonging to the citizens or subjects of one of the parties by the public or private armed ships belonging to or in the service of the other party and strict and effectual orders shall be given for the due observance of this engagement: but it is to be understood that this article shall not exempt any person on board the ships of either of the parties from being taken therefrom by the other party in cases where they may be liable to be so taken according to the laws of nations, which liability however shall not be construed to extend in any case to seamen or seafaring persons, being actually part of the crew of the vessel in which they may be, nor to persons of any description passing from one port to another port of either of the parties.
No person being a subject or citizen of one of the parties and resorting to or residing in the dominions of the other, shall in any case be compelled to serve on board any vessel whether public or private belonging to such other party: and all citizens or subjects whatever of the respective parties at this time compulsively serving on board the vessels of the other shall be forthwith liberated, and enabled by an adequate recompence to return to their own country.
If the ships of either of the parties shall be met with sailing either along the coasts or on the high seas by any ship of war or other public or private armed ships of the other party, such ships of war or other armed vessels shall for avoiding all disorder in visiting and examining the same, remain out of cannon shot, unless the state of the sea or the place of meeting render a nearer approach necessary, and shall in no case compel or require such vessel to send her boat, her papers or any person from on board to the belligerent vessel, but the belligerent vessel may send her own boat to the other and may enter her to the number of two or three men only who may in an orderly manner make the necessary inquiries concerning the vessel and her cargo; and it is agreed that effectual provision shall be made for punishing violations of any part of this article.
Contraband of war shall consist of the following articles only: Salt petre, sulphur, cuirasses, pikes, swords, sword belts, knapsacks, saddles and bridles, cannons, mortars, fire arms, pistols, bombs, grenades, bullets, fire locks, flints, matches and gun powder; excepting however the quantity of the said articles which may be necessary for the defence or use of the ship and those who compose the crew, and no other articles whatever not here enumerated shall be reputed contraband or liable to confiscation, but shall pass freely without being subjected to the smallest difficulty unless they be enemy’s property, and it is to be particularly understood that under the denomination of enemy’s property, is not to be comprized the merchandise of the growth, produce or manufactures of the countries or dominions at war which shall have been acquired by the citizens or subjects of the neutral power, and shall be transported for their account, which merchandise cannot in any case or on any pretext be excepted from the freedom of the neutral flag.
In all cases where the prize courts of either party shall pronounce judgment against any vessel or property claimed by citizens or subjects of the other, the sentence or decree shall mention the reasons or motives in which the same shall have been founded and an authenticated copy of the sentence or decree and of all the proceedings in the case, shall, if demanded be delivered to the commander or Agent of the said vessel, without any delay, he paying the legal fees for the same.
In order to determine what characterizes a blockaded port, that denomination is given only to a port where there is by the disposition of the power which attacks it with ships stationary or sufficiently near an evident danger of entering.
Omit the preamble.
(In consideration of the distance of the ports likely to be blockaded by either party from the ports of the other party and of other circumstances incident to their relative situations), it is agreed that no vessel sailing from the ports of either shall, altho’ cleared or bound to a blockaded port be considered as violating in any manner the blockade, unless on her approach towards such port she shall have been previously warned against entering the same.
Omit, “captains, officers.”
It is agreed that no refuge or protection shall be afforded by either party to the “captains, officers,” mariners, sailors or other persons not found to be its own citizens or subjects who shall desert from a vessel of the other party, of the crew whereof the deserter made a part, but on the contrary all such deserters shall be delivered up on demand to the commanders of the vessels from which they shall have deserted, or to the commanding officers of the ships of war of the respective nations, or to such other persons as may be duly authorized to make requisition in that behalf; provided that proof be made within two years from the time of desertion by an exhibition of the ships papers or authenticated copies thereof, and by satisfactory evidence of the identity of the person, that the deserters so demanded were actually part of the crew of the vessels in question.
And for the more effectual execution of this article adequate provision shall be made for causing to be arrested on the application of the respective consuls or vice consuls to the competent authorities all deserters as aforesaid, duly proved to be such in order that they may be sent back to the commanders of the vessels to which they belonged or removed out of the country and all due aid and assistance shall be given in searching for as well as in seizing and arresting the said deserters who shall even be detained and kept in the prisons of the country at the request and expence of the said consuls or vice consuls until they shall have found an opportunity of sending them back or removing them as aforesaid. But if they be not so sent back or removed within three months from the day of their arrest they shall be set at liberty and shall not again be arrested for the same cause.
Omit “officers or.”
It is further agreed that no refuge or protection shall be afforded by either of the parties to any officers or soldiers not found to be its own citizens or subjects who shall desert from the military service of the other; but that on the contrary effectual measures shall be taken in like manner and under like regulations and conditions as with respect to sailors, for apprehending any such deserting soldiers and delivering them to the commanding officers of the military posts, forts or garrisons from which they shall have deserted, or to the consuls or vice consuls on either side or to such persons as may be duly authorized to demand their restitution.
It is however understood that no stipulation herein made shall be construed to empower the civil or military officers of either of the parties to enter forcibly into any of the forts, garrisons posts or other places or to use violence of any sort within the jurisdiction of the other party or be construed in any manner to contravene or derogate from the stipulation contained in the first of the above articles against demanding or taking any persons out of vessels on the high seas and without the jurisdiction of either of the parties.
Each party will prohibit its citizens or subjects from clandestinely carrying away from the territories or dominions of the other, any seamen or soldiers belonging to such other party.
Neither party shall permit any of the articles above enumerated as contraband of War to be cleared out from its ports to any place within the jurisdiction of an enemy of the other party and in order to enforce this regulation due proof and security shall be given that all such articles of contraband as may be exported from the ports of either of the parties have been actually destined elsewhere than within the jurisdiction of an enemy of the other party.
This Convention shall be in force for the term of five years from the date of the exchange of ratifications. It shall be ratified on both sides within NA months from the day of its signiture or sooner if possible, and the ratifications exchanged without delay in the United States at the City of Washington.
Observations on the preceding plan.
The first article relates to impressments from American vessels on the high seas. The Commanders of British armed vessels, have as is well known, been long in this practice. They have indeed not only continued it, under the sanction of their superiors, on the high seas; but have, with impunity, extended it to our own coasts, to neutral ports, and to neutral territory; and, in some instances to our own harbours. The article does not comprehend these latter cases, because it would not be very honorable in Great Britain to stipulate against the practice of such enormities, nor in the United States to recur to stipulations as a security against it; and because it may be presumed that such particular enormities will not be repeated or unpunished after a general stop shall have been put to impressments.
The article in its first form renounces the claim to take from the vessels of the neutral party, on the high seas any person whatever not in the military service of an enemy; an exception which we admit to come within the law of nations, on the subject of contraband of war.
With this exception, we consider a neutral flag on the high seas as a safeguard to those sailing under it. Great Britain on the contrary asserts a right to search for and seize her own subjects; and under that cover, as cannot but happen, are often seized and taken off, citizens of the United States and citizens or subjects of other neutral countries, navigating the high seas, under the protection of the American flag.
Were the right of Great Britain in this case not denied the abuses flowing from it, would justify the United States in claiming and expecting a discontinuance of its exercise. But the right is denied and on the best grounds.
Altho’ Great Britain has not yet adopted in the same latitude with most other nations, the immunities of a neutral flag, she will not deny the general freedom of the high seas, and of neutral vessels navigating them, with such exceptions only as are annexed to it by the law of nations. She must produce then such an exception in the law of nations in favor of the right she contends for. But in what written and received authority will she find it? In what usage except her own will it be found? She will find in both, that a neutral vessel does not protect certain objects denominated contraband of war, including enemies serving in the war, nor articles going into a blockaded port, nor as she has maintained, and as we have not contested, enemy’s property of any kind. But no where will she find an exception to this freedom of the seas, and of neutral flags which justifies the taking away of any person not an enemy in military service, found on board a neutral vessel.
If treaties, British as well as others, are to be consulted on this subject, it will equally appear, that no countenance to the practice can be found in them. Whilst they admit a contraband of war, by enumerating its articles, and the effect of a real blockade by defining it, in no instance do they affirm or imply a right in any sovereign to enforce his claims to the allegiance of his subjects, on board neutral vessels on the high seas. On the contrary, whenever a belligerent claim against persons on board a neutral vessel, is referred to in treaties, enemies in military service alone are excepted from the general immunity of persons in that situation; and this exception confirms the immunity of those who are not included in it.
It is not then from the law or the usage of nations, nor from the tenor of treaties, that any sanction can be derived for the practice in question. And surely it will not be pretended that the sovereignty of any nation extends in any case whatever, beyond its own dominions, and its own vessels on the high seas. Such a doctrine would give just alarm to all nations, and more than any thing would countenance the imputation of aspiring to an universal empire of the seas. It would be the less admissible too, as it would be applicable to times of peace as well as to times of war, and to property as well as to persons. If the law of allegiance, which is a municipal law, be in force at all on the high seas, on board foreign vessels, it must be so at all times there, as it is within its acknowledged sphere. If the reason alleged for it be good in time of war, namely that the sovereign has then a right to the service of all his subjects, it must be good at all times, because at all times he has the same right to their service. War is not the only occasion for which he may want their services, nor is external danger the only danger against which their services may be required for his security. Again;—if the authority of a municipal law can operate on persons in foreign vessels on the high seas, because within the dominion of their sovereign they would be subject to that law, and are violating that law by being in that situation, how reject the inference that the authority of a municipal law may equally be enforced on board foreign vessels on the high seas, against articles of property exported in violation of such a law, or belonging to the country from which it was exported? And thus every commercial regulation in time of peace too, as well as of war, would be made obligatory on foreigners and their vessels, not only whilst within the dominion of the sovereign making the regulation, but in every sea, and at every distance where an armed vessel might meet with them. Another inference deserves attention. If the subjects of one sovereign may be taken by force from the vessels of another, on the high seas, the right of taking them when found implies the right of searching for them, a vexation of commerce, especially in time of peace, which has not yet been attempted, and which for that as well as other reasons, may be regarded as contradicting the principle from which it would flow.
Taking reason and justice for the tests of this practice, it is peculiarly indefensible; because it deprives the dearest rights of persons, of a regular trial, to which the most inconsiderable article of property captured on the high seas, is entitled; and leaves their destiny to the will of an officer, sometimes cruel, often ignorant, and generally interested by his want of mariners, in his own decisions. Whenever property found in a neutral vessel is supposed to be liable on any grounds to capture and condemnation, the rule in all cases is that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages, for an abuse of his power. Can it be reasonable then or just, that a belligerent commander who is thus restricted and thus responsible in a case of mere property of trivial amount, should be permitted without recurring to any tribunal whatever to examine the crew of a neutral vessel, to decide the important question of their respective allegiances, and to carry that decision into instant execution, by forcing every individual he may chuse, into a service abhorent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest dangers? Reason, justice and humanity unite in protesting against so extravagant a proceeding. And what is the pretext for it? It is that the similarity of language and of features between American citizens and British subjects are such as not easily to be distinguished; and that without this arbitrary and summary authority to make the distinction British subjects would escape, under the name of American citizens from the duty which they owe to their sovereign. Is then the difficulty of distinguishing a mariner of one country from the mariner of the other, and the importance of his services a good plea for referring the question whether he belongs to the one or to the other to an arbitrary decision on the spot, by an interested and irresponsible officer? In all other cases, the difficulty and the importance of questions, are considered as reasons for requiring greater care and formality in investigating them, and greater security for a right decision on them. To say that precautions of this sort are incompatible with the object, is to admit that the object is unjustifiable; since the only means by which it can be pursued are such as cannot be justified. The evil takes a deeper die when viewed in its practice as well as its principles. Were it allowable that British subjects should be taken out of American vessels on the high seas, it might at least be required that the proof of their allegiance should lie on the British side. This obvious and just rule is however reversed; and every seaman on board, tho’ going from an American port, and sailing under the American flag, and sometimes even speaking an idiom proving him not to be a British subject, is presumed to be such, unless shewn to be an American citizen. It may safely be affirmed that this is an outrage and an indignity which has no precedent, and which Great Britain would be among the last nations in the world to suffer if offered to her own subjects, and her own flag. Nor is it always against the right presumption alone, which is in favor of the citizenship corresponding with the flag, that the violence is committed. Not unfrequently it takes place in defiance of the most positive proof, certified in due form by an American officer. Let it not be said that in granting to American seamen this protection for their rights as such, the point is yielded, that the proof lies on the American side, and that the want of it in the prescribed form justifies the inference that the seaman is not of American allegiance. It is distinctly to be understood, that the certificate usually called a protection to American seamen, is not meant to protect them under their own or even any other neutral flag on the high seas. We maintain, and can never admit, that in such a situation any other protection is required for them, than the neutral flag itself, on the high seas. The document is given to prove their real character, in situations to which neither the law of nations nor the law of their own country are applicable; in other words to protect them within the jurisdiction of the British laws, and to secure to them, within every other jurisdiction, the rights and immunities due to them. If in the course of their navigation even on the high seas, the document should have the effect of repelling wrongs of any sort, it is an incidental advantage only of which they avail themselves, and is by no means to be misconstrued into a right to exact such a proof, or to make any disadvantageous inference from the want of it.
Were it even admitted that certificates for protection might be justly required in time of war, from American seamen, they could only be required in cases, where the lapse of time from its commencement had given an opportunity for the American seamen to provide themselves with such a document. Yet it is certain that in a variety of instances seamen have been impressed from American vessels, on the plea that they had not this proof of citizenship when the dates and places of the impressments, demonstrated the impossibility of their knowing, in time to provide the proof, that a state of war had rendered it necessary.
Whether therefore, we consult the law of nations, the tenor of treaties, or the dictates of reason and justice, no warrant, no pretext can be found for the British practice of making impressments from American vessels on the high seas.
Great Britain has the less to say in excuse for this practice as it is in direct contradiction to the principles on which she proceeds in other cases. Whilst she claims and seizes on the high seas, her own subjects voluntarily serving in American vessels, she has constantly given, when she could give as a reason for not discharging from her service American citizens, that they had voluntarily engaged in it. Nay, more. Whilst she impresses her own subjects from the American service, altho’ they may have been settled and married and even naturalized in the United States, she constantly refuses to release from hers, American citizens impressed into it, whenever she can give for a reason that they were either settled or married within her dominions. Thus, when the voluntary consent of the individual favors her pretensions, she pleads the validity of that consent. When the voluntary consent of the individual stands in the way of her pretensions it goes for nothing! When marriage or residence can be pleaded in her favor, she avails herself of the plea. When marriage & residence and even naturalization are against her, no respect whatever is paid to either! She takes by force her own subjects voluntarily serving in our vessels. She keeps by force American citizens involuntarily serving in hers. More flagrant inconsistencies cannot be imagined.
Notwithstanding the powerful motives which ought to be felt by the British Government to relinquish a practice which exposes it to so many reproaches; it is foreseen that objections of different sorts will be pressed on you. You will be told first, of the great number of British seamen in the American trade and of the necessity for their services in time of war and danger. Secondly—Of the right and the prejudice of the British nation with respect to what are called the British or narrow seas, where its domain would be abandoned by the general stipulation required. Thirdly—Of the use which would be made of such a sanctuary as that of American vessels, for desertions and traitorous communications to her enemies, especially across the channel to France.
1st. With respect to the British seamen serving in our trade it may be remarked, first, that the number tho’ considerable, is probably less than may be supposed; secondly, that what is wrong in itself cannot be made right by considerations of expediency or advantage; thirdly, that it is proved by the fact that the number of real British subjects gained by the practice in question, is of inconsiderable importance even in the scale of advantage. The annexed report to Congress on the subject of impressments, with the addition of such cases as may be in the hands of Mr. Erving, will verify the remark in its application to the present war. The statement made by his predecessor during the last war, and which is also annexed, is in the same view still more conclusive. The statement comprehends not only all the applications made by him in the first instance, for the liberation of impressed seamen, between the month of June 1797 and September 1801, but many also which had been made previous to this Agency, by Mr. Pinckney and Mr. King and which it was necessary for him to renew. These applications therefore may fairly be considered as embracing the greater part of the period of the war; and as applications are known to be pretty indiscriminately made, they may further be considered as embracing if not the whole the far greater part of the impressments, those of British subjects as well as others. Yet the result exhibits 2,059 cases only, and of this number, 102 seamen only detained as being British subjects, which is less than 1/20 of the number impressed; and 1142 discharged or ordered to be so, as not being British subjects, which is more than half of the whole number, leaving 805 for further proof, with the strongest presumption that the greater part, if not the whole were American or other aliens, whose proof of citizenship had been lost or destroyed, or whose situation would account for the difficulties and delays in producing it. So that it is certain, that for all the British seamen gained by this violent proceeding, more than an equal number who were not so were the victims; it is highly probable that for every British seaman so gained, a number of others not less than 10 for one must have been the victims, and it is even possible that this number may have exceeded the proportion of twenty to one.
It cannot therefore be doubted that the acquisition of British seamen, by these impressments, whatever may be its advantage, is lost in the wrong done to Americans ignorantly or wilfully mistaken for British subjects; in the jealousy and ill will excited among all maritime nations by an adherence to such a practice; and in the particular provocation to measures of redress on the part of the United States not less disagreeable to them, than embarrassing to Great Britain, and which may threaten the good understanding which ought to be faithfully cultivated by both. The copy of a Bill brought into Congress under the influence of violations committed on our flag, gives force to this latter consideration. Whether it will pass into a law, and at the present session, is more than can yet be said. As there is every reason to believe that it has been proposed with reluctance, it will probably not be pursued into effect, if any hope can be supported of a remedy by an amicable arrangement between the two nations. But such is the feeling thro’ this country, produced by the reiterated and atrocious cases of impressments and other insults on our flag, that a remedy of some kind will ere long be called for in a tone not to be disregarded. A copy of the Bill referred to is herewith inclosed.
There is a further consideration which ought to have weight in this question. Altho’ the British seamen employed in carrying on American commerce, be in some respects lost to their own nation, yet such is the intimate and extensive connection of this commerce, direct and circuitous, with the commerce, the manufactures, the revenue and the general resources of the British nation, that in other respects its mariners, on board American vessels, may truly be said to be rendering it the most valuable services. It would not be extravagant to make it a question, whether Great Britain would not suffer more by withdrawing her seamen from the merchant vessels of the United States, than her enemies would suffer from the addition of them to the crews of her ships of war and cruizers.
Should any difficulty be started concerning seamen born within the British dominions, and naturalized by the United States since the Treaty of 1783, you may remove it by observing; first that very few if any such naturalizations can take place, the law here requiring a preparatory residence of five years with notice of the intention to become a citizen entered of record two years before the last necessary formality; besides a regular proof of good moral character; conditions little likely to be complied with by ordinary seafaring persons: secondly, that a discontinuance of impressments on the high seas will preclude an actual collision between the interfering claims. Within the jurisdiction of each nation and in their respective vessels on the high seas, each will enforce the allegiance which it claims. In other situations the individuals doubly claimed will be within a jurisdiction independent of both nations.
2d. The British pretensions to domain over the narrow seas are so obsolete, and so indefensible, that they never would have occurred as a probable objection in this case, if they had not actually frustrated an arrangement settled by Mr. King with the British Ministry on the subject of impressments from American vessels on the high seas. At the moment when the articles were expected to be signed an exception of the “narrow seas” was urged and insisted on by Lord St. Vincent; and being utterly inadmissible on our part, the negotiation was abandoned. Mr. King seems to be of opinion however, that with more time than was left him for the experiment, the objection might have been overcome. This is not improbable if the objection was not merely an expedient for evading a relinquishment of a favorite practice.
The objection in itself has certainly not the slightest foundation. The time has been indeed when England not only claimed but exercised pretensions scarcely inferior to full sovereignty over the seas surrounding the British Isles, and even as far as Cape Finisterre to the south and Nanstaten in Norway to the north. It was a time however, when reason had little share in determining the law and the intercourse of nations, when power alone decided questions of right and when the ignorance and want of concert among other maritime countries facilitated such an usurpation. The progress of civilization and information has produced a change in all those respects; and no principle in the code of public law is at present better established than the common freedom of the seas beyond a very limited distance from the territories washed by them. This distance is not indeed fixed with absolute precision. It is varied in a small degree by written authorities, and perhaps it may be reasonably varied in some degree by local peculiarities. But the greatest distance which would now be listened to any where, would make a small proportion of the narrowest part of the narrowest seas in question.
What are in fact the prerogatives claimed and exercised by Great Britian over these seas? If they were really a part of her domain, her authority would be the same there as within her other domain. Foreign vessels would be subject to all the laws and regulations framed for them, as much as if they were within the harbours or rivers of the country. Nothing of this sort is pretended. Nothing of this sort would be tolerated. The only instances in which these seas are distinguished from other seas, or in which Great Britain enjoys within them, any distinction over other nations, are first, the compliment paid by other flags to hers; secondly the extension of her territorial jurisdiction in certain cases to the distance of four leagues from the coast. The first is a relic of ancient usurpation, which has thus long escaped the correction which modern and more enlightened times have applied to other usurpations. The prerogative has been often contested however, even at the expence of bloody wars, and is still borne with ill will and impatience by her neighbors. At the last treaty of peace at Amiens, the abolition of it was repeatedly and strongly pressed by France; and it is not improbable that at no remote day it will follow the fate of the title of “King of France” so long worn by the British monarchs and at length so properly sacrificed to the lessons of a magnanimous wisdom. As far as this homage to the British flag has any foundation at present, it rests merely on long usuage and long acquiescence, which are construed, as in a few other cases of maritime claims, into the effect of a general tho’ tacit convention. The second instance is the extension of the territorial jurisdiction to four leagues from the shore. This too, as far as the distance may exceed that which is generally allowed, rests on a like foundation, strengthened perhaps, by the local facility of smuggling, and the peculiar interest which Great Britain has in preventing a practice affecting so deeply her whole system of revenue, commerce and manufactures: whilst the limitation itself to four leagues necessarily implies that beyond that distance no territorial jurisdiction is assumed.
But whatever may be the origin or the value of these prerogatives over foreign flags in one case, and within a limited portion of these seas in another, it is obvious that neither of them will be violated by the exemption of American vessels from impressments which are nowise connected with either; having never been made on the pretext either of withholding the wonted homage to the British flag, or of smuggling in defiance of British laws.
This extension of the British law to four leagues from the shore is inferred from an Act of Parliament passed in the year 1736 (9 G. 2. C. 35) the terms of which comprehend all vessels, foreign as well as British. It is possible however, that the former are constructively excepted. Should your enquiries ascertain this to be the case, you will find yourself on better ground, than the concession here made.
With respect to the compliment paid to the British flag, it is also possible that more is here conceded than you may find to be necessary. After the peace of 1783, this compliment was peremptorily withheld by France, in spite of the remonstrances of Great Britain; and it remains for your enquiry, whether it did not continue to be refused, notwithstanding the failure at Amiens to obtain from Great Britain a formal renunciation of the claim.
From every view of the subject, it is reasonable to expect that the exception of the narrow seas, from the stipulation against impressments, will not be inflexibly maintained. Should it be so, your negotiation will be at an end. The truth is, that so great a proportion of our trade direct and circuitous passes thro’ those channels, and such is its peculiar exposure in them to the wrong practised, that with such an exception, any remedy would be very partial. And we can never consent to purchase a partial remedy, by confirming a general evil, and by subjecting ourselves to our own reproaches, as well as to those of other nations.
3d. It appears, as well by a letter from Mr. Thornton, in answer to one from me, of both which copies are inclosed, as from conversations with Mr. Merry that the facility, which would be given, particularly in the British channel, by the immunity claimed for American vessels, to the escape of traitors, and the desertion of others whose services in time of war may be particularly important to an enemy, forms one of the pleas for the British practice of examining American crews, and will be one of the objections to a formal relinquishment of it.
This plea, like all others, admits a solid and satisfactory reply. In the first place, if it could prevail at all against the neutral claim, it would authorize the seizure of the persons described only, and in vessels bound to a hostile country only; whereas the practice of impressing is applied to persons few or any of whom are alleged to be of either description, and to vessels whithersoever bound, even to Great Britain herself. In the next place, it is not only a preference of a smaller object on one side to a greater object on the other; but a sacrifice of right on one side to expediency on the other side.
Considering nevertheless, the possible adherence of the British Government to this last objection, and the extreme importance to our seafaring citizens and commerce, of a stipulation suppressing a practice flagrant in its nature, and still more so in the abuses inseparable from it, you are left at liberty to concur, if necessary in the modification as it stands in the second column. You will observe that this guards in all cases the crews of our vessels from being meddled with, and in referring, for an exception to the immunity on board our vessels, to the law of nations, yields no principle maintained by the United States; inasmuch as the reference will be satisfied by the acknowledged exception of enemies in military service. Should persons, therefore, other than such, be taken, under pretext of the law of nations, the United States will be free to contest the proceeding; and there is the less difficulty in leaving the stipulation on this footing, as the case may never happen, and will be pretty sure to happen but rarely. You will observe also, that in the passage from one port to another of the respective countries, the vessels of the neutral parties are to protect all persons without exception. Independently of the general principle asserted by the United States, this respect is due to the peculiar character of the coasting trade, and the utter improbability that it will at any time be a vehicle to persons of any obnoxious description.
On Article II.
The reasonableness of this article is manifest. Citizens or subjects of one country residing in another, tho’ bound by their temporary allegiance to many common duties, can never be rightfully forced into military service, particularly external service, nor be restrained from leaving their residence when they please. The law of nations protects them against both; and the violation of this law, by the avowed impressment of American citizens residing in Great Britain, may be pressed with the greater force on the British Government as it is in direct inconsistency with her impressment of her own subjects bound by much stronger ties to the United States, as above explained, as well as with the spirit of her commercial laws and policy, by which foreigners are invited to a residence. The liberation of the persons comprehended by this article therefore, cannot be justly or honorably refused, and the provision for their recompence and their return home, is equally due to the service rendered by, and the wrong done to them.
On Article III.
This regulation is comformable to the law of nations, and to the tenor of all treaties which define the belligerent claim of visiting and searching neutral vessels. No treaty can be cited in which the practice of compelling the neutral vessel to send its boat, its officers, its people or its papers to the belligerent vessel, is authorized. British treaties, as well as those to which she is not a party, in every instance where a regulation of the claim is undertaken, coincide with the article here proposed. The article is in fact almost a transcript of the NA article of the Treaty of 1786 between Great Britain and France.
The regulation is founded in the best reasons—1st. It is sufficient for the neutral, that he acquiesces in the interruption of his voyage, and the trouble of the examination, imposed by the belligerent Commander. To require a positive and active co-operation on his part in behalf of the latter, is more than can be justified on any principle. 2d. The belligerent party can always send more conveniently to the neutral vessel, than this can send to the belligerent vessel; having neither such fit boats for the purpose, especially in a rough sea, nor being so abundantly manned. 3d. This last consideration is enforced by the numerous and cruel abuses committed in the practice of requiring the neutral vessel to send to the belligerent. As an example you will find in the documents now transmitted a case where neither the smallness and leakiness of the boat, nor the boisterous state of the weather, nor the pathetic remonstrances of the neutral commander had any effect on the imperious injunctions of the belligerent, and where the task was performed at the manifest peril of the boat, the papers, and the lives of the people. The limitation of the number to be sent on board the neutral vessel is a reasonable and usual precaution against the danger of insults and pillage.
On Article IV.
This enumeration of contraband articles is copied from the Treaty of 1781 between Great Britain and Russia. It is sufficiently limited, and that treaty is an authority more likely than any other, to be respected by the British Government. The sequel of the article, which protects the productions of an hostile colony converted into neutral property, is taken from the same model, with the addition of the terms “in any case or on any pretext.” This addition is meant to embrace more explicitly, our right to trade freely with the colonies at war with Great Britain, and between them and all parts of the world in colonial productions, being at the time not enemy’s but neutral property; a trade equally legitimate in itself with that between neutral countries directly and in their respective vessels, and such colonies, which their regulations do not contest.
In support of this right, in opposition to the British doctrine, that a trade not allowed by a nation in time of peace, cannot be opened to neutrals in time of war, it may be urged, that all nations are in the practice of varying more or less in time of war their commercial laws, from the state of these laws in time of peace, a practice agreeable to reason as well as favorable to neutral nations; that the change may be made in time of war, on considerations not incident to a state of war, but on such as are known to have the same effect in time of peace; that Great Britain herself is in the regular practice of changing her navigation and commercial laws, in time of war, particularly in relation to a neutral intercourse with her colonies; that at this time she admits a trade between neutral countries and the colonies of her enemies, when carried on directly between, or between the former and herself, interrupting only a direct trade between such colonies and their parent state, and between them and countries in Europe, other than those to which the neutral trade may respectively belong; that as she does not contest the right of neutrals to trade with hostile colonies, within these limitations the trade can be and actually is carried on indirectly between such colonies and all countries, even those to which the colonies belong; and consequently that the effect of her doctrine and her practice, is not to deprive her enemy of their colonial trade but merely to lessen the value of it in proportion to the charges incident to the circuitous course into which it is forced; an advantage to her which if just in itself, would not be sufficiently so to balance the impolitic vexations accruing to neutral and friendly nations.
These views of the subject have entered into my conversations with Mr. Merry. He expresses, notwithstanding, a belief that Great Britain will turn an unfavorable ear to any proposition calculated to give her enemies the resources of their colonial trade, beyond the degree in which her present regulations permit. This is doubtless to be apprehended; but considering the proposition as an article which may find a balance in the general bargain, it may not be inadmissible; or if inadmissible in the extent proposed, a middle ground may perhaps be accepted. The colonial trade in question consists of four branches; first between the colonies and Great Britain herself; secondly, between the colonies and the neutral countries carrying on the trade; thirdly between the colonies and neutral countries not themselves carrying on the trade; fourthly, between the colonies and the countries to which they belong or which are parties to the war with Great Britain.
The first and second branches are those with which her own regulations accord. The last is that to which her aversion will of course be the strongest. Should this aversion be unconquerable, let it be tried then, and then only, whether on our yielding or rather omitting that point, she will not yield to us in return the direct trade between hostile colonies and neutral colonies generally. You will be careful, however, so to modify the compromise as will mark as little as may be, a positive relinquishment of the direct trade between the belligerent nations and their colonies.
Should such a compromise be altogether rejected, you will limit the article to the simple enumeration of contraband, it being desirable that without a very valuable consideration, no precedent should be given by the United States of a stipulated acknowledgment that free ships do not make free goods. And you will omit the article altogether, if a proper list of contraband cannot be agreed on, particularly one that excludes money, provisions and naval stores.
On Article V.
This article taken from the Convention of 1800 between the United States and France, is conformable to the general practice of the prize Courts in the latter, and is the more worthy of adoption every where as it would contribute so much to the consistency and stability of the rules of Admiralty proceedings. Without a single objection justly lying against it, it will have the important advantages, of being a check on the inferior tribunals, of enabling the superior tribunal where a faulty reason appears on the face of the sentence, to correct the wrong without delay or expense, and of being a check moreover on the decision of the superior tribunal itself. As prize causes also are tried by courts not of a third party, but of one of the parties interested, it is but reasonable that the ground should be known to the other on which judgment has passed against its citizens or subjects; in order, if deemed proper, that negotiations may be employed for redressing past or guarding against future injustice.
On Article VI.
The fictitious blockade proclaimed by Great Britain and made the pretext for violating the commerce of neutral nations, has been one of the greatest abuses ever committed on the high seas. During the late war they were carried to an extravagance which would have been ridiculous, if in their effects they had not inflicted such serious and extensive injuries on neutral nations. Ports were proclaimed in a state of blockade, previous to the arrival of any force at them, were considered in that state without regard to intermissions in the presence of the blockading force, and the proclamations left in operation after its final departure; the British cruizers during the whole time seizing every vessel bound to such ports, at whatever distance from them, and the British prize courts pronouncing condemnations wherever a knowledge of the proclamation at the time of sailing could be presumed, altho’ it might afterwards be known that no real blockade existed. The whole scene was a perfect mockery, in which fact was sacrificed to form, and right to power and plunder. The United States were among the greatest sufferers; and would have been still more so, if redress for some of the spoliations proceeding from this source, had not fallen within the provisions of an article in the Treaty of 1794.
From the effect of this and other arbitrary practices of Great Britain, on the temper and policy of neutral nations towards her; from the spirit of her Treaty made near the close of the late war with Russia; from the general disposition manifested at the beginning of the present, towards the United States, and the comparative moderation observed in Europe with respect to blockades (if indeed the two cases of the Weser and Elbe are not to be excepted) it was hoped that the mockeries and mischiefs practised under the name of blockades, would no where be repeated. It is found however that the West Indies are again the Theatre of them. The three entire and extensive Islands of Martinique, Guadaloupe and St. Domingo have been published as in a state of blockade, altho’ the whole naval force applied to the purpose is inconsiderable, altho’ it appears that a part of this inconsiderable force is occasionally seen at the distance of many leagues at sea; altho’ it does not appear that more than one or two ports at most, have at any time been actually blockaded; and although complaints are heard that the British ships of war do not protect their own trade, against the numerous cruizers from the Islands under this pretended blockade.
Inclosed herewith are three letters on this subject, two from me, the first to Mr. Thornton, the second to Mr. Merry, and the third from Mr. Merry to me. You will observe that he does not pretend to justify the measures pursued in the West Indies; but on the contrary wishes them to be regarded as proceeding from an officer who does not pursue the intentions of his Government. Still such measures prove that no general regulations or orders have been yet issued by that Government against the evil, as might reasonably have been expected; and that a stipulated security against it, is an object as important as it is just.
In the two letters to Mr. Thornton and Mr. Merry, the ground is marked out on which you will be able to combat the false blockades, and to maintain the definition of a real one, contained in the proposed article which is a literal copy from the 4th article of the Russian Treaty above cited. In addition to these letters, you will find enclosed a letter of the NA of NA to Mr. Pinckney, in which some views are taken of the subject, which may also be of use in your discussions with the British Government.
On Article VII.
This article is due, if not to all neutrals, at least to the United States, who are distinguished by the distance of their situation. Decisions of the British Court of Admiralty, have so far respected this peculiarity as to admit a want of information as a plea for going to a blockaded port, where such a plea would be refused to less remote countries. But more than this may fairly be claimed. A vessel, knowing that a particular blockade existed two months before, may well conjecture that before her arrival at the port, which will require two months more, the blockade will have ceased; and may accordingly clear and steer for such a port with an honest intention, in case of finding on her approach, the fact otherwise, not to attempt an unlawful entrance. To condemn vessels under such circumstances would be manifestly unjust; and to restrain them from a distant voyage to a port once in a state of blockade until information of a change shall have travelled a like distance, must produce a delay and uncertainty little short of an absolute prohibition of the commerce. To require them even to go out of their course, to seek at other ports information on the subject would be an unreasonable imposition. The British Government can have little objection to this article, after defining blockades as is agreed with Russia and as is here proposed; since our distance is of itself, a security against any concert with the blockaded, for surreptitious entries, which might be attempted by nearer adventurers; and since in the case of blockades by a force actually present, a preliminary notice may be required without impairing their efficacy as might be the case with blockades, such as the preceding article guards against.
The only difference between the articles as standing in the different columns, consists in the preamble to that which is to be admitted, if the proposition of the other should not succeed. The article is preferable without the recital of any reason particular to the United States, because as a naked stipulation, it strengthens instead of weakening a general principle friendly to neutral and pacific nations.
On Article VIII, IX, and X.
These are articles which are known to have been long wished and contemplated on the part of Great Britain, and together with the justice and in many views the expediency to Great Britain herself of the articles desired on our part, may induce her to accede to the whole. The articles are in substance the same with a project offered to the American administration in the year 1800 by Mr. Liston, who appears to have borrowed it from corresponding stipulations in the Convention between the United States and France in the year —. The project was at that time dropped, owing perhaps in part to the change in the head of the Department of State, between whom and Mr. Liston it had been discussed, and principally, to the difficulty of combining with it proper stipulations against British impressments on the high seas. Without such an equivalent, the project had little to recommend it to the United States. Considered by itself it was too the less admissible as one of its articles, under some obscurity of expression, was thought to favor the British pretension to impress British seamen from American vessels on the high seas.
A copy of this document is inclosed, as it may be not without use in shewing the ideas of the British Government at that time; so far at least as its Minister here was an organ of them.
The terms in which these articles are to be proposed, differ but slightly from those in which they may be admitted. In the former the delivery of deserters is confined to soldiers and seamen, without requiring a delivery of officers, whose desertion will not be from the service of their country; but on account of offences for which it might sometimes be more agreeable to the United States to be unbound to give them up for trial and punishment. At the same time this consideration ought not to be a bar to an arrangement, which in its general character will be so important to the interests of the United States.
On Article XI.
This is a stipulation which is not to be yielded but in the event of its being made an indispensable condition. It cannot be essential for the object of it, whilst the British Government is left free to take the precautions allowable within its own jurisdiction for preventing the clandestine departure of its seamen or its soldiers in neutral vessels. And it is very ineligible to the United States, inasmuch as it will be difficult to enforce the prohibition, whether we regard the embarkation of such persons in British ports, or their landing on the American shores; and inasmuch as the inefficacy of regulations for such purposes tho’ made with due sincerity and care, may become a source of secret jealousy and dissatisfaction, if not of controversy and reproach.
The article is copied from that in the arrangement (of which you have a copy) discussed and brought near to a conclusion between Mr. King and the British Ministry and you are authorized to accede to it, on the supposition, that it may again be insisted on. It is to be recollected however that the article was then understood to be the only price given for relinquishing the impressment of American seamen. The other offers now substituted will justify you in pressing the omission of the original one.
On Article XII.
The law of nations does not exact of neutral powers the prohibition specified in this article. On the other hand it does not restrain them from prohibiting a trade which appears on the face of the official papers proceeding from the custom house to be intended to violate the law of nations, and from which legitimate considerations of prudence may also dissuade a Government. All that can be reasonably expected by belligerent from neutral powers, is that their regulations on this subject be impartial, and that their stipulations relative to it, when made in time of war at least, should not preclude an impartiality.
It is not certain what degree of value Great Britain may put on this article, connected as it essentially is with the NA article which limits the list of contraband. It will at least mitigate her objection to such a limitation. With the range given to contraband by her construction of the law of nations, even as acquiesced in by the United States, a stipulation of this sort would be utterly inadmissible.
The last article, in making this City, the place for exchanging the ratifications, consults expedition in putting the Treaty into operation, since the British ratification can be forwarded at the same time with the instrument itself. And it is otherwise reasonable that as the negotiation and formation of the Treaty will have taken place at the seat of the British Government, the concluding formality should be at that of the Government of the United States.
In addition to these articles, which with the observations thereon, I am charged by the President to communicate to you as his instructions, he leaves you at liberty to insert any others which may do no more than place British armed vessels with their prizes on an equality within our ports and jurisdiction, with those of France. This would only stipulate what would probably be done by gratuitous regulations here, and as it would no doubt be acceptable to Great Britain, it may not only aid in reconciling her to the principal objects desired by the United States, but may induce her to concur in the further insertion of articles, corresponding with those in the Convention of 1800 with France, which regulate more precisely and more effectually the treatment of vessels of the neutral party on the high seas.
The occasion will be proper also, for calling the attention of the British Government to the reasonableness of permitting American Consuls to reside in every part of her dominions, where, and so long as, she permits our citizens to trade. It is not denied that she has a natural right to refuse such a residence, and that she is free by her treaty with us, to refuse it in other than her European dominions. But the exception authorized with respect to the residence of Consuls elsewhere, having reference to the refusal of our trade elsewhere, the refusal of the one ought manifestly to cease with the refusal of the other. When our vessels and citizens are allowed to trade to ports in the West Indies, there is the same reason for a contemporary admission of Consuls to take care of it, as there is for their admission in ports where the trade is permanently allowed. There is the juster expectation of your success on this point, as some official patronage is due to the rights of our citizens in the prize courts established in the West India Islands. Should the British Government be unwilling to enter into a stipulated provision, you may perhaps obtain an order to the Governors for the purpose: or if consuls be objected to altogether, it is desirable that agents may be admitted, if no where else, at least in the Islands where the Vice Admiralty Courts are established.
It has been intimated that the articles as standing in the different columns, are to be considered, the one as the offer to be made, the other as the ultimatum to be required. This is however not to be taken too strictly, it being impossible to forsee the turns and the combinations, which may present themselves in the course of the negotiation. The essential objects for the United States are the suppression of impressments and the definition of blockades. Next to these in importance, are the reduction of the list of contraband, and the enlargement of our neutral trade with hostile colonies. Whilst you keep in view therefore those objects, the two last as highly important, and the two first as absolutely indispensable, your discretion, in which the President places great confidence, must guide you in all that relates to the inferior ones.
With sentiments of great respect and esteem,
I remain sir, Your most Ob Sert.
TO ROBERT R. LIVINGSTON.1d. of s. mss. instr.
Department of State, January 31, 1804.
The two last letters received from you bear date on the NA and 30th of September, so that we have been now four months without hearing from you. The last from me to you was dated on the 16th day of January, giving you information of the transfer of Louisiana on the 20th of December by the French Commissioner Mr. Laussat to Governor Claiborne and General Wilkinson, the Commissioners appointed on the part of the United States to receive it. The letters subsequent to that date from Governor Claiborne who is charged with the present administration of the ceded territory shew that the occupancy by our troops of the military posts on the Island of New Orleans and on the Western side of the Mississippi was in progression, and that the state of things in other respects was such as was to be expected from the predisposition of the bulk of the inhabitants and the manifest advantages to which they have become entitled as citizens of the United States. A bill providing for the Government of the territory has been some time under the deliberation of the Senate, but has not yet passed to the other branch of the Legislature. The enclosed copy shews the form in which it was introduced. Some alterations have already been made and others may be presumed. The precise form in which it will pass cannot therefore be foreknown; and the less so as the peculiarities and difficulties of the case give rise to more than the ordinary differences of opinion. It is pretty certain that the provisions generally contemplated will leave the people of that District for a while without the organization of power dictated by the Republican theory; but it is evident that a sudden transition to a condition so much in contrast with that in which their ideas and habits have been formed, would be as unacceptable and as little beneficial to them as it would be difficult for the Government of the United States. It may fairly be expected that every blessing of liberty will be extended to them as fast as they shall be prepared and disposed to receive it. In the mean time the mild spirit in which the powers derived from the Government of the United States will under its superintendence be administered, the parental interest which it takes in the happiness of those adopted into the general family, and a scrupulous regard to the spirit and tenor of the Treaty of Cession, promise a continuance of that satisfaction among the people of Louisiana which has thus far shewn itself. These observations are made that you may be the better enabled to give to the French Government the explanations and assurances due to its solicitude in behalf of a people whose destiny it has committed to the justice, the honor and the policy of the United States.
It does not appear that in the delivery of the Province by the Spanish authorities to Mr. Laussat any thing passed denoting its limits either to the East, the West or the North; nor was any step taken by Mr. Laussat, either whilst the province was in his hands or at the time of his transferring it to ours, calculated to dispossess Spain of any part of the territory East of the Mississippi. On the contrary in a private conference he stated positively that no part of the Floridas was included in the Eastern boundary; France having strenuously insisted to have it extended to the Mobille, which was peremptorily refused by Spain.
We learn from Mr. Pinckney that the Spanish Government holds the same language to him. To the declaration of Mr. Laussat however we can oppose that of the French Minister made to you, that Louisiana extended to the River Perdido; and to the Spanish Government as well as to that of France we can oppose the Treaties of St. Ildefonso, and of September 30, 1803, interpreted by facts and fair inferences. The question with Spain, will enter into the proceedings of Mr. Monroe, on his arrival at Madrid, whither he will be instructed to repair, as soon as he shall have executed at London, the instructions lately transmitted to him in relation to the impressment of seamen from American vessels, and several other points which call for just and stipulated arrangements between the two countries. As the question relates to the French Government, the President relies on your prudence and attention for availing yourself of the admission by Mr. Marbois, that Louisiana extended to the River Perdido, and for keeping the weight of that Government in our scale, against that of Spain. With respect to the Western extent of Louisiana, Mr. Laussat held a language more satisfactory. He considered the Rio Bravo or Del Norde as far as the 30° of North latitude, as its true boundary on that side. The Northern boundary we have reason to believe was settled between France and Great Britain by Commissioners appointed under the Treaty of Utrecht, who separated the British and French territories west of the Lake of the Woods by the 49° of Latitude. In support of our just claims in all these cases, it is proper that no time should be lost in collecting the best proofs which can be obtained. This important object, has already been recommended generally to your attention. It is particularly desirable that you should procure an authenticated copy of the commercial charter granted by Louis XIV. to Crozat in 1712, which gives an outline to Louisiana favorable to our claims, at the same time that it is an evidence of the highest and most unexceptionable authority. A copy of this charter is annexed to the English translation of Joutel’s Journal of La Salle’s last voyage, the French original not containing it. A record of the charter doubtless exists in the archives of the French Government, and it may be expected that an attested copy will not be refused to you. It is not improbable that the charter or other documents relating to the Mississippi project a few years after, may afford some light and be attainable from the same source. The proceedings of the Commissioners under the treaty of Utrecht, will merit particular research; as they promise not only a favorable Northern boundary, but as they will decide an important question involved in a convention of limits now depending between the United States and Great Britain. To those may be added whatever other documents may occur to your recollection or research, including maps &c. If the secret Treaty of Paris in 1762-3 between France and Spain, and an entire copy of that of St. Ildefonso in 1800 can be obtained, they may also be useful. An authentication of the precise date at least of the former, is very important. You will be sensible of the propriety of putting Mr. Monroe in possession of all the proofs and information which you may obtain. Should he take Paris in his way to Madrid, you will have the best of opportunities for the purpose. . . .1
TO JAMES MONROE.mad. mss.
Washington, Feby 16, 1804.
In a private letter by Mr. Baring I gave you a detail of what had passed here on the subject of etiquette.1 I had hoped that no farther jars would have ensued as I still hope that the good sense of the British government respecting the right of the government here to fix its routes of intercourse and the sentiments and manners of the country to which they ought to be adapted will give the proper instructions for preventing like incidents in future. In the mean time a fresh circumstance has taken place which calls for explanation.2
The President desirous of keeping open for cordial civilities whatever channels the scruples of Mr. My might not have closed asked me what these were understood to be and particularly whether he would come and take friendly and familar dinners with him I undertook to feel his pulse thro’ some hand that would do it with the least impropriety. From the information obtained I inferred that an invitation would be readily accepted and with the less doubt as he had dined with me (his lady declining) after the offence originally taken. The invitation was accordingly sent and terminated in the note from him to me & my answer herewith inclosed. I need not comment on this display of diplomatic superstition, truly extraordinary in this age and in this country. We are willing to refer it to the personal character of a man accustomed to see importance in such trifles and over cautious against displeasing his government by surrendering the minutest of his or its pretensions What we apprehend is, that with these causes may be mingled a jealousy of our disposition towards England and that the mortifications which he has inflicted on himself are to be set down to that account. In fact it is known that this jealousy particularly since the final adjustment with France exists or is affected in a high degree and will doubtless give its colour to the correspondence of the legation with its government. To apply an antidote to this poison will require your vigilant and prudent attention. It can scarcely be believed that the British Govt will not at once see the folly committed by its representative especially in the last scene of the farce and that it will set him right in that respect. But it may listen with a different ear to suggestions that the U. S. having now less need of the friendship of Britain may be yielding to a latent enmity towards her. The best of all proofs to the contrary would be the confidential communications you possess, if it were not an improper condescension to disclose them for such a purpose. Next to that is the tenor of our measures, and the dictates of our obvious policy; on an appeal to both of which you may found the strongest assurances that the Govt of the U. S. is sincerely and anxiously disposed to cultivate harmony between the two Nations. The President wishes you to lose no oppory and spare no pains that may be necessary to satisfy the British Administration on this head and to prevent or efface any different impressions which may be transmitted from hence.
I collect that the cavil at the pele mele here established turns much on the alledged degradation of ministers and envoies to a level with chargés d’affaires. The truth is, and I have so told Mr. Merry that this is not the idea; that the President did not mean to decide anything as to their comparative grades or importance; that these would be estimated as heretofore; that among themselves they might fix their own ceremonies, and that even at the President’s table they might seat themselves in any subordination they pleased. All he meant was that no seats were to be designated for them, nor the order in which they might happen to sit to be any criterion of the respect paid to their respective commissions or Countries. On public occasions, such as an Inaugural speech &c. the Heads of Depts, with foreign Ministers, and others invited on the part of the Govt. would be in the same pêle mêle within the space assigned them. It may not be amiss to recollect that under the old Congress, as I understand, and even in the ceremonies attending the introduction of the new Govt the foreign ministers were placed according to the order in which their Govt acknowledged by Treaties the Independence of the U. States. In this point of view the pêle mêle is favorable both to G. B. and to Spain.
I have, I believe already told you that the President has discountenanced the handing first to the table the wife of a head of department applying the general rule of pele mele to that as to other cases.
The Marquis d’Yrujo joined with Merry in refusing an invitation from the Prest & has throughout made a common cause with him not however approving all the grounds taken by the latter. His case is indeed different and not a little awkward; having acquiesced for nearly three years in the practice agst which he now revolts. Pichon being a chargé only, was not invited into the pretensions of the two Plent. He blames their contumacy but I find he has reported the affair to his government which is not likely to patronize the cause of Merry & Yrujo.
Thornton has also declined an invitation from the Prest. This shews that he unites without necessity with Merry. He has latterly expressed much jealousy of our views founded on little and unmeaning circumstances.
The manners of Mr. M. disgust both sexes and all parties. I have time to add only my affecte. respects.
Mr. Merry has the honor to present his respects to Mr. Madison.
He has just had that of receiving a note from the Presidt of the U S of which the following is a copy.
Thomas Jefferson asks the favor of Mr. Merry to dinner with a small party of friends on monday the 13th at half past three Feb: 9, 04.
It so happens that Mr. Merry has engaged some company to dine with him on that day. Under other circumstances however he would have informed himself whether it is the usage as is the case in most countries for private engagements of every kind to give way to invitations from the chief magistrate of the U. S. and if such were the usage he would not have failed to have alleged it as a just apology for not receiving the company he has invited. But after the communication which Mr Merry had the honor to receive from Mr. Madison on the 12th of last month respecting the alteration which the Presidt. of the United States had thought proper should take place in regard to the treatment to be observed by the Executive government towards foreign ministers from those usages which had been established by his predecessors and after the reply which Mr Merry had the honor to make to that notice stating that notwithstanding all his anxiety to cultivate the most intimate and cordial intercourse with every of the government he could not take upon himself to acquiesce in that alteration on account of its serious nature, which he would therefore report to his own government and wait for their instructions upon it, it is necessary that he should have the honor of observing to Mr. Madison that combining the terms of the invitation above mentioned with the circumstances which have preceded it Mr. Merry can only understand it to be addressed to him in his private capacity and not as his Britannic Majestys minister to the United States. Now, however anxious he may be, as he certainly is, to give effect to the claim 1424. 12931above expressed of conciliating personally and privately the good opinion and esteem of Mr Jefferson he hopes that the latter will feel how improper it would be on his part to sacrifice to that desire the duty which he owes to his Sovereign and consequently how impossible it is for him to lay aside the consideration of his public character.
If Mr. Merry should be mistaken as to the meaning of Mr. Jefferson’s note and it should prove that the invitation is designed for him in his public capacity he trusts that Mr. Jefferson will feel equally, that it must be out of his power to accept it without receiving previously, through the channel of the Secretary of State the necessary formal assurances of the President’s determination to observe towards him those usages of distinction which have heretofore been shewn by the executive government of the U. S. to the persons who have been accredited to them as his majesty’s ministers.
Mr. Merry has the honor to request of Mr. Madison to lay this explanation before the President and to accompany it with the strongest assurances of his highest respect and consideration.
Washington, February 9, 1804.
Mr Madison presents his compliments to Mr. Merry. He has communicated to the President Mr. Merry’s note of this morning and has the honor to remark to him that the President’s invitation being in the stile used by him in like cases had no reference to the points of form which will deprive him of the pleasure of Mr Merry’s company at dinner on Monday next.
Mr. Madison tenders to Mr Merry his distinguished consideration.
Washington, Febv 9, 1804.
TO ROBERT R. LIVINGSTON.d. of s. mss. instr.
Department of State March 31st 1804.
Since my acknowledgment of yours of Oct. 20 & 31, I have received those of 2d, 15 & 23d November and 11th December.
In mine of January 31 I informed you that Louisiana had been transferred by the French Commissioner to our Commissioners on the 20th of December—that nothing had officially passed on the occasion concerning the boundaries of the ceded territory1 ; but that Mr. Laussat had confidentially signifiedthat it did not comprehend any part of West Florida; adding at the same time that it extended westwardly to the Rio Bravo otherwise called Rio del Norde. Orders were accordingly obtained from the Spanish authorities for the delivery of all the posts on the West side of the Mississippi as well as on the Island of New Orleans. With respect to the posts in West Florida, orders for the delivery were neither offered to, nor demanded by our Commissioners. No instructions have in fact been ever given them to make the demand. This silence on the part of the Executive was deemed eligible first because it was foreseen that the demand would not only be rejected by the Spanish authority at New Orleans which had in an official publication limited the Cession Westwardly by the Mississippi and the Island of New Orleans, but was apprehended as has turned out, that the French Commissioner might not be ready to support the demand, and might even be disposed to second the Spanish opposition to it; secondly because in the latter of these cases a serious check would be given to our title, and in either of them a premature dilemma would result between an overt submission to the refusal and a resort to force; thirdly because mere silence would be no bar to a plea at any time that a delivery of a part, particularly of the Seat of Government, was a virtual delivery of the whole; whilst in the mean time, we could ascertain the views and claim the interposition of the French Government, and avail ourselves of that and any other favorable circumstances for effecting an amicable adjustment of the question with the Government of Spain. In this state of things it was deemed proper by Congress in making the regulations necessary for the collection of Revenue in the Ceded territory and guarding against the new danger of smuggling into the United States thro’ the channels opened by it, to include a provision for the case of West Florida by vesting in the President a power which his discretion might accommodate to events. This provision is contained in the 11th taken in connection with the 4th Section of the Act herewith inclosed. The Act had been many weeks depending in Congress with these Sections word for word in it; the Bill had been printed as soon as reported by the Committee for the use of the members, and as two copies are by a usage of politeness always allotted for each foreign Minister here it must in all probability have been known to the Marquis D’Yrujo in an early stage of its progress. If it was not, it marks much less of that zealous vigilance over the concerns of his Sovereign than he now makes the plea for his intemperate conduct. For some days even after the Act was published in the Gazette of this City, be was silent. At length however he called at the Office of State, with the Gazette in his hand, and entered into a very angry comment on the 11th Section, which was answered by remarks (some of which it would seem from this written allusion to them were not well understood) calculated to assuage his dissatisfaction with the law, as far as was consistent with a candid declaration to him that we considered all of West Florida Westward of the Perdido as clearly ours by the Treaty of April 30, 1803, and that of S’Ildefonso.1 The conversation ended as might be inferred from his letters which followed it on the 7th and 17th inst., of which copies are herewith enclosed, as are also copies of my answer of NA and of his reply of NA. You will see by this correspondence, the footing on which, a rudeness which no Government can tolerate has placed him with this Government, and the view of it which must be unavoidably conveyed to our Minister at Madrid. It may be of some importance also that it be not misconceived where you are. But the correspondence is chiefly of importance as it suggests the earnestness with which Spain is likely to contest our construction of the Treaties of Cession, and the Spanish reasoning which will be employed against it; and consequently as it urges the expediency of cultivating the disposition of the French Government to take our side of the question. To this she is bound no less by sound policy, than by a regard to right.
She is bound by the former; because the interest she has in our friendship interests her in the friendship between us and Spain, which cannot be maintained with full effect, if at all, without removing the sources of collision lurking under a neighbourhood marked by such circumstances and which, considering the relation between France and Spain cannot be interrupted without endangering the friendly relations between the United States and France. A transfer from Spain to the United States of the territory claimed by the latter, or rather of the whole of both the Floridas on reasonable conditions, is in fact, nothing more than a sequel and completion of the policy which led France into her own treaty of Cession; and her discernment and her consistency are both pledges that she will view the subject in this light. Another pledge lies in the manifest interest which France has in the peaceable transfer of these Spanish possessions to the United States as the only effectual security against their falling into the hands of Great Britain. Such an event would be certain in case of a rupture between Great Britain and Spain, and would be particularly disagreeable to France, whether Great Britain should retain the acquisition for the sake of the important harbours and other advantages belonging to it, or should make it the basis of some transaction with the United States, which notwithstanding the good faith and fairness towards France (which would doubtless be observed on our part) might involve conditions too desirable to her enemy, not to be disagreeable to herself. It even deserves consideration that the use which Great Britain could make of the Territory in question, and the facility in seizing it, may become a casting motive with her to force Spain into War, contrary to the wishes and the policy of France.
The territory ceded to the United States is described in the words following “the Colony or province of Louisiana with the same extent that it now has in the hands of Spain, that it had when France possessed it, and such as it ought to be according to the Treaties subsequently passed between Spain and other States.”
In expounding this three-fold description, the different forms used must be so understood as to give a meaning to each description, and to make the meaning of each coincide with that of the others.
The first form of description is a reference to the extent which Louisiana now has in the hands of Spain. What is that extent as determined by its Eastern limits? It is not denied that the Perdido was once the Eastern limit of Louisiana. It is not denied that the Territory now possessed by Spain extends to the river Perdido. The river Perdido we say then is the limits to the Eastern extent of the Louisiana ceded to the United States.
This construction gives an obvious and pertinent meaning to the term “now” and to the expression “in the hands of Spain” which can be found in no other construction. For a considerable time previous to the treaty of peace in 1783 between Great Britain and Spain, Louisiana as in the hands of Spain was limited Eastwardly by the Mississippi, the Iberville &c. The term “now” fixes its extent as enlarged by that Treaty in contradistinction to the more limited extent in which Spain held it prior to that Treaty. Again the expression “in the hands or in the possession of Spain” fixes the same extent, because the expression cannot relate to the extent which Spain by her internal regulations may have given to a particular district under the name of Louisiana, but evidently to the extent in which it was known to other nations, particularly to the nation in Treaty with her, and in which it was relatively to other nations in her hands and not in the hands of any other nation. It would be absurd to consider the expression “in the hands of Spain” as relating not to others but to herself and to her own regulations; for the territory of Louisiana in her hands must be equally so and be the same, whether formed into one or twenty districts or by whatever name or names it may be called by herself.
What may now be the extent of a provincial district under the name of Louisiana according to the municipal arrangements of the Spanish Government is not perfectly known. It is at least questionable whether even these arrangements had not incorporated the portion of Louisiana acquired from Great Britain with the Western portion before belonging to Spain under the same Provincial Government. But whether such be the fact or not, the construction of the Treaty will be the same.
The next form of description refers to the extent which Louisiana had when possessed by France. What is this extent? It will be admitted that for the whole period prior to the division of Louisiana between Spain and Great Britain in 1762-3 or at least from the adjustment of boundary between France and Spain in 1719 to that event, Louisiana extended in the possession of France to the river Perdido. Had the meaning then of the first description been less determinate and had France been in possession of Louisiana at any time with less extent than to the Perdido, a reference to this primitive and long continued extent would be more natural and probable than to any other. But it happens that France never possessed Louisiana with less extent than to the Perdido; because on the same day that she ceded a part to Spain, the residue was ceded to Great Britain, and consequently as long as she possessed Louisiana at all, she possessed it entire that is in its extent to the Perdido. It is true that after the cession of Western Louisiana to Spain in the year 1762-3, the actual delivery of the Territory by France was delayed for several years, but it never can be supposed that a reference could be intended to this short period of delay during which France held that portion of Louisiana, without the Eastern portion, in the right of Spain only, not in her own right, when in other words she held it merely as the Trustee of Spain; and that a reference to such a possession for such a period should be intended rather than a reference to the long possession of the whole territory in her own acknowledged right prior to that period.
In the order of the French King in 1764 to Monsieur D’Abbadie for the delivery of Western Louisiana to Spain, it is stated that the Cession by France was on the 3d of November and the acceptance by Spain on the 13th of that month, leaving an interval of ten days. An anxiety to find a period during which Louisiana as limited by the Mississippi and the Iberville was held by France in her own right may possibly lead the Spanish Government to seize the pretext into which this momentary interval may be converted. But it will be a mere pretext. In the first place it is probable that the Treaty of Cession to Spain which is dated on the same day with that to Great Britain was like the latter a preliminary treaty, consummated and confirmed by a definitive treaty bearing the same date with the definitive treaty including the Cession to Great Britain, in which case the time and effect of each Cession would be the same whether recurrence be had to the date of the preliminary or definitive treaty. In the next place, the Cession by France to Spain was essentially made on the 3d of November 1762 on which day the same with that of the cession to Great Britain the right passed from France. The acceptance by Spain ten days after, if necessary at all to perfect the deed, had relation to the dates of the Cession by France and must have the same effect and no other, as if Spain had signed the deed on the same day with France. This explanation which rests on the soundest principles nullifies this interval of ten days so as to make the Cession to Great Britain and Spain simultaneous on the supposition that recurrence be had to the preliminary Treaty and not to the definitive treaty; and consequently establishes the fact that France at no time possessed Louisiana with less extent than to the Perdido; the alienation and partition of the Territory admitting no distinction of time. In the last place conceding even that during an interval of ten days the right of Spain was incompleat, and was in transitu only from France, or in another form of expression that the right remained in France, subject to the eventual acceptance of Spain, is it possible to believe that a description which must be presumed to aim at clearness and certainty, should refer for its purposes to so fugitive and equivocal a state of things, in preference to a state of things where the right and the possession of France were of long continuance and susceptible of neither doubt nor controversy. It is impossible. And consequently the only possible construction which can be put on the second form of description coincides with the only rational construction that can be put on the first; making Louisiana of the same extent that is to the River Perdido, both “as in the hands of Spain” and “as France possessed it.”
The third and last description of Louisiana is in these words “such as it ought to be according to the Treaties subsequently passed between Spain and other States.”
This description may be considered as an auxiliary to the two other and is conclusive as an argument for comprehending within the cession of Spain territory Eastward of the Mississippi and the Iberville, and for extending the cession to the river Perdido.
The only treaties between Spain and other nations that affect the extent of Louisiana as being subsequent to the possession of it by France are first the Treaty in 1783 between Spain and Great Britain and secondly the Treaty of 1795 between Spain and the United States.
The last of these Treaties affects the extent of Louisiana as in the hands of Spain, by defining the northern boundary of that part of it which lies East of the Mississippi and the Iberville. And the first affects the extent of Louisiana by including in the Cession from Great Britain to Spain, the Territory between that River and the Perdido; and by giving to Louisiana in consequence of that reunion of the Eastern and Western part, the same extent eastwardly in the hands of Spain as it had when France possessed it. Louisiana then as it ought to be according to treaties of Spain subsequent to the possession by France is limited by the line of demarkation settled with the United States and forming a Northern boundary; and is extended to the River Perdido as its Eastern boundary.
This is not only the plain and necessary construction of the words; but is the only construction that can give a meaning to them. For they are without meaning on the supposition that Louisiana as in the hands of Spain is limited by the Mississippi and the Iberville; since neither the one nor the other of those treaties have any relation to Louisiana that can affect its extent, but thro’ their relation to the limits of that part of it which lies Eastward of the Mississippi and the Iberville. Including this part therefore, as we contend within the extent of Louisiana and a meaning is given to both as pertinent as it is important. Exclude this part, as Spain contends from Louisiana and no treaties exist to which the reference is applicable.
This deduction cannot be evaded by pretending that the reference to subsequent treaties of Spain was meant to save the right of deposit and other rights stipulated to the commerce of the United States by the Treaty of 1795; first because, altho’ that may be an incidental object of the reference to that Treaty, as was signified by His Catholic Majesty to the Government of the United States, yet the principal object of the reference is evidently the territorial extent of Louisana: secondly, because the reference is to more than one treaty, to the Treaty of 1783 as well as to that of 1795, and the Treaty of 1783 can have no modifying effect whatever rendering it applicable, but on the supposition that Louisiana was considered as extending Eastward of the Mississippi and the Iberville into the Territory ceded by that Treaty to Spain.
In fine the construction which we maintain gives to every part of the Description of the Territory ceded to the United States, a meaning clear in itself and in harmony with every other part, and is no less conformable to facts, than it is founded in the ordinary use and analogy of the expressions. The construction urged by Spain gives, on the contrary, a meaning to the first description which is inconsistent with the very terms of it; it prefers in the second a meaning that is impossible or absurd; and it takes from the last all meaning whatever.
In confirmation of the meaning which extends Louisiana to the River Perdido, it may be regarded as most consistent with the object of the First Consul in the Cession obtained by him from Spain. Every appearance, every circumstance pronounces this to have been, to give lustre to his administration and to gratify natural pride in his nation, by reannexing to its domain possessions which had without any sufficient considerations, been severed from it; and which being in the hands of Spain, it was in the power of Spain to restore. Spain on the other side might be the less reluctant against the Cession in this extent as she would be only replaced by it, within the original limits of her possessions, the Territory East of the Perdido having been regained by her from Great Britain in the peace of 1783 and not included in the late cession.
It only remains to take notice of the argument derived from a criticism on the term “retrocede” by which the Cession from Spain to France is expressed. The literal meaning of this term is said to be that Spain gives back to France what she received from France; and that as she received from France no more than the territory West of the Mississippi and the Iberville that no more could be given back by Spain.
Without denying that such a meaning, if uncontrouled by other terms would have been properly expressed by the term “retrocede” it is sufficient and more than sufficient to observe 1st that with respect to France the literal meaning is satisfied; France receiving back what she had before alienated. Secondly that with respect to Spain, not only the greater part of Louisiana had been confessedly received by her from France, and consequently was literally ceded back by Spain as well as ceded back to France; but with respect to the part in question Spain might not unfairly be considered as ceding back to France what France had ceded to her; inasmuch as this Cession of it to Great Britain was made for the benefit of Spain, to whom on that account Cuba was restored. The effect was precisely the same as if France had in form made the Cession to Spain and Spain had assigned it over to Great Britain; and the Cession may the more aptly be considered as passing thro’ Spain, as Spain herself was a party to the Treaty by which it was conveyed to Great Britain. In this point of view, not only France received back what she had ceded, but Spain ceded back what she had received, and the etomology even of the term “retrocede” is satisfied. This view of the case is the more substantially just as the territory in question passed from France to Great Britain for the account of Spain but passed from Great Britain into the hands of Spain in 1783, in consequence of a War to which Spain had contributed but little compared with France, and in terminating which so favorably in this article for Spain, France had doubtless a preponderating influence. Thirdly, that if a course of proceeding might have existed to which the term “retrocede” would be more literally applicable, it may be equally said that there is no particular term which would be more applicable to the whole proceeding as it did exist. Fourthly, Lastly, that if this were not the case, a new criticism on the etimology of a single term can be allowed no weight against a conclusion drawn from the clear meaning of every other term and from the whole context.
In aid of these observation, I enclose herewith two papers which have been drawn up with a view to trace and support our title to Louisiana in its extent to the Perdido. You will find in them also the grounds on which its Western extent is maintainable against Spain, and its northern in relation to Great Britain.
On the whole we reckon with much confidence on the obligations & disposition of the French Government to favor our object with Spain, and on your prudent exertions to strengthen our hold on both, not only in relation to the true construction of the Treaty, but to our acquisition of the Spanish Territory Eastward of the Perdido on convenient and equitable conditions.
You will find herewith inclosed, copies of another correspondence sufficiently explaining itself, with the Marquis D’Yrujo on the commerce from our ports to S’ Domingo, to which is added a letter on that subject from Mr. Pichon. The ideas of the President, as well to the part which the true interest of France recommends to her, as to the part prescribed both to her and to the United States by the law of Nations were communicated in my letter of the 31st of January last. It is much to be desired that the French Government may enter into proper views on this subject. With respect to the trade in articles not for War there cannot be a doubt that the interest of France concurs with that of the United States. With respect to articles for War it is probably the interest of all nations that they should be kept out of hands likely to make so bad a use of them. It is clear at the same time that the United States are bound by the law of Nations to nothing further than to leave their offending citizens to the consequence of an illicit trade; and it deserves serious consideration how far their undertaking at the instance of one power to enforce the law of nations by prohibitory regulations to which they are not bound, may become an embarrassing precedent and stimulate pretensions and complaints of other powers. The French Government must be sensible also that prohibitions by one nation would have little effect, if others including Great Britain, should not follow the example. It may be added that the most which the United States could do in the case, short of prohibiting the export of contraband articles altogether, a measure doubtless beyond the expectations of France, would be to annex to the shipment of these articles a condition that they should be delivered elsewhere than in S’ Domingo and that a regulation of this kind would readily be frustrated by a reshipment of the articles after delivery elsewhere, in the same or other vessels in order to accomplish the forbidden destination. If indeed the prohibitory regulation on the part of the United States were the result of a stipulation and recommended by an equivalent concession, the objection to it as an inconvenient precedent would be avoided. If, for example, France would agree to permit the trade with S’. Domingo in all other articles, on condition that we would agree to prohibit contraband articles, no objection of that sort would lie against the arrangement; and the arrangement would in itself be so reasonable on both sides and so favorable even to the people of S’ Domingo, that the President authorizes you not only to make it, if you find it not improper, the subject of a frank conference with the French Government, but to put it into the form of a conventional regulation. Or, should this be objectionable, the object may be attained perhaps by a tacit understanding between the two Governments, which may lead to the regulations on each side respectively necessary. Altho’ a legal regulation on our part cannot be absolutely promised, otherwise than by a positive and mutual stipulation, yet with a candid explanation of this constitutional circumstance, there can be little risk in inspiring the requisite confidence that the Legislative authority here would interpose its sanction.
It is more important that something should be done in this, and done soon, as the pretext founded upon the supposed illegality of any trade whatever with the negroes in S’ Domingo, is multiplying depredations on our commerce not only with that Island but with the West Indies generally, to a degree highly irritating, and which is laying the foundation for extensive claims and complaints on our part. You will not fail to state this fact to the French Government in its just importance; as an argument for some such arrangement as is above suggested, or if that be disliked as requiring such other interposition of that Government as will put an end to the evil.
It is represented that a part of the depredations are committed by French armed vessels without Commissions, or with Commissions from incompetent authorities. It appears also that these lawless proceedings are much connected with Spanish ports and subjects, probably Spanish Officers also, in the West Indies, particularly in the Island of Cuba. So far as the responsibility of Spain may be involved, we shall not lose sight of it. An appeal at the same time to that of France is as pressing as it is just, and you will please to make it in the manner best calculated to make it effectual.
In one of your letters you apprehended that the interest accruing from the delay of the Commissioners at Paris may be disallowed by the French Government, and wish for instructions on the subject. I am glad to find by late communications from Mr. Skipwith that the apparent discontent at the delay had subsided. But whatever solicitude that Government might feel for dispatch in liquidating the claims, it would be a palpable wrong to make a disappointment in that particular, a pretext for refusing any stipulated part of the claims. In a legal point of view, the Treaty could not be in force until mutually ratified; and every preparatory step taken for carrying it into effect however apposite or useful, must be connected with legal questions arising under the Treaty.
In other parts of your correspondence you seem to have inferred from some passage in mine that I thought the ten millions of livres in cash over which a discretion was given, ought to have been paid rather to France than to our creditor citizens. If the inference be just, my expressions must have been the more unfortunate as they so little accord with the original plan communicated in the Instructions to yourself and Mr. Monroe; the more unfortunate still as they not only decide a question wrong, but a question which could never occur. The cash fund of 10 millions was provided on the supposition that in a critical moment and in a balance of considerations the immediate payment of that sum as a part of the bargain might either tempt the French Government to enter into it or to reduce the terms of it. If wanted for either of these purposes, it was to be paid to the French Government: if not wanted for either it was made applicable to no other. The provision contemplated for the creditors had no reference to the fund of ten millions of livres; nor was it even contemplated that any other cash fund would be made applicable to their claims. It was supposed not unreasonable that the ease of our Treasury and the chance and means of purchasing the territory remaining to Spain Eastward of the Mississippi, might be so far justly consulted, as to put the indemnification of the claims against France on a like footing with that on which the indemnification of like claims against Great Britain had been put. And it was inferred that such a modification of the payments would not only have fully satisfied the expectations of the creditors; but would have encountered no objections on the part of the French Government, who had no interest in the question, and who were precluded by all that happened from urging objections of any other sort.
Mr. Merry has formally complained of the expressions in your printed memorial which were construed into ill will towards Great Britain, and an undue partiality to the French Government. He said that he was expressly instructed by his Government to make this complaint; that the memorial was viewed by it in a very serious light, and that it was expected from the candor of the American Government and the relations subsisting between the two nations, that the unfriendly sentiments expressed in the memorial, if not authorized by instructions, as was doubtless the case, would be disavowed. He admitted that the memorial might not be an official paper, or an authenticated publication, but dwelt on the notoriety of its author, and on its tendency as an ostensible evidence of the spirit and views of so important and maritime a power as the United States, to excite animosity in other nations against Great Britain, and to wound her essential interests. He mentioned several circumstances known to himself whilst at Paris, among others conversations with you on the subject of the memorial which established the fact that it was written by you. If I did not mistake him he said that the fact was informally acknowledged to him by yourself, altho’ you disowned it in an official point of view.
In reply it was, on the day following, observed to him, by the direction of the President, that the sentiments of the United States and of their Government towards Great Britain were sincerely friendly, according to the assurances which had been given to him, and otherwise communicated, that we wished to cultivate the friendship between the two countries, as important to our as well as to his; that altho’ we wished to maintain friendship at the same time with France and with all other Nations, we entertained no sentiments towards her or any other Nation, that could lessen the confidence of Great Britain in the equal sincerity of our friendship for her or in our strict impartiality in discharging every duty which belonged to us as a neutral nation; that no instruction could therefore have been given to any functionary of the United States to say or do anything unfriendly or disrespectful to Great Britain; that the memorial in question if written by you was a private and not official document, that the reasoning employed in it could have been intended merely to reconcile the French Government to the objects of the writer, not to injure or offend Great Britain; that as far as the memorial could be supposed to have a tendency to either, it resulted solely from its publication, a circumstance which there was every reason to believe had been without your sanction, and must have been followed by your disapprobation and regret. Mr. Merry, after repeating the sensibility of his Government to the incident of which he complained, and the importance attached to it, expressed much satisfaction at the explicit and friendly explanation he had heard, and his confidence that the favorable report which he should make of it, would be equally satisfactory to his Government.
From this view of the matter you will be sensible of the regret excited by your permission to the French Government mentioned in your letter of Decr 11 to publish the memorial as attributed to you. A publication of it by the French Government with a reference to you as the author, and without any denial on your part will doubtless be represented by the British Government as having all the authenticity and effect of a direct publication by yourself, as well as the appearance moreover of some sort of collusion with the French Government against the British Government; and it may be fairly suspected that one object at least of the former in endeavoring to connect your name with the publication has been to engender or foster in the latter a distrust and ill humour towards the United States.
You will infer from these observations the wish of the President, that if no irrevocable step should have been taken in the case, the French Government may be induced, in the manner you may find most delicate to withdraw its request, and thereby relieve the Government of the United States from the necessity of further explanations to the British Government which will be more disagreeable as it may be the more difficult to make them satisfactory.
Congress adjourned on tuesday the 27th of March to the first monday in November next. Copies of their laws will be forwarded to you as soon as they issue from the press. For the present, I inclose herewith a list of all their acts, and copies of a few of them; particularly of the acts providing for the Government of Louisiana and for the war in the Mediterranean. The former it is hoped will satisfy the French Government of the prudent and faithful regard of the Government of the United States to the interest and happiness of the people transferred into the American family. The latter was thought a proper antidote to the unfortunate accident to the ship and men under Capt. Bainbridge before the harbour of Tripoli. The addition which it will enable the President to make to our force in the Mediterranean, will more than regain the ground lost with that regency, at the same time that it will impress on the others respect for our resources, and in a more general view be advantageous at the present crisis. It is probable that three or four frigates will soon proceed to join Commodore Preble.
I have the honor to be, &c.,
TO JAMES MONROEd. of mss. instr.
Department of State, April 15, 1804.
It being presumed that by the time of your receiving this communication, the negotiation with which you were charged by my letter of 5th January last, will no longer require your presence in London, the President thinks it proper that you should now proceed to Madrid, and in conjunction with Mr. Pinckney open a negotiation on the important subjects remaining to be adjusted with the Spanish Government. You will understand however that besides the consideration how far your immediate departure may be permitted by the state of our affairs with the British Government or by events unknown at this distance, you are at liberty to make it depend in a due degree on the prospect of active co-operation or favorable dispositions from quarters most likely to influence the Counsels of Spain. It will be of peculiar importance to ascertain the views of the French Government. From the interest which France has in the removal of all sources of discord between Spain and the United States, and the indications given by her present Government of a disposition to favor arrangements for that purpose, particularly in relation to the Territory remaining to Spain on the Eastern side of the Mississippi, and from the ascendency which the French Government has over that of Spain, of which a recent and striking proof has lately been given in the prompt accession of the latter, on the summons of the former to the transfer of Louisiana to the United States, notwithstanding the orders which had been transmitted to the Spanish Envoy here, to protest against the right to make the transfer; much will depend on and much is expected from the interposition of that Government in aid of your negotiations. Mr. Livingston has been instructed to cherish the motives to such an interposition, as you will find by the extract from my letter to him herewith inclosed; and if you should take Paris on your way to Madrid, as is probable, you will not only be able to avail yourself of all his information, but will have an opportunity of renewing the personal communications which took place during your joint negotiations.
The objects to be pursued are 1st an acknowledgment by Spain that Louisiana as ceded to the United States extends to the River Perdido; 2d A cession of all her remaining territory Eastward of that River including East Florida. 3d. A provision for Arbitrating and paying all the claims of citizens of the United States not provided for by the late Convention, consisting of those for wrongs done prior to the last peace by other than Spanish subjects within Spanish responsibility; for wrongs done in Spanish Colonies by Spanish subjects or officers; and for wrongs of every kind for which Spain is justly responsible, committed since the last peace. On the part of the United States it may be stipulated that the territory on the Western side of the Mississippi shall not be settled for a given term of years, beyond a limit not very distant from that river, leaving a spacious interval between our settlements and those of Spain, and that a sum of — dollars shall be paid by the United States in discharge of so much of the awards to their citizens. It may also be stipulated or rather may be understood that no charge shall be brought by the United States against Spain for losses sustained from the interruption of the deposit at New Orleans.
The subjoined draught puts into form and into detail the arrangement to which the Pesident authorizes you to accede, relying on your best efforts to obtain better terms, and leaving to your discretion such modifications as may be found necessary, and as will not materially affect the proportion between the gains and the concessions by the United States.
Sec. 1. Spain acknowledging and confirming to the United States the cession of Louisiana in an extent eastwardly to the River Perdido, cedes to them forever all the Territory remaining to her between the Mississippi the Atlantic and the Gulph of Mexico; together with all the Islands annexed thereto, either whilst the Floridas belonged to G. Britain or after they became provinces of Spain.
Or, if the article be unattainable in that form, Spain cedes to the United States forever all the Territory with the Islands belonging thereto, which remain to her between the Mississippi, the Atlantic and the Gulph of Mexico.
Sec. 2. Possession of the said territory shall be delivered to a person or persons authorized by the United States to receive the same within NA days or less if practicable, after the exchange of the ratifications of this convention. With the said Territory shall be delivered all public property excepting ships and military stores as also all public archives belonging to the provinces comprehending the said Territory.
Sec. 3. Within ninety days after delivery of possession or sooner if possible, the Spanish troops shall evacuate the territory hereby ceded; and if there should be any Spanish troops remaining within any port of the Territory ceded by France to the United States, all such troops shall without delay be withdrawn.
Sec. 4. Spanish subjects within the ceded territory who do not choose to become citizens of the United States shall be allowed 18 months to dispose of their real property and to remove or dispose of their other property.
Sec. 5. The inhabitants of the ceded territory shall be entitled to the same incorporation into the United States and to the same protection in their religion, their liberties and their property as were stipulated to the inhabitants of the Territory ceded to the United States by the Treaty of the 30 April 1803 with the French Republic.
Sec. 1. It is agreed that for the term of NA years no lands shall be granted, nor shall persons who may have settled since October 1—1800 on lands not granted prior thereto, be permitted to continue within the space defined by the following limits, to wit, by a limit consisting on one side of the River Sabine or Mexicano from the sea to its source, thence a straight line to the confluence of the Rivers Osages and Missouri; and from the said confluence a line running parrellel with the Mississippi to the latitude of its northernmost source, and thence a maredian to the Northern boundary of Louisiana and by a limit on the other side consisting of the River Colorado (or some other river emptying into the Bay of St Bernard) from its mouth to its source, thence a straight line to the most Southwestwardly source of the red River with such deflections however as will head all the waters of that river, thence along the ridge of the highlands which divide the waters belonging to the Missouri and Mississippi from those belonging to the Rio Bravo to the latitude of the northernmost source of that river, and thence a maredian to the Northern boundary of Louisiana.
Sec. 2. Such of the settlements within the foregoing limits not prohibited by Article II Sec. 1 as were not under the authority of the Government of Louisiana shall continue under the authority of Spain. Such as were under that authority shall be under the authority of the United States. But the parties agree that they will respectively offer reasonable inducements, without being obliged to use force, to all such settlers to retire from the space above limited and establish themselves elsewhere.
Sec. 3. The Indian tribes within the said limits shall not be considered as subject to or exclusively connected with either party. Citizens of the United States and Spanish subjects shall be equally free to trade with them, and to sojourn among them as far as may be necessary for that purpose; and each of the parties agrees to restrain by all proper and requisite means its respective citizens and subjects from exciting the Indians, whether within or without the said limits, from committing hostilities or aggressions of any sort on the subjects or citizens of the other party. The parties agree moreover, each of them, in all public transactions and communications with Indians to promote in them a disposition to live in peace and friendship with the other party.
Sec. 4. It shall be free for Indians now within the territories of either of the parties to remove to and settle within the said limits without restraint from the other party; and either party may promote such a change of settlement by Indians within its territories; taking due care not to make it an occasion of war among the Indians, or of animosities in any of them against the other party.
Sec. 5. The United States may establish Garrisons sufficient as security against the Indians and also trading Houses at any places within the said limits where Garrisons existed at any time under the Spanish Government of Louisiana. And Spain may continue Garrisons for the like purpose at any places where she now has them, and establish trading Houses thereat. Either party may also cause or permit any part of the Country within the said limits to be explored and surveyed, with a view to commerce or science.
Sec. 6. It shall be free for either of the parties to march troops within the said limits against Indians at War with them for the purpose of driving or keeping out invaders or intruders.
It is agreed that within NA years previous to the expiration of the aforesaid term of NA years due provision shall be made for amicably adjusting and tracing the boundary between the territories of the United States Westward of the Mississippi and the territories of his Catholic Majesty, which boundary shall then be established according to the true and just extent of Louisiana as ceded by Spain to France and by France to the United States; uninfluenced in the smallest degree or in any manner whatever by the delay, or by any arrangement or circumstance contained in or resulting from this Convention.
Whereas by the 6th article of the Convention signed at Madrid on the 11th day of August 1802 it is provided, that as it had not been possible for the Plenipotentiaries of the two powers to agree upon a mode by which the Board of Commissioners to be organized in virtue of the same should arbitrate the claims originating from the excesses of foreign cruizers, agents, Consuls or tribunals in their respective territories, which might be imputable to their two Governments, &c; and whereas such explanations have been had upon the subject of the Article aforesaid as have led to an accord: It is therefore agreed that the Board of Commissioners to be organized as aforesaid shall have power for the space of eighteen months from the exchange of the ratifications hereof to hear and determine in the manner provided as to other claims in the said Convention all manner of claims of the Citizens and subjects of either party for excesses committed or to be committed by foreign cruizers, Agents, Consuls or tribunals in their respective territories which may be imputable to either Government according to the principles of justice, the law of the nations or the treaties between the powers, and also all other excesses committed or to be committed by officers or individuals of either nation, contrary to justice, equity, the law of nations or the existing treaties and for which the claimants may have a right to demand compensation.
It is further agreed that the respective Governments will pay the sums awarded by the said Commissioners under this Convention and also those which have been or may be awarded under that of the 11th of Augt. 1802, in manner following.
The Government of the United States will pay all such sums not exceeding in all NA dollars, which may be awarded as compensation to citizens of the United States from his Catholic Majesty, in three equal annual instalments at the City of Washington, the first instalment to be paid in eighteen months after the exchange of the ratifications hereof, or in case they shall not be so paid, they shall bear an interest of six pCent p annum from the time when they become due until they are actually discharged, and in case the aggregate of the said sums should not amount to the said sum of NA dollars the United States will pay to his Catholic Majesty within one year after the final liquidation of the claims cognizable by the said Board, at the City of Washington so much as the said aggregate may fall short of the sum above mentioned; but on the other hand, if the whole amount of the sums awarded to Citizens of the United States should exceed the said sum of NA dollars, His Catholic Majesty shall pay the surplus without deduction, to such of the claimants and at such times and places as the said Commissioners shall appoint.
The Government of the United States will also pay without deduction, at the City of Washington, all such sums as may be awarded against them by the said Commissioners for compensation due to Spanish subjects at such times as shall be appointed in the awards respectively.
This Convention shall be ratified within NA days after the signing thereof, and the ratifications shall be exchanged within NA days after the ratification by the United States, at the City of Washington.
The first form of the first Article (paragraph 1) is preferred because it explicitly recognizes the right of the United States under the Treaty of St Ildefonso and of April 30, 1803, to the river Perdido, which is constructively provided for only, in the second form. It is indispensable that the United States be not precluded from such a construction; first because they consider the right as well founded; secondly and principally, because it is known that a great proportion of the most valuable lands between the Mississippi and the Perdido have been granted by Spanish Officers since the cession was made by Spain. These illicit speculations cannot otherwise be frustrated than by considering the Territory as included in the cession made by Spain, and thereby making void all Spanish grants of subsequent date. It is represented that these grants have been extended not only to citizens of the United States but to others, whose interest now lies in supporting the claim of Spain to that part of Louisiana in opposition to that of the United States. It is conjectured that Mr. Laussat himself has entered into the speculations, and that he felt their influence in the declaration made confidentially to our Commissioners at New Orleans, that no part of West Florida was included in Louisiana.
In supporting the extent of Louisiana to the Perdido, you will find materals for your use in the extract above referred to and the other documents annexed; to which you will add the result of your own reflections and researches. The secret Treaty between France and Spain ceding Louisiana West of the Mississippi to Spain and which has never been printed may doubtless be obtained at Paris if not at Madrid, and may be of use in the discussion. From the references in the French orders of 1764 for the delivery of the Province, it is presumed to be among the archives of New Orleans and Governor Claiborne has been requested to send a copy of it; but it may not be received in time to be forwarded for your use. In an English work “The Life of Chatham” printed in 1793 for I. S. Gordon, London No. 166 Fleet street, I find a memorial referred to but not there printed with the other negotiations preceding the peace of 1762-3 expressly on the subject of the limits of Louisiana; and as sufficiently appears, with a view to give the province its extent to the Perdido. You will perhaps be able to procure in London or Paris a sight of this document. It probably contains most of the proofs applicable to the question; and will be the more important; as proceeding from France it will strengthen our lien on her seconding our construction of the Treaty. The memorial will be the more important still if it should be found to trace the Western limits also of Louisiana, and to give it a corresponding extent on that side. In page 416 & seq of Vol 1 you will see that fact established that the Floridas including the French part were ceded to Great Britain as the price for the restoration of Cuba, and that consequently the French part now claimed by the United States was a cession purely for the benefit of Spain.
The reasons, beyond the advantages held out in the arrangement itself, which may be addressed to Spain, as prompting a cession of her remaining territory Eastward of the Perdido, will be found in the remarks on the extract aforesaid in the instructions to Mr. Pinckney and yourself of the 17th day of February last, and in those which have from time to time been given to Mr. Pinckney. The Spanish Government cannot but be sensible that the expence of retaining any part of that Territory must now more than ever exceed any returns of profit; that being now more than ever indefensible, it must the more invite hostile expeditions against it from European enemies, and that whilst in her hands, it must be a constant menace to harmony with the United States.
The arrangement proposed in Art. II supposes that Louisiana has a very great extent Westwardly and that the policy of Spain will set much value on an interval of Desert between her settlements and those of the United States.
In one of the papers now transmitted you will see the grounds on which our claim may be extended even to Rio Bravo. By whatever river emptying into the gulph Eastward of that, Spain may with any plausibility commence the Western boundary of Louisiana, or however continue it thence to its Northern limit, she cannot view the arrangement in any other light than that of a concession on the part of the United States to be balanced by an equivalent concession on her part. The limit to the interval on our side is to be considered as the ultimatum, and consequently not to be yielded without due efforts to fix a limit more distant from the Mississippi. It is highly important also, or rather indispensable, that the limit on the Spanish side should not be varied in any manner that will open for Spanish occupancy any part of the waters connected with the Missouri or Mississippi. The range of high lands separating these waters from those of the Rio Bravo and other waters running Westward presents itself so naturally for the occasion, that you will be able to press it with peculiar force.
To enable you the better to understand the delineations contained in this Article and any others which may be brought into discussion, I forward herewith copies of two Maps and refer you to others, viz- that of Danville which you will find either in London or Paris and if no where else in Postlewaits Dictionary, and a Map by Mr. NA in 1768 referred to in one of those forwarded. The latter you will doubtless be able to procure at Madrid. The blank for the term of years is not to be filled with more than NA years nor with that number if a shorter term can be substituted
The IV and V Articles relate to claims against Spain not provided for by the Convention already entered into and the payment to be assumed by the United States. For the reasoning in support of the claims founded on wrongs proceeding from other than Spanish subjects, I refer you to the letters and instructions of Mr. Pinckney. Your communications with him will also furnish the grounds on which the claims resulting from injuries done to our citizens in the Spanish Colonies are to be maintained. The reasonableness of a residuary provision for all just claims, is implied by the concurrence of Spain in establishing a Board of Commissioners for the cases already submitted to it.
You will not fail to urge on the Spanish Government the VI Article of the Treaty of 1795 as particularly applicable to cases where other than Spanish subjects have committed spoliations on our vessels and effects within the extent of Spanish jurisdiction by sea or by land. To justice and the law of nations, this adds the force of a positive stipulation which cannot be repelled without proving what cannot be proved, that the Spanish Government used all the means in its power to protect and defend the rights of our citizens; and which cannot be resisted without pleading what self respect ought not to permit to be pleaded, that the sovereignty of His Catholic Majesty was under duress from a foreign power within his own dominions.
The sum of money to be paid by the United States is in no event to exced NA dollars in cash at the Treasury of the United States not in public stock; and is to be applied towards the discharge of awards to our citizens and it is hoped that a much smaller sum will be found sufficient.
If Spain should inflexibly refuse to cede the territory Eastward of the Perdido, no money is to be stipulated. If she should refuse also to relinquish the territory Westward of that river no arrangement is to be made with respect to the Territory Westward of the Mississippi, and you will limit your negotiations to the claim of redress for the cases of spoliation above described.
If Spain should yield on the subject of the Territory Westward of the Perdido and particularly if a comprehensive provision for the claims should be combined therewith, you may admit an arrangement Westward of the Mississippi on the principle of that proposed, with modifications however if attainable varying the degree of concession on the part of the United States according to the degree in which Spain may concur in a satisfactory provision for the cases of the territory westwards of the Perdido, and of the claims of indemnification.
The United States having sustained a very extensive tho’ indefinite loss by the unlawful suspension of their right of deposit at New Orleans, and the Spanish Government having admitted the injury, by restoring the deposit it will be fair to avail yourself of this claim in your negotiations, and to let Spain understand that if no accommodation should result from them it will remain in force against her.
The term of years during which the interval between the settlements of the United States and of Spain, are to be prohibited, is a consideration of great importance. A term which may appear a moment to a nation stationary or slowly advancing in its population will appear an age to a people doubling its population in little more than 20 years, and consequently capable in that time of covering with an equal settlement double the territory actually settled. This reflection will suggest the expediency of abridging the continuance of the prohibition as much as the main objects in view will permit. NA years are a limit not to be exceeded. Fifteen or even ten, if the space between the Mississippi and the interval territory be not enlarged, seem to be as much as Spain can reasonably expect. She cannot but be sensible, and you will make use of the idea, if you find it prudent so to do, that before a very long term will elapse, the pressure of our growing population with events which time does not fail to produce, but are not foreseen will supersede any arrangements which may now be stipulated, and consequently that it will be most prudent to limit them to a period susceptible of some certain calculations.
No final cession is to be made to Spain of any part of the Territory on this side of the Rio Bravo; but in the event of a cession to the United States of the Territory East of the Perdido and in that event in case of absolute necessity only, and to an extent that will not deprive the United States of any of the waters running into the Missouri or Mississippi, or of the other waters emptying into the Gulph of Mexico between the Mississippi and the river Colorado emptying into the Bay of St Bernard.
No guarantee of the Spanish possessions is to be admissible. This letter is intended for Mr. Pinckney as well as yourself, and as containing the instructions by which the execution of your joint commission is to be guided.
April 18—The President being absent, and it being most proper to wait his return which may be shortly expected, before any final instructions be given as to your immediate destination, after closing your mission to Spain, I recommend that you do not actually leave London until you hear again from me. The moment the President arrives I will communicate to you his views by multiplied conveyances, that you may receive them with as little delay as possible. In the meantime you will make such preparations as will enable you to come directly from Spain to the United States, in case a call for your services on this side of the Atlantic should lead him to that decision, instead of your return to London.
I have the honor to be, &c
TO JAMES MONROE AND CHARLES PINCKNEY.d. of s. mss. instr.
Department of State July 8th—1804.
Since the instructions given you on the 15th of April last, further views have been obtained with respect to the interior of Louisiana, and the value which Spain will probably put on such a limitation of our settlements beyond the Mississippi as will keep them for some time at a distance from hers. The President has accordingly become the more anxious that in the adjustment authorized by those instructions the terms may be made favorable to the United States. He does not indeed absolutely restrain you from yielding to the Ultimatum therein fixt, in case it be required by the inflexibility of the Spanish Government and particularly by the posture and prospect of affairs in Europe. But he is not a little averse to the occlusion for a very long period of a very wide space of territory westward of the Mississippi; & equally so to a perpetual relinquishment of any territory whatever Eastward of the Rio Bravo. If this river could be made the limit to the Spanish settlements and the river Colorado the limit to which those of the United States may be extended; and if a line North West or West from the source of whatever river may be taken for the limit of our settlements, could be substituted for the ultimatum line running from the source of the Sabine to the junction of the Osages with the Missouri and thence Northward parallel with the Mississippi, the interval to be unsettled for a term of years would be defined in a manner peculiarly satisfactory. The degree however in which you are to insist on these meliorations of the arrangement must be regulated by your discretion and by the effect which the probable course of events will have on the temper and policy of Spain. Should she be engaged in the War, or manifestly threatened with that situation, she cannot fail to be the more anxious for a solid accommodation on all points with the United States; and the more willing to yield for that purpose to terms, which, however, proper in themselves might otherwise be rejected by her pride and misapplied jealousy. According to the latest accounts from Great Britain a revolution in the Ministry if not a change on the throne was daily expected, and from either of those events, an extension of the war to Spain, if not precluded by the less probable event of a speedy peace with France would be a very natural consequence. It is to be understood that a perpetual relinquishment of the Territory between the Rio Bravo and Colorado is not to be made nor the sum of NA dollars paid without the entire cession of the Floridas; nor any money paid in consideration of the acknowledgment by Spain of our title to the Territory between the Iberville and the Perdido. But a proportional sum out of the NA dollars may be stipulated for a partial cession of territory Eastward of the Perdido. If neither the whole nor part of East Florida can be obtained, it is of importance that the United States should own the Territory as far as the Apalachicola, and have a common, if not exclusive right to navigate that stream. I must repeat that great care is to be taken that the relinquishment by Spain of the Territory Westward of the Perdido be so expressed as to give to the relinquishment of the Spanish title, the date of the Treaty of St. Ildefonso. The reason for this was before explained, and is strengthened by recent information as you will find by the annexed extract of a letter from Governor Claiborne. Other proofs might be added. In any further cession of Territory, it may be well so to define it, as to guard as much as possible against grants irregular or incomplete, or made by Spanish Officers in contemplation of such a cession.
On entering into conferences with the Spanish Ministry, you will propose and press in the strongest manner an agreement that neither Spain nor the United States shall during the negotiation strengthen their situation in the Territory between the Iberville and the Perdido, and that the navigation of the Mobille shall not be interrupted. An immediate order from the Spanish Government to this effect, may be represented as of the greatest importance to the good understanding between the two countries, and that the forbearance of the United States this long is a striking proof of their sincere desire to maintain it. If such an order should be declined you will not fail to transmit the earliest information of it; as well as to keep up such representations to that Government on the subject as will impress it with the tendency of so unreasonable and unfriendly a proceeding, to drive the United States into arrangements for balancing the military force of Spain in that quarter and for exerting their right of navigation thro’ the Mobille. This navigation is become important or rather essential, and a refusal of Spain to acquiesce in it must commit the peace of the two nations to the greatest hazard. The posture of things there is already extremely delicate and calls for the most exemplary moderation and liberality in both the Governments. As a proof of it, I enclose a correspondence between Governor Claiborne and the Spanish Government, at Pensacola, on the same subject with that of mine with the Marquis D’Yrujo already transmitted to you.1
I have the honor to be &c
TO JAMES MONROE.d. of s. mss. instr.
Department of State July 20th 1804.
Since my last acknowledgment of your letters I have received those of
I enclose herewith several correspondences with Mr. Merry, Mr. Pichon and the Mayor and Marshal of New York, on certain proceedings of the British frigates Cambrian and Boston, and the sloop of war Driver within and without the harbour of New York. Copies of the documents attached to these correspondences are also enclosed, and therewith a protest stating a subsequent irregularity of a strong complexion committed by the Cambrian on several passengers in an American vessel just before her arrival within the harbour of New York.
No answer having been yet received from Mr. Merry to the two last letters from the Department, I cannot pronounce with certainty on the degree of interposition, which he will employ on the occasion. It cannot be doubted, that he will transmit the case to this Government and it is to be hoped that he will place it in a light favorable to a proper result. It is not the less proper, however, that the sentiments and expectations of this Government should be spoken thro’ the Organ of the United States at London, and the President accordingly charges you to make the case, as you will collect it in all its features and colours from the papers above referred to, the subject of a strong tho’ temperate representation. It is but justice to the British Government to suppose that it will be struck with the series of enormities which have been committed by its officers against the unquestionable and essential rights of a friendly nation; and will be not only ready to disavow them, but to render all the satisfaction which is due to the United States. In this view it is particularly proper that the appeal to its justice should be in a spirit, temperate, respectful and friendly. On the other hand it is not less due to the United States and to the universal sensibility, which has been excited by the complicated and violent insults received, that the complaint should be presented in its true character, and the claim of ample satisfaction be expressed in terms of becoming dignity and energy. It is the more necessary that this tone should be given to the representation as in several preceding instances of great offence to the national rights and honor, the result of the best founded representations has so little corresponded with our just expectations. The documents of which copies are also inclosed will explain two instances, in one of which one of the frigates in question, the Boston, was the aggressor. The least that can be required in the present instance is that those who have so grossly violated our laws, and eluded the punishment of their guilt, should either be given up to the authority of the United States, or receive from their own Government a punishment which will have the same salutary effect: and the least punishment that can be relied on for the purpose, is that of a bona fide and permanent degradation of the offenders from every public honor or authority. It must be understood that a dismission from their particular offices, accompanied with a translation to any others, as, it is said, has sometimes been done, will not be considered as either just or candid; and the British Government must also understand, as indeed has been sufficiently intimated to Mr. Merry, that a refusal or failure to make on this occasion, so reasonable an amends to the United States for the outrages offered to them, must be followed by precautions, which, however disagreeable or inconvenient cannot be either blamed or wondered at by those on whom the necessity of them is chargeable.
With these observations the whole subject is committed to your prudent attention; on which the President relies with full confidence for an effectual pursuit of the object of your Government, and a dignified vindication of the rights of your country.
Your answer to the circular communication of Lord Hawksbury was a very proper one. If the lapse of time or other circumstances should render unnecessary any thing further on the part of this Government, it may be best to let the subject remain in silence. Should the omission of a formal reply, be likely to be received as disrespectful, or to be in any degree injurious to subsisting relations, the President authorizes you to assure the British Government that the communication has been received with that sincere and just interest which the United States takes in whatever concerns the British nation, and that the communication, considered as the effect of an honourable solicitude in the British Government to maintain the esteem and confidence of neutral and friendly nations, affords an occasion, of which this Government avails itself with satisfaction, for expressing the unremitted disposition of the United States to cherish all the relations which happily subsist between the two nations; sincerely regretting at the same time every indication of new sources of animosity in addition to the spirit of hostility so unhappily prevailing between Great Britain and France.
I enclose an extract of the instructions to Genl. Armstrong who goes as Successor to Mr. Livingston, containing the reply authorized to be given to the French Communication. He expects to embark in a few days.
I remain Sir &c
TO JAMES MONROE.d. of s. mss. instr.
Department of State September 12th, 1804.
My letter of 20th July made you acquainted with the irregularities committed by British ships of War in and adjoining the harbour of New York, and with the correspondence which had ensued between Mr Merry and myself. I now add copies of the letters which have since passed between us on that subject, with copies of documents since received relating to the same or to subsequent violations of our national rights.1
From the letter of Mr Merry and its inclosures, you will discover that instead of promoting a redress of the injuries represented to him, he makes himself an advocate of the authors; and from my reply, that finding such to be the case, it is not proposed to protract the discussion with him. It rests consequently altogether with you to place the subject in the proper light before the British Government, and to press in a proper manner the satisfaction due to the United States from its justice and its friendly policy. In doing this, it need not be repeated that regard is to be had equally to a manly tone in stating the complaints, and to a conciliatory respect, in appealing to the motives from which a satisfactory interposition is expected. Mr. Merry has endeavored to construe a candid and friendly intimation of the dilemma to which the United States will be exposed by a continuance of such outrages, into an offensive threat, and will no doubt so present it to his Government. Should the language to which he refers not sufficiently otherwise explain itself, you are authorized to disclaim any intention on our part inconsistent with the respect which the United States owe and profess for the British Government, and which in this case best coincides with the respect which they owe to themselves. It must be recollected at the same time, that the expediency of some provisions against aggressions on our commerce and our harbours was a subject of very interesting deliberation with Congress at their last Session; that it was postponed under a hope that such provisions would be rendered unnecessary by the just and amicable regulations of the belligerent powers; and that it is more than probable that a disappointment in this particular can scarcely fail to revive the subject at the next Session. These considerations are too important not to be brought into view in your communications with the British Government; and you will know how and when to do it with the least risk of irritation, and consequently with the greatest probability of useful effect.
I have the honor to be &c
TO JAMES MONROE.d. of s. mss. instr.
Department of State October 11th 1804.
I have the honor to transmit to you a copy of a letter from Thomas Manning with the document it inclosed, respecting the capture of the Brig Camillus and what appears to be a most unprovoked outrage committed on the person of Thomas Carpenter, a native of the United States, then a seaman on board, by order of Lieutenant Sutton, commanding the British armed schooner L’Eclair or Leclerc. Mr. Manning has been informed that recompence for the loss he has sustained must be attempted by his pursuing the judicial remedy against Mr. Sutton, if he thinks it advisable. But the reparation demanded by the honor of our flag whose immunities have been so grossly violated in the person of Carpenter by an officer of the King of Great Britain is the serious concern of the Government, and you will therefore apply for satisfaction in that decided yet friendly manner which is warranted by the highly aggravated conduct of the British officer. The circumstances of the occurrence, though almost incredible from their nature, are as fully supported as can be done by ex parte evidence, which nevertheless Mr. Manning assures me is free from colouring and exaggeration. It will therefore not be a satisfactory answer to the complaint to be presented with the bare denial of Mr. Sutton if he should hazard one; for if the British Government think the harmony of the United States worth preserving they ought to scrutinize with care and punish with rigor misconduct which has such an irritating tendency.
I have the honor to be &c
TO NOAH WEBSTER.1
Washington, Oct. 12, 1804.
I received, during a visit to my farm, your letter of Aug. 20, and hoped that I should, in that situation, find leisure to give it as full an answer as my memory and my papers would warrant. An unforeseen pressure of public business, with a particular one of private business interesting to others as well as to myself, having disappointed me, I find myself under the necessity of substituting the few brief remarks which return to the occupations of this place, and the absence of my papers, will admit.
I had observed, as you have done, that a great number of loose assertions have at different times been made with respect to the origin of the reform in our system of federal government, and that this has particularly happened on the late occasion which so strongly excited the effusions of party and personal zeal for the fame of Gen. Hamilton.
The change in our government like most other important improvements ought to be ascribed rather to a series of causes than to any particular and sudden one, and to the participation of many, rather than to the efforts of a single agent. It is certain that the general idea of revising and enlarging the scope of the federal authority, so as to answer the necessary purposes of the Union, grew up in many minds, and by natural degrees, during the experienced inefficacy of the old confederation. The discernment of Gen. Hamilton must have rendered him an early patron of the idea. That the public attention was called to it by yourself at an early period is well known.
In common with others, I derived from my service in the old Congress during the latter stages of the Revolutionary war, a deep impression of the necessity of invigorating the federal authority. I carried this impression with me into the legislature of Virginia; where, in the year 1784, if my recollection does not fail me, Mr. Henry co-operated with me and others in certain resolutions calculated to strengthen the hands of Congress.
In 1785, I made a proposition with success in the legislature of the same state, for the appointment of commissioners to meet at Annapolis such commissioners as might be appointed by other states, in order to form some plan for investing Congress with the regulation and taxation of commerce.1 This I presume to be the proceeding which gave you the impression that the first proposal of the present constitution was then made. It is possible that something more might have been the subject of conversation, or may have been suggested in debate, but I am induced to believe that the meeting at Annapolis was all that was regularly proposed at that session. I would have consulted the journals of it, but they were either lost or mislaid.
Although the step taken by Virginia was followed by the greater number of the states, the attendance at Annapolis was both so tardy and so deficient, that nothing was done on the subject immediately committed to the meeting. The consultations took another turn. The expediency of a more radical reform than the commissioners had been authorized to undertake being felt by almost all of them, and each being fortified in his sentiments and expectations by those of others, and by the information gained as to the general preparation of the public mind, it was concluded to recommend to the states a meeting at Philadelphia, the ensuing year, of commissioners with authority to digest and propose a new and effectual system of government for the Union. The manner in which this idea rose into effect, makes it impossible to say with whom it more particularly originated. I do not even recollect the member who first proposed it to the body. I have an indistinct impression that it received its first formal suggestion from Mr. Abraham Clark of New Jersey. Mr. Hamilton was certainly the member who drafted the address.
The legislature of Virginia was the first I believe, that had an opportunity of taking up the recommendation, and the first that concurred in it. It was thought proper to express its concurrence in terms that would give the example as much weight and effect as possible; and with the same view to include in the deputation, the highest characters in the state, such as the governor and chancellor. The same policy led to the appointment of Gen. Washington, who was put at the head of it. It was not known at the time how far he would lend himself to the occasion. When the appointment was made known to him, he manifested a readiness to yield to the wishes of the legislature, but felt a scruple from his having signified to the Cincinnati, that he could not meet them at Philadelphia, near about the same time, for reasons equally applicable to the other occasion. Being in correspondence with him at the time and on the occasion, I pressed him to step over the difficulty. It is very probable that he might consult with others, particularly with Mr. Hamilton, and that their or his exhortations and arguments may have contributed more than mine to his final determination.
When the convention as recommended at Annapolis took place at Philadelphia, the deputies from Virginia supposed, that as that state had been first in the successive steps leading to a revision of the federal system, some introductory propositions might be expected from them. They accordingly entered into consultation on the subject, immediately on their arrival in Philadelphia, and having agreed among themselves on the outline of a plan, it was laid before the convention by Mr. Randolph, at that time governor of the state, as well as member of the convention. This project was the basis of its deliberations; and after passing through a variety of changes in its important as well as its lesser features, was developed and amended into the form finally agreed to.
I am afraid that this sketch will fall much short of the object of your letter. Under more favorable circumstances, I might have made it more particular. I have often had it in idea to make out from the materials in my hands, and within my reach, as minute a chronicle as I could, of the origin and progress of the last revolution in our government. I went through such a task with respect to the declaration of independence, and the old confederation, whilst a member of Congress in 1783; availing myself of all the circumstances to be gleaned from the public archives, and from some auxilliary sources. To trace in like manner a chronicle or rather a history of our present constitution, would in several points of view be still more curious and interesting; and fortunately the materials for it are far more extensive, Whether I shall ever be able to make such a contribution to the annals of our country, is rendered every day more and more uncertain.
I will only add that on the slight view which I have taken of the subject to which you have been pleased to invite my recollections, it is to be understood, that in confining myself so much to the proceedings of Virginia, and to the agency of a few individuals, no exclusion of other states or persons is to be implied, whose share in the transactions of the period may be unknown to me.
With great respect and esteem, I remain, sir,