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TO ROBERT R. LIVINGSTON. 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 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.,
[1 ]There is a copy of this instruction up to the part which encloses the correspondence with D’Yrujo in Madison’s letter book in the Chicago Historical Society. Those portions which are printed in italics are in cypher in the letter book copy.
[1 ]On April 10 Madison instructed Pinckney: