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

TO JAMES MONROE d. of mss. instr. - James Madison, The Writings, vol. 7 (1803-1807) [1908]

Edition used:

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

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

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TO JAMES MONROEd. of mss. instr.

Department of State, April 15, 1804.

Sir,

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.

ARTICLE I.

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.

ARTICLE II.

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.

ARTICLE III.

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.

ARTICLE IV.

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.

ARTICLE V.

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.

Observations.

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