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

1802: TO CHARLES PINCKNEY. d. of s. mss. instr. - James Madison, The Writings, vol. 6 (1790-1802) [1906]

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. 6.

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

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TO CHARLES PINCKNEY.d. of s. mss. instr.

Department of State,
March 30th, 1802.

Sir:

My last was of the 5th of February, and 27th of March. I have as yet received no letter from you since your arrival at Madrid. By one from Colo Humphreys, written a few days after it took place, we learn that you were then confined by indisposition, and had not presented your credentials. We are anxious to hear from you on the several subjects with which you have been charged; particularly on that of Louisiana. By a Treaty entered into between Spain and France in March 1801, and lately published in the Paris newspapers, it appears that in an antecedent treaty, the cession of that Country had been stipulated by Spain. Still it is possible that the cession may have been since annulled; and that such was, or was to be the case, has been stated in verbal accounts from Madrid. At Paris, Mr. Livingston has been given to understand by the French Government, that the Cession had never been more than a subject of conversation between the two governments. No information however, has been received from him subsequent to the publication of the Treaty of March 1801, which must have led to some more decisive explanations.

The copies herewith inclosed, of a memorial of sundry inhabitants living on Waters running from the United States thro’ Florida into the Gulph of Mexico, and of a letter from the late Mr Hunter representative in Congress of the Mississippi Territory, will present to your attention a subject of some importance at this time, and of very great importance in a future view. The Treaty with Spain having as these documents observe, omitted to provide for the use of the Mobille, Catahoochee and other rivers running from our territory through that of Spain, by the citizens of the United States in like manner with the use of the Mississippi, it will be proper to make early efforts to supply the defect. Should a Cession, indeed, including the Spanish Territory Eastward of the Mississippi have finally taken place, it can answer no purpose to seek from the Spanish Government, this supplemental arrangement. On the contrary supposition, you will avail yourself of the most favourable moment and manner of calling its attention to the object. In support of our claim you will be able to use the arguments which inforced that to the navigation of the Mississippi. If it should be observed, that a greater proportion of these rivers, than of the Mississippi, run thro’ the exclusive territory of Spain, it may be a set off, that the upper parts of the rivers run exclusively thro’ the territory of the United States, and do not merely divide it, like the Mississippi from that of Spain. But neither the one nor the other circumstance can essentially affect our natural rights. Should the Spanish Government be favourably disposed, it will be proper for you to pave the way for a formal convention on the subject, endeavouring to obtain in the mean time, such regulations from its authority, and such instructions to its officers as will answer the purposes of our citizens. Among other hardships of which they now complain, and for which a regulation is particularly wanted, one I understand is, that the article cotton, which is acquiring rapid importance in that quarter, must, after it has been conveyed to Mobille, be shipped to New Orleans and pay a duty of about 12½ p Cent before it can be exported.

The copies of a letter from E. J. Berry and of another from E. Jones herewith also inclosed, present another subject which will claim your attention. This is not the only complaint that has been received, of abuses relating to the effects of Americans deceased within the Spanish jurisdiction on the Mississippi. It seems so reasonable and necessary that the Consul residing there, or persons deriving authority from the deceased owner, should be allowed to take charge of such effects, that it is hoped a regulation for that purpose may be obtained from the justice and liberality of the Spanish Government. * * *

TO ROBERT R. LIVINGSTON.1d. of s. mss. instr.

Washington, Department of State,
May 1st 1802.

Sir,

My last of which a duplicate is now sent, was of the twenty-sixth day of March. I have since received yours not then acknowledged including the Dispatch of Feby 26 which came to hand two days ago.

The conduct of the French Government in paying so little attention to its obligations under the Treaty, in neglecting its debts to our citizens, in giving no answers to your complaints and expostulations, which you say is the case with those of other foreign Ministers also, and particularly in its reserve as to Louisiana, which tactily contradicted the language first held to you by the Minister of Foreign Relations, gives tokens as little auspicious to the true interests of France herself, as to the Rights and the just objects of the United States. We have the better ground to complain of this conduct, as it is so much at variance with the example given by the Government here. The appropriation was no sooner carried thro’ the Legislative forms, than the settlement of French claims under the Treaty commenced; and with the advantage of every facility that could be afforded on our part in ascertaining them; and as Mr Pichon was authorized to receive those due to individuals not applying, the whole amount has been already discharged, excepting in a very few cases which may require further examination. The claims were liquidated according to the nett proceeds of the sales, as heretofore intimated to you, altho’ it is still believed that restitution according to the gross amount or value at the time of capture, not only would be more favorable to the United States but more in itself. The payment to Mr Pichon without a special Power from the claimants was by no means the choice of the President, but was so much pressed, as a test of the disposition of this Country towards the French Republic at a critical moment, that it could not be properly refused. The sum received by him is $140,841.25 Cents. That paid to individuals is $74,667.41.

It is proper to observe to you that in all cases where sales were made by the American Captors prior to the date of the Convention, without the trial and condemnation requisite, we have admitted the title to restitution without regarding the lapse of time between the capture and the Convention, or making a question how far cases of that description were within the contemplation of the instrument. You will of course avail yourself of this proceeding on the part of the United States to enforce a correspondent rule in their favour, in case a different one should be contended for by the French Government. You will not fail to insist also, if occasion should require that in cases where the time allowed for appeals, had not run out at the date of the Convention, it could not be necessary for the claimants afterwards to enter appeals. The Convention by recognizing all claims not barred by final condemnation at its date, evidently rescued them from all further subjection to judicial investigation.

The Cession of Louisiana to France becomes daily more and more a source of painful apprehensions. Notwithstanding the Treaty of March 1801, and notwithstanding the general belief in France on the subject, and the accounts from St. Domingo that part of the armament sent to that island were eventually destined for Louisiana, a hope was still drawn from your early conversations with Mr. Talleyrand that the French Government did not mean to pursue the object. Since the receipt of your last communication, no hope remains but from the accumulating difficulties of going thro’ with the undertaking, and from the conviction you may be able to impress that it must have an instant and powerful effect in changing the relations between France and the United States. The change is obvious, and the more it can be developed in candid and friendly appeals to the reflections of the French Government, the more it will urge it to revise and abandon the project. A mere neighbourhood could not be friendly to the harmony which both countries have so much an interest in cherishing but if a possession of the mouth of the Mississippi is to be added to other causes of discord, the worst events are to be apprehended. You will consequently spare no efforts that will consist with prudence and dignity, to lead the Councils of France to proper views of this subject, and to an abandonment of her present purpose. You will also pursue by prudent means the enquiry into the extent of the Cession, particularly whether it includes the Floridas as well as New Orleans; and endeavour to ascertain the price at which these, if included in the Cession, would be yielded to the United States. I cannot in the present state of things be more particular on this head, than to observe that in every view it would be a most precious acquisition, and that as far as the terms could be satisfied by charging on the acquisition itself, the restitutions, and other debts to american Citizens, great liberality would doubtless be indulged by this Government. The President wishes you to devote every attention to this object, and to be frequent and particular in your communications relating to it.

According to the latest accounts from St. Domingo the French troops had been considerably successful in dispersing the Blacks, but it is uncertain how long the War there may be protracted by the irregular enterprizes of the latter, and by the advantages they derive from the climate. You will have found from the Newspapers, that much irritation and perplexity were the consequence of all conduct on the part of the French Commander, on his arrival, met as we learn from Mr Lear, by a conduct not less blameable on the part of the Americans trading there. To the other errors of General Le Clerc he has lately revoked the permission given to Mr Lear to exercise the functions of Commercial Agent, alleging for a reason that he had no authority for granting the permission, and had inconsiderately taken the step in the hurry of his arrival. He acknowledged at the same time, that he had been led to consider Mr. Lear as rendered justly obnoxious to him by throwing discredit on his Bills, and promoting irritations between the French and the Americans. In this view of Mr. Lears conduct Le Clerc must have been grossly misled by calumnies and intrigues, for the conduct of Mr. Lear has been in every respect highly meritorious, for the prudence, the moderation, the candor and conciliatory tone of it. Of this Le Clerc may be expected to be by degrees satisfied, as Mr. Pichon already is; and so far the evil may be mitigated; but with various other circumstances connected with the transactions at St Domingo, it has been unfavourable to the kind sensations which it has been our endeavour to cherish. You will remark also in the Newspapers that the idea of a visit from the French fleet, and of pecuniary succours from the Government of the United States, has excited not a little sensibility in some quarters of the Union. It was at one time the purpose of Admiral Vellaret to come to this Country with part of his fleet, and as it was feared that he would come without money or credit to obtain supplies for even the first wants, it was anticipated that applications would be made for a Loan in some form or other from the Government of the United States. The fleet however has not arrived and is understood not to be coming, and no application has in fact been made for pecuniary facilities, other than that of purchasing for purposes of the United States in Europe, bills drawn on the French Government; which application was rejected for reasons sufficiently obvious. It is now said that the Batavian part of the fleet is destined to the Chesepeake and will probably arrive in a few days.

Congress will probably adjourn on Monday. For an account of their proceedings and other domestic occurrences, I refer you to the printed papers herewith sent.

With sentiments of great respect &c. &c.

P. S. I have communicated to the President your wish to make a visit to England, and have the pleasure to inform you of his consent. He leaves the time and duration of your absence to your own judgment, assuring himself that both will be [in] due subordination to the important duties of your station.

TO CHARLES PINCKNEY.d. of s. mss. instr.

Department of State, May 11th, 1802.

Sir:

My last was of the 30th of March. We are still without a line from you since your arrival at Madrid, and feel an increasing solicitude to hear from you on the subject of Louisiana. The latest information from Paris has confirmed the fact that it was ceded by a Treaty prior to that of March 1801; and notwithstanding the virtual denial of the cession in the early conversations between Mr. Livingston and the Minister of Foreign relations, a refusal of any explanations at present, seems to admit that the cession has taken place. Still there are chances of obtaining a reversal of the transaction. The repugnance of the United States to it is and will be pressed in a manner that cannot be without some effect. It is known that most of the French statesmen best informed on the subject, disapprove of it. The pecuniary difficulty of the French Government must also be felt as a check; whilst the prospect of a protracted and expensive war in St. Domingo must form a very powerful obstacle to the execution of the project. The Counsels of England appear to have been torpid on this occasion. Whether it proceed from an unwillingness to risk a fresh altercation with France, or from a hope that such a neighbourhood between France and the United States would lead to collisions which might be turned to her advantage, is more than I can decide. The latter consideration might justly have great weight with her, but as her eyes may be more readily turned to the immediate and certain purposes to be answered to her rival, it is to be presumed, that the policy of England will contribute to thwart the acquisition. What the intentions of Spain may be, we want to learn from you. Verbal information from inofficial sources has led us to infer that she disowns the instrument of Cession, and will vigourously oppose it. Should the Cession actually fail from this or any other cause, and Spain retain New Orleans and the Floridas, I repeat to you the wish of the President that every effort and address be employed to obtain the arrangement by which the Territory on the East side of the Mississippi including New Orleans may be ceded to the United States, and the Mississippi made a common boundary, with a common use of its navigation, for them and Spain. The inducements to be held out to Spain, were intimated in your original instructions on this point. I am charged by the President now to add, that you may not only receive and transmit a proposition of guaranty of her territory beyond the Mississippi, as a condition of her ceding to the United States the Territory including New Orleans on this side; but, in case it be necessary may make the proposition yourself, in the forms required by our Constitution. You will infer from this enlargement of your authority, how much importance is attached to the object in question, as securing a precious acquisition to the United States, as well as a natural and quiet boundary with Spain; and will derive from this consideration additional motives to discharge with a prudent zeal the task committed to you.

With sentiments of Great respect &c. &c.

TO ROBERT R. LIVINGSTON.d. of s. mss. instr.

Department of State, July 6th, 1802.

Sir,

I have lately been furnished by Captains Rogers and Davidson, with the respective narratives of the outrageous treatment which they suffered from the French administration at St. Domingo. These documents are now forwarded to you, and will enable you to press the subject on the French Government with the advantage to be derived from an accurate knowledge of its details. The insulting cruelties practised on these respectable citizens, and the absurd pretexts for them alleged by the General in Chief, have produced irritations and disgusts in this country which the French Government will not disregard, if it sincerely means, as we are willing to believe it does, to concur with the Government of the United States in consolidating the friendship between the two nations, by the exercise of reciprocal justice and respect. We trust that your claims of satisfaction in this case, will meet with the most candid and ready attention; and that besides the reparation of losses in property, which as they relate to Davidson, are stated at 1196 dollars, such animadversions will fall on the guilty as will heal as far as possible, the personal indignities offered to the American citizens.

The affinity subsisting between General Le Clerc, and the Chief Consul, has probably emboldened the former to overleap the barriers which his duty opposed to his power; and may be now much relied on by him as an asylum against the consequences due to his excesses. This supposition is strengthened by the resentment he has expressed at the interposition and expostulations of Mr. Pichon, with whom he will no longer communicate, and whose letters he has transmitted with a complaint to the French Government. A copy of this letter is herewith sent to you.

On another hand it would seem that he is anxious to exculpate himself in the eyes of his own government, or to divert its attention from his own misconduct, to causes of resentment which he is imputing to the United States. With the first view an attempt was lately made at Cape Francois to engage the Americans there to sign a paper certifying that General Le Clerc had in no instance given just ground of dissatisfaction. Not a name I am told could be obtained.

To the other view viz, of diverting resentment from himself may be ascribed 1 the loud complaints with which he is said to dwell on the freedom of the American presses, in reproaching French transactions, and particularly his own, 2 his charge against this country of supplying or attempting to supply the party of Toussaint with the implements of War, 3 The suggestion of a covert acknowledgement of Toussaint’s usurped authority, now observed in the form of the Commission given to the Commercial Agents of the United States, last sent to St. Domingo.

It will not be difficult to reply to these charges if they should shew themselves in your communications with the French Government. The presses and even the parliamentary debates in G. Britain, since the definitive Treaty of peace, use as unrestrained and offensive a language, as the Newspapers of the United States. It cannot be unknown that our presses are not under the regulation of the Government, which is itself constantly experiencing more or less of their abuse; and that besides the ordinary excesses to which all free presses are liable from the passions or indiscretions of citizens, those of the United States may for obvious reasons, be easily made the vehicle of insidious publications by persons among us who are not citizens, and who would gladly kindle animosities between France and the United States. It is a fact, that some of the most offensive accounts which have been printed, of the proceedings in St. Domingo, are now known to have been written from the spot, by British subjects, not by American citizens.

With respect to supplies of Military articles to the party of Toussaint, the answer is obvious, and must be satisfactory. Without admitting the fact that any such articles were at any time so supplied, it may be observed, that the French Government can have no desire to recur to the past periods as of present dispositions; and that it is the duty and the intent of both countries not to remove the veil which the reconciliation so happily concluded, has thrown over preceding occurs rences. The conduct of the American administration since that event, can not be even suspected of the slightest irregularity or unfriendliness on this subject; nor as is believed, has a single instance happened since the arrival of the French armament, and the regulations by Genl. Le Clerc adapted to the revolt which ensued, in which an American citizen has engaged in commerce of any sort with Toissant or his adherents. The precautions taken by the French commanders were a sufficient bar to such an attempt; and had it been otherwise, it was explicitly declared to the French Minister here, and to Admiral Villaret, as you will have seen by communications already made to you, that our offending citizens would be considered by the President as fairly subjected to the penalties of their illegal conduct.

As to the complaint against the form of the Commissions given to Mr. Lear and the other Agents in St. Domingo, of which a copy is herewith included, it is proper to observe that when Mr. Lear presented his to Genl. Le Clerc, no objection or criticism was made. The first objection accompanied the order of departure given about the beginning of June to Mr. Caldwell the Commercial Agent at St. Domingo by the Officer commanding the Spanish part of the Island. From the language used on the occasion, which violated decorum not less than truth, and from other circumstances, it is inferred that the cavil was not made without the authority of Genl. Le Clerc, and consequently that it will enter into the complaints which he may find it convenient to present to his Government against that of the United States. On this subject observations of great force might be drawn from the very peculiar situation in which St. Domingo seemed to be left by the temporary and accommodating policy of the French Republic itself, which finding it inconvenient to enforce its authority over the island or to furnish it with subsistence from its own sources, was anxious of course, that it might be fed from neutral sources, in other words from the U. States; and with every relaxation of ordinary forms necessary for so essential a purpose. But it is not necessary to resort to this consideration. The form of the Commission, which refers generally to the authority over the island without naming the French Republic is understood to have been copied from the usage of other countries, and has been long tho’ not enviably practised by the Government of the United States. More than a dozen instances might be specified, one of which is as far back as the year 1702, and several as the year 1794, and for places such as Trieste, Hamburg, Bremen &c where there could be no other inducement to such a form, than the presumed regularity of it. In truth, it has from the commencement of the present administration been a principle with the President which has been as strictly observed as it has been sincerely declared, to avoid in the intercourse with St. Domingo every measure and circumstance which might controvert the authority of the French Republic; or give ground of umbrage to the French Government. On this principle particularly by every instruction given to the Commercial Agents sent to that Island.

With sentiments of great respect &c. &c. &c.

TO ROBERT R. LIVINGSTON.d. of s. mss. instr.

Department of State, October 15th, 1802.

Sir,

On my return from Virginia after an absence of two Months, I found here your letter of July 30th. Those of May 10, 12, 20, 28 June 8th & July 3d had been previously received.

The zeal and energy with which you are urging on the French Government a fair construction and fulfilment of the Convention, and a discharge of all our just demands, render it unnecessary to repeat to you our anxiety that the example of good faith given by the United States should not remain without a satisfactory reciprocity. The precise tone in your communications most likely to favor this result, can best be decided by your own judgment.

In a general view, the sounded policy evidently prescribes one, that will cherish whatever good will or confidence may be felt towards the United States, and that will charge on that side the blame of any failure in the pursuit of our objects. It must be left to your own decision also how far a direct resort to the Head of the Government may promise [more] success than the ordinary channels of communicating with him. The delays and obstacles met with in the latter recommend the experiment, if there be no objections to it drawn from usage or other considerations not perceived at this distance. The experiment, which will of course be made with as little danger as possible of needless umbrage to the intermediate Organ, may at least lead to a knowledge of the ground finally meant to be taken by the Chief Consul; and to which the further instructions of the President must be accommodated.

The suspense which has taken place in relation to Louisiana and the Floridas, is favorable to the efforts for diverting the French Government from its unwise project. Whether we regard the sentiments prevailing in this Country on the subject, or the striking tendencies of the project itself, no pains ought to be spared for putting an end to it. If the occasion can be so improved as to obtain for the United States, on convenient terms, New Orleans and Florida, the happiest of issues will be given to one of the most perplexing of occurrences. I postpone more particular remarks on this subject, until the President shall know the impressions on the French Councils, resulting from the views of it to which you will be led by the dispatches of which Mr. Dupont was the bearer.

The answer to your note on the case of Capt. Rodgers and Davidson, is by no means such as there was a right to expect. Genl. Le Clerc having himself stated the reasons on which he proceeded, other and better reasons could not be presumed; and it seems impossible not to regard his reasons rather as an insult than a justification. My letter of July 6 will renew this subject: and it is to be hoped that a reconsideration by the French Government will do more justice to it.1 * * *

TO CHARLES PINCKNEY.d. of s. mss. instr.

Department of State, November 27th, 1802.

Sir,

Your dispatches by Mr. Codman were delivered by him two days ago; but being voluminous, and the documents in the Spanish language, not yet fully translated, I am not able at present to convey to you the sentiments of the President on the subject. My letter of October 25th will have explained to you the scope of our claims on the Spanish Government; and I now only repeat the confidence entertained that as far as your success in the Convention has not corresponded therewith, your efforts will be renewed to bring about a supplemental provision; particularly in behalf of our citizens whose losses proceeded from aliens within Spanish responsibility.

A letter from a confidential citizen at New Orleans, of which a copy is inclosed, has just informed us, that the Intendant at that place, by a proclamation from which an extract is also inclosed, had prohibited the deposit of american effects, stipulated by the Treaty of 1795; and as the letter is interpreted, that the river was also shut against the external commerce of the U. States from that port. Whether it be the fact or not that this latter prohibition has also taken place, it is evident that the useful navigation of the Mississippi so essentially depends on a suitable depositary for the articles of commerce that a privation of the latter is equivalent to a privation of both.

This proceeding is so direct and palpable a violation of the Treaty of 1795, that in candor it is to be imputed rather to the Intendent solely, than to instructions of his Government. The Spanish Minister takes pains to impress this belief, and it is favoured by private accounts from New Orleans mentioning that the Governor did not concur with the Intendant. But from whatever source the measure may have proceeded the President expects that the Spanish Government will neither lose a moment in countermanding it, nor hesitate to repair every damage which may result from it. You are aware of the sensibility of our Western citizens to such an occurrence. This sensibility is justified by the interest they have at stake. The Mississippi is to them everything. It is the Hudson the Delaware, the Potomac and all the navigable rivers of the atlantic States formed into one stream. The produce exported thro’ that channel last year amounted to $1,622,672 from the District of Kentucky and Mississippi only, and will probably be fifty p Cent more this year (from the whole Western Country, Kentucky alone has exported for the 1st half of this year $591,432 in value) a great part of which is now or shortly will be afloat for New Orleans and consequently exposed to the effects of this extraordinary exercise of power. Whilst you presume therefore in your representations to the Spanish Government, that the conduct of its officers is no less contrary to its intentions, than it is to its good faith, you will take care to express the strongest confidence, that the breach of the Treaty will be repaired in every way which justice and a regard for a friendly neighbourhood may require.

I have communicated the information received from New Orleans to the Chevalier D’Yrujo, with a view to obtain his immediate interposition as you will find by the inclosed copy of a letter to him. He readily undertakes to use it with all the effect he can give it, by writing immediately on the subject to the local authority at New Orleans. I shall write at the same time to Mr. Hulings, who will enforce as far as he may have an opportunity the motives for recalling the unwarrantable prohibitions. It is to be hoped that the Intendant will be led to see the error which he has committed, and to correct it, before a very great share of its mischief will have happened. Should he prove as obstinate as he has been ignorant or wicked, nothing can temper the irritation and indignation of the Western Country, but a persuasion that the energy of their own Government will obtain from the justice of that of Spain, the most ample redress.

It has long been manifest, that whilst the injuries to the United States, so frequently occurring from the Colonial offices scattered over our hemisphere and in our neighbourhood, can only be repaired by a resort to the respective sovereigns in Europe, that it will be impossible to guard against the most serious inconveniences. The instance before us strikes with peculiar force, and presents an occasion on which you may advantageously suggest to the Spanish Government, the expediency of placing in their Minister on the Spot an authority to controul or correct the mischievous proceedings in their Colonial officers towards our citizens; without which any of fifteen or twenty individuals, not always among either the wisest or best of men, may at any time threaten the good understanding of the two Countries. The distance between the United States and the old Continent, and the mortifying delays of explanations across the Atlantic, on emergencies in our neighbourhood, render such a provision indispensable, and it cannot be long before all the Governments of Europe having American Colonies must see the policy of making it.

I am, &c. &c. &c.

[1 ]Minister to France.

[1 ]On July 26 Madison wrote to Charles Pinckney:

The last information from Paris renders it certain that the Cession of Louisiana to France has actually been concluded, and that the Cession comprehends the two Floridas. In this state of the business it seems unnecessary to decide on the price which Spain might be led to expect for a cession of the Floridas including New Orleans to the United States; and the more so as it would be of use for us previously to know the value of the places on the guaranty proposed in my letter to you of 25th September last. For the cession wished by the United States, must be an object of negotiation with the French Government. It will notwithstanding continue to be proper for you to cultivate the good dispositions of Spain in relation to it, both as they may not be entirely disregarded by France, and as in the turn of events, Spain may possibly be extricated from her engagements to France, and again have the disposal of the Territories in question.

D. of S. MSS. Instr.