The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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OBSERVATIONS ON THE PLAN. |
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 | The writings of James Madison, |  |
OBSERVATIONS ON THE PLAN.
- As the Cession to be made by France in this case must
rest on the Cession made to her by Spain, it might be proper
that Spain should be a party to the transaction. The objections
however to delay require that nothing more be asked on
our part, than either an exhibition and recital of the Treaty
between France and Spain; or an engagement on the part of
France, that the accession of Spain will be given. Nor
will it be advisable to insist even on this much, if attended
with difficulty or delay, unless there be ground
to suppose that Spain will contest the validity of the transaction. - The plan takes for granted also that the Treaty of 1795
between the United States and Spain is to lose none of its
force in behalf of the former by any transactions whatever
between the latter and France. No change it is evident will
be, or can be admitted to be produced in that Treaty or in the
arrangements carried into effect under it, further than it may
be superseded by stipulations between the United States and
France, who will stand in the place of Spain. It will not be
amiss to insist on an express recognition of this by France as
an effectual bar against pretexts of any sort not compatible
with the stipulations of Spain. - The first of the articles proposed, in defining the Cession
refers to the South pass of the Mississippi, and to the
Islands North and East of that channel. As this is the most
navigable of the several channels, as well as the most direct
course to the sea, it is expected that it will not be objected to.
It is of the greater importance to make it the boundary, because
several Islands will be thereby acquired, one of which is
said to command this channel, and to be already fortified.
The article expressly included also the Islands appertaining
to the Floridas. To this there can be no objection. The
Islands within six leagues of the shore are the subject of a
British proclamation in the year 1763 subsequent to the Cession
of the Floridas to Great Britain by France, which is
21not known to have been ever called in question by either
France or Spain.
1st
2d
3d
The 2d Article requires no particular observations.
Article 3d is one whose import may be expected to undergo
the severest scrutiny. The modification to be desired is that,
which, whilst it provides for the interest of the United States
will be acceptable to France, and will give no just ground of
complaint, and the least of discontent to Great Britain.
The present form of the article ought and probably will be
satisfactory to France; first because it secures to her all the
commercial advantages on the river which she can well desire;
secondly because it leaves her free to contest the mere navigation
of the River by Great Britain, without the consent of
France.
The article also, in its present form violates no right of
Great Britain, nor can she reasonably expect of the United
States that they will contend beyond their obligations for her
interest at the expense of their own. As far as Great Britain
can claim the use of the river under her Treaties with us, or
by virtue of, contiguous territory, the silence of the Article
on that subject, leaves the claim unaffected. As far again as
she is entitled under the Treaty of 1794 to the use of our Bank
of the Mississippi above the 31st degree of N. Latitude, her
title will be equally entire. The article stipulates against her
only in its exclusion of her commerce from the bank to be
ceded below our present limits. To this she cannot, of right
object, 1st because the Territory not belonging to the United
States at the date of our Treaty with her is not included in its
stipulations, 2dly because the privileges to be enjoyed by
France are for a consideration which Great Britain has not
Given and cannot give 3dly because the conclusion in this case,
being a condition on which the Territory will be ceded and
accepted, the right to communicate the privilege to Great
Britain will never have been vested in the United States.
But altho' these reasons fully justify the article in its relation
to Great Britain, it will be advisable before it be proposed,
to feel the Pulse of the French Government with
the consent of the other admit whomsoever it pleases to navigate
the river and trade with their respective shores, on the
same terms, as in other parts of France and the United States;
and as far as the disposition of that Government will concur, to
vary the proposition accordingly. It is not probable that this
concurrence will be given; but the trial to obtain it will not
only manifest a friendly regard to the wishes of Great Britain,
and if successful, furnish a future price for privileges within
her grant; but is a just attention to the interests of our Western
fellow citizens, whose commerce will not otherwise be on
an equal footing with that of the Atlantic States.
Should France not only refuse any such change in the Article;
but insist on a recognition of her right to exclude all
nations, other than the United States, from navigating the
Mississippi, it may be observed to her, that a positive stipulation
to that effect might subject us to the charge of intermeddling
with and prejudging questions existing merely between
her and Great Britain; that the silence of the article is sufficient;
that as Great Britain never asserted a claim on this
subject against Spain, it is not to be presumed that she will
assert it against France on her taking the place of Spain;
that if the claim should be asserted the Treaties between
the United States and Great Britain will have no connection
with it, the United States having in those treaties given
their separate consent only to the use of the river by Great
Britain, leaving her to seek whatever other consent may be
necessary.
If, notwithstanding such expostulations as these, France
shall inflexibly insist on an express recognition to the above
effect it will be better to acquiesce in it, than to lose the opportunity
of fixing an arrangement, in other respects satisfactory;
taking care to put the recognition into a form not
inconsistent with our treaties with Great Britain, or with an
explanatory article that may not improbably be desired by her.
In truth it must be admitted, that France as holding one
bank, may exclude from the use of the river any Nation
is understood to be. As a river where both its banks are
owned by one Nation, belongs exclusively to that Nation; it
is clear that when the Territory on one side is owned by one
Nation and on the other side by another nation, the river belongs
equally to both, in exclusion of all others. There are
two modes by which an equal right may be exercised; the
one by a negative in each on the use of the river by any other
nation except the joint proprietor, the other by allowing each
to grant the use of the river to other nations, without the consent
of the joint proprietor. The latter mode would be preferable
to the United States. But if it be found absolutely
inadmissible to France, the former must in point of expediency,
since it may in point of right be admitted by the
United States. Great Britain will have the less reason to be
dissatisfied on this account as she has never asserted against
Spain, a right of entering and navigating the Mississippi, nor
has she or the United States ever founded on the Treaties
between them, a claim to the interposition of the other party
in any respect; altho' the river has been constantly shut
against Great Britain from the year 1783 to the present moment,
and was not opened to the United States until 1795,
the year of their Treaty with Spain.
It is possible also that France may refuse to the United
States, the same commercial use of her shores, as she will
require for herself on those ceded to the United States. In
this case it will be better to relinquish a reciprocity, than to
frustrate the negotiation. If the United States held in their
own right, the shore to be ceded to them, the commercial use
of it allowed to France, would render a reciprocal use of her
shore by the United States, an indispensable condition.
But as France may, if she chuses, reserve to herself the commercial
use of the ceded shore as a condition of the cession,
the claim of the United States to the like use of her shore
would not be supported by the principle of reciprocity, and
may therefore without violating that principle, be waved
in the transaction.
The article limits to ten years the equality of French citizens,
vessels and merchandizes, with those of the United
States. Should a longer period be insisted on it may be
yielded. The limitation may even be struck out, if made
essential by France; but a limitation in this case is so desirable
that it is to be particularly pressed, and the shorter the
period the better.
Art IV The right of deposit provided for in this article,
will accommodate the commerce of France, to and from her
own side of the river, until an emporium shall be established
on that side, which it is well known will admit of a convenient
one. The right is limited to ten years, because such
an establishment may within that period be formed by her.
Should a longer period be required, it may be allowed, especially
as the use of such a deposit would probably fall
within the general regulations of our commerce there. At
the same time, as it will be better that it should rest on our
own regulations, than on a stipulation, it will be proper
to insert a limitation of time, if France can be induced to
acquiesce in it.
Art. V. This article makes a reasonable provision for the
commerce of France in the ports of West and East Florida.
If the limitation to ten years of its being on the same footing
with that of the United States, should form an insuperable
objection, the term may be enlarged; but it is much to
be wished that the privilege may not in this case, be made
perpetual.
Art VI—The pecuniary consideration, to be offered for
the territories in question, is stated in Art. VI. You will of
course favor the United States as much as possible both in
the amount and the modifications of the payments. There
is some reason to believe that the gross sum expressed in the
Article, has occurred to the French Government, and is as
much as will be finally insisted on. It is possible that less
may be accepted, and the negotiation ought to be adapted
to that supposition. Should a greater sum be made an ultimatum
on the part of France, the President has made up
rather than lose the main object. Every struggle however
is to be made against such an augmentation of the price, that
will consist with an ultimate acquiescence in it.
The payment to be made immediately on the exchange of
ratifications is left blank; because it cannot be foreseen either
what the gross sum or the assumed debts will be; or how far
a reduction of the gross sum may be influenced by the anticipated
payments provided for by the act of Congress herewith
communicated and by the authorization of the President and
Secretary of the Treasury endorsed thereon. This provision
has been made with a view to enable you to take advantage
of the urgency of the French Government for money, which
may be such as to overcome their repugnance to part with
what we want, and to induce them to part with it on lower
terms, in case a payment can be made before the exchange of
ratifications. The letter from the Secretary of the Treasury
to the Secretary of State, of which a copy is herewith
inclosed, will explain the manner in which this advance of the
ten Millions of livres, or so much thereof as may be necessary,
will be raised most conveniently for the United States. It
only remains here to point out the condition or event on
which the advance may be made. It will be essential that
the Convention be ratified by the French Government before
any such advance be made; and it may be further required,
in addition to the stipulation to transfer possession of the
ceded territory as soon as possible, that the orders for the
purpose, from the competent source, be actually and immediately
put into your hands. It will be proper also to provide
for the payment of the advance, in the event of a refusal of
the United States to ratify the Convention.
It is apprehended that the French Government will feel no
repugnance to our designating the classes of claims and debts,
which, embracing more equitable considerations than the
rest, we may believe entitled to a priority of payment. It is
probable therefore that the clause of the VI article referring
it to our discretion may be safely insisted upon. We think
ourselves.
1st. Claims under the fourth Article of the Convention of
Sept. 1800.
2ndly Forced contracts or sales imposed upon our citizens
by French authorities; and
3rdly Voluntary contracts, which have been suffered to
remain unfulfilled by them.
Where our citizens have become creditors of the French
Government in consequence of Agencies or Appointments
derived from it, the United States are under no particular
obligation to patronize their claims, and therefore no sacrifice
of any sort, in their behalf ought to be made in the arrangement.
As far as this class of claimants can be embraced,
with [out] embarrassing the negotiation, or influencing in
any respect the demands or expectations of the French Government,
it will not be improper to admit them into the provision.
It is not probable however, that such a deduction
from the sum ultimately to be received by the French Government
will be permitted, without some equivalent accommodation
to its interests, at the expence of the United States.
The claims of Mr. Beaumarchais and several other French
individuals on our government, founded upon antiquated or
irrelevant grounds, altho' they may be attempted to be included
in this negotiation have no connection with it. The
American Government is distinguished for its just regard to
the rights of foreigners and does not require those of individuals
to become subjects of Treaty in order to be admitted.
Besides, their discussion involves a variety of minute topics,
with which you may fairly declare yourselves to be unacquainted.
Should it appear however, in the course of the
negotiation, that so much stress is laid on this point, that
without some accommodation, your success will be endangered,
it will be allowable to bind the United States for the
payment of one Million of livres tournois to the representatives
of Beaumarchais, heretofore deducted from his account
against them; the French Government declaring the same
States.
Art. VII is suggested by the respect due to the rights of
the people inhabiting the ceded territory and by the delay
which may be found in constituting them a regular and integral
portion of the Union. A full respect for their rights
might require their consent to the Act of Cession; and if the
French Government should be disposed to concur in any
proper mode of obtaining it, the provision would be honorable
to both nations. There is no doubt that the inhabitants
would readily agree to the proposed transfer of their
allegiance.
It is hoped that the idea of a guarantee of the Country
reserved to France may not be brought into the negotiation.
Should France propose such a stipulation it will be expedient
to evade it if possible, as more likely to be a source of disagreeable
questions, between the parties concerning the actual
casus federis than of real advantage to France. It is not in
the least probable that Louisiana in the hands of that Nation
will be attacked by any other whilst it is in the relations to
the United States on which the guarantee would be founded;
whereas nothing is more probable than some difference of
opinion as to the circumstances and the degree of danger
necessary to put the stipulations in force. There will be less
reason in the demand of such an Article as the United States
would [put] little value on a guarantee of any part of their
territory and consequently there would be no great reciprocity
in it. Should France notwithstanding these considerations
make a guarantee an essential point, it will be better to accede
to it than to abandon the object of the negotiation, mitigating
the evil as much as possible by requiring for the casus federis
a great and manifest danger threatened to the Territory
guaranteed, and by substituting for an indefinite succour, or
even a definite succour in Military force, a fixed sum of money
payable at the Treasury of the United States. It is difficult
to name the proper sum which is in no posture of the business
to be exceeded, but it can scarcely be presumed that more
existence of the danger, will be insisted on. Should it be
unavoidable to stipulate troops in place of money, it will
be prudent to settle the details with as much precision as
possible, that there may be no room for controversy either
with France or with her money, on the fulfillment of the
stipulation.
The instructions thus far given suppose that France may
be willing to cede to the United States the whole of the Island
of New Orleans, and both the Floridas. As she may be inclined
to dispose of a part or parts, and of such only, it is
proper for you to know that the Floridas together are estimated
at 1/4 the value of the whole Island of New Orleans,
and East Florida at ½ that of West Florida. In case of a partial
Cession, it is expected, that the regulations of every other
kind so far as they are onerous to the United States, will be
more favorably modified.
Should France refuse to cede the whole of the Island, as
large a portion as she can be prevailed on to part with, may be
accepted; should no considerable portion of it be attainable,
it will still be of vast importance to get a jurisdiction
over space enough for a large commercial town and its appurtenances,
on the Bank of the river, and as little remote from
the mouth of the river as may be. A right to chuse the place,
would be better than a designation of it in the Treaty. Should
it be impossible to procure a complete jurisdiction over any
convenient spot whatever, it will only remain to explain and
improve the present right of deposit, by adding thereto the
express privilege of holding real estate for commercial purposes,
of providing hospitals, of having Consuls residing there,
and other Agents who may be authorized to authenticate and
deliver all documents requisite for vessels belonging to and
engaged in the trade of the United States to and from the
place of deposit. The United States cannot remain satisfied,
nor the Western people be kept patient under the restrictions
which the existing Treaty with Spain authorizes.
Should a Cession of the Floridas not be attainable your
deposits at the mouths of the rivers passing from the United
States thro' the Floridas, as well as of the Free navigation of
the rivers by Citizens of the United States. What has been
above suggested in relation to the Mississippi and the deposit
on its Banks is applicable to the other rivers; and additional
hints relative to them all may be derived from the letter of
which a copy is inclosed from the Consul at New Orleans.
It has been long manifest, that whilst the injuries to the
United States so frequently occurring from the Colonial offices
scattered over our hemisphere and in our neighbourhood
can only be repaired by a resort to their respective Governments
in Europe, that it will be impossible to guard against
the most serious inconveniences. The late events at New
Orleans strongly manifest the necessity of placing a power
somewhere nearer to us, capable of correcting and controuling
the mischievous proceedings of such officers toward our
citizens, without which a few individuals not always among
the wisest and best of men, may at any time threaten the good
understanding of the two Nations. The distance between the
United States and the old continent, and the mortifying delays
of explanations and negotiations across the Atlantic on
emergencies in our neighborhood, render such a provision
indispensable, and it cannot be long before all the Governments
of Europe having American Colonies must see the
necessity of making it. This object therefore will likewise
claim your special attention.
It only remains to suggest that considering the possibility
of some intermediate violence between citizens of the United
States and the French or Spaniards in consequence of the
interruption of our right of deposit, and the probability that
considerable damages will have been occasioned by that
measure to citizens of the United States, it will be proper
that indemnification in the latter case be provided for, and
that in the former, it shall not be taken on either side as a
ground or pretext for hostilities.
These instructions, tho' as full as they could be conveniently
For the proper exercise of it, the President relies on your
information, your judgment, and your fidelity to the interests
of your Country.
| The writings of James Madison, | |