The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
 |
|
 | TO JAMES MONROE |
| I. |
| II. |
| III. |
| IV. |
| V. |
|
|
|
 | The writings of James Madison, |  |
TO JAMES MONROE
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
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.
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
143to 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.Possession of the said territory shall be delivered
to a person or persons authorized by the United States to
receive the same within 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.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.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.The inhabitants of the ceded territory shall be
entitled to the same incorporation into the United States and
to the same protection in their religion, their liberties and their
property as were stipulated to the inhabitants of the Territory
ceded to the United States by the Treaty of the 30 April 1803
with the French Republic.
Sec. 1.
Sec. 2.
Sec. 3.
Sec. 4.
Sec. 5.
ARTICLE II.
- It is agreed that for the term of years no
lands shall be granted, nor shall persons who may have settled
since October 1—1800 on lands not granted prior thereto, be
144permitted to continue within the space denned 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. - 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. - 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,
145each 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. - 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. - 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. - 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.
Sec. 1.
Sec. 2.
Sec. 3.
Sec. 4.
Sec. 5.
Sec. 6.
ARTICLE III.
It is agreed that within [OMITTED] years previous to the expiration
of the aforesaid term of [OMITTED] 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 [OMITTED] dollars, which may be
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
[OMITTED] 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 [OMITTED] 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 [OMITTED] days after
the signing thereof, and the ratifications shall be exchanged
within [OMITTED] 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
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
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.
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. [OMITTED] 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 [OMITTED] 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
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 [OMITTED] 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
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. [OMITTED] 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.
| The writings of James Madison, | |