USA > Florida > The purchase of Florida; its history and diplomacy > Part 10
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another form of expression that the right remained in France subject to the eventual acceptance of Spain; is it possible to believe that a description which must be pre- sumed to aim at clearness and certainty, should refer for its purposes to so fugitive and equivocal a state of things, in preference to a state of things where the right and the possession of France were of long continuance and susceptible of neither doubt nor controversy? It is impossible. And consequently the only possible construc- tion which can be put on the second form of descrip- tion coincides with the only rational construction that can be put on the first, making Louisiana of the same extent, that is, to the River Perdido, both 'as in the hands of Spain and as France possessed it.'
"The third and last description of Louisiana is in these words 'such as it ought to be according to the treaties sub- sequently passed between Spain and other states.'
"This description may be considered as auxiliary to the two others and is conclusive as an argument for com- prehending within the cession of Spanish territory eastward of the Mississippi and the Iberville, for extending the cession to the River Perdido. The only treaties between Spain and other nations that affect the extent of Louisiana as being subsequent to the possession of it by France, are, first, the treaty in 1783 between Spain and Great Britain and secondly the treaty of 1795 between Spain and the United States.
"The last of these treaties affects the extent of Louis- iana as in the hands of Spain by defining the northern boundary of that part of it which lies east of the Mis- sissippi and the Iberville. And the first affects the extent of Louisiana by including in the cession from Great Britain to Spain the territory between that river and the Perdido; and by giving to Louisiana in consequence of that reunion and of the east and west part, the same extent eastwardly
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in the hands of Spain as it had when France possessed it. Louisiana then as it ought to be according to treaties of Spain subsequently to the possession by France, is lim- ited by the line of demarkation settled with the United States and forming a northern boundary and is extended to the River Perdido as its east boundary.
"This is not only the plain and necessary construc- tion of the words but is the only construction that can give a meaning to them. For they are without meaning on the supposition that Louisiana as in the hands of Spain is limited by the Mississippi and the Iberville. Include this part therefore, as we contend, within the extent of Louisiana, and a meaning is given to both as pertinent as it is important. Exclude this part, as Spain contends, from Louisiana and no treaties exist to which the refer- ence is applicable. This deduction cannot be evaded by pretending that the reference to subsequent treaties of Spain was meant to save the right of deposit and other rights stipulated to the commerce of the United States by the treaty of 1795-first because, although that may be an incidental object of the reference to that treaty, as was signified by his Catholic Majesty to the government of the United States, yet the principal object of the reference is evidently the territorial extent of Louisiana; secondly be- cause the reference is to more than one treaty, to the treaty of 1783 as well as to that of 1795 and the treaty of 1783 can have no modifying effect whatever, rendering it ap- plicable, but on the supposition that Louisiana was con- sidered as extending east of the Mississippi and the Iber- ville, into the territory ceded by that treaty to Spain.
"In fine the construction which we maintain gives to every part of the description of the territory ceded to the .United States, a meaning clear in itself and in harmony with every other part, and is no less conformable to facts, than it is founded on the ordinary use and analogy of the
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expressions. The construction urged by Spain gives on the contrary a meaning to the first description which is inconsistent with the very terms of it; it prefers in the second a meaning that is impossible or absurd, and it takes from the last all meaning whatever.
"In confirmation of the meaning which extends Louis- iana to the River Perdido, it may be regarded as most consistent with the object of the first consul in the cession obtained by him from Spain. Every appearance, every circumstance pronounces this to have been to give lustre to his administration and to. gratify a natural pride in his nation by reannexing to its domain possessions which had without any sufficient considerations been severed from it, and which, being in the hands of Spain, it was in the power of Spain to restore. Spain, on the other side, might be the less reluctant against the cession in this extent as she would be only replaced by it, within the original limits of her possessions, the territory east of the Perdido hav- ing been regained by her from Great Britain in the peace of 1783 and not included in the late cession.
"It only remains to take notice of the argument de- rived from a criticism on the term 'retrocede' by which the cession from Spain to France is expressed. The literal meaning of this term is said to be that Spain gives back to France what she received from France: and that, as she received from France no more than the territory west of the Mississippi and Iberville, that and no more could be given back by Spain.
"Without denying that such a meaning, if uncontrolled by other terms would have been properly expressed by the term 'retrocede,' it is sufficient, and more than sufficient, to observe first that with respect to France the literal meaning is satisfied: France receiving back what she had before alienated. Secondly, that with respect to Spain not only the greater part of Louisiana had been confessedly
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received by her from France and consequently was literally ceded back by Spain as well as ceded back to France. But with respect to the part in question Spain might not unfairly be considered as ceding back to France what France had ceded to her; inasmuch as the cession of it to Great Britain was made for the benefit of Spain to whom on that account Cuba was restored. The effect was precisely the same as if France had in form made the ces- sion to Spain and Spain had assigned it over to Great Britain; and the cession may the more aptly be considered as passing through Spain, as Spain herself was a party to the treaty by which it was conveyed to Great Britain. In this point of view, not only France received back what she had ceded, but Spain ceded back what she had received and the etymology even of the term 'retrocede' is satis- fied. This view of the case is more substantially just, as the territory in question passed from France to Great Brit- ain for the account of Spain but passed from Great Britain into the hands of Spain in 1783, in consequence of a war to which Spain had contributed but little compared with France and in terminating which so favorably in this article for Spain, France had doubtless a preponderating influence. Thirdly, that if a course of proceeding might have existed to which the term 'retrocede' would be more literally appli- cable it may be equally said that there is no other par- ticular term which would be more applicable to the whole proceeding as it did exist. Fourth, lastly that if this were not the case a nice criticism on the etymology of a single term can be allowed no weight against a conclusion drawn from the clear meaning of every other term and from the whole context." 1
The United States appealed to France for her con- struction of the treaty. For her unfavorable answer she
1. 1804.
Vol. VI, Instructions, p. 226, Madison to Livingston, March 31,
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· was promptly maligned by this country and her views dis- counted. "It may be observed," writes Madison to Gen-
. eral Armstrong, "that nothing can be more preposterous than the joint attempt now made by the French and Span- ish governments in discussing the boundaries of Louisiana to appeal from the text of the convention which describes them, to a secret understanding or explanations on that sub- ject between those governments. France sold us Louisi- ana as described in the deed of conveyance which copies the description from the deed of Spain to France. If France sold more than she had a right to sell she would at least be bound to supply the deficiency by a further purchase from Spain or to remit pro tanto the price stipulated by us. But the case rests on a still better footing. France as- signed to us Louisiana as described in the conveyance to her from Spain. Our title to the written description is therefore good against both, notwithstanding any separate explanation or covenant between them, unless it be shown
. that notice thereof was sent to the United States before their bona fide purchase was made. This is a principle of i universal justice no less than of municipal law. With re- spect to France, it will scarcely be pretended that any such notice was given. On the contrary, she corroborated our title according to the text of the bargain by the language of. M. Talleyrand to Mr. Livingston; she corroborated our particular construction of the text in relation to the eastern boundary of Louisiana by the language of M. Marbois ; and she corroborated our construction in relation to both the eastern and western boundaries by her silence under the known extent to which that construction carried them. And with respect to Spain who is equally bound by the assign- ment of the ostensible title of France, unless she can prove a notice to the United States that the real title was dif- ferent from the ostensible one, it is to be observed first that no such proof has ever been attempted, and next that
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Spain cannot even pretend an ignorance of the necessity of such notice. This is evinced by her conduct in another instance where a secret stipulation with France contrary to the tenor of her treaty with France was alleged in opposi- tion to the treaty of the United States with France. France it appears had promised to Spain through her minister at Madrid that she would in no event alienate the territory ceded to her by Spain. The Spanish government sensible as it was that this promise could not invalidate the meaning of the instrument which exhibited the title of France as absolute, and therefore alienable, no sooner heard of the purchase concluded at Paris by the minister of the United States, than she instructed her minister at Washington to communicate without delay to the government of the United States the alleged engagement of France not to alienate, This communication was made on the ninth of September, 1803; and so convinced was Spain of the necessity of the most formal notice on such occasions that the Spanish minister here repeated the same notice on the twenty-seventh of the same month with the addition of some other pretended defects in the title of France and urged on the govern- ment here an obligation to forbear under such circum- stances to ratify the convention with France. Now, if it was necessary for Spain, in order to protect herself by a secret engagement of France not to alienate, against the overt transaction giving France a right to alienate, that she should give notice of that engagement to third parties, and Spain knew this to be necessary, the same course was equally necessary and equally obvious when the effect of the overt speculation as to the limits of the territory sold was to be arrested or restricted by any separate agreement between the original parties. Yet this course was not pursued. So far from it, Spain, in finally notifying through her min- ister here a relinquishment of her opposition to the as- signment of Louisiana to the United States and conse-
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quently to the title of France as derived from the treaty itself, never gave the least intimation of any other secret articles or engagements whatever which were to qualify the descriptions of boundaries contained in the text of the treaty, fully acquiescing thereby in the meaning of the text according to the ordinary rules of expounding it." 1
Spain insisted that she possessed West Florida not as Louisiana but as Florida; the notoriety of which derived confirmation from the titles of governors of Louisiana who were recognized as "governors of Louisiana and West Florida," thus distinguishing that part of the territory in question, "which from the circumstance of its situation was also placed under their command." This was evidenced by the title of the governors of the Havanna who in their character of captain generals have always governed under the title of "Captain generals of the two Floridas."
"Under a treaty of retrocession," argued D'Yrujo, "France could not hope that what we had never received from her should be returned to her: and the American government ought not to forget the epoch at which the king of Spain made the acquisition of this province at the expense of his treasures, of the blood of his subjects, and for the benefit of the American people.
"The expression which follows is less explicit but its meaning is evident from that of the passage which precedes it and from that improbability and even impossibility which would result from a vague and general sense. I allude to the following: 'Et qu'elle avait lorsque la France la possedait.' It is manifest that this indefinite expression can only refer to the period at which Spain delivered Louisiana to France because if a greater extent were sought to be given to it the other part of the third article could
1. Vol. VI, Instructions, p. 302, Madison to John Armstrong, June 6, 1805.
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not take place which says that it be delivered 'avec la même étendue qu'elle a actuellement entre les mains de l'Es- pagne.' It is clear that if it were to be given with more 'étendue' it could not be 'la même qu'elle a actuellement entre les mains de l'Espagne.' Moreover any person who has any knowledge of the history of this country knows that France possessed formerly under the name of Louis- iana a great part of the territories which now form the Western states. If, therefore, the sense of the said ex- pression were to be admitted in its greatest latitude it would follow that Spain had obliged herself by the above mentioned third article to deliver to France a part of the states of Kentucky, Tennessee, the whole new state of Ohio, the Indiana Territory, etc., an absurd but necessary consequence if the interpretation were taken which some persons seem inclined to give to the expression 'lorsque la France la possedait.' " 1
M. Laussat, the French envoy at New Orleans, who had delivered the province of Louisiana to Governor Clai- borne and General Wilkinson, took no step while the province was in his hands, or at the time he transferred it to this country, calculated to dispossess Spain of any part of the territory east of the Mississippi. On the contrary in a private conference he stated positively that no part of the Floridas was included in the eastern boundary : France, having strenuously sought to have it extended to the Mobile, was peremptorily refused by Spain. 2 -
In support of the claim of his government, D'Yrujo quoted to Madison from a journal published in the winter of 1803-04 by Ellicott, whom we recall as the perniciously patriotic representative of the United States on the boun- dary commission of the treaty of 1795, appointed by rea-
1. Vol. I, D'Yrujo to Secretary of State, March 7, 1804.
2. Vol. VI, Instructions, p. 188, Madison to Livingston, Jan. 31. 1804.
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son of his reputation for knowledge of astronomy and geog- raphy. Speaking of the treaty of purchase of Louisiana in his journal, he said: "By the cession of Louisiana to the United States we gain but little on the Gulf of Mex- ico and are but little benefited as a maritime people. The important and safe harbors in both the Floridas still re- main in the possession of his Catholic Majesty." 1
In a letter to General Armstrong, Talleyrand states the French position: "Now it was stipulated in her treaty of the year 1801 that the acquisition of Louisiana by France was a retrocession, that is to say that Spain restored to France what she had received from her in 1762. At that period she had received the territory bounded on the east by the Mississippi, the river Iberville, the lakes Maurepas and Pontchartrain the same day France ceded to England by the preliminaries of peace all the territory to the east- ward. Of this Spain had received no part and could therefore give back none to France. All the territory lying to the east of the Mississippi and Iberville and south of 32° north latitude bears the name of Florida. It has been constantly designated in that way during the time that Spain held it: it bears the same name in the treaty of limits between Spain and the United States: and in dif- ferent notes of Mr. Livingston, of later dates than the iretrocession, in which the name of Louisiana is given to the territory on the west side of the Mississippi, of Florida to that on the east side of it.
"According to this designation, thus consecrated by time, and even prior to the period when Spain began to possess the whole territory between the 31°, the Missis- sippi, and the sea, this country ought in good faith and justice to be distinguished from Louisiana.
"Your Excellency knows that before the preliminaries of 1762, confirmed by the treaty of 1763, the French pos-
1. D'Yrujo to Secretary of State, March 7, 1804.
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sessions situated near the Mississippi extended as far from the east of this river, towards the Ohio and Illinois, as in the quarters of Mobile, and you must think it as unnatural after all the changes of sovereignty which that part of America has undergone, to give the name of Louisiana to the district of Mobile as the territory more to the north on the same bank of the river which formerly belonged to France.
"These observations, sir, will be sufficient to dispel every kind of doubt with regard to the extent of the retro- cession made by Spain to France. It was under this im- pression that the French and Spanish plenipotentiaries nego- tiated and it was under this impression that I have since had occasion to give the necessary explanation, when a project was formed to take possession of it. I have laid before his Imperial Majesty the negotiations of Madrid which preceded the treaty of 1801 and his Majesty is con- vinced that during the whole course of these negotiations the Spanish government has constantly refused to cede any part of the Floridas even from the Mississippi to the Mo- bile.
"His Imperial Majesty has moreover authorized me to declare to you that at the beginning of the year XI General Bournonville was charged to open a new negotiation with Spain for the acquisition of the Floridas. This project which has not been followed by any treaty is an evident proof that France had not acquired by the treaty retro- ceding Louisiana the country east of the Mississippi. . . .
"He (Napoleon) saw with pain the United States commence their differences with Spain in an unusual man- ner, and conduct themselves towards the Floridas by acts of violence which, not being founded in right, could have no other effect but to injure its lawful owners. Such an aggression gave the more surprise to his Majesty because the United States seemed in this measure to avail them-
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selves of their treaty with France as an authority for their proceeding, and because he could scarcely reconcile with the. just opinion which he entertains of the wisdom and fidelity of the federal government a course of proceeding which nothing can authorize towards a power which has long occupied and still occupies one of the first ranks in Eur- ope." 1
In a letter to M. le Chevalier de Santivanes, 5 Ger- minal, XIII, Talleyrand said: "His Majesty having no pre- tensions but to the territory situated to the west of the Mississippi and of the River Iberville, (he) has not author- ized his commissary at New Orleans to take possession of any other province and he did not cede any other to the United States." General Armstrong in a letter to Pinck- ney speaks of approaching Talleyrand, whose laconic and decisive answer was that "the more they considered the subject the more France was convinced Spain was right on every question of the controversy with us." This state- ment on the part of France called forth a vigorous and indignant letter from Monroe to Bournonville. "Like you, I have been a soldier," he writes, "have fought for my country, and am accustomed to speak with freedom. Per- mit me to ask on what principle can France say anything respecting the limits of Louisiana after refusing to do it in her treaty with us, and inserted the third article of the treaty of San Ildefonso as the only rule by which we were to ascertain them? She did not insert the limits then be- cause she did not know them. If she knew them then why did she not tell us of them? Is it proper to come forward now and give definition of any part to our preju- dice, which was then withheld, after we have executed the treaty with so much good faith ?" 2
1. Vol. VII, United States Ministers at Spain to the Secretary of State, p. 49, Talleyrand to Armstrong, Dec. 21, 1804.
2. Vol. VII, Ministers at Spain to Secretary of State, p. 263, Mon- roe to Gen. Bournonville, May 23, 1805.
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The cession of Louisiana was limited by three condi- · tions :
(1) The territory was ceded "with the same extent that it now has in the hands of Spain and (2) that it had when France possessed it ; and (3) such as it should be after the treaties subsequently entered into between Spain and other states." In all instruments the first law of construction is consistency. These conditions then are to be interpreted consistently with each other.
"With the same extent that it now has in the hands of Spain." The two Floridas belonged to Spain but hers was a title secured in 1783 from England. This title ex- tinguished all French claims, for by the treaty of 1763 France had ceded all east of the Mississippi to England. Following the language of the English proclamation of 1763 Spain maintained, after 1783, the divisions of East and West Florida. In the old maps, as of D'Anville, Flor- ida is mentioned in the singular and Louisiana was com- monly made at the same time to cover a large space of country to the east of the Mississippi. But in the later maps when the "Floridas" have been spoken of in the plural number, Louisiana is bounded on the east by the Mississippi. There is no need here to repeat the arguments already set forth to show that under Spain the Floridas extended to the Mississippi, and that the province west of that river was known as Louisiana.
By the Family Compact of the Bourbons, the treaty of August 15, 1761, it was agreed between France and Spain that whoever attacked one crown attacked the other. Spain thus joined France in her war against Great Britain, but, losing Havana and Cuba, the Bourbon allies were soon convinced that it was best for both to bring the war to a termination. Now by the Family Compact it had been agreed that when the war was concluded they should bal- ance the advantages which one might have received against .
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the losses of the other. But so disastrous had been the fortunes of war that, when the peace of 1762-63 was nego- tiated, France possessed no balance of advantages to offer to England for the restoration of Havana and Cuba to Spain. France therefore determined to give up one of her own unconquered provinces in order to secure a fair peace for her ally: this province was Louisiana which then crossed the Mississippi to the east. This was to be trans- ferred to Spain on condition of her joining with France in making over to England everything to the east of the Mis- sissippi, England having consented to receive the territory thus bounded as the equivalent of her Spanish conquests. It seems to have been arranged with the Spanish envoy at Paris that the formal offer of Louisiana to his court should take place on the very day (November 3, 1762) when this territory was offered to England. France ap- pears merely to have offered and not at that time to have ceded Louisiana to Spain: further, the cession of Florida . to England was open to recall, the preliminaries not having been ratified. But Louisiana with its new limits was ac- cepted by Spain on the thirteenth of November, 1763, though Spain did not receive possession until 1769, and also by ratification of the preliminaries with England on the twenty- second of November, 1763.
These then were not only contemporary but also con- nected transactions, all to be established together or all to be rejected together. But all being established together, the acceptance of Louisiana is to be considered as operat- ing back to the date of the offer, while the ratification of the preliminaries equally extends back to the date of signing them.
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