USA > Louisiana > The province and the states, a history of the province of Louisiana under France and Spain, and of the territories and states of the United States formed therefrom, Vol. II > Part 28
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This reply left Mr. Pinckney no option but to return to the United States as he had threatened; this he did, but before going be prepared a long communication to the Spanish government justifying himself and explaining the reasons for his course. His principal reason for insisting on a settlement of the American claims, was owing to the apparent intention of the court of Spain to postpone them or to make it appear, unjustifiably, that they had already been paid by France under the conventions of the 30th of April, 1803, at the same time and under the same conditions that the American individual claims against France were pand. He also strongly objected to the language used in the minister's (Cervallos's) letter of May 31st, and said, "In this letter you plainly call the act of Congress of which you speak an outrage and an insult to His Majesty's sovereignty, endeavoring to smooth it over by saying you hoped the President and Congress were not aware of what they did, adding thereby the reproach of precipi- tancy as well as ignorance of their rights an duties ; and conchid- ing with saying in very direct terms that such a law lessens their good name-language that a monarch may hold to his vassels, or a country to one which she has humbled, but which to the unbroken spirit of the United States will not certainly be very pleasing." But there is no doubt that Mr. Pinckney was too hasty and precipitate, although, to be sure, the annoying delays were extremely irritating and humiliating.
By act approved February 26, 1863, congress enacted "that a
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sum of $2,000,000 in addition to the provision heretofore made, be and the same is hereby appropriated for the purpose of defray- ing any extraordinary expense which may be incurred in the intercourse between the United States and foreign nations, to be paid out of any money in the treasury not otherwise appropriated, and to be applied under the direction of the President of the United States, who shall cause an account of the expenditure thereof to be laid before Congress as soon as may be." The president was authorized to borrow this sum. While the lan- guage of this act was general, it was well understood that the amount was to be employed in securing the cession of the Flor- idas. Indeed there seems to be no doubt that the envoys at Paris were afterward authorized to use as high as ten million dollars to secure the Floridas from France should the latter main- tain that they were included in the treaty of St. Ildefonso. Other- wise they were authorized to employ that sum as a maximum to induce Spain to cede them to the United States. At this time the report was circulated in Paris that M. Talleyrand had been offered a large sum in the nature of a bribe to be patd him in the event of his success in assisting the United States to obtain the cession of the two Floridas. There is no doubt that owing to this report, he lost caste with Napoleon.
Messrs. Livingston and Monroe wrote under date of June 7, 1803, "We are happy to have it in our power to assure you that on a thorough examination of the subject, we consider it uncon- trovertible that West Florida is comprised in the cession of Louisiana. West Florida was a part of looking when it was in the hands of France and it was not in her hands in any other situation. The transfer of the whole was on the same day, the 3d of November, 1762, that being the day of the secret conven- tion between France and Spain, and of the preliminary articles of the treaty of the 10th of February, 170%, between those Powers and Great Britain. The treaty of 1783 between Britain and Spain by which the Floridas were ceded to the latter, put louisiana in her hands in the same state it was in the hands of France; and the remaining or third member of the article in the treaty of St. Ildefonso between France and Spain, under which we chim, by referring to that of 1783 (as to that between Spain and the United States of 1795), and of course in the above character. only tends to confirm this doctrine. We consider ouselves so strongly founded in this conclusion, that we are of opinion the United States should act on it in all the measures relative to Louisiana in the same manner as if West Florida was comprised within the
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island of New Orleans ; or lay to the west of the river Iberville and to the lakes through which its waters pass to the ocean. Hence the acquisition becomes of proportionably greater value to the United States."
In the instructions of the United States July 29, 1803, to Mr. Monroe, minister extraordinary to the court of Spain, it was stated that "It is thought proper to observe to you that although Louisiana may in some respects be more important that the Flori- das and has more than exhausted the funds allotted for the pur- chase of the latter, the acquisition of the Floridas is still to be pur- sued, especially as the crisis must be favorable to it.
Should no bargain be made on the subject of the Floridas, our claims of every sort are to be kept in force. If it be impossible to bring Spain to a cession of the whole of the two Floridas, a trial is to be made for obtaining either or any important part of either. The part of West Florida adjoining the territories. now ours and including the principal rivers falling into the gulf, will be particularly important and convenient. It is not improbable that Spain in treating on a cession of the Floridas, may propose an exchange of them for Louisiana beyond the Mississippi, or may make a serious point of some particular boundary to that territory. Such an exchange is inadmissible. We are the less disposed also to make sacrifices to obtain the Floridas, because their position and the manifest course of events guaranty an early and reasonable acquisition of them. . . Perhaps the intercommunications with the Spanish Government on this subject with other opportunities at Madud, mar enable soll to collect useful information and proofs of the fixed limits of of the want of fixed limits to Western Louisiana. Your inquiries may also be directed to the question, whether any and how much of what passes for West Florida be fairly included. in the territory ceded to us by France."
Mr. Madison wrote to Mr. Livingston at Paris on July 29, 1803, "The boundaries of Louisiana seem to be so imperfectly understood and are of so much importance, that the President wishes them to be investigated whenever information is likely to be obtained. You will be pleased to attend particularly to this object as it relates to the Spanish possessions both on the west and on the east side of the Mississippi. The proofs countenance- ing our claim to a part of West Florida, may be of immediate use in the negotiations which are to tale place at Madrid." He like- wise wrote on October 6, "The rightful limits of Louisiana are under investigation. It seems undeniable from the present state
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of the evidence, that it extends castwardly as far at least as the river Perdido; and there is little doubt that we shall make good both a western and a northern extent highly satisfactory to us."
In the letter dated July 29, 1803, Mr. Madison communicated to Mr. Pinckney at Madrid that "the Floridas are not included in the treaty (ceding Louisiana to the United States), being it appears still held by Spain. As the indemnifications claimed from Spain are to be incorporated in the overtures for the Floridas, it will be advisable to leave them, although within your ordinary functions, for the joint negotiations of yourself and Mr. Monroe." The position taken by both France and Spain that the Louisiana ceded to the United States extended no farther cast- ward than the Iberville, wholly disarmed at first the claim after- ward made by the United States to the Perdido. Mr. Madison himself, who afterward became the champion of the extension, did not at first pretend to claim eastward of the Iberville; but even while instructing the envoys to Spain to secure the cession of both of the Floridas, he suggested in the same letters that it would be advisable for them to examine whether the United States had any right to a portion of West Florida. A little later he made the strongest argument of any American for the exten- sion. But he weakened his case very greatly at the start by not promptly claiming West Florida, for his instructions to the envoys show that the latter approached both Spain and France in an attitude of supplication to secure the cession of the two Floridas, thus conveying the. inference that they did not claim the owner- ship of either, but were there for the purpose of purdaring wie or both of them. Admissions to this effect were made by Mr. Monroe to the French court, and of course promptly communi- cated to Madrid by the latter. But Mr. Monroe was not to blame for this course, because he was simply following the instructions of the state department.
In the instructions given April 15, 1804, by the department of state to the envoys at Madrid, it was required that they should secure an acknowledgment and confirmation "to the United States the cession of Louisiana in an extent castwardly to the river Perdido," and the cession of "all the territory remaining to her (Spain) between the Mississippi, the Atlantic and the Gulf of Mexico, together with all the islands annexed thereto, either whilst the Floridas belonged to Great Britain or after they became provinces of Spain. Or if the article be unattainable in that form, Spain shall code to the United States forever all the territory, with the islands belonging thereto, which remain to her between
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the Mississippi, the Atlantic and the Gulf of Mexico; and the envoys were authorized to pay a maximum of ten million dollars therefor." It was explained that the first article was preferable because it recognized the right of the United States to the ter- ritory between the Mississippi and the Perdido, which right was deemed to be well founded. But principally was it preferable "because it is known that a great proportion of the most valuable Jands between the Mississippi and the Perdido have been granted by Spanish officers since the cession was made by Spain (to France). 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 M. Lanssat himself has entered into these speculations, and that he felt their influence in the declaration made confidently to our . commissioners at New Orleans that no part of West Florida was included in Louisiana." They were also instructed, in order to quiet Spain and give her no present cause of complaint, to exclude wholly from settlement for a term of years by the inhabit- ants of both Spain and the United States, the territory with the following limits: "By a limits consisting on one side of the river Sabine or Mexicano from the sea to it's source; thence a straight line to the confluence of the rivers Osages and Missouri ; and by a limit on the other side consisting of the tiver Coloniale (or some other river emptying into the bay of St. Bernard ), from its mouth to its source ; thence a straight line to the most south- westwardly source of the Red river, with such deflections how- ever 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 the Mississippi from those belonging to the Rio Bravo to the latitude of the northernmost source of that river ; and thence a meridian to the northern boundary of Louisiana." Reasonable inducements were to be offered to inhabitants already within those limits to remove therefrom, whether of Spain or of the United States. The inhabitants of both countries were left free to mingle with the Indian tribes within the limits. Certain garrisons were to be erected and maintained therein in order to hold the Indians in subjection. After a term of years to be agreed upon the true boundary of western Louisiana was to be determined by a joint commission or convention. But it was
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stipulated that "if Spain should inflexibly refuse to cede the ter- ritory 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 ter- ritory westward of the Mississippi ; and you will limit your nego- tiations 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 prin- ciple 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 satis- factory provision for the cases of the territory westward of the Perdido and of the claims of indemnification. The United States having sustained a very extensive though indefinite loss by the unlawful suspension of their right of deposite at New Orleans, . and the Spanish Government having admitted the injury by restoring the deposite, it will be fair to avail yourself of this claim in your negotiations, and to let Spain understand that if no accommodation should result from them it will remain in force against her. 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 absolue necessity only and to an extent that will not deprive the United States of any of the waters running into the Missouri of the Mississippi or of the other waters emptying into the fire of Mexico besten the Mississippi and the river Colorado emptying into the bay of St. Bernard." As will be seen from the above, the envoys were told to modify their claims on the Texas border in the same pro- portion as Spain should grant the requirements of the United States between the Mississippi and the Perdido.
Inasmuch as both France and Spain agreed that the Louisiana retroceded to France and thence ceded to the United States did not extend eastward of the Mississippi and the Iberville, only the posts west of that line were turned over to France first and then to the United States. Mr. Madison said, "With respect to the posts in West Florida, orders for the delivery were neither offered to, nor demanded by, our commissioners. No instructions have, in fact, been ever given then to make the demand. This silence on the part of the Executive was deemed eligible: First, because it was foreseen that the demand would not only be
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rejected by the Spanish authority of New Orleans, which had in an official publication, limited the cession westwardly by the Mis- sissippi and the island of New Orleans, but it was apprehended as has turned out that the French commissioner might not be ready to support the demand, and might even be disposed to sec- ond the Spanish opposition to it: Second, because in the latter of these three cases a serious check would be given to our title, and in either of them a premature dilemma would result between an overt submission to the refusal and a resort to force: Third, because mere silence would be no bar to a plea at any time that a delivery of a part, particularly of the seat of Government, was a virtual delivery of the whole: whilst in the meantime we could ascertain the views and claim the interposition of the French Gov- ernment and avail ourselves of that and any other favorable cir- cumstances for effecting an amicable adjustment of the question with the Government of Spain. In this state of things it was deemed proper by Congress, in making the regulations necessary for the collection of revenue in the ceded territory and guarding against the new danger of smuggling into the United States through the channels opened by it, to include a provision for the case of West Florida by vesting in the President a power which his discretion might accommodate to events. This provision is contained in the act which has been pending in Congress for many weeks." He further states that when the act became known to the Spanish ambassador he became very angry, but was answered with the declaration that "we considered all of West Florida westward of the Perdido as clearly ours by the treaty of April 30, 1803, and that of St Ildefonso. . The territory called to the United States is described in the words following : "The col- ony or province of Louisiana, with the same extent that it now has in the hands of Spain, that it had when France possessed it, and such as it ought to be, according to the treaties subsequently passed between Spain and other States.' In expounding this three-fold description, the different forms used must be so under- stood as to give a meaning to each description, and to make the meaning of cach coincide with that of the others.
"The first form of description is a reference to the extent which Louisiana now has in the hands of Spain. What is that extent as determined by its eastern limits? It is not denied that the Per . dido was once the eastern limit of Louisiana. It is not denied that the territory now possessed by Spain extends to the river Perdido. The river Perdido, we say then, is the limit to the castern extent of Louisiana ceded to the United States. This
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construction gives an obvious and pertinent meaning to the term 'now' and to the expression 'in the hands of Spain,' which can be found in no other construction. For a considerable time previous to the treaty of peace in 1783 between Great Britain and Spain, Louisiana as in the hands of Spain was limited eastwardly by the Mississippi, the Iberville, etc. The term 'now' fixes its extent as enlarged by that treaty, in contradistinction to the more limited extent in which Spain held it prior to that treaty. Again, the expression 'in the hands of Spain' fixes the same extent ; because the expression cannot relate to the extent which Spain by her internal regulations may have given to a particular district under the name of Louisiana; but evidently to the extent in which it was known to other nations, particularly to the nation in treaty with her, and in which it was relatively to other nations in her hands and not in the hands of any other nation. It would be absurd to consider the expression 'in the hands of Spain' as relating not to others, but to herself and to her own regulations; for the territory of Louisiana in her hands must be equally so and be the same whether formed into one or twenty districts, or by whatever name or names it may be called by herself.
"The next form of description refers to the extent which Louisiana had when possessed by France. What is this extent? It will be admitted that for the whole period prior to the division of Louisiana between Spain and Great Britain in 1762-3, or at least from the adjustment of boundary between France and Spain in 1719 to that event, Louisiana extended in the possession of France to the river Perdido. Had the meaning then of the first description been less determinate and had France leen in possession of Louisiana at any time with less extent that to the Perdido, a reference to this primitive and long continued extent would be more natural and probable than to any other. But it happens that France never possessed Louisiana with less extent than to the Perdido; because on the same day that she ceded a part to Spain, the residue was ceded to Great Britain; and con- sequently as long as she possessed Louisiana at all she possessed it entire, that is in its extent to the Perdido.
"The third and last description of Louisiana may be considered as auxiliary to the two others and is conclusive as an argument for comprehending within the cession of Spain territory eastward of the Mississippi and the Iberville and for extending the ces- sion to the river Perdido. The only treaties between Spain and other nations that affect the extent of Louisiana as being subse- quent to the possession of it by France, are first the treaty in 178,3
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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 Louisiana as in the hands of Spain by defin- ing the northern boundary of that part of it which lies east of the Mississippi 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 of the eastern and western part the same extent eastwardly 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 limited by the line of demarcation settled with the United States and forming a northern boundary, and is extended to the river Perdido as its eastern boundary. This is not only the plain and necessary construction 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, since neither the one nor the other of those treaties have any relation to Louisiana that can affect its extent, but through their relation to the limits of that part of it which lies eastward of the Mississippi and the Iberville. Including 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 reference is applicable. . In fine the construction
which we maintain gives to every part of the description of the territory coded to the United States a meaning char in its ti 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 expressions. The construction urged by Spain gives on the con- trary 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 what- ever. In confirmation of the meaning which extends Louisiana 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 luster to his administration and to gratify a natural pride in his nation, and by re-annexing to his domain possessions which had without any suficient considerations been severed from it ; and which being in the hands of Spain it was in the power of Spain to restore.
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"It only remains to take notice of the argument derived 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 the 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 prop- erly 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; secondiy that with respect to Spain not only the greater part of Louisiana had been confessedly 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 pre- cisely the same as if France had in form made the cession 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 satisfied. This view of the case is the more substantially just a. the varitory in question passed from France to Great Britain For the amount 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 applicable, it may be equally said that there is no other particular terms which would be more applicable to the whole proceeding as it did exist. Fourthly that if this were not the case a nice criti- cism 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."*
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