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 41
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He argued that "if the 8th article of the Louisiana Treaty had no other object but that of securing to France a conditional advantage in the ports of Louisiana, the terms usually employed in other treaties would have been employed here also, instead of so precise a stipulation of an unconditional and perpetual advan- tage in favor of France," that "in all the treaties between France and the United States, the condition of reciprocity is positively mentioned ;" that as one of the objects of the treaty was to remove all sources of misunderstanding, why was reciprocity not stipu- lated ?; that the positive refusal of the house of representatives in 1801 to ratify a convention with France founded on reciprocity of advantage, could not be reconciled with the silence of the same house in 1803 respecting this unconditional and unlimited favor secured to France; that the only natural inference was that in ISOI the question was on a convention of theaty . I amils and commerce, while in 18og the question was one of sale or cession, an altogether different question governed by different principles and consequences ; that the negotiators of the treaty of 1801 could not have forgotten to mention that the citizens of the two nations should be treated reciprocally each in the ports of the other upon the footing of the most favored nations, since this principle of reciprocity was in almost every instance the sine qua non of pre- ceding commercial conventions ; and that the negotiators of the treaty of 1803 knew they were not commissioned to settle the commercial interests of the two nations, but were authorized merely to make a contract of sale or cession, which was subject to certain and invariable rules of construction and interpretation.
He insisted that the contention of the American secretary that, if the French interpretation were to obtain, the cession to the United States was that of an imperfect sovereignty, was answered by his admission that such a sovereignty really would have been
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so ceded whenever British vessels should enjoy in the ports of Louisiana any gratuitous favor, since French vessels, under the stipulations, must be granted the same favor, thus giving the lat- ter nation the right, by virtue of the treaty, of privileges which the American minister now claimed would mean the grant to the United States of an imperfect sovereignty; that if the United States had the right to grant gratuitous favors to other nations, such favors must also extend to France in the territory ceded ; that if such favor was denied to France under a plea of a cession of imperfect sovereignty, no gratuitous favor could be granted to any other nation ; that when congress made Louisiana a state in 1812, before the expiration of the twelve years mentioned in article 7, and while three of the twelve years were yet to run, it was reasoned that such a fulfillment of the conditions of the ces sion was not incompatible with the exercise of the full and absolute rights of sovereignty; that when France ceded Louisiana and ceased to be the sovereign of the country it did not cease to hold property therein, since it reserved such property from the cession ; that France claimed only the enjoyment of what is her property, in no way an infringement of the sovereignty of the United States.
He demanded that French vessels, under the 8th article, should be treated without restriction upon the footing of the most far- ored nations in the ceded ports, regardless of whether such treat- ment was in consequence of a gratuitous or a conditional con- cession ; that French vessels are not so treated in the ports of Louisiana, the vessels of Great Britain being at the present time the most favored ; that to demand an equivalent from France because England was required to pay of grant one "would, in a measure, be requiring her to purchase what is already her own property, and obliging her to pay twice for the same thing ;" and that he (the French minister) hoped he should be able soon to inform his court "that the President has been pleased to issue such orders as will care in future the execution of the 8th article of the Louisiana Treaty, and the immediate reimbursement of the duties which have been unjustifiably levied to this day."*
After this elaborate exchange of views, without reaching any conclusive action, the question was permitted to languish for about two years, with an occasional reference thereto, each nation main- taining the justness of its claims and pursuing its previous course. The United States, on the 15th of May, 1820, passed a law levy - ing a heavier tonnage upon French ships than upon those of any
* American State Papers.
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other nation. This course was adopted as a measure of retalia- tion against a similar course pursued by the government of France toward American ships. So irregular and injurious had become the action of each nation toward the other, that a temporary con- vention was called in 1822 to settle certain important matters of trade, but these regulations were merely temporary-were limited to the period of two years.
It should be noted in this connection that the heavy tonnage duties levied by each nation against the other had the effect of reducing to a nullity the maritime trade between the two com- tries. In the meantime, the American government, which held heavy claims against France for damages to individuals, steadily pressed for a settlement ; but was adroitly avoided by the French diplomats who desired a settlement of the Louisiana cession inter- pretation conjointly with the settlement of the claims of Ameri- can individuals. The American minister did not refuse to settle the two conjointly, but did insist that the settlement of one had nothing to do with that of the other, and that if the United States were required to admit the French construction of the 8th article before the individual claims were paid, it meant an indefinite post- ponement of the ends of justice. This state of affairs became so annoying to the American government that Mr. Adams, in a let- ter to Mr. Gallatin August 244, 1820, said,
"It is sincerely hoped by the President, that this counteracting and countervailing system will give way to the disposition for an amicable arrangement, in a conciliatory spirit, and with a view to the interests of both parties. The temper which has been mani- fested in France, not valy on this occasion, but in relation to all the just claims of citizens of the United States upon the French government, could not possibly terminate without coming to a crisis ; and, at the same time that a positive rejection of the most indisputable demands of our citizens for indemnity was returned for answer to every note which you presented in their behalf, upon the untenable pretense, that the government of the Bourbons cannot be responsible for the outrages of its immediate predeces- sors, claims equally untenable were advanced and reiterated with the most tenacious perseverance, of privileges, contrary to our constitution, in the ports of the Louisiana founded on an inad- missible construction of an article in the treaty for the cession of Louisiana.
"If the construction contended for of that article by France were even correct, how can the present government claim any advan- tage from a compact made with Napoleon, after an explicit della- ration, that they hold themselves absolved from all obligations of
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indemnities due to the United States and their citizens for his acts? I mention this now, because Mr. Roth ( Chargé d'Affairs of France at Washington) informs me that he has directed the French consul at New Orleans to protest against the execution of the act of the 15th of May, 1820, specially in the ports of Louisi- ana. The pretense is, that by the 8th article of the · Louisiana Treaty, French vessels are to be forever treated in that province on the footing of the most favored nation; and, on the strength of this, they claim to be admitted there paying no higher duties than English vessels. Our answer is, that English vessels pay there no higher or other duties than our own-not by favor, but by bargain. England gives us an equivalent for this privilege ; and a merchant might as well claim of another, on the score of equal favor, that he should give a bag of cotton of a hogshead of tobacco to him, because he had sold the same article to a third, as France can claim as a gratuitous favor to her that which has been granted for valuable consideration to Great. Britain. The claim to which we admit that France is entitled under that article, is to the same privilege enjoyed by England, upon allowing the same equivalent. That is completely and exclusively our treatment of the most favored nation, and to that we are not only willing, but desirous of admitting France. But even to that she can have no pretense, while she refuses to be responsible for the deeds of Napoleon. If she claims the ben- efit of his treaties, she must recognize the obligations of his duties and discharge them.">
Under date of September 19, 1820, Mr. Gallatin communi- cated to Mr. Adams that in a conversation which he had hel on the 12th inst. with Mr. Pasquier, the latter stated that the French government "considered the discussion of the Sth article of the treaty of April 30, 1803, as inseparable from that of the discriminating duties, since France claimed under that article an exemption in Louisiana from the new American tonnage duty, and generally from all those to the payment of which any other nation was not liable;" that he ( Mr. Gallatin) had expressed his conviction that the government of the United States would certainly consider the construction of the article, for which France contended, as altogether inadmissible ; and that the discussion of the eighth article with Baron de Neuville would be useless, since it was evident that he (Mr. Gallatin) could not, without special instructions, accede to the construction assumed by France.
Baron de Neuville informed M. Gallatin that he considered
* American State Papeis.
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it susceptible of proof that the essential compensation made to France for Louisiana was the condition stipulated in the eighth article of the treaty-was, in fact, the real price paid for Loui- siana, and that the sum of money paid was but an accessory; that if the eighth article was inconsistent with the constitution of the United States to such a degree as to render it out of the question to comply with its provisions, the United States should make some other concession or compensation acceptable to France.
In reply, Mr. Gallatin declared that "in every case, the vessels of the nation which France now considered more favored than her own, were put in all the ports of the United States, inchuid- ing those of Louisiana, on the same footing as American ves- sels, on the express and reciproca condition that the American vessels should, in the ports of that nation, be treated on the same footing as indigenous vessels. He insisted that what France claimed was, to enjoy the privilege without fulfilling the .con- dition on which it was granted, that her vessels should be treated, in Louisiana, on the same footing as American vessels, while Amercan vessels coming from Louisiana should, in her ports, continue to be subject to any discriminating duties she might be pleased to impose. She asked, in fact, to be treated not as favorably, but more favorably, than the nations she called most favored. The stipulation to place a country on the footing of the most favored nations necessarily meant, that, if a privilege was granted to a third nation for an equivalent, that equivalent must be given by the country which claimed the same privilege by virtue of such stipul .. tion."
He further argued that the treaty to winch Buon de Neuville referred in his former argument was that of February 6, 1775, by the second article of which "it is agreed that neither of the contracting parties shall grant any particular favor to other nations, in respect of commerce and navigation which shall not become common to the other party who shall enjoy the same favor gratuitously, if the concession was gratuitous, or on allow- ing the same compensation, if the concession was conditional;" that the latter words were inserted for greater cantion to define what was meant by the stipulation-were mere surplusage, could be omitted without affecting the meaning, and had conse- quently been omitted in subsequent treaties. In answer to Baron de Neuville's objection that the article, under the American coll- struction, would be of no value to France, Mr. Gallatin stated that it would fultill its avowed object, which was to enable France to trade at all times in New Orleans on toms not more, but as
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THE MEANING OF THE EIGHTH ARTICLE.
advantageous, as any other nation-that it was a privilege which could be denied any other nation, but could not be denied France .*
Under date of October 19, 1820, and October 23, 1820, Mr. Gallatin wrote to Mr. Adams that in his opinion the French government bad insisted on settling the Louisiana treaty con- struction and the question of discriminating duties together, more with the hope that the United States would make some other important concession than to force an acceptance of their con- struction of article S; and that, as the new tonnage duty of the United States exceeded that of France, which it was designed to countervail, there might be some foundation to the French distinction between the old discriminating, and the new tonnage, duty of the United States.
On February 23, 1821. Baron de Neuville reopened the ques- tion by requesting from Mr. Adams a reply to his last note regarding the construction of the 8th article. He stated that should the United States agree to the French construction, the controversy would end; "but if. after a thorough investigation, the United States shall still adhere to a contrary opinion, you will think with me, sir, that it is material to both parties to know how for they disagree on this very important article of the treaty." He concluded by declaring that all France wanted was her rights under the provisions of the treaty, and that it appeared to him "that the negotiators on either part had but one and the same object, in inserting the 7th and 8th articles, which express intention was to secure forever to French vessels in the ports of the ceded territory, a real advantage over those of all other nations." It will be observed from this extract that. while the French minister presented even a broader cham than he had previously done, in construing the article to mean that the ves- sels of France should have a real advantage over those of all other nations, he had receded from his positive position, and was willing to learn "how far" the two parties to the controversy dis- agreed.
The tone of the French diplomats became more conciliatory. Mr. Gallatin, in March. 1821, informed the state department that a Frenchman high in authority had suggested, as a means of settling the controversy, a prolongation of the privileges granted to the French government, for the period of twelve years, as a substitute for the claim of perpetual advantage; and that another gentleman, equally high and influential, referred to the necessity, on the part of the United States, of granting some con-
· Writings of Albert Gallatin
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cession that would enable the French diplomats to descend hecom- ingly without abandoning totally the ground they had taken.
The whole question was again discussed in all its bearings, and all the previous arguments, together with many additional ones, were introduced with great force by each side. Mr. Adams dwelt with much stress on the point that the other countries had granted reciprocity as an equivalent for the privilege of trading in American ports on the same footing as American ves- sels, but that France had failed or refused to grant such equiva- Icht, and as a consequence countervailing duties had been passed by both governments. To this the French minister replied that France had reserved as a vested right, from the cession, to be treated in the ports of Louisiana upon the footing of the most favored nations unconditionally and without further compensa- tion on her part. Mr. Adams declared that the 7th and 8th articles could not have been the Spanish equivalent, because the equivalents were framed in two separate conventions of the same date, and that the articles showed on their face that they formed no port of the equivalent .* Baron de Neuville answered that "no nation can acquire by treaty or commercial convention, in the ports of Louisiana alone, the advantage which France enjoys there by special title -- by virtue of a bargain and sale." Mr. Adams pointed out that should the French construction pre- vail, the United States would be forever debarred from con- tracting with any other country than France -- would practically abdicate to France the control of American sovereignty through- out all the states, and asked if the American negotiators could possibly have had in view any such result .; The baron sephel that neither what the American negotiators intended, nor the question of American constitutionality concerned France, but what the articles actually meant on their face, was the question at odds. Mr. Adams insisted that the articles could not by any reasonable construction be made to mean what the French gov- ernment demanded, and that no "implication could be more vio- lent and unnatural than that, by a stipulation to treat the ships of France on the footing of those of the most favored nations in the ports of Louisiana, the United States had disbarred them- selves forever from purchasing a commercial advantage from any other nation, without granting it gratuitously to France." But the French minister persisted in his contention that France owed, and could owe, no reciprocity, because the privilege
· Life of J. Q. Adams.
American State Papers. .
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reserved was one of the equivalents of the bargain, and that the intention of the negotiators in these particulars could admit of no doubt.
Many subsidiary points were brought into the controversy, but cut no important figure. The discussion was again permitted to languish until October, 1821, when Baron de Neuville insisted either on a compliance with the French construction, or on a compromise on lines already proposed, but no further action seems to have been taken at that time. The American minister realized that delay would likely accomplish what diplomacy failed to effect.
In a conference with Mr. Gallatin at Paris in September, 1822, Jh. de Villile, minister of finance, charged ad interim with the portfolio of foreign affairs, expressed a wish to have all the claims of the two nations mutually settled, at one convention called for the purpose. Mr. Gallatin objected to connecting the Louisiana construction question with the claims for individual indemnity, and indicated that the two were wholly distinct, and that the settlement of the latter should not be made dependent upon the settlement of the former. Later he wrote to Mr. Adams that the French intentionally blended the two questions with the evident design of defeating or postponing the payment of the individual claims. He stated that the French apparently intended to make their claims under their construction of the Louisiana treaty offset the American claims for spoliations on their trade. But the French insisted that all the claims must be settled at one and the same time in a consular convention called for that purpose. In the course of the e interviews. Mr. Gallatin went so far as to inform the Date of Malmagency that the attitude of the French goverment in insisting on con- necting the settlement of the two subjects "would be considered in the United States as an attempt to avoid altogether the pay- ment of the indemnities due to our citizens."* Again, in Feb- rmary, 1823, in a letter to Viscount de Chateaubriand, he reviewed the whole question, and stated that there could not be the least expectation that the United States would alter their view or acquiesce in the French construction, and declared that the refusal of France to settle the American claims, unless the construction question was settled at the same time, was incon- sistent with the demands of justice and meant that France intended the indefinite postponement of the payment of Ameri- can claims. 'Har, apparently, the deadlock was stronger than
.Writings of Albert Gallatin.
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ever. Both governments dropped the subject, hoping that time would give them the advantages contended for.
As time passed, the commercial affairs between the two coun- trics became more strained, complicated and embarrassing. The acts of congress of May 15, 1820, and the ordinance of July 26, 1820, together with previous enactments, practically drove French trading vessels from the American ports. The tariff law of the United States which went into operation January 1, 1829, still further increased the difficulties of commerce; but seems to have been the straw which broke the camel's back, for two years later the contentions which had lasted for more than a quarter of a century were amicably settled.
In the convention between the two countries, which was con- cluded July 1, 1831, and ratified February 2, 1832, the differences dividing the two countries were concluded to the apparent satis- faction of both governments. By the following article of the treaty adopted at this convention, the question of construction of the 8th article of the Louisiana cession treaty of 1803 was settled for all time :*
"Article VII. The wines of France, from and after the exchange of the ratifications of the present convention, shall be admitted to consumption in the States of the Union at duties which shall not exceed the following rates, by the gallon (such as it is used at present for wines in the United States), to-wit : Six cents for red wines in casks; ten cents for. white wines in casks ; and twenty-two cents for wines of all sorts in bottles. The proportion existing between the duties on French wines this reduced, and the general rates of the tant win hvert intorpi- ation the first of January, 1820, shall be mandated, in case the government of the United States should think proper to dimin- ish those general rates in a new tariff. In consideration of this stipulation, which shall be binding on the United States for ten years, the French government abandons the reclamations which it had formed in relation to the Sth article of the treaty of ces- sion of Louisiana. It engages, moreover, to establish on the long staple cottons of the United States, which, after the exchange of the ratifications of the present convention, shall be brought directly thence to France by the vessels of the United States, or by French vessels, the same duties as on short staple cottons."
It should be stated that this convention provided for the settle- ment of the chains of American citizens against France and of
· Treaties of the United States.
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THE MEANING OF THE EIGHTH ARTICLE.
those of French citizens against the United States. It was agreed that France should pay to American citizens twenty five million francs, and the United States should pay to French citi- zeus one million five hundred thousand francs. Thus, in the end, the American individual claims and the construction of the Sth article of the Louisiana treaty were settled at the same time, as France had insisted at the outset. Although the French dip- lomats were compelled to recede from their construction of the Sth article, and from their reclamations under that article, they secured for ten years immense advantages in a reduction of tariff duties. There can be no doubt that the construction put npon the 8th article by France was not justified by the language of that article. What her ministers expected to accomplish by the contention, is a matter of pure speculation. What they received was more than they merited under the treaty of 1803.
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CHAPTER XI
Boundaries of the Territories and States
W HEN the province of Louisiana was purchased by the United States in 1803, every boundary of the acquisi- tion was undetermined, save the one on the Gulf of Mexico and the one extending in the middle of the Mississippi river from its source to the thirty-first degree of north latitude, a few miles south of Natchez, Miss. Perhaps, also, it may be correctly said that on the northwest the line was defi- nitely established in that particular chain of the Rocky mount- ains which separated the waters of the Missouri river from those which flowed westward into the Pacific ocean. But the latter line was really undetermined, having never been definitely located and surveyed, and perhaps never can or explored. M the other boundaries of the province had never been located nor agreed upon. The one in the middle of the Mississippi river north of the thirty-first degree of north latitude was definitely established at the peace of 1782-3 at the close of the Revolu- tionary war. As it afterward transpired that the source of the Mississippi was much south of the Lake of the Woods, the boundary of the Louisiana Purchase between those two points was likewise undetermined.
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