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"Between the conclusion of the two treaties of 1800 and 1803 a correspondence arose respecting the construction of the former treaty. Robert Livingston, the minister of the United States, complained that the council of prizes (which we regarded as a political board') was proceeding in violation of the provisions of the treaty. On the 26th of January, 1802, he was almost hopeless' as to the claims. His anxiety communicated itself to Madison. The French court next proposed to meet the French obligations in paper money, while the appropriations on the American side were payable in coin. Livingston thought Bonaparte stood in the way, and that, should anything happen to him, France would'very soon be able to look all demands in the face.' Monroe was sent out to aid in the negotiations, with special powers as to New Orleans and the Floridas. He arrived just in time to find the First Consul bent on parting with Louisiana and settling with the United States. On the 9th of March, 1803, Talleyrand was already giving signs of yielding. He expressed surprise at the amount of the American claims advanced by Livingston (20,000,000 francs), but avowed his purpose of paying them, whatever they might be, and asked for a specified statement. An explanation, which may account for part of this, may be found in two dates. The peace of Amiens was signed the 25th of March, 1802; the declaration of the renewal of the war was dated the 18th of May, 1803."
Of the convention of 1800, Mr. Jefferson, in a letter to Mr. Madison on December 19, 1800, writes:
"Davie is here with the convention, as it is called; but it as a real treaty, without limitation of time. It has some disagreeable features, and will endanger the compromising us with Great Britain. I am not at liberty to mention its contents, but I believe it will meet with opposition from both sides of the house. It has been a bungling negotiation."
2 Randall's Jefferson, 577.
The effect of the "renunciation" introduced by Napoleon into the ratification is considered, infra, §§ 228, 248.
(c) TREATY OF 1803. (CESSION OF LOUISIANA.)
The proceedings leading to this treaty are discussed, supra, § 72.
"The report that the British Government had cautioned ours not to pay the money for Louisiana, for that they meant to take possession of it, is utterly destitute of foundation. The British Government has, on the contrary, expressed its satisfaction with the cession, and, although the terms of it might not at the time be particularly known, yet as a price was to be presumed, and as the bargain was made bona fide, and was communicated prior to the commencement of hostilities, there can be no pretext whatever for complaint, nor is there the least ground for supposing that it will take place."
Mr. Madison, Sec. of State, to Mr. Paine (unofficial), Aug. 20, 1803; 2 Madison's
"It is my duty to state, as a cause of very great regret, that very se rious differences have occurred in this negotiation, respecting the construction of the eighth article of the treaty of 1803, by which Louisiana was ceded to the United States, and likewise respecting the seizure of the Apollo, in 1820, for a violation of our revenue laws. The claim of the Government of France has excited not less surprise than concern, because there does not appear to be a just foundation for it in either instance. By the eighth article of the treaty referred to, it is stipulated that, after the expiration of twelve years, during which time it was provided by the seventh or preceding article that the vessels of France and Spain should be admitted into the ports of the ceded territory without paying higher duties on merchandise or tonnage on the vessels than such as were paid by citizens of the United States, the ships of France should forever afterward be placed on the footing of the most favored nation. By the obvious construction of this article, it is presumed that it was intended that no favor should be granted to any power in those ports to which France should not be forthwith entitled; nor should any accommodation be allowed to another power on conditions to which she would not also be entitled on the same conditions. Under this construction, no favor or accommodation could be granted to any power to the prejudice of France. By allowing the equivalent allowed by those powers, she would always stand in those ports on the footing of the most favored nation. But if this article should be so construed as that France should enjoy, of right, and without paying the equivalent, all the advantages of such conditions as might be allowed to other powers, in return for important concessions made by them, then the whole character of the stipulations would be changed. She would not only be placed on the footing of the most favored nation, but on a footing held by no other nation. She would enjoy all the advantages allowed to them, in consideration of like advantages allowed to us, free from every and any cause whatever."
President Monroe, Fifth Annual Message, 1821.
"It was agreed by the article above-mentioned (Art VIII of the Louisi ana treaty) that the ships of France should forever be treated upon the footing of the most favored nation in the ports of Louisiana.
"Vessels of certain foreign nations being now treated in the ports of the United States (including those of Louisiana) on the same footing with American vessels, in consideration of the American vessels being treated in the ports of those nations on the same footing with their own vessels, France has required that French vessels should, by virtue of the said article, be treated in the ports of Louisiana on the same footing with the vessels of those nations, without allowing on her part the consideration or reciprocal condition by virtue of which those vessels are thus treated.
"The United States contend that the right to be treated upon the footing of the most favored nation, when not otherwise defined, and when expressed only in those words, is that, and can only be that, of being entitled to that treatment gratuitously, if such nation enjoys it
gratuitously, and on paying the same equivalent, if it has been granted in consideration of an equivalent. Setting aside every collateral matter and subsidiary argument, they say that the article in question, expressed as it is, can have no other meaning, is susceptible of no other construction, for this plain and incontrovertible reason, that, if the French vessels were allowed to receive gratuitously the same treatment which those of certain other nations receive only in consideration of an equivalent, they would not be treated as the most favored nation, but more favorably than any other nation. And since the article must necessarily have the meaning contended for by the United States, and no other, the omission or insertion of words to define it is wholly immaterial, a definition being necessary only when the expressions used are of doubtful import, and the insertion of words to that effect in some other treaties, belonging to that class of explanatory but superfluous phrases of which instances are to be found in so many treaties.
"It might, indeed, have been sufficient to say that, in point of fact there was no most favored nation in the United States; the right enjoyed by the vessels of certain foreign nations to be treated in the ports of the United States as American vessels in consideration of American vessels receiving a similar treatment in the ports of those nations, not being a favor but a mere act of reciprocity.
"Let me also observe that the pretension of France would, if admitted, leave no alternative to the United States than either to suffer the whole commerce between France and Louisiana to be carried exclusively in French vessels, or to renounce the right of making arrangements with other nations deemed essential to our prosperity, and having for object not to lay restrictions on commerce but to remove them. If the meaning of the eighth article of the Louisiana treaty was such indeed as have been contended for on the part of France, the United States, bound to fulfill their engagements, must submit to the consequences, whatever these might be. But this having been proven not to be the case, the observation is made only to show that the United States never can, either for the sake of obtaining indemnities for their citizens or from their anxious desire to settle by conciliatory arrangements all their differences with France, be brought to acquiesce in the erroneous construction put upon the article in question."
Mr. Gallatin, minister to France, to Viscount de Chateaubriand, Feb. 27, 1823, 5 Am. St. Pap. (For. Rel.), 673.
As to the "favored-nation" clause, see supra, § 134.
Much unpublished correspondence in August and September, 1803, between Mr. Monroe and Mr. R. R. Livingston, in regard to the negotiations then pending with France, is in the Department of State among the Madison and Monroe papers; and also a series of private letters from Mr. Livingston to Mr. Madison, as to the differences between Mr. Livingston and Mr. Monroe and other circumstances of the negotiations.
In Hunt's life of Edward Livingston, 805, the success which attended the negotiation for the purchase of Louisiana is attributed to the skill with which Mr. R. R. Livingston seized the moment when Napoleon was most accessible, and when the circumstances were most propitious, to press the sale. But, as already noted, (supra, § 107,) the papers on file in the Department of State show that it was not until Mr. Monroe's arrival that final action took place. The motives on Napoleon's part were (1) the probability of a collision with the United States in case of his retention of Louisiana; (2) the probability of the seizure of Louisiana by the British in the approaching hostilities, should it be retained by France.
For other published papers on the same topic, see 2 Am. St. Pap. (For. Rel.), 506 M.
An account of the negotiations preceding the purchase of Louisiana will be found in Edward Livingston's speech in May, 1825, on the Monroe refunding bill. Hunt's Life of Livingston, 805.-See also 1 Phill. Int. Law. (3 ed.), 380.
President Monroe's message of February 17, 1825, communicating correspondence as to interpretation of the eighth article of the treaty ceding Louisiana, is contained in House Doc. 403, 18th Cong., 2d sess., 640. 5 Am. St. Pap., 640.
The report in 1838 of the House Committee on Public Lands on the subject of the final adjustment of all claims to the land derived from the former Government of Spain in West Florida, as transferred to France, is given in House Rep. 818, 28th Cong., 2d sess. See also House Rep. 508, 22d Cong., 1st sess.
In the treaty of 1803 the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States regards this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract. The term "property," as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory as well as those which are executed.
Soulard v. U. S., 4 Pet., 511; Delassus v. U. S., 9 Pet., 117.
The stipulation in the treaty for the protection of the inhabitants in their property, &c., ceased to operate when Louisiana was admitted into the Union.
New Orleans v. Armas, 9 Pet., 223.
The treaty could not enlarge the constitutional powers of the United States, and those powers do not enable the United States to have or exercise that police control over public places in the State of Louisiana which belonged to the Crown of France or of Spain.
New Orleans v. U. S., 10 Pet., 662.
All Spanish grants in Louisiana, between November 3, 1762, and October 1, 1800, are held valid if made in accordance with Spanish law.
Strother v. Lucas, 12 Pet., 410; Les Bois v. Bramell, 4 How., 449; U. S. v. Moore, 12 How., 209.
Incomplete Spanish titles were not rendered complete by the treaty by which Louisiana was acquired; the Government of the United States succeeded to the powers and duties of the Crown of Spain as to confirmation of such titles, and where there were two adverse claimants might select between them and make a perfect title to one and exclude the other.
Chouteau v. Eckhart, 2 How., 344. See supra, §§ 4, ff.
The treaty confirmed titles as they existed under the local law.
The treaty of cession was constitutional, and took effect on the day of its date, 30th April, 1803. Its subsequent ratification and the formal transfer of possession have relation to that date.
U. S. v. Reynes, 9 How., 127.
The treaty of St. Ildefonso, between Spain and France, of the 1st of October, 1800, deprived Spain of the power to make grants of land in Louisiana, if not after its date, certainly after 21st March, 1801.
All French grants of land in the Louisiana Territory between November 3, 1762, the date of the cession to Spain, and October 1, 1800, the date of the recession to France, are inoperative.
U. S. v. D'Auterive, 10 How., 609.
Under the treaty of 1803 with France, the United States always claimed to the Perdido River to the east, although the Spanish authorities kept possession of, and claimed sovereignty over, the territory between that river and the Mississippi (except the island of New Orleans), until 1810, when the United States took forcible possession of it. But grants made by Spain in the disputed territory whilst in possession thereof, were confirmed by act of Congress of June 22, 1860, though they were previously void.
U. S. v. Lynde, 11 Wall., 632.
Spanish grants made in the territory between the Mississippi and Perdido Rivers, after the treaty of St. Ildefonso, 1801, by which Spain ceded Louisiana to France were void, because after that time that territory did not belong to Spain. They were also declared void by th act of March 26, 1804.
Spain in ceding the Floridas to the United States, by the treaty of February 22, 1819, ceded only so much thereof as belonged to her, and hence did not cede the territory lying between the Mississippi and Perdido Rivers, which territory, though claimed by Spain, was treated by the United States as already ceded by France.
Under the provisions of the convention with France of 1803, the United States are not bound to protect demands for freight where individuals have transported articles for the French Government or for its citizens, since they are within no provision of the convention.
1 Op., 136 Lincoln, 1803.
(d) SUBSEQUENT TREATIES.
The convention with France of June 24, 1822, with the accompanying documents, as sent by President J. Q. Adams, on December 10, 1822, is given in Senate Ex. Doc. 353, 17th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 149.
The proceedings in 1833 in the French House of Deputies, on the subject of the treaty of 1831 between France and the United States are given in House Ex. Doc. 2, 23d Cong., 2d sess.