Gérard and Miralles had informed Congress, before it began to craft instructions to its minister to Spain, that American claims to the right to navigate the Mississippi River would complicate or obstruct negotiations for an alliance with that country. The instructions to Jay completed on 16 October 1779 offered an exchange: the United States would guarantee the Floridas to Spain, “provided always that the United States shall enjoy the free navigation of the river Mississippi into and from the Sea.” Although Floridablanca told Jay plainly during their first conference on 11 May 1780 that the king would never agree to allow American navigation, he expressed the hope that some means could be devised to remove this obstacle to a treaty. Jay mistakenly took this to mean that there was some flexibility in Spain’s position and suggested to Congress that if it accepted “equitable regulations” to prevent contraband, Spain might allow Americans to navigate the river. Congress’s instructions of 4 October, amplified in a letter from the president of Congress of 17 October, affirmed the United States’ claim to and need for navigation of the river. The instructions authorized Jay to negotiate regulations to prevent contraband but specified that if Spain refused to expressly acknowledge the right to navigation, it was not “by any Stipulations on the part of America to be relinquished.”1

With Jay desperate for resources to cover the bills drawn on him by Congress, Spain suggested that financial aid and a treaty of alliance might be forthcoming if Congress dropped its insistence on navigation rights. In his first conference with Jay on 3 September 1780, Gardoqui “pointedly proposed my offering the navigation of the Mississippi as a consideration for aids.” Jay rejected the suggestion out of hand and replied that “Spain should consider that to render Alliances permanent, they should be so formed as to render it the Interest of both Parties to observe them.” He argued that navigation rights were a veritable necessity for the United States: that the Mississippi River was a divinely created “high way for the People of the upper Country to go to the Sea by”; that the lands it bordered were “extensive and fertile” and would “rapidly settle”; that important men with interests in the area and American settlers there “would not readily be convinced of the Justice of being obliged, either to live without foreign Commodities, and lose the surplus of their Productions, or be obliged to transport both over rugged Mountains, and through an Immense wilderness, to and from the Sea, when they daily saw a fine River flowing before their Doors, and offering to save them all that trouble and Expense, and that without Injury to Spain.” Gardoqui’s reply—“that the present generation would not want this navigation, and that we should leave future ones to manage their own Affairs &c. &c.”—did not persuade Jay to suspend the demand for navigation rights at that time, although he would suggest such a suspension as secretary for foreign affairs later in the decade.2

On the other side of the Atlantic, La Luzerne, like Gérard before him, worked actively but discreetly to persuade individual delegates that Congress should modify its territorial claims and alter its instructions to Jay. He reported as early as May 1780 that Virginia’s delegates were “very moderate” and privately expressed a willingness to rescind the United States’ claim to the “old east Louisiana” territory, possession of which was the most important basis of its claim to navigate the river. New York delegates had advised him, however, that when the matter was debated in Congress, the Virginians would be pressed to reverse themselves because they would be accused of sacrificing territory claimed by the southern states for the comfort of others and because some believed that Spain’s claim to sole possession was unjust. La Luzerne argued that Spain had the right and the ability to conquer East Louisiana, and that the United States would benefit more by making concessions graciously than by continuing to assert its claim. A month later he reported that Virginia had begun to question the wisdom of claiming the territory when settlers far from the seat of government proclaimed their intention of establishing an independent state. He also speculated that northern delegates who seemed ready to cede the territory to Spain might change their votes in order to obtain southern support for their demands for Canadian territory.3

Military reversals and an increasingly severe financial crisis lent support to arguments about the need for Spanish aid. In a letter to Governor Thomas Jefferson in November 1780, Virginia delegate Theodorick Bland Jr. recommended revising the October instructions sent to Jay. Echoing La Luzerne, he argued that gains to be realized from an alliance with Spain were more significant than “the distant prospect of a free Navigation of that River, with Stipulated ports—which may perhaps . . . at some more convenient opportunity be obtaind from that Nation.” Georgia also supported this position, but James Madison, Bland was careful to note, did not agree. On 2 January 1781, Virginia advised its delegates that it believed the United States was entitled to claim navigation of the Mississippi only within the territory it possessed and indicated willingness to cede every “further” demand for navigation rights if Spain insisted on it, provided that an effort was made to secure a free port below this territory.4

Congress debated new instructions for Jay in mid-February. It considered Carmichael’s letters of 28 November and 19 December 1780 to the Committee for Foreign Affairs; concerns expressed by South Carolina and Georgia delegates who, with British forces in control of key portions of their states, feared a mediated peace on the basis of uti possidetis; and Virginia’s recent instructions to its delegates. No relevant correspondence from Jay was received at this time.

In his first letter, Carmichael reported on Spain’s finances and on its attitudes toward the United States and France. Its treasury, he said, was “critically circumstanced,” and its current expenses were far in excess of projected income. The British, he said, were well-informed about Spain’s financial straits and were likely to prosecute the war with vigor. He suggested that Spain’s willingness to continue the war depended heavily on whether or not it believed it could obtain the objects it had originally sought to obtain, among the most important of which was “exclusive possession of the Gulf of Mexico.” Carmichael advised Congress against making any concessions to Spain if it was unwilling to recognize American independence immediately. He also reported that Jay had accepted bills amounting to $150,000 and hoped he would be able to pay them. “This business,” he asserted, had thwarted “the other part of his mission here”—negotiations for a treaty of alliance—“in showing our necessities so plainly.” The court, he noted, “seems to expect equivalents for services rendered, and the interest of money advanced to us is not its object.”5

The arguments, discreet but firm pressure from La Luzerne, and the force of circumstances were persuasive. The instruction below authorized Jay to rescind the American demands for navigation rights on the river below 31 degrees north latitude and a free port if Spain “unalterably” insisted on this cession as the condition for a treaty, provided that free navigation above that boundary was preserved for the United States. The instruction was adopted on 15 February by a vote of seven states, with Massachusetts, Connecticut, and North Carolina opposed, New York divided, and New Jersey and Maryland unable to vote because their delegations lacked a quorum. The instruction was enclosed in a letter from James Lovell of 20 February, a copy of which Jay received on 18 May, long after the Spanish had intercepted other copies of it.6

This instruction, opposed and then reluctantly supported by Madison, marked a retreat from a position a majority in Congress had tenaciously held since 1779 and predicted La Luzerne’s success in persuading Congress to instruct its peace commissioners to seek prior concurrence from France on all matters of substance in their conduct of peace negotiations.7