Interfering Claims to the Mississippi River: Editorial Note
Interfering Claims to the Mississippi River
Jay’s service as minister to Spain and peace commissioner had ended without agreement on East Louisiana or on use of the Mississippi and without a treaty with Spain. The preliminary Anglo-American peace treaty was concluded on 30 November 1782, several months before the European preliminaries were signed on 20 January 1783. Britain granted the United States the East Louisiana territory with the Mississippi its western border, and equal right with Britain to navigate the river, source to mouth. Congress argued that Britain held these rights when the preliminary treaty was signed, and could therefore convey an incontestable claim to them to the United States.1
Spain, however, considered the navigational servitude that gave the British the right to navigate the river under the Treaty of 1763 cancelled by its declaration of war against Britain in 1779 and by its conquests during the war, which gave it control of both banks of the Mississippi at its mouth.2 The Anglo-Spanish peace treaty of 1783 did not address the question of Britain’s right to the navigational servitude. It awarded East and West Florida to Spain without delineating their northern boundaries. It also provided, however, that any other territories conquered by either party in any part of the world would revert to their original owners without exacting any compensation.3 This provision could be taken to confirm Britain’s ability to cede all of East Louisiana north of the boundary established for the Floridas to the United States and to convey the navigational servitude to the Americans as well. Article III of the Jay Treaty, signed 19 November 1794, before Spain concluded Pinckney’s Treaty with the United States, reasserted that, in 1782, Britain held and was capable of conveying to the United States the rights provided in the servitude it had received from France in 1763. The third article reads: “The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties; and it is further agreed, that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by both parties.”4
At the beginning of his brief service as delegate to Congress late in 1784, Jay confronted this dilemma again. In early December 1784 Congress considered a note of 19 November from French chargé d’affaires Barbé-Marbois that remitted correspondence from José de Gálvez of 26 June and from Francisco Rendón of 16 November 1784. These letters announced that Spain would close navigation of the Mississippi through territory it claimed until the boundaries of the Floridas and Louisiana were settled. Gálvez stated that American vessels found in Spanish waters would be confiscated, a threat that was soon made good, and he instructed Rendón to advise Congress that Spain held that Britain’s cession of its servitude to the United States in the Treaty of 1783 could have “no real force unless the Catholick King, … to whom the navigation of that river belongs, shall think proper to ratify it.”5
Jay took his seat in Congress on 6 December and was immediately appointed to the committee assigned to consider these communications and instructions from Virginia urging Congress to direct the American ministers in Europe to open the Mississippi to American navigation to the sea. The committee drafted a reply to Barbé-Marbois’s note that called attention to Congress’s efforts to achieve good relations with Spain and recommended appointing a minister to Madrid to adjust “the interfering claims” of the two nations.6 On 17 December, Congress set a date to elect a minister, and ordered the committee, on which Jay still served, to draft his instructions. It directed its minister to reject Spain’s claim to control either navigation of the Mississippi or any portion of East Louisiana above 31 degrees north latitude by right of conquest, and to reassert its right to navigate the Mississippi, source to mouth. On 10 February, Congress learned that Spain had named Diego de Gardoqui to carry on negotiations in the United States, and, on Jay’s recommendation, set aside the decision to send a minister to Spain.7
Gardoqui arrived at the end of May and was received by Congress in New York on 2 July 1785. On 20 July, Congress commissioned Jay with what it described as “full powers” to negotiate a treaty with Gardoqui. These powers, however, it quickly circumscribed by instructing Jay to obtain its approval in advance of any proposals made to Gardoqui or any agreement reached with him.8
1. See the Anglo-American preliminary treaty, 30 Nov. 1782, 3: 264–71. For the definitive treaty, see 151–57. For Carmichael’s and Lafayette’s suspicions that Britain intended to foment tensions between Spain and the United States by these concessions, see PGW: Confederation Series, 2: 461; 5: 306.
2. Spain claimed territory on the east bank of the river extending as far north as the Ohio River. On France’s consistent support for Spain’s claims, see JJ’s report to Congress of 17 Aug. 1786, below.
3. For the Anglo-Spanish treaty, see Frances Gardiner Davenport and Charles Oscar Paullin, eds., European Treaties Bearing on the History of the United States and its Dependencies (Gloucester, Mass., 1967), 150–51, 158–61.
4. For TJ’s argument to this effect, see his “Report on Negotiations with Spain,” 18 Mar. 1792, 23: 296–317. Samuel Flagg Bemis, however, accepted as valid Spain’s contention that her conquest of the Floridas “placed a bar of inviolable Spanish territory across the lower Mississippi over which could leap no foreign claims based on cessions to the United States by an enemy already dispossessed of the territory” and “thoroughly canceled the navigational servitude conveyed by the treaty of 1763.” See 41–46; and 2: 17–103. Article IV of Pinckney’s Treaty (1795), finally established the western boundary of the United States as the middle the Mississippi, whose navigation was to be free, source to mouth, to Spanish subjects and citizens of the United States unless Spain extended the privileges to subjects of other powers by special convention.
5. Rendón to the President of Congress, 16 Nov. 1784, 2: 499.
6. See 27: 665, 687–90, 693–95, 705–6; 22: 49–51, 76–78. For Rendón’s summary of the American position, and for his argument that Spain might benefit from allowing Americans commercial access to New Orleans, see 2: 467–70.
8. See the editorial note “Negotiations with Gardoqui Reach an Impasse,” below.