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 8
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"In the course of the Revolutionary war, in which the thirteen colonies, Spain and France were opposed to Great Britain, Spain took possession of several posts held by the British in Florida. It is unnecessary to inquire whether the possession of half a dozen posts scattered through a country of seven or eight hundred miles in extent, could be considered as the possession and conquest of that country. If it was, it gave but an inchoate right, as was before explained, which could not be perfected but by the relin- quishment of the former possession at the close of the war ; but cer- : tainly it could not be considered as a conquest of the river, even against Great Britain, since the possession of the shores, to-wit : of the island of New Orleans on the one side, and Louisiana on the other, having undergone no change, the right in the water would remain the same, if considered only in relation to them; and if
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considered as a distinct right, independent of the shores, then no naval victories obtained by Spain over Great Britain in the course of the war, gave her the color of conquest over any water which the British fleet could enter. Still less can she be considered as having conquered the river as against the United States, with whom she was not at war. We had a common right of naviga- tion in the part of the river between Florida, the island of New Orleans, and the western bank, and nothing which passed between Spain and Great Britain, either during the war or at its conclusion, could lessen that right. Accordingly, at the treaty of November, 1782, Great Britain confirmed the rights of the United States to the navigation of the river, from its source to its mouth, and in January, 1783, completed. the right of Spain to the territory of Florida, by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great Britain. If it added any- thing to the rights of Spain respecting the river between the east- ern and western banks, it could only be that portion of right which Great Britain had retained to herself in the treaty with the United States, held seven weeks before, to-wit, a right of using it in com- mon with the United States. So that as by the treaty of 1763, the United States had obtained a common right to navigate the whole river from its source to its mouth, so by the treaty of 1782 that common right was confirmed to them by.the only power which could pretend claims against them, founded on the state of war; not has that common right been transferred to Spain by either conquest or cession."
But Mr. Jefferson regarded the strongest argument of the United States to the right of navigating the Mississippi to rest on the law of nature and nations, and proceeded to cite numerous cases from Roman and more recent law. His position seems unassailable so far as the questions of boundary and right to navi- gate the Mississippi are concerned.+
The views of Spain at this time regarding these questions are contained in the letter of April 18, 1793, from William Car- michael and William Short to Mr. Jefferson. Mr. Gardoqui, the commissioner on the part of Spain, according to the American commissioners, "discovered evident signs of impatience under this statement (the argument of Mr. Jefferson), and much sur- prise either feigned or real at it. He assured us that no con-
* American State Papers; Foreign Relations, Vol. I.
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sideration whatever would ever induce his Majesty to acknowl- edge a right in ns to this navigation ; and he seemed to consider our claim to the limits under the treaty with England as extrava- 1 gant and unwarrantabie; regarding this treaty as an agreement made between two people to dispose of the property of a third.">
Hle maintained substantially that the argument regarding natural law was deserving of no attention, having never yet bound a power further than suited its convenience; that the treaties cited by Mr. Jefferson did not give the United States the right to the navigation, because Spain was not a party thereto; that he would never consent to advise His Majesty to acknowledge the right of the United States to navigate the whole course of the Mississippi; that Spain was entitled by conquest to the territory claimed ; that as Spain had not acknowledged the independence of the United States, she had a right to make those conquests; that the statements of the Marquis de Lafayette were misrepre- sentations; that the questions of boundary and navigation were much less important than the United States made them; that the admission of foreigners into the Spanish colonial possessions was an innovation ; that opening the navigation meant the smuggling of goods into Louisiana through the states; that the people of the Atlantic states were opposed to the navigation in order to have the products of the West brought there; that the people of the West regarded their adhesion to the Union as visionary ; and that the United States did not really want the limits and naviga- tion asked for.
Again there was a delay, and in the meantime the discontent grew in the West, the intrigues of Mr. Genet against Louisiana were disclosed, and the contentions over the treatment of the Indians by Spain and the United States were continued. The American commissioners said on May 5, 1793, "A few ships of the line would have more weight in securing peaceably the terri- torial rights of the United States and those with respect to the Mississippi, than all the most unanswerable arguments and incon- testible proofs that could be adduced in support thereof." The European war was largely the cause of the delay, but the com- missioners of the two countries scemed no nearer together than they had been ten years before.
On June 2, 1793, Mr. Jefferson wrote to Mr. Madison, "There is, too, at this time, a lowering disposition perceivable both in England and Spain. The former keeps herself aloof and in a
*American State Papers ; Foreign Relations, Vol. I.
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state of incommunication with us, except in the way of demand. The latter had not begun auspiciously with C. and S. ( Carmichael and Short ) at Madrid and has lately sent fifteen hundred men to New Orleans and greatly strengthened her posts on the Missis- sippi." On the 23d of the same month he again wrote, "Spain is unquestionably picking a quarrel with us ; a series of letters from her commissioners here prove it. We are sending a courier to Madrid. The inevitableness of war with the Creeks and the probability, I might say certainty, of it with Spain ( for there is not one of us who doubts it), will certainly occasion your con- vocation, at what time I cannot exactly say, but you should be prepared for this important change in the state of things."" Even while Messrs. Carmichael and Short were endeavoring to their utmost at Madrid to secure a treaty with Spain, that country was extending her settlements into the disputed territory along the Mississippi. On the contrary, the United States had pre- vented with a strong show of force the settlement of a large col- ony of Americans at the Walnut Hills ( Vicksburg).
In June, 1703, the American commissioners informed Mr. Jef- ferson that Spain regarded the relinquishment of the limits and the navigation "as a commencement of the loss of their American commerce and territorial possessions." In June, 1793, Louisiana having been deprived of its commerce with France by reason of the war in Europe, Spain adopted an ordinance extending and improving the commerce of that colony. In November, 1794, President Washington nominated Thomas Pinckney as envoy extraordinary to assist the American minister resident at Madrid to negotiate the treaty with Spain. There was much uneasiness in the western country in 1793 and 1794 under the attempts of Mr. Genet to raise a force there to descend upon New Orleans. Congress took effective steps to thwart any such movement, and reassured the western settlers that negotiations looking to their right to navigate the Mississippi were under way.f
On December 7, 1793, Messrs. Carmichael and Short at Madrid wrote to the Spanish minister, the Duke de la Alcudia, as follows : "When your Excellency shall see from it that those limits were established so long ago as the year 1763; that the acts by which they were established and confirmed and pointed out, are law- ful and indisputable; in fine, are as precise and as valid as those establishing the right of the United States to any other part of
* Writings of Thomas Jefferson.
t Proceedings of Congress.
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their territory ; and that Spain has no title whatever to produce, no document of any kind giving even the color of a right to the territory claimed within the limits of the United States; we trust your Excellency will think it just that that uncertainty shall no longer remain. It cannot be unknown to your Excellency that the difficulties which have been raised as to the rights of the United States on the subject of limits and the navigation of the Mississippi, have retarded the negotiations set on foot. After all that had passed between the two countries relative thereto, the United States were far from expecting these difficulties would have existed at the opening of our negotiation. We have hoped that time and a more accurate examination of the subject woukl remove them. We now present the claims of the United States in these subjects in such a form, exhibiting the titles from which they are derived, that we hope they will appear rigorously just."*
Soon after the arrival of Mr. Pinckney in Spain in June, 1795, he was informed that it was the wish of the Spanish monarch to form a triple alliance between France, Spain and the United States; but this proposition was diplomatically evaded. When the Duke de la Alcudia was told that the United States, in the pending negotiations, could not guarantee the Spanish posses- sions in America, he "appeared much mortified." Early in August, 1795, immediately after the treaty between France and Spain was concluded, the Spanish minister sent word to the Amer- ican commissioners that their business "should be very speedily settled to their satisfaction, as His Majesty was determined to sacrifice something of what he considered as his right to testify his good will to the United States."* In the conferences Mr. Pinckney argued that the suspension of the navigation of the Mississippi from 1783 to 1795 had occasioned great loss to the people in the western part of the United States, and that as a just measure of compensation therefor Spain should now grant them a depot at some convenient point down the Mississippi, and men- tioned New Orleans as its location.
There is no way of knowing, except from the various docu- ments of that time, what Spain expected to gain by her conten- tions over the limits and the navigation. Mr. Carmichael while in Madrid reported that Spain at the conclusion of the revolu- tion expected to abide by the limits and navigation established by the treaty of November 30, 1782, between Great Britain and the
*Diplomatic Correspondence.
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United States ; but that France had persuaded her to extend her claims .* That statement is supported by the fact that France sustained such claims of Spain from 1778, and earlier, even until after the cession of Louisiana by France to the United States. So far as can be learned from existing sources of information, no stronger arguments were adduced by Spain in support of her con- tentions than here presented. The arguments of Mr. Jefferson and of his successor, Mr. Randolph, and of Mr. Pinckney, the envoy extraordinary of the United States, were never answered by Spain. It was noted at the time by Mr. Pinckney that the con- cluding arguments of Mr. Jefferson and himself were studiously, yet artfully, evaded by the Spanish ministry. The American position was absolutely sustained by the facts, so far as the west- ern and the southern boundaries and the navigation of the Mis- sissippi were concerned.
The long delayed treaty between Spain and the United States was finally concluded October 27, 1795. The following extracts therefrom explain themselves.
"Article II. To prevent all disputes on the subject of the boundaries which separate the territories of the two high contract- ing parties, it is hereby declared and agreed as follows, to-wit : The southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the river Mis- sissippi, at the northernmost part of the thirty-first degree of latitude north of the equator, which from thence shall be drawn due east to the middle of the river Apalachicola, or Catahouche, thence along the middle thereof to its junction with the Flint; thence straight to the head of St. Mary's river, and thence down the middle thereof to the Atlantic ocean.
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"Article III. In order to carry the preceding article into effect, one commissioner and one surveyor shall be appointed by each of the contracting parties, who shall meet at the Natchez, on the left side of the Mississippi, before the expiration of six months from the ratification of this convention, and they shall proceed to run and mark this boundary according to the stipulations of the said article ( Article HI above). They shall make plats and keep journals of their proceedings, which shall be considered as part of this convention, and shall have the same force as if they were inserted therein. And if on any account it shall be found neces- sary that the said commissioners and surveyors should be accom-
. Diplomatie Correspondence, Secret.
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panied by guards, they shall be furnished in equal proportions by the commanding officer of His Majesty's troops in the two Floridas, and the commanding officer of the troops of the United States in the southwestern territory, who shall act by common consent and amicably, as well with respect to this point as to the furnishing of provisions and instruments, and making every other arrangement which may be necessary or useful for the execution of this article.
"Article IV. It is likewise agreed that the western boundary of the United States, which separates them from the Spanish cel- ony of Louisiana, is in the middle of the channel or bed of the river Mississippi, from the northern boundary of the said states to the completion of the thirty-first degree of latitude north of the equator. And his Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention.
"Article XXII.
And in consequence of the stipula- tions contained in the IVth article, his Catholic Majesty will per- mit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores ; and his Majesty promises either to continue this permission, if he finds during that time that it is not prejudicial to the interest of Spain, or if he should not agree to continue it there, he will assign to then on another part of the banks of the Mississippi an equiva- lent establishment .*
The conclusion of the treaty between Spain and the United States in October, 1705, when it became known in the western country, occasioned the most unbounded satisfaction. The feel- ings of relief, unless the situation of that day be well understood, cannot be realized now. Innnediately thereafter, the products of the West sought the port of New Orleans, and the rivers became joyful with the shouts of the elated boatmen. The newspapers of the Atlantic cities were far from being enthusiastic over the treaty, because it meant the loss to the East of nearly all of the western trade.f Neither was the news relished at New Orleans, whose people had so often been bandied ahont from one European nation to another, because the aggressive commercial enterprise of
· Treaties of the United States.
t Pittsburg Gazelle.
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the Americans, it was realized, foreshadowed their absorption of the river traffic.
In 1797, the Spanish ministry presented strong protests against many of the provisions of the treaty of 1794, concluded between Great Britain and the United States, particularly in regard to the specifications concerning contraband, to the violation of the mari- time principle that "free ships make free goods," and to the con- firmation of the article in the treaty of 1783, by which the United States recognized the right of Great Britain to navigate the Mis- sissippi. The latter was particularly objectionable, because, in the estimation of Spain, the United States had been guilty of duplicity in the treaty of 1795, by which Spain was not only humiliated, but was made to suffer serious injury. The "explan- atory articles" of May 4. 1796, between the United States and Great Britain, were included in the protests. The Spanish view was presented by Don Carlos de Yrujo, Spanish minister to America, as follows :
"By the sixth article of the preliminary treaty made on the 3d November, 1763, between France and Great Britain, and by the definitive treaty signed on the roth of February, 1763, it is stipu- lated that all that part of Louisiana situated on the east of the Mississippi, excepting New Orleans and its dependencies, should belong to Great Britain. By the 8th article of the provisional treaty concluded between the United States of America and Great . Britain on the 30th of November, 1782, and the definitive treaty signed on the 3d of September, 1783, it is stated, that the navi- gation of the Mississippi, from its source to the ocean, shall forever remain and be free to the subjects of Great Britain and the citizens of the United States. By the preliminary articles of the treaty concluded between Spain and England, and the definitive treaty signed on the 3d of September, 1783, Great Britain ceded to Spain all East and West Florida, which two provinces were the ouly territory that that nation had remain- ing in this part of the continent. In the 5th article, in which this cession is stipulated, not a single word js said relative to the navigation of the Mississippi, nor do the other articles say any- thing on the subject. When England signed these preliminary articles with the United States of America in 1782, Great Britain. still held all the right to East and West Florida, because then she had not ceded forever those provinces to Spain, as is proved afterward by the treaty of 1783, and without the least mention therein of the Mississippi. Therefore, England, having coded East and West Florida in 1783, and not having reserved the
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right to the navigation of the Mississippi, of course lost it entirely when she made Spain mistress of the two banks. The only right which the United States had in the navigation of that river was founded on the stipulations derived from England; but having changed their political existence by the declaration of their independence, and having by this act separated their interests from those of Great Britain, the liberty of navigating . the Mississippi did not follow to the United States, but by a special treaty which has just been concluded between Spain and this country. So far good; how can the United States without the consent of Spain, cede to England the right of navigating the Mississippi which is grauted only to themselves? And in virtue of what privilege can the federal government give the navigation of this river to a nation who has renounced all her rights through the medium of solemn treaties, and who not only does not hold a single port, but also does not possess a single inch of land on its banks? This simple exposition, in conjunc- tion with the opinion of all jurists, that the navigation of rivers naturally belongs to him who possesses the two banks, evidently manifests the injury done to the rights of Spain in the 3d article of the English treaty, and the explanatory article signed on the 4th of May, 1796."*
Mr. Pickering, secretary of state, fully and conclusively answers these points in this communication of Alay 17, 1797. He pointed out that Spain and not the United States had, by the treaty of 1795, excluded Great Britain from the navigation of the Mississippi, $ and that Spain had been aware of the treaty of 1794 between Great Britain and the United States before the treaty of 1795 between Spain and the United States was con- cluded, and hence there should be no complaint now.
In May, 1797, the Baron de Carondelet, governor of the prov- ince of Louisiana, dispatched Thomas Power to the Upper Mis- sissippi country on an important mission in the interests of Spain.t He had learned that the Americans contemplated descending the river with troops to take possession of Natchez and the Walnut Hills in conformity to the treaty of 1795; and in order to prevent any clash of anthority until the methods of evacuation by Spain had been determined upon, and until it should be learned whether the British expedition were likely to
· Diplomatic Correspondence.
¿ This statement was correct. See the treaty.
t American State Papers.
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descend the Mississippi to attack New Orleans, Mr. Power was required to secure, if possible, from General Wilkinson, the sus- pension of the march southward of the detachment under his command. He was further instructed to thoroughly sound the people of the Western States as to their designs against Lonisi- ana, and in case it should be learned that a force of militia was being raised for such service to lose no time in putting the com- mandant at the Chickasaw Bluffs in possession of such infor- mation. He was also told to investigate the sentiments of the Western people as to their desire to separate themselves from the Union, and to hold out every inducement for them to adopt this course, relying upon the assistance of Spain in such a move- ment. Should such a sentiment be found to exist generally, they were to be told that the posts at Chickasaw Bluffs, Walnut Hills and Natchez were to be hell by Spain for the mutual ben- efit of the Western people and the Spanish crown. The baron said, "If a hundred thousand dollars distributed in Kentucky could cause it to rise in insurrection, I am very certain that the minister in the present circumstances would secrifice them with pleasure, and you may without exposing yourself too much promise them to those who enjoy the confidence of the people, with another equal sum to arm them in case of necessity and twenty pieces of field artillery. You will arrive without danger as bearer of a dispatch for the general where the army may be, whose force, discipline and dispositions you will examine with care ; and you will endeavor to discover with your natural pene- tration the general's disposition. I doubt that a person of his character would prefer through vanity the advantage of com- manding the army of the Atlantic States, to that of being the founder, the liberator, in fine, the Washington of the Western states ; his part is as brilliant as it is easy; all eyes are drawn towards him; he possesses the confidence of his fellow-citizens and of the Kentucky volunteers; at the slightest movement the people will name him the general of the new republic; his repu- tation will raise an army for him and Spain as well as France will furnish him the means of paying it. On taking Fort Massac we will send him instantly arms and artillery, and Spain lim- iting herself to the possession of the forts of Natchez and Walnut Hills as far as Fort Confederation, will cede to the Western states all the eastern bank of the Ohio, which will form a very extensive and powerful republic, connected by its situa- tion and by its interests with Spain. Spain and France are enraged at the connections of the United States with Eng-
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land ; the army is weak and devoted to Wilkinson ; the threats of congress authorize me to succor on the spot and openly the Western states ; . . nothing more will consequently be required but an instant of firmmess and resolution to make the people of the West perfectly happy. If they suffer this instant to escape them, and if we should be forced to deliver up the posts, Kentucky and Tennessee, surrounded by the said posts and without communication with lower Louisiana, will ever remain under the oppression of the Atlantic States."
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