University of Virginia Library

5294. MISSISSIPPI RIVER NAVIGATION, Spain and.—

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 extent, could
be considered as the possession and conquest
of that country. If it was, it gave still
but an inchoate right, as was before explained,
which could not be perfected but by the relinquishment
of the former possession at the
close of the war; but certainly 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 in
its relation to them; and if 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 navigation
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 anything to the rights of Spain respecting
the river between the eastern 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
common with the United States. So that as by
the treaty of 1763, the United States had obtained
a common right of navigating 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 who could
pretend claims against them, founded on the
state of war; nor has that common right been
transferred to Spain by either conquest or cession.—
Mississippi River Instructions. Washington ed. vii, 576. Ford ed., v, 466.
(1792)