The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
INSTRUCTIONS TO JOHN JAY. |
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 | The writings of James Madison, |  |
INSTRUCTIONS TO JOHN JAY.
BOUNDARIES AND FREE NAVIGATION OF THE MISSISSIPPI.[1]
The Committee appointed to draught a letter to the Ministers
Plenipotentiary at the Courts of Versailles and Madrid, explaining
the reasons and principles on which the instructions to Mr
Jay of the 4th. inst. are founded report the following to Mr. Jay, a
copy of which with the resolution directing the draught to be also
inclosed to Dr Franklin
Sir
Congress having in their instructions of the 4th inst; directed
you to adhere strictly to their former instructions relating to
the boundaries of the United States, to insist on the navigation of
the Mississippi for the Citizens of the United States in common
with the subjects of his Catholic Majesty, as also on a free
port or ports below the Northern limit of W. Florida & accessible
to Merchant ships, for the use of the former, and being sensible of
the influence which these claims on the part of the United States
may have on your negotiations with the Court of Madrid, have
thought it expedient to explain the reasons and principles on
that Court of the equity and justice of their intentions.
With respect to the first of these articles by which the river
Miss: is fixed as the boundary between the Spanish settlements
and the United States, it is unnecessary to take notice of any pretentions
founded on priority of discovery, of occupancy or on
conquest. It is sufficient that by the definitive treaty of Paris
1763 Art. 7 all the territory now claimed by the United States was
expressly and irrevocably ceded to the King of G. Britain—and
that the United States are in consequence of revolution in their
Government entitled to the benefits of that cession.
The first of these positions is proved by the treaty itself. To
prove the last, it must be observed that it is a fundamental principle
in all lawful Governments and particularly in the constitution
of the British Empire, that all the rights of sovereignty are
intended for the benefit of those from whom they are derived and
over whom they are exercised. It is known also to have been
held for an inviolable principle by the United States whilst they
remained a part of the British Empire, that the Sovereignty of the
King of England with all the rights & powers included in it, did
not extend to them in virtue of his being acknowledged and
obeyed as King by the people of England or of any other part of
the Empire, but in virtue of his being acknowledged and obeyed
as King by the people of America themselves; and that this principle
was the basis, first of their opposition to, and finally of their
abolition of, his authority over them. From these principles it
results that all the territory lying within the limits of the States
as fixed by the Sovereign himself, was held by him for their particular
benefit, and must equally with other rights and claims in
quality of their sovereign be considered as having devolved on
them in consequence of their resumption of the Sovereignty to
themselves.
In support of this position it may be further observed that
all the territorial rights of the King of G. Britain within the limits
of the United States accrued to him from the enterprises, the
risks, the sacrifices, the expence in blood and treasure of the
present inhabitants and their progenitors. If in latter times expences
and exertions have been borne by any other part of the
that the ultimate object of them was the general security and advantage
of the empire, that a proportionate share was borne by
the States themselves, and that if this had not been the case, the
benefits resulting from an exclusive enjoyment of their trade
have been an abundant compensation. Equity and justice therefore
perfectly coincide in the present instance with political and
constitutional principles.
No objection can be pretended against what is here said, except
that the King of G. Britain was at the time of the rupture with
his Catholic Majesty possessed of certain parts of the territory in
question, and consequently that his C. M. had and still has a
right to regard them as lawful objects of conquest. In answer to
this objection it is to be considered, 1st. that these possessions
are few in number and confined to small spots. 2. that a right
founded on conquest being only coextensive with the objects
of conquest, cannot comprehend the circumjacent territory. 3.
that if a right to the said territory depended on the conquest of
the British posts within it the United States have already a more
extensive claim to it, than Spain can acquire, having by the success
of their arms obtained possession of all the important posts
and settlements on the Illinois and Wabash, rescued the inhabitants
from British domination, and established civil government
in its proper form over them. They have moreover established a
post on a strong and commanding situation near the mouth of the
Ohio, whereas Spain has a claim by conquest to no post above
the Northern bounds of W. Florida except that of Natches, nor
are there any other British posts below the mouth of the Ohio
for their arms to be employed against. 4. that whatever extent
ought to be ascribed to the right of conquest, it must be admitted
to have limitations which in the present case exclude the pretentions
of his Catholic Majesty by the King of G. Britain. If
the occupation of posts within the limits of the United States as
defined by charters derived from the said King when constitutionally
authorised to grant them, makes them lawful objects of conquest
to any other power than the United States, it follows that
every other part of the United States that is now or may hereafter
fall into the hands of the Enemy is equally an object of
its vicinity, but almost the entire States of S. Carolina and
Georgia, might by the interposition of a foreign power at war
with their Enemy be forever severed from the American Confederacy
and subjected to a foreign Yoke. But is such a doctrine
consonant to the rights of nations or the sentiments of humanity?
does it breathe that spirit of concord and amity which is the aim
of the proposed alliance with Spain? would it be admitted by
Spain herself if it affected her own dominions? Were for example
a British armament by a sudden enterprise to get possession
of a sea port a trading town or maritime province in Spain and
another power at war with Britain should before it could be
reconquered by Spain wrest it from the hands of Britain, would
Spain herself consider it as an extinguishment of her just
pretentions? or would any impartial nation consider it in that
light?
The right of the United States to Western territory as far as
the Mississippi having been shewn, there are sufficient reasons
for them to insist on that right as well as for Spain not to wish a
relinquishment of it.
In the first place the river Mississippi be a more natural more
distinguishable and more precise boundary than any other that
can be drawn eastwardly of it, and consequently will be less liable
to become a source of those disputes which too often proceed
from uncertain boundaries between nations.
Secondly. It ought to be conceeded that although the vacant
territory adjacent to the Mississippi should be relinquished by
the United States to Spain, yet the fertility of its soil and its
convenient situation for trade might be productive of intrusions
by the Citizens of the former which their great distance would
render it difficult to restrain and which might lead to an interruption
of that harmony which it is so much to the interest and
wish of both should be perpetual.
Thirdly. As this territory be within the charter limits of particular
States and is considered by them as no less their property
than other territory within their limits, Congress could not relinquish
it with out exciting discussions between themselves &
these States concerning their respective rights and powers which
and give advantage to the common enemy.
Fourthly. The territory in question contains a number of inhabitants
who are at present under the protection of the United
States and have sworn allegiance to them. These could not by
voluntary transfer be subjected to a foreign jurisdiction without
manifest violation of the common rights of mankind and of the
genius and principles of the American Governments.
Fifthly. In case the obstinacy and pride of G. Britain should
for any length of time continue an obstacle to peace a cession
of this territory rendered of so much value to the United States
by its particular situation would deprive them of one of the material
funds on which they rely for pursuing the war against her,
on the part of Spain, this territorial fund is not needed for and
perhaps could not be applied to the purposes of the war and
from its situation is otherwise of much less value to her than to
the United States.
Congress have the greater hopes that the pretentions of his
Catholic Majesty on this subject will not be so far urged as to
prove an insuperable obstacle to an alliance with the United
States, because they conceive such pretentions to be incompatible
with the treaties subsisting between France and them which are to
be the basis and substance of it. By Art; II of the Treaty of
Alliance eventual and defensive the Possessions of the United
States are guarantied to them by his most IIs Majesty. By Art;
12 of the same treaty intended to fix more precisely the sense and
application of the preceeding article, it is declared that this guarantee
shall have its full force and effect the moment a rupture
shall take place between France and England. All the possessions
therefore belonging to the United States at the time of that rupture,
which being prior to the rupture between Spain and England
must be prior to all claims of conquest by the former, are guarantied
to them by his most IIs Majesty. Now that in the possessions
thus guarantied was meant by the Contracting parties to be included
all the territory within the limits assigned to the United States by
the Treaty of Paris, may be inferred from Art: 5 of the Treaty
above mentioned, which declares that if the United States should
think fit to attempt the reduction of the British power remaining
&c., those countries shall in case of success be considered with or
dependent upon the United States; for if it had not been understood
by the parties that the Western territory in question known
to be of so great importance to the United States and a reduction
of it so likely to be attempted by them, was included in the general
guarantee, can it be supposed that no notice would have been
taken of it when the parties extended their views not only to
Canada but to the remote & unimportant Islands of Bermudas.
It is true these acts between France and the United States are in
no respect obligatory on his Catholic Majesty until he shall think
fit to accede to them. Yet as they shew the sense of his most
IIs Majesty on this subject with whom his C. M is intimately
allied, as it is in pursuance of an express reservation to his C. M
in a secret act subjoined to the treaties aforesaid of a power to
accede to those treaties that the present overtures are made on
the part of the United States, and as it is particularly stated in
that Act, that any conditions which his C. M shall think fit to add
are to be analogous to the principal aim of the Alliance and conformable
to the rules of equality reciprocity & friendship, Congress
entertains too high an oppinion of the equity moderation &
wisdom of his C. M not to suppose, that when joined to these
considerations they will prevail against any mistaken views of
interest that may be suggested to him.
The next object of the instruction is the free navigation of the
Mississippi for the citizens of the United States in common with
the subjects of his C. M.
On this subject the same inference may be made from Art: 7 of
the Treaty of Paris which stipulates this right in the amplest manner
to the King of G. Britain and the devolution of it to the
United States as was applied to their territorial claims, of the latter.
Nor can Congress hesitate to believe that even if no such
right could be inferred from that treaty, that the generosity of his
C. M would suffer the inhabitants of these States to be put into a
worse condition in this respect by their alliance with him in the
character of a sovereign people, than they were when subjects of
a power who was always ready to turn their force against his
Majesty; especially as one of the great objects of the proposed
disarming that power of the faculty of disturbing others.
Besides as the United States have an indisputable right to the
possession of the East bank of the Mississippi for a very great
distance, and the navigation of that river will essentially tend to
the prosperity and advantage of the Citizens of the United States
that may reside on the Mississippi or the waters running into it,
it is conceived that the circumstance of Spain's being in possession
of the banks on both sides near the mouth, cannot be deemed
a natural or equitable bar to the free use of the river. Such a
principle would authorize a nation disposed to take advantage of
circumstances to contravene the clear indications of nature and
providence, and the general good of mankind.
The usage of nations accordingly seems in such cases to have
given to those holding the mouth or lower parts of a river no
right against those above them except the right of imposing a
moderate toll and that on the equitable supposition that such toll
is due for the expence and trouble the former may have been
put to.
"An innocent passage (says Vattel) is due to all nations with
whom a State is at peace, and this duty comprehends troops
equally with individuals." If a right to a passage by land
through other countries may be claimed for troops which are
employed in the destruction of mankind; how much more may a
passage by water be claimed for commerce which is beneficial to
all nations.
Here again it ought not to be concealed that the inconvenience
that must be felt by the inhabitants on the waters running westwardly
under an exclusion from the use of the Mississippi would
be a constant and increasing source of disquietude on their part,
of more rigerous precautions on the part of Spain and, of an irritation
on both parts, which it is equally to the interest and duty
of both to guard against.
But notwithstanding the equitable claim of the United States
to the free navigation of the Mississippi and its great importance
to them, Congress have so strong a disposition to conform to the
desires of his C. M that they have agreed that such equitable
regulations may be entered into as may be a requisite security
and a free port or ports below the 31st degree of N. L.
and accessible to merchant ships be stipulated to them.
The reason why a port or ports as thus described was required
must be obvious, without such a stipulation the free use of the
Mississippi would in fact amount to no more than a free intercourse
with New Orleans and the other ports of Louisiana. From
the rapid current of this river it is well known that it must be
navigated by vessels of a peculiar construction and which will be
unfit to go to sea. Unless therefore some place be assigned to
the U. S. where the produce carried down the river and the merchandise
returning from abroad may be reposited till they can be
respectively taken away by the proper vessels there can be no
such thing as a foreign trade.
There is a remaining consideration respecting the navigation of
the Mississippi which deeply concerns the maritime powers in
general but more particularly their Most IIs and Catholic Majesties.
The Country watered by the Ohio with its large branches
having their sources near the lakes on one side, and those running
N. Westward and falling into it on the other side, will appear
from a single glance on a map to be of vast extent. The circumstance
of it being so finely watered added to the singular fertility
of its soil and the other advantages presented by a new country,
will occasion a rapidity of population not easily conceived. The
spirit of emigration has already shewn itself in a very strong
degree, notwithstanding the many impediments which discourage
it. The principal of these impediments is the war with Britain
which can not spare a force sufficient to protect the emigrants
against the incursions of the Savages. In a very few years after
peace shall take place this Country will certainly be overspread,
with inhabitants. In like manner as in all other new settlements
agriculture, not manufactures will be their employment. They
will raise wheat corn Beef Pork tobacco hemp flax and in the
Southern parts perhaps rice and indigo in great quantities. On
the other hand their consumption of foreign manufactures will
be in proportion, if they can be exchanged for the produce of
their soil. There are but two channels through which such commerce
can be carried on, the first is on the river Mississippi—
thence by short portages to the lakes or the rivers falling into
them, and thence through the lakes and down the St. Lawrence.
The first of these channels is manifestly the most natural and by
far the most advantageous. Should it however be obstructed,
the second will be found far from an impracticable. If no obstructions
should be thrown in its course down the Mississippi, the
exports from this immense tract of Country will not only supply
an abundance of all necessaries for the W. Indies Islands, but
serve for a valuable basis of general trade, of which the rising
spirit of commerce in France & Spain will no doubt particularly
avail itself. The imports will be proportionally extensive
and from the climate as well as other causes will consist in a
great degree of the manufactures of the same countries. On the
other hand should obstruction on the Mississippi force this trade
into a contrary direction through Canada, France and Spain and
the other maritime powers will not only lose the immediate benefit
of it to themselves, but they will also suffer by the advantage
it will give to G. Britain. So fair a prospect should not escape
the commercial sagacity of this nation. She would embrace it
with avidity; she would cherish it with most studious care; and
should she succeed in fixing it in that channel, the loss of her
exclusive possession of the trade of the United States might
prove a much less decisive blow to her maritime preeminence and
tyranny than has been calculated.
The last clause of the instructions respecting the navigation of
the waters running out of Georgia through West Florida, not
being included in the ultimatum, nor claimed on a footing of
right requires nothing to be added to what it speaks itself. The
utility of the privilege asked to the State of Georgia and consequently
to the Union is apparent from the geographic representation
of the Country. The motives for Spain to grant it must be
found in her equity generosity and disposition to cultivate our
friendship and intercourse.
These observations you will readily discern are not communicated,
in order to be urged in all events and as they here stand in
support of the claims to which they relate. They are intended
for your private information and use and are to be urged so far
of the Court at which you reside, and best fulfil the object of
them.
| The writings of James Madison, | |