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VI.

THE FREE NAVIGATION OF RIVERS

AND SEAS.

A. THE MISSISSIPPI.

Mr. Jay's Negotiations in Spain in 1780.-Our Claim.-Gardoqui in America.-Different Views of the Northern and Southern States about the Importance of the Mississippi.— Carmichael and Short at Madrid.—Objections to them. -Thomas Pinckney sent to Madrid.-Treaty of 1795.Godoy's Opinion.-Spanish Protest against our Treaty with Great Britain.-Incident of 1802.-Final Settlement by the Acquisition of Louisiana and the Floridas.

THE efforts of our Government to secure for the commerce of its citizens the free navigation of rivers and seas have been constant, systematic, and remarkable, beginning even before we had obtained our independence. There had been difficulties between the Catholic provinces of the Netherlands and Holland with regard to the navigation of the Scheldt in the latter part of the eighteenth century; but the United States were the first to insist, as a matter of international law, that the people who live along the upper

waters of a river have a natural right to sail to the sea through the dominions of other powers. The rights claimed by the United States were laid down as part of the public law of Europe by the Congress of Vienna, but the credit of having first proclaimed them belongs to the United States alone.

As early as December 30, 1776,, Congress passed a resolution for the purpose of making a treaty with Spain, agreeing that if Spain should join them in the war against Great Britain they would assist in reducing to the possession of Spain the town and harbor of Pensacola, then held by England, provided the inhabitants of the United States should have the free navigation of the Mississippi and the use of the harbor of Pensacola. Mr. Arthur Lee visited Spain at the request of Franklin and Deane, but he had no special appointment, and appears to have had no other object than to obtain money and supplies. The first regular minister of the United States to Spain was Mr. John Jay, who was appointed in 1779 to negotiate a treaty, and was instructed to guarantee the two Floridas on condition that the free navigation of the Mississippi should be obtained for this country.*

This whole subject has been excellently treated by Mr. Theodore Lyman, in his book the Diplomacy of the United States, and by Mr. W. H. Trescot in his two volumes the Diplomacy of the Revolution and the Diplomatic History of the United States during the Administration of Washington

The great obstacle to the recognition of Mr. Jay on the part of Spain was the navigation of the Mississippi. The Spanish government desired to make the Gulf of Mexico a closed sea from Florida to Yucatan, into which the ships of other nations could not penetrate, the whole commerce being reserved for Spaniards. The Count Florida Blanca, on September 23, 1780, said with warmth,

"That unless Spain could exclude all nations from the Gulf of Mexico, they might as well'admit all; that the King would never relinquish that object; that the ministry regarded it as the principal thing to be obtained by the war; and that obtained he should be easy whether Spain obtained other cessions or not. The acquisition was much more important than that of Gibraltar."

Mr. Jay remained in Madrid until May, 1782, but he was never received in his official character, for Spain had not yet formally acknowledged the independence of the United States, nor could he negotiate continuously with regard to the proposed treaty. Although he upheld in the strongest manner the claims of the United States to the navigation of the Mississippi, and even to having a free port accessible to merchant ships below the thirty-third degree of north latitude, or about that, for, on account of the

and Jefferson. Mr. John Bach McMaster, in his History of the American People has shown the popular feeling called out by the negotiation. I can add nothing new.

peculiarities of the Mississippi and the necessity of changing goods into sea-going vessels, the simple right of navigation would be of no use; yet he seems always to have considered it doubtful whether the United States would not be compelled to relinquish their claim to the Mississippi in order to obtain the recognition of their independence. The question was complicated by our desire to obtain pecuniary assistance from Spain for the purpose of carrying on the war, and on September 3, 1780, Jay said to Gardoqui, who had proposed the navigation of the Mississippi as a consideration for aids,

"That the Americans, almost to a man, believed that God Almighty had made that river a highway for the people of the upper country to go to the sea by; that this country was extensive and fertile; that the General, many officers, and others of distinction and influence in America were deeply interested in it; that it would rapidly settle," etc.*

It seems strange that, in a negotiation of this kind, Mr. Jay should have allowed himself to refer to the private speculations of General Washington in western lands.t

After Jay's departure his secretary, Mr. Carmichael, was left as chargé d'affaires, and in 1785 the Spanish

Mr. Jay to the President of Congress, November 6, 1780. For full information on this subject, see a monograph by Prof. Herbert B. Adams, on Maryland's Influence upon Land Cessions to the United States, published in the Johns Hopkins University Studies in History and Political Science.

government for the first time sent to this country, as chargé d'affaires, the same Don Diego Gardoqui. Mr. Jay, who was then Secretary of State, was authorized by Congress to treat with the Spanish representative, not only on the question of boundaries, but on that of the Mississippi. Our claim had, we thought, been made perfect by the treaty of 1783, by which Great Britain recognized our independence; for by that treaty Great Britain had fixed, as our western boundary, the Mississippi, from its source down to the thirty-first degree of north latitude, and the eighth article read,

"The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States."

Our claims, therefore, rested, first, on the law of nature and of nations; second, on the treaty of Paris of 1763, by which a right was secured to the subjects of Great Britain

"To navigate the Mississippi, in its whole breadth and length, from its source to the sea, and expressly that part which is between the island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth; and that the vessel should not be stopped, visited, or subjected to the payment of any duty whatsoever."

The cession by France to Spain of the island of New Orleans, and of the country west of the Mississippi, was, of course, subject to our right of navigation

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