CHAPTER VIII.

Negotiations with Spain-Mr. Madison Chairman of a Committee to prepare Instructions to Dr. Franklin and Mr. Jay in Support of the Claims of the United States to Western Territory, and the free Navigation of the Mississippi River - Instructions drawn by him unanimously adopted — Outline of the Arguments and Topics presented Congress afterwards induced to change temporarily their Instructions with Regard to the free Navigation of the MississippiPressure of Georgia and South Carolina upon Virginia to change her former Instructions to her Delegates The Change deprecated and deplored by Mr. Madison - He corrects a Misrepresentation of the Conduct of Mr. Jay- Ultimate Return to the Principles of the original Instructions- Measures of Internal Policy - Urgent Motives for completing the Ratification of the Articles of Confederation . Successive Ratification of them by all the States except Maryland - Grounds of her persevering Opposition - Jealousy of the Territorial Claims of Virginia - Foundation and legal Validity of those Claims - Virginia willing to make a liberal Cession for the Sake of Conciliation and Harmony - Opinions of her leading Statesmen, Madison, Pendleton, and Mason She finally proffers a Cession on Conditions submitted to Congress - Maryland authorizes her Delegates to sign the Articles of Confederation Ratification completed, and proclaimed by Congress.

We have already had occasion to mention how desirous both France and the United States were that Spain should become a party to their alliance. This was now more to be desired than

ever, as the junction of her naval armaments with those of France would, at once, give that maritime predominance on the American coasts, to which such vital importance was justly attached. The prospect of regaining the Floridas, which she had lost in the war of 1756, and, in that event, their guarantee by the United States had been held out by a resolution of Congress as an inducement for her to unite in the contest but this was upon the express condition that "the United States should enjoy the free navigation of the River Mississippi into and from the sea." 1 Such were the explicit instructions given to Mr. Jay, who had been appointed minister to Spain in the autumn of 1779. spatches recently received from him informed Congress of the earnestness with which the Spanish government still continued to insist on the renunciation by the United States of their claim to the free navigation of the Mississippi, as the sine qua non of His Catholic Majesty's accession to the alliance. The minister, at the same time, expressed his own opinion that, if Congress remained firm, Spain would be ultimately content with such equitable regulations, in the use of the navigation, as should suffice to guard against contraband.

De

These despatches, together with the instructions of the legislature of Virginia to her dele

1 See Resolution of the 17th of September, 1779, Secret Journals, vol. 11. pp. 248, 249. See also Idem, pp. 261–263.

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gates in Congress of the 5th of November, 1779, by which they were enjoined to use their utmost endeavours to maintain the freedom of the Mississippi, were referred to a select committee. In pursuance of their report, Congress, on the 4th of October, 1780, unanimously resolved that Mr. Jay should adhere to his former instructions respecting the right to the free navigation of the Mississippi (which, if not expressly acknowledged by Spain, was, in no event, to be relinquished by any stipulation on the part of the United States); and with regard to boundaries, that he should adhere strictly to the designation already fixed by Congress, making the Mississippi River the western limit of the territory of the United States above the thirty-first parallel of north latitude.

Two days after the adoption of these resolutions by Congress, a committee was appointed "to draft a letter to the ministers of the United States at the courts of Versailles and Madrid to enforce the instructions given by Congress to Mr. Jay by the resolutions of the 4th instant, and to explain the reasons and principles on which the same are founded, that they may be respectively enabled to satisfy those courts of the justice and equity of the instructions of Congress." Mr. Madison, Mr. Sullivan of New Hampshire, and Mr. Duane of New York, constituted the committee.

The paper, required at the hands of this committee, was one of the greatest delicacy and im

portance. It was to explain and vindicate the position of the United States on a question deeply affecting, not merely their foreign relations and their prospects of obtaining that external support of which they were so much in need, but their interior union and strength in all future time. It was to be addressed to two of the most eminent men of their country, whose experience and wisdom made them objects of universal respect; and, through them, to two of the most powerful and enlightened governments of the world, on a subject touching the interests and pride of the one, and the sympathies and political affinities of the other, and involved in more or less of difficulty and doubt by the contradictory solutions which the history of different nations presented. It is not a little singular that the preparation of such a paper should have devolved upon the youngest member, probably, of the body to which he belonged. It was drawn by Mr. Madison, reported to Congress on the 17th of October, 1780, immediately agreed to, and transmitted to Dr. Franklin and Mr. Jay as the authorized exposition and defence of the claims of the United States.

The law of nations, with regard to the right of those who inhabit the upper parts of a river flowing through the jurisdiction of a foreign power before it reaches the ocean, to use its navigation into the sea,- -the common highway of commerce, was, at this time, unsettled either

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by usage or authority. The freedom of the Rhine was established by the treaty of Westphalia in 1648, and was ever afterwards recognized by the general consent of Europe. But by the same treaty the mouth of the Scheldt was allowed to be closed by the United Provinces, within whose limits it fell, against the navigation of the Spanish Netherlands which occupied its upper course, and of all others, beyond the limits of the new republic, who should desire to use it as a channel of communication to the sea.

The Emperor Joseph II., to whom the Low Countries had descended under the arrangements of the Peace of Utrecht, became restless under the restrictions put by the treaty of Westphalia on that avenue to the ocean, which nature seemed to have given to his Flemish subjects in common with their Batavian neighbours; and almost at the same time that our discussions commenced with Spain respecting the navigation of the Mississippi, he boldly demanded, and threatened to assert by force his claim to the free navigation of the Scheldt. He afterwards, however, with characteristic indecision renounced his claim by the treaty of Fontainebleau in 1785; and the freedom of the Scheldt remained, more or less, a vexed question of the public law of Europe, until it was definitively established by the Congress of Vienna.1

1 See Histoire des Traités de Paix, par Kock & Scholl. vol. IV. pp. 70-80, and vol. xI. p. 394.