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the close of the war, if a nearer distance cannot be obtained by negociation. And in the negociation you are to exert your most strenuous endeavors to obtain a nearer distance to the gulf of St. Lawrence, and particularly along the shores of Nova Scotia, as to which latter we are desirous that even the shores may be occasionally used for the purpose of carrying on the fisheries by the inhabitants of these states.
3. In all other matters you are to govern yourself by your own discretion, as shall be most for the interest of these states, taking care that the said treaty be founded on principles of equality and reciprocity, so as to conduce to the mutual advantage of both nations, but not to the exclusion of others.
NO. 8. Instructions of Mr. Jay, for negociating with the court of Spain, in Sep
tember, 1779. SIR-By the treaties subsisting between his most christian majesty and the United States of America, a power is reserved to his catholic majesty to accede to the said treaties, and to participate in their stipulations, at such time as he shall judge proper, it being well understood, nevertheless, that if any of the stipulations of the said treaties are not agreeable to the court of Spain, his catholic majesty may propose other conditions analogous to the principal aim of the alliance, and conformable to the rules of equality, reciprocity, and friendship. Congress is sensible of the friendly regard to these states manifested by his most christian majesty, in reserving a power to his catholic majesty of acceding to the alliance entered into between his most christian majesty and these United States; and therefore, that nothing may be wanting on their part to facilitate the views of his most christian majesty, and to obtain a treaty of alliance and of amity and commerce with his catholic majesty, have thought proper to anticipate any propositions which his catholic majesty might make on that subject, by yielding up to him those objects which they conclude he may have principally in view; and for that purpose have come to the following resolution :
That if his catholic majesty shall accede to the said treaties, and, in concurrence with France and the United States of America, continue the present war with Great Britain for the purpose expressed in the treaties aforesaid, he shall not thereby be precluded from securing to himself the Floridas : on the contrary, if he shall obtain the Floridas from Great Britain, these United States will guaranty the same to his catholic majesty : provided always, that the United States shall enjoy the free navigation of the river Mississippi into and from the
You are therefore to communicate to his most christian majesty, the desire of congress to enter into a treaty of alliance and of amity and commerce with his catholic majesty, and to request his favorable
interposition for that purpose. At the same time, you are to make such proposals to his catholic majesty, as in your judgment, from circumstances, will be proper for obtaining for the United States of America equal advantages with those which are secured to them by the treaties with his most christian majesty ; observing always the resolution aforesaid as the ultimatum of the United States.
You are particularly tò endeavor to obtain some convenient port or ports below the thirty-first degree of north latitude, on the river Mississippi, for all merchant vessels, goods, wares, and merchandises belonging to the inhabitants of these states.
The distressed state of our finances and the great depreciation of our paper money inclined congress to hope that his catholic majesty, if he shall conclude a treaty with these states, will be induced to lend them money: you are therefore, to represent to him the great distress of these states on that account, and to solicit a loan of five millions of dollars upon the best terms in your power, not exceeding six per centum per annum, effectually to enable them to co-operate with the allies against the common enemy. But before you make any propositions to his catholic majesty for a loan, you are to endeavor to obtain a subsidy in consideration of the guarantee aforesaid.
NO. 9. Statement of the claim of the United States to the western country as far as
the river Mississippi, as well as their right to the navigation of that river, drawn up by congress, in October, 1780, in answer to the extraordinary claim of the Spanish court; and transmitted to the American minister at Madrid.
Sir-Congress having in their instructions of the 4th instant, 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 West Florida, and 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 negociations with the court of Madrid, have thought it expedient to explain the reasons and principles on which the same are founded, that you may be enabled to satisfy that court of the equity and justice of their intentions. With respect to the first of these articles, by which the river Mississippi is fixed as the boundary between the Spanish settlements and the United States, it is unnecessary to take notice of any pretensions founded on a priority of discovery, of occupancy, or on conquest. It is sufficient that by the definitive treaty of Paris, of 1763, article seventh, all the territory now claimed by the United States, was expressly and irrevocably ceded to the king of Great Brit
ain, and that the United States are, in consequence of the 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, while they remained a part of the British empire, that the sovereignty of the king of England, with all the rights and 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 of 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 bimself, was held by him for their particular benefits, and must equally with his 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 Great Britain, within the limits of the United States, accrued to him from the enterprises, the risks, the sacrifices, the expense in blood and treasure of the present inhabitants and their progenitors. If in latter times, expenses and exertions have been borne by any other part of the empire, in their immediate defense, it need only be recollected, that the ultimate object of them was the general security and advantage of the empire ; that a proportional 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 Great Britain was,
the time of the rupture with his catholic majesty, possessed of certain parts of the territory in question, and consequently that his catholic majesty had and still has a right to regard them as lawful objects of conquest. In answer to this objection, it is to be considered, 1. 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 conquests 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 dominVol. II.
ation, 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 po post above the northern bounds of West Florida, except that of the Natchez, 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 pretensions of his catholic majesty. If the occupation by the king of Great Britain of posts within the limits of the United States, as defined by charters derived from the said king when constitutionally authorized 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 now is, or may hereafter fall into the hands of the enemy, is equally an object of conquest. Not only New York, Long Island, and the other islands in its vicinity, but almost the entire states of South 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 seaport, a trading town, or maritime province in Spain, and another power at war with Britain, should, before it could be re-conquered by Spain, wrest it from the hands of Britain, would Spain herself consider it as an extinguishment of her just pretensions ? Or would any impartial nation consider it in that light? As to the proclamation of the king of Great Britain of 1763, forbidding his governors in North America to grant lands westward of the sources of the rivers falling into the Atlantic ocean, it can by no rule of construction militate against the present claims of the United States. That proclamation, as is clear both from the title and tenor of it, was intended merely to prevent disputes with the Indians, and an irregular appropriation of vacant land to individuals ; and by no means either to renounce any parts of the cessions made in the treaty of Paris, or to affect the boundaries established by ancient charters. On the contrary, it is expressly declared that the lands and territory prohibited to be granted, were within the sovereignty and dominion of that crown, notwithstanding the reservation of them to the use of the Indians.
The right of the United States to western territory as far as the Mississippi, having been shown, 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 will be a more natural, more distinguishable, and more precise boundary than any other that can be drawn eastward 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 not to be concealed, 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 the interest and wish of both should be perpetual.
Thirdly, As this territory lies within the charter limits of particular states, and is considered by them as no less their property than any other territory within their limits, congress could not relinquish it without exciting discussions between themselves and those states, concerning their respective rights and powers, which might greatly embarrass the public councils of the United States, 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 Great 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 pretensions 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 pretensions to be incompatible with the treaties subsisting between France and them, which are to be the basis and substance of it. By article eleventh of the treaty of alliance, eventual and defensive, the possessions of the United States are guarantied to them by his most christian majesty. By article twelfth of the same treaty, intended to fix more precisely the sense and application of the preceding article, it is declared, that this guaranty 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 christian 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 the fifth article of the treaty abovementioned, which declares, that if the United States should think fit to attempt the reduction of