John Jay Opens Negotiations with Aranda Editorial Note
John Jay Opens Negotiations with Aranda
Stricken by influenza soon after his arrival in Paris, Jay was unable until 3 August to begin discussions for a treaty of alliance with Spain with the Conde de Aranda, Spain’s ambassador to France, to whom Floridablanca had assigned this responsibility. Their initial conversations occurred without an exchange of powers.1 They are described by Aranda in his notes of 3 and 19–30 August, and by Jay in his letter to the Secretary for Foreign Affairs of 17 November, all below.
The topics discussed were the United States’ claim to the east Louisiana territory and its right to navigate the Mississippi River and to have a free port below thirty-one degrees north latitude, the presumed northern boundary of the Floridas. It was immediately obvious that the differences between the Spanish and American positions were vast. Although Congress assumed that Spain had been motivated to enter the war to check British power, it had not anticipated the extent of Spain’s territorial objectives in the vicinity of the Gulf of Mexico. Military expeditions under Bernardo de Gálvez, begun immediately after Spain entered the war, drove the British from East and West Florida, and Spanish forces had moved up the Mississippi River as far as Fort St. Joseph, Michigan, and held posts as far north as St. Louis, Missouri.2 While it did not claim Florida for itself and accepted its northern boundary as at or near thirty-one degrees north latitude, Congress had initially instructed its ministers abroad to establish the western boundary of the United States at the Mississippi, and to obtain free navigation of the river, objectives Spain was determined to block because it wanted no challenges to its exclusive domination of the Gulf.3
Congress and Jay were aware that the United States’ right to navigate the Mississippi would not be recognized unless its western boundary was established as the Mississippi River. Congress claimed “East Louisiana” on the basis of the vague boundaries described in various colonial charters and on having inherited, by virtue of its declaration of independence, the lands and the navigational servitude ceded to Britain in the Treaty of 1763.4 It hinted that Spain, a co-belligerent if not an ally, should have refrained from any attempt to conquer the territory it had inherited from Britain—a sentiment suggested by France’s supposed renunciation, in the Franco-American treaty of 1778, of the right to conquer any lands in North America that had belonged to Britain either before or after the Treaty of 1763.5 Americans also advanced a natural law argument—settlers had a right to vend their produce and be supplied by the river.6
Aranda was willing to recognize American claims to territory the United States actually controlled and occupied, but he rejected out of hand claims based on the colonial charters. These, he said, had been nullified by Britain herself in the Proclamation of 1763, which had assigned the east Louisiana territory to Canada and not to the thirteen colonies. Furthermore, he contended, British sovereignty over east Louisiana and the navigational servitude had been nullified by Spain’s conquest of the Floridas and posts on the Mississippi.
Jay acknowledged that his initial instructions had been written before Spain’s unanticipated military operations on the Mississippi had achieved some success. Ignoring Congress’s later instructions to its peace commissioners of 15 June 1781, which authorized them to exercise discretion in the matter of boundaries but also instructed them to be guided by French advice, Jay informed Aranda that he would have to explain to Congress the “difficulties he had encountered” and await their further instructions. Aranda then inquired whether Franklin, whom he may have presumed might be more accommodating or receptive to French recommendations, was authorized to act. When told he was not, Aranda, who was evidently aware of the instructions of 15 June, tried to convince Jay not to suspend negotiations until he heard from far distant Philadelphia. Jay should, he said, distinguish between his “instructions and his credentials as a plenipotentiary.” If Jay was unwilling to act, Aranda asked to be so informed in writing. Finally, he suggested that Jay seek the advice of Versailles.7
Given an opening, Vergennes persuaded Aranda to delineate more generous western boundaries, still far removed from the banks of the Mississippi, for the United States. He also authorized his first deputy, Gérard de Rayneval, to facilitate discussions between Aranda and Jay. Rayneval very quickly set himself to preparing a memorandum, described as his personal “Ideas,” on the boundary issues. They sustained the principles Aranda was enunciating in every major respect.8 Jay informed Aranda that he was not authorized to make the concessions Rayneval’s reasoning suggested without further instructions and brought his negotiations with Aranda to an end.9
Final determination of the two issues—sovereignty over east Louisiana and navigation rights—might have been decided by the treaties that ended the present conflict. The preliminary and final Anglo-American peace treaties gave the United States the Mississippi River as a western boundary. It presumed that Britain retained its navigational servitude and stipulated that free navigation of the river source to mouth would be open to both parties. Spain, however, was not a signatory to this pact and did not accept its terms. Attempts to settle the issues during the Jay-Gardoqui negotiations of 1785–87 failed. It was not until the Treaty of San Lorenzo (Pinckney’s Treaty) was signed on 27 October 1795 that Spain accepted boundaries that closely mirrored Article 2 of the Anglo-American treaty and granted the United States free navigation of the Mississippi River, source to mouth.10
1. Aranda had instructions to discuss, but lacked powers to negotiate, since these would have implied diplomatic recognition of the United States, something Spain was determined to withhold. See JJ to Aranda, 10 Sept., and Aranda to JJ, 11 Sept. 1782, below.
2. On the Spanish expedition that forced the surrender of Fort St. Joseph, see JJ to the Secretary for Foreign Affairs of 28 Apr. 1782, : 764–65, and JJ’s Report to Congress of 17 Aug. 1786, , 31: 537–52.
3. See the editorial note “Congress Appoints John Jay Minister to Spain,” : 709–19.
4. The initially secret Treaty of Fontainebleau (1762), to which France, Spain, and Britain were partners, laid the foundations for the Treaty of Paris (1763). In it, France ceded “west Louisiana” to Spain. New Orleans was included in “west Louisiana,” although it was on the east bank of the river. This gave Spain possession of both banks of the river at its mouth. Without the navigational “servitude” (a grant to a second party of the specified use or enjoyment of a right possessed by another) that the treaty provided, Britain, which obtained both “east Louisiana” and Florida, would not have been able to claim the right to freely navigate the Mississippi to the sea, since international law did not at that time hold that nations had the right to navigate portions of rivers below their boundaries. See 40–45.
5. Congress had been led to assume that, although it might demand some modifications, Spain would be willing to become a party to its treaty of alliance with France of 1778. JJ was disabused of this idea in the course of a conference with Floridablanca on 23 Sept. 1780 (: 269), when he referred to the right reserved to Spain to accede to it by the secret article to the treaty. Floridablanca immediately interrupted him to inform him “that the Interest of France and Spain with respect to America, were so distinct as necessarily to render different Treaties necessary.” When Jay then suggested that the Franco-American treaty could still constitute the basis of a treaty between Spain and the United States, Floridablanca emphatically rejected the possibility and stated that when the appropriate time arrived, the king would negotiate a treaty that protected his own interests. Spain’s determination to make territorial gains contributed to the vehemence with which Floridablanca repulsed the suggestion that the treaty could in any way serve as the basis of its relations with the United States.
Ralph Izard, the American commissioner to Tuscany, believed that France had specifically designed the fifth article of the Franco-American Treaty of 1778 to protect Spain’s right to territorial acquisitions. Arthur Lee shared his suspicions. Rather than guaranteeing the right of the United States to the territories acquired by Britain in 1763 as the Americans had initially proposed and continued to assume, the fifth article stated only that France would not attempt to recover them. Spain would have been bound by this guarantee only if it had become party to the treaty without modification. La Luzerne’s recommendation that Spain conquer East Louisiana as the most proper way to eliminate any claims to it from the United States lends substance to Izard’s and Lee’s suspicions. Barbé-Marbois subsequently claimed, however, that the French king considered the demands of both the United States and Spain exorbitant and had directed his ministers in both nations to press for mutual concessions. JJ suggested that France had probably held up exclusive navigation of the Mississippi as an incentive for Spain to become a belligerent. He subsequently raised the issue of the guarantee with Montmorin, who “strongly combatted” that construction of the treaty and argued that it could not cover territory the United States had never possessed. See JJ to the President of Congress, 6 Nov. 1780, 25 Apr. and 3 Oct. 1781, : 336, 438, 581; JJ to the Secretary for Foreign Affairs, 17 Nov. 1782, below; , 1: 49–51; , 2: 114–17; and Weston Arthur Goodspeed, ed., The Province and the States: A History of the Province of Louisiana under France and Spain, and of the Territories and States of the United States Formed Therefrom (Madison, Wis.: 1904), 2: 38–52.
6. See the President of Congress to JJ, 17 Oct. 1780; the editorial note “Congress Changes Course on Navigating the Mississippi,” : 386–90; JJ’s Report to Congress on Navigation of the Mississippi, 2 Sept. 1788, , 34: 530–34; and , 8: 220; 9: 82.
7. See Aranda’s notes, 19–30 Aug., below. Aranda appears to have been referencing Congress’s instructions of 15 June 1781 (: 469–71), which JJ did not present to him because their negotiations concerned a treaty of alliance with Spain. The 1781 instructions strictly bound the peace commissioners only to obtain American independence and to preserve the treaty with France in full force. They provided further, however, that Congress thought it “unsafe at this Distance to tye you up by absolute & peremptory Directions upon any other Subject,” and would thus leave its ministers “at liberty to secure the Interest of the United States in such manner as Circumstances may direct and as the State of the belligerents and the Disposition of the mediating Powers may require.” Finally, acting under French pressure, Congress directed the commissioners to govern themselves by France’s “Advice and Opinion.”
8. See below for Rayneval’s Memoir on the Boundaries between Spain and the United States and his cover letter to JJ, both 6 Sept. 1782. He then left immediately on a secret mission to discuss peace issues with Shelburne. JJ was convinced that Rayneval’s “Ideas” would not have been put forth if they did not represent Vergennes’s views. The fact that they were not explicitly official, however, left JJ free to disregard them without violating Congress’s instructions to be guided by French advice.
9. JJ took advantage of the occasion to remind Aranda that he was fully empowered to negotiate a treaty of alliance and commerce with Spain with any equally empowered Spanish diplomat. Aranda replied that he was both instructed and authorized to treat with JJ, but never offered to present his powers. See JJ to Aranda, 10 Sept., and to the Secretary for Foreign Affairs, 17 Nov. 1782, below.
10. See the preliminary Anglo-American treaty of 30 Nov. 1782, below; and Bemis, Pinckney’s Treaty, 60–148.