Negotiations with Gardoqui Reach an Impasse: Editorial Note
Negotiations with Gardoqui Reach an Impasse
Shortly after Congress commissioned him for a second time to negotiate a treaty with Spain, Jay communicated his powers to Gardoqui, who was empowered to negotiate a treaty of amity and commerce that would resolve all matters of contention between the two powers.1 Aware that his ability to negotiate would be hampered by the instructions of 20 July, Jay asked to be allowed to negotiate with Gardoqui without presenting his proposals to Congress in advance. James Monroe, whose state, with one exception,2 had stood firm on American navigation rights and boundary claims, chaired the committee assigned to revise his instructions, which Congress approved on 25 August. They strictly bound Jay to stipulate3 Americans’ rights to navigate the Mississippi, source to mouth, and to the boundaries established in the Anglo-American treaty, once again making Virginia’s policy on the river the official policy of Congress, and they ordered him to get Congress’s approval before he signed a treaty.4
In his first meeting with Gardoqui, Jay asserted the American boundary and navigational claims now bolstered by the Anglo-American treaty and the pledge to accept its terms Lafayette believed he had extracted from Floridablanca in 1783.5 Gardoqui flatly rejected these claims as he did requests for a port of deposit at the river’s mouth and for allowing American merchants to trade with Spain’s colonies. Although Gardoqui indicated he could be flexible with regard to boundaries, he demanded an express declaration that the lower Mississippi belonged to the King as far as the sea. To compensate the United States for accepting Spain’s terms regarding the river, he was authorized to offer a treaty of commerce.6
Jay quickly realized that there would be no treaty unless he could find some way to finesse the issue. If the United States waived its right to navigate the river to its mouth for the term of the treaty and Spain agreed to this, it would, as Jay noted in the report below, have implicitly acknowledged that the American right existed. By the time the treaty expired, he believed that the United States would be strong enough to enforce the use of its right. Exactly when Jay decided to proceed with this strategy is not clear, but by October 1785 he may have tested the idea with Richard Henry Lee, then president of Congress, who informed Washington that free navigation of the Mississippi would not “hastily be concluded upon.”7
Monroe left New York on public business shortly after 25 August and did not return for several months. On 23 August 1785, Gardoqui mentioned to Floridablanca that some delegates had suggested that the impasse might be broken by making no mention of the Mississippi in the treaty, leaving it “in the condition of having been formally denied to everybody.” He had rejected the idea, however, because it would leave the problem unresolved and because silence would allow Americans to think that they were authorized to use the river.8 Instead, Gardoqui tried to persuade Americans to acknowledge Spain’s right to close the lower Mississippi to Americans by using his ample expense account to fete delegates and by arranging to give a prize Spanish jackass to Washington and an Arabian stallion to Jay.9
Since their conflicting instructions prevented any agreement on boundaries or navigation of the river, Gardoqui proposed terms for a commercial treaty that also included a mutual guarantee of each other’s American territory, still to be defined,10 and a promise from Spain to support the American effort to recover the northern posts occupied by Great Britain in violation of the treaty of 1783, by force of arms if necessary. Gardoqui sent this proposal, formulated, he said, with Jay and an unnamed “friend,” to Floridablanca in letters of 21 November 1785, and 1 February 1786. Floridablanca had expected that the commercial concessions and other benefits Spain had already provided would have been sufficient to induce the Americans to abandon their claims to navigate the river and to the east Louisiana territories.11 In this, he seriously underestimated the importance most southerners and westerners attached to opening the river to American commerce. Furthermore, since American tobacco was specifically excluded,12 the benefits from the commercial pact accrued predominantly to the northern states.13
Jay met with Monroe after he returned to Congress in December 1785 and informed him that, since Gardoqui refused to acknowledge the American right to the river, he had agreed with him to discuss a commercial treaty instead, advantageous terms for which could be obtained by forbearing use of the lower river for twenty-five or thirty years.14 Jay intended, Monroe reported, to ask Congress to appoint a committee “to stand to him in the room of Congress,” and authorize him to offer forbearance to Gardoqui in exchange for Spanish commercial concessions. Monroe rejected the proposal outright and described Jay as “a minister negotiating expressly for the purpose of defeating the object of his instructions,” who had been authorized to negotiate a commercial treaty only “by implication.” Then and later, he viewed Jay’s attempts to build support for his strategy as “intrigue” and reminded him that Virginia’s delegates were instructed to uphold the American claim to the Mississippi. Thereafter, he noted, Jay said nothing more to him about the matter.15 With Congress poorly attended and Gardoqui waiting for a response to the proposed commercial concessions, treaty issues were dormant for a while.16
Gardoqui waited until May 1786 to bring the matter forward. By this time he had probably received Floridablanca’s instructions of 28 January 1786 to remind Jay that the United States had not met its obligations to Spanish creditors. On 23 May, Gardoqui reaffirmed Spain’s categorical rejection of American claims to navigate the Mississippi and to the East Louisiana territory conquered by Spanish forces during the war. He stressed the value of Spain’s friendship to the United States, the favors Spain had already bestowed, and the range of substantial benefits that the United States would receive if it agreed to the treaty.17
On 29 May, without mentioning Gardoqui’s letter, Jay notified the President of Congress that his negotiations with Gardoqui were difficult and should be managed secretly for the present. He then asked Congress to appoint a secret committee with full power “to direct & instruct him on every point” regarding the treaty.18 Congress considered the request on 30 May and assigned it the next day to a regionally balanced but politically polarized committee: Monroe (Virginia); Rufus King (Massachusetts); and Charles Pettit (Pennsylvania).19 Jay met the committee on 1 June and asked for authorization to offer forbearance in exchange for the commercial concessions. With Monroe opposed, the committee deadlocked and could not agree on a report. King and Pettit asked to have it discharged and recommended that the matter be taken up in Congress by a committee of the whole with Jay ordered to attend.20
Congress considered the issue on 1 August, and ordered Jay to meet with it two days later.21 Jay appeared and presented an unsigned and undated letter from Gardoqui, which he had received “some time since,” and a copy of Gardoqui’s letter of 23 May. “Being aware objections would be made to his entering into debate,” Monroe said, Jay also produced a “long written speech”—the report below—“which he read by virtue of his office.”22 Jay’s argument was as simple as the issues it raised were complex and conflict-ridden. The commercial terms Spain offered, he argued, were more beneficial than those offered by any other European nation.23 They might possibly be had,24 he thought, only if Congress did not demand present use of the river—which it could not obtain without a treaty that Spain would not agree to or a war that it could not presently afford to wage. By offering forbearance, he said, the United States might preserve its honor and the good will of Spain. Congress received his report and scheduled debate on it for 10 August. The debate continued until the end of the month.25
John Jay, by Joseph Wright, 1786. (Collection of the New-York Historical Society,
New York City)
Charles Pinckney was the designated spokesperson for the southern delegates. Congress ought, he said, to address four issues the report raised: 1) the reasons why Jay thought a commercial treaty with Spain would benefit the United States at present; 2) the terms Spain would agree to accept, the benefits the United States would derive from them, and the treaty’s impact on the different parts of the union; 3) the cost and consequences to the United States of an agreement to forbear use of the river; and 4) whether or not the present was a good time to conclude the proposed treaty. Pinckney argued that Spain would derive greater benefits from the treaty than the United States,26 that the northern states would benefit from it at the expense of the southern and that this would prompt the aggrieved section to oppose vesting any more power in Congress. Since Congress could not make the states comply with it, he said, it would be wise to defer it.27
After Pinckney spoke, the Massachusetts delegates, whom Monroe considered Jay’s “instruments on the floor,” moved to repeal the portion of the instruction of 25 August that bound Jay to stipulate the United States’ claims to the contested territory and free navigation of the Mississippi, thereby leaving him with “unlimited powers to act at pleasure.” Monroe believed there was a conspiracy of “eastern men” to “dismember” the union,28 but had his own plan about how it should be managed if it happened—“three divisions” instead of two, and Pennsylvania persuaded to join with the south. If that state aligned itself with the north, he said, it “were as well to use force to prevent it as to defend ourselves afterwards.”29
On 14 August, Monroe informed Madison that he and William Grayson had devised a plan that allowed use of the river but was silent on the matter of right. This, he thought, might be a sufficient sacrifice to obtain what was otherwise a beneficial treaty. The United States must be allowed a free port on the Mississippi, New Orleans, for instance, where westerners, after paying a duty to Spain, could ship goods for export by Spanish carriers. Imports would come only through United States territory.
The Virginia delegates’ motion to transfer negotiations from the United States to Spain and place them either in the hands of Carmichael or Jefferson, the beginning of a concerted struggle to get negotiations out of Jay’s hands, was apparently made on 21 August and amended by Edward Carrington the following day. The Carrington amendment suggested that the right to navigate the river against the current should be “suspended for years except as to return boats”; that American factors should be allowed to reside at New Orleans; that American commerce should pay a duty ad valorem there; and that the French should be allowed to share in the carrying trade from New Orleans if this would facilitate the treaty.30
Although Monroe would later tell Madison that as yet the southern delegates had “done nothing but under the constitution & almost in all cases the rules of the house,” they had regularly violated Congress’s injunction on secrecy.31 On 23 August, the Virginia delegation, hoping to persuade Otto and la Forêt to relay their plan to involve the French in their effort to convince Spain to open the river to American navigation, held unauthorized “very confidential interviews” with the two men in which they reported in detail on the debates in Congress, on their proposals to transfer negotiations to Spain, to put them “entirely” in Vergennes’s hands, and to compensate France with a share in the export of American goods from New Orleans.32
On 28 August, Congress voted down a motion made by Pinckney and seconded by Carrington to revoke both Jay’s commission to negotiate on behalf of the United States and his instructions. There was heated debate over a series of resolutions from the northern states repealing the restrictions on Jay’s power to negotiate and from the southern states demanding use of the river and replacing Jay with a minister to Spain to negotiate a treaty there. Depending on its sponsorship, each resolution received either five or seven affirmative votes.33
The debate climaxed on 29 August, when seven states approved a resolution removing the restrictions on Jay. The southern states insisted that the revision constituted new instructions that could be approved only by the vote of nine states, and they demanded that Jay be notified that they did not consider the United States bound under the law of nations to ratify a compact “formed under powers thus unconstitutional and incompetent.” Rufus King argued that nine states were required to approve a treaty, but seven sufficed to repeal one, and if seven states could repeal an entire treaty, they were certainly competent to repeal a part of the instructions for one.
After the resolution to inform Jay that his new instructions were unconstitutional was defeated, the southern delegates considered pressuring Jay themselves by informing him that they considered his instructions of 20 July and 25 August 1785 to be still in force. Monroe thought this would appear “intemperate and factious.” Even though the ninth Article of Confederation gave Congress the sole and exclusive right to enter into treaties and alliances, he recommended instead moving the contest outside of Congress by sending copies of its journals to the states, which, he hoped, might be persuaded to instruct their delegates to vote against the new instructions before Jay began negotiations with Gardoqui under them.34
Monroe’s strategy was employed in four states and implemented successfully in three of them. The effort to enlist New Jersey delegates to support the southern position began even before the proposed revision of Jay’s instructions came to the floor of Congress. On 11 August, Madison reported to Monroe that he had had “some conversation” on the subject with John Witherspoon. By early September the campaign to “engage” the leading men of New Jersey and Pennsylvania was in full swing. Madison recruited Abraham Clark, a fellow delegate to the Annapolis Convention with an interest in western lands, to report on the New Jersey legislature’s sentiments and to lobby members of the Pennsylvania legislature who disapproved of the removal of restrictions on Jay’s negotiations. At the end of September, Pinckney moved to have the secrecy injunction lifted and copies of Congress’s journals sent to state legislatures. The motion failed by a vote of six to three.35
Early in September the Rhode Island and New Hampshire delegations left Congress, and Monroe and King went to Philadelphia on congressional business. Monroe failed to persuade the Pennsylvania legislature to instruct its delegates to oppose any treaty that did not stipulate the American right to navigate the Mississippi because it considered that treaty-making was the prerogative of Congress. Madison reported that the assembly had dismissed the matter “without a decision on its merits,” but had sent a delegation to Congress that thought differently from the last.36
Information about Congress’s debates originating with Monroe circulated among leading Virginians, informed and inflamed debate in its legislature, and agitated settlers, who were reported to consider themselves “relieved from all federal obligations and at liberty to make alliances wherever they find them.” On 13 November 1786, David Stuart, a personal friend of Washington’s, reported to him that the treaty proposal gave “much displeasure here,” that Governor Henry in particular was “much incensed,” and that if it were possible to defeat the proposal, it would be done. Madison, at the time under no congressional restraints, wrote freely about the issue. He reported to Jefferson and to Washington that western representatives presented a memorial full of complaint in consequence of which the House of Delegates had unanimously adopted some very pointed instructions to its delegates to Congress.37
Several months after Pinckney’s motion to send copies of the journals to state legislatures was defeated, Timothy Bloodworth gave the North Carolina assembly a “concise account” of Congress’s proceedings regarding the treaty negotiations and a lengthy three-point explanation of his reasons for voting against removing restrictions on Jay’s powers to negotiate. James White, another North Carolina delegate with whom Gardoqui had conferred, declared it improper to take the legislature’s time to consider the secret communications of Congress on matters that did not pertain to it, especially since Bloodworth had already done so. North Carolina was one of the three states to instruct its delegates to oppose the new instructions.38
On 26 September, over southern objections, Congress informed Jay that the restrictions on his negotiations had been removed by giving him a copy of its journal of 29 August.39 The question remained as to whether he would consider himself authorized to negotiate under instructions approved by seven states. Although Monroe and Grayson thought Jay would not act before a new Congress assembled, on 6 October Jay cautiously informed Gardoqui that he was “more in Capacity … to make and receive Propositions” regarding the treaty.40 Thereafter, the two men had a number of discussions, in the course of which, Jay proposed forbearance but informed Gardoqui that he did not believe Congress would ratify a treaty that incorporated it, and stated that he would not sign anything unless it were approved by nine states. On 28 October, Gardoqui forwarded a copy of Jay’s proposal to Floridablanda.41 Meanwhile, on 1 September 1786, Floridablanca had sent Gardoqui a draft treaty based on the proposal Gardoqui had sent him at the end of 1785. Gardoqui acknowledged receipt of it on 29 November 1786, but he apparently never presented it to Jay because he believed that the proposed boundaries would not be acceptable and because the treaty’s term was not specified.42
Madison, once again a delegate, arrived at Congress in February 1787 and, as Virginia’s resolutions and instructions of 29 November 1786 mandated, took the lead in opposing any attempt to surrender the United States’s right to the “free and common use” of the Mississippi. A month later he complained to Edmund Randolph and to Jefferson that, if negotiations were carried on at all, they were entirely behind a curtain; that Jay, because of the “intemperance of party,” had been allowed to decide how far he would go with Gardoqui and what he would communicate to Congress. Delegates who had been “instructed,” he said, could not demand information of right and were unwilling to risk a refusal.43
Madison did not accept this situation. On 13 March 1787, he and William Bingham, a delegate from Pennsylvania, met with Gardoqui. At the beginning of what he described as a “late accidental conversation,” the two men attempted to persuade Gardoqui that it was in Spain’s interest to open the river to American navigation. They argued that the United States would not be able to enforce a treaty that closed it to western settlers, who, if frustrated, might begin to “communicate” with their British neighbors. Gardoqui repeated the message he had delivered to Jay many times before: that Spain considered that Americans had no right to navigate the river through Spanish territory. Asked if he had met with Jay, Gardoqui stated that he had not done so since October and did not expect to confer with him again. He expressed regret that there had been no agreement on a treaty to date, and suggested that he might soon leave the United States. He also threatened that Spain would close its market for fish to any nation that did not have a treaty with it and that it would reinforce New Orleans in response to Virginia’s resolutions affirming Americans’ right to navigate the river.44
Although Gardoqui asserted that Spain would not open the river to American trade by treaty, Madison said that he had suggested that, if there were a treaty, the trade through the Mississippi and other channels might be “winked at.” Gardoqui ended the meeting, however, by repeating that there might be “consequences” to America if she adhered to her navigational pretensions.45 Two weeks later, Virginia delegates met again with Gardoqui to inform him that Virginia had disavowed George Rogers Clark’s seizure of Vincennes and goods of Spanish merchants there. No doubt interested in determining Spain’s attitude toward Jay’s forbearance proposal, the Virginians asked whether he had ever agreed to “any limited occlusion” of the river. Gardoqui replied that he had not, though, Madison noted, “in a manner that did not speak of a real inflexibility on that point.”46
Gardoqui reported on his meetings with Madison in a dispatch of 12 May 1787. In the course of a “heavy” three hour discussion the Virginian had, he said, tried to impress him with the possibility that, if denied access to New Orleans, the Kentuckians would align themselves with Britain as an independent state and constitute a formidable enemy to Spain. If a treaty were concluded without opening the river, Madison had added, the United States would be unable to enforce it. Even the possibility that Congress would cede navigation for a number of years, he said, had given rise to fears of western excesses. In turn, Gardoqui had replied that no argument whatever could alter the king’s determination to keep the river closed. Gardoqui then reported that Congress was ineffective, that the nation might divide into two or three confederacies, and that the results of the forthcoming Constitutional Convention were unpredictable. He described Jay as so intimidated that he had become insufferable and would not conclude a treaty under these circumstances and reported that he had well-founded reason to think that the most exquisite efforts had been made to pressure his particular confidants to adopt the southern position.47
Southern discontent about the lack of information on the negotiations surfaced on 4 April when Congress approved Georgia delegate William Pierce’s motion to order Jay to report on them. Jay’s response of 11 April explicitly acknowledged that he had proposed that the United States would forbear using the river through Spanish territory and that Gardoqui had unconditionally rejected it. Jay indicated, however, that, after long discussion, he and Gardoqui had developed a text that combined forbearance with the policy of silence regarding the American right to the river that some southern delegates had advocated. He also reported that Gardoqui might be willing to make significant concessions with regard to boundaries.48
Southern delegates were greatly concerned about how far the United States was committed by Jay’s proposal. On 18 April, Madison once again moved to transfer negotiations from the United States to Madrid, and from Jay’s hands to Jefferson’s. Jay declared the move unadvisable, and when Jefferson learned of the possibility, he showed little appetite for the assignment. On 9 May, Jay made a final request for further instructions on negotiations with Gardoqui. Congress did not reply.49 Contention over the treaty came to an end when attention shifted to the constitutional convention that convened in Philadelphia on 25 May 1787.
While the constitutional convention was underway in Philadelphia, Floridablanca was considering dispatches from Gardoqui that detailed the agreement on treaty terms that Jay had described to Congress in his report of 11 April 1787. Two weeks before the convention concluded, on 5 September 1787, he sent Gardoqui a second draft treaty whose fifteenth article incorporated the text Jay and Gardoqui had agreed upon, virtually without modification. It provided that the United States would forego all claims to navigate the Mississippi through Spanish territory until the question could be considered by “some particular convention.” The term of the treaty was set for ten years, to be continued indefinitely until renounced by either party. These terms, Gardoqui thought, might well have been acceptable if they had been presented in August 1785. Advised by Gardoqui about the political uncertainties then current in the United States, Floridablanca instructed him not to sign any treaty until a government capable of making and enforcing a treaty was in place. Gardoqui acknowledged receipt of the draft treaty on 18 April 1788, ruefully admitting that nothing could be done with it at present.50
Jay’s negotiations with Gardoqui provided matter for serious discussions during the convention at Philadelphia and the Virginia ratifying convention. By the end of June 1788, ten states had ratified the Constitution, and Congress had established a committee to initiate the transition to the new government. Concerns about Jay’s negotiations were still very much alive. In July, North Carolina delegates reported that there were rumors widely circulating among western settlers that Congress was prepared to surrender its claim to navigate the river. Congress referred the matter to Jay. Its resolutions largely followed his recommendations, including his admonition that it would be unwise to preclude all possibility of temporary forbearance.51
In a letter to Madison of 26 October, Monroe complained that Congress had left open this possibility, one he considered “pernicious.” Madison replied that a declaration that the right was “an Essential one” had been made forcibly and unequivocally. He added, however, that it “would not have done to have put an absolute bar to a temporary forbearance, because that might have stood in the way of any arrangement suspending the use for ever so short a time, and ever so beneficial & desireable to the Western peoples themselves.”52 Although Monroe did not change his mind on the matter, Madison and a majority in Congress had finally endorsed Jay’s position on forbearance.
1. For Gardoqui’s instructions, see 2: 455–58. Floridablanca attached to them a copy of JJ’s treaty proposal of 22 Sept. 1781, that the United States would both “relinquish” and “forbear to use” the Mississippi below the 31st parallel north if Spain agreed to an alliance before the end of the war. Since it did not, the United States considered itself released from its pledge to relinquish the river. See 2: 391, 566–69.
2. During the debate over revising JJ’s instructions in 1781, Virginia delegates had argued that an alliance with Spain would be more beneficial than navigation of the river, which could later be obtained at a more convenient time. See 2: 233, 235, 386–90. For discussion of Jay’s 1781 negotiations at the Virginia ratification convention, see 10: 1231, 1237.
3. That is, to demand something as an essential part of the contract. . The resolution was entered in the manuscript Secret Journal, Foreign Affairs, No. 5, and in Secret Journal No. 4. 29: 658n.
4. See the Resolution of Congress regarding John Jay’s Appointment to Negotiate with Diego Gardoqui, 20 July, JJ to the President of Congress, 15 Aug., and the Congressional Resolution Changing John Jay’s Instructions for Negotiating a Treaty with Spain, 25 Aug. 1785, all above; JJ to Gardoqui, 26 July, and Gardoqui to JJ, 27 July 1785, , 1: 385, 387; NNC (EJ: 5743, 3630); 29: 657; and 1: 139, 144. Monroe asserted that all congressional measures regarding the Mississippi had been taken at the instance of Virginia. See 10: 1228.
5. See JJ’s report to Congress of 17 Aug. 1786, below.
6. See 2: 764–767; 1: 139, 498–502; and 71–72. For Gardoqui’s instructions, see 2: 455–58.
7. Lee had hoped that Spain would yield on the issue of navigation, but later concluded that it would not and came to accept JJ’s position. See 22: 195, 679, 24: 356–57. Except for his reports to Congress of 3 August 1786, and 11 April 1787, Jay left no record of his discussions with Gardoqui or with delegates. Congress enjoined secrecy on its members with regard to the proposed treaty, a secrecy substantially broken only by the Virginia delegates. Their correspondence and Gardoqui’s dispatches provide most of the information on the negotiations.
8. Monroe and Charles Pickney considered silence less offensive to westerners than explicit postponement of the right to navigate the river. Floridablanca approved Gardoqui’s decision to reject silence. See 23: 323, 456; 10: 1233; and 3: 288–89.
9. On the horse, which JJ accepted only after obtaining Congress’s permission, see Gardoqui to JJ, 28 Feb. 1786, ALS, DNA: PCC, item 97, 120 (EJ: 3638); JJ to Gardoqui, 1 Mar. 1786, C, , 2: 122; JJ to the President of Congress, 1 Mar. 1786, C, DNA: PCC, item 80, 2: 169; JJ to CT, 3 Mar. 1786, Dft, NNC (EJ:7684); and CT to JJ, 3 Mar. 1786, C, DNA: PCC, item 18B, 35. On this and gifts to other American notables, see 1: xliv, 516; 23: 267, 437; 95–96; 53–54; PGW: Confederation Series, 5: 419.
10. See JJ’s report on negotiations with Gardoqui, 3 Aug. 1786, below. The Franco-American treaty of alliance of 1778, and the treaty draft JJ had proposed to Floridablanca on 22 Sept. 1781 both included mutual guarantees of territory. Even though the United States was not pledged to defend Spanish territory, Monroe and JM considered the guarantee objectionable. See 2: 569–70, and 3: 359–60; 23: 324; and 9: 82.
11. See Gardoqui’s notes summarizing his conferences with JJ, [4 Feb. 1786], DS, in Spanish, SpMaAHN: Estado, Leg. 3895; 71–75; and for Floridablanca’s reply of 28 Jan. 1786, 1: 506–8.
12. Spain banned importation of all foreign tobaccos. See Susan Deans-Smith, Bureaucrats, Planters, and Workers: the Making of the Tobacco Monopoly in Bourbon Mexico (Austin, Tex., 1992), 54–57; and 391. For southern complaints about the tobacco ban, see 23: 452, 464; 24: 50–51.
13. Floridablanca tried to remedy this by authorizing Gardoqui to offer forgiveness of Spain’s loans to the United States, which would benefit all states, as recompense for the concessions Spain wanted. See 3: 289.
14. Monroe claimed that Congress had rejected forbearance in 1784 and repeated this argument at the Virginia ratifying convention. See 27: 489–90; and 21, 621n3, and 23: 360; and 10: 1231.
15. See 23: 323–26, 360, 404–5, and 462–66; and 10: 1232–33.
16. On the lack of a quorum, see 1: 150. Congress did consider the case of Alexander Fowler, whose goods had been confiscated by the Spanish at Natchez. See JJ’s Report to Congress of 25 Feb. 1786, above.
17. See Floridablanca to Gardoqui, 28 Jan. 1786, cited in note 11; Gardoqui to JJ, 11 and 22 May 1786, , 2: 298, 322; NNC (EJ: 1936, 3643), and 25 May 1786, above.
18. For JJ’s concerns about secrecy, see 2: 174–75, 183, 341, 772; 23: 462.
19. See JJ to the President of Congress, 29 May, above. Monroe described Pettit as a speculator in certificates who had “impressions entirely Eastern.” King, he thought, wanted to turn western commerce down the Hudson River. See 23: 323–26, 331–34, 360, 470, 485; and 9: 70.
20. Monroe considered the committee “generally to be without the powers of Congress since 9 States only can give an instruction for the formation of a treaty,” and “a subversition of the govt. & therefore improper,” and reported that Virginia delegates had and would “throw every possible obstacle” in the way of the treaty. See 23: 462–66.
21. See ibid., 424–25.
22. See ibid., 498–501.
23. The United States had reciprocal commercial treaties with France, the United Provinces, Sweden, and Prussia.
24. JJ was careful to note that he did not know whether Gardoqui would accept forbearance since Congress’s instructions had restrained him from even “sounding” him about the possibility. No evidence has been found to support contentions by Jon Kukla or the editors of that Spain had asked the United States to forbear use of the river for twenty-five or thirty years, that Gardoqui had proposed this to JJ in the course of the present negotiations, or that JJ had, in violation of his instructions, offered forbearance to Gardoqui before Congress changed his instructions. Monroe’s suspicions seem to form the basis of these contentions, which are expressly contradicted by JJ in the report below, and later by Gardoqui. Grayson accepted JJ’s assertion that he had not yet been empowered to propose it. See 68, 86; and 23: 452, 458n2, and 491.
25. In his dispatch of 6 Aug. 1786, Gardoqui informed Floridablanca that delegates from the north thought as Spain did, while those of the south were opposed and had begun to threaten separation and that he intended to meet secretly with northern delegates. He later reported that Congress was so concerned about the heated controversy that it had observed a general fast on 17 Aug. to preserve the Union. See 1: 152–53; and 389
26. Floridablanca argued that the United States offered no compensation or equivalent for the commercial concessions Spain offered. See 1: 373–74.
27. For Pinckney’s speech of 10 Aug., and for King’s and St. Clair’s rebuttals, see 23: 446–60, 482–83, 485–87, 491–95. King argued that forbearance would give the United States time to strengthen the Union and that rejection of it might increase Spain’s resolve to exclude the United States from use of the river and the settlers’ determination to force a passage. St. Clair considered the treaty advantageous, not worth ceding the river, but worth forbearing its use.
28. St. Clair’s notes for 18 Aug. indicate that the possibility of secession by the western people, the eastern states, and the southern states was discussed. Otto commented that Virginia’s instructions to its delegates proved that the southern states would rather secede from the Confederation than agree to forbear navigating the Mississippi. See 23: 462–66, 490, 496, 500, and 545–46; and 3: 402–3. Discussion about preserving the union or dividing it into separate confederacies persisted into 1787. See the Boston Independent Chronicle article reprinted in the Daily Advertiser (New York) of 23 Feb. 1787; and 9: 291–92, 294–96.
29. See 31: 509–10; and 23: 545–55. In 1787, Gardoqui reported that southerners planned to use Pennsylvania’s desire to have the seat of Congress reestablished there to separate the state from the northern bloc and to compel JJ to retire from his position, since his salary was not sufficient to support him away from his home. He also noted that the northern states, including Pennsylvania, might form a separate confederacy and ask the king to form a treaty with it. See 1: 515, 519.
30. See 23: 471; 499, 504, 510–14, 536–37.
31. St. Clair sent a brief summary of JJ’s proposal to Benjamin Rush and authorized him to show it to Thomas Bee, a former delegate from South Carolina. He noted that the information he conveyed had already become public “(not a little improperly.)” King also wrote about the treaty to Gerry, a former Massachusetts delegate. See 23: 469–70, 517. Other than Monroe’s voluminous and detailed correspondence with JM, TJ, and Patrick Henry, which was designed to inform the Virginia legislature and constituencies hostile to the treaty, they are the only letters found in which delegates conveyed explicit information on JJ’s proposal and congressional debates. Other delegates rarely mentioned the treaty debate and remarked that it was covered by the secrecy injunction.
32. See 3: 272–74.
33. Monroe suggested to GW that the transfer could be accomplished without offending either Gardoqui or JJ, whom he described as having been negotiating with Congress to repeal his instructions, and not with Spain to open the river. See 31: 569–70; and 23: 504–5, 510–12.
34. The number of states required to amend instructions remained a matter of contention. Article IX of the Articles of Confederation required a vote of nine states to approve treaties but only seven to transact ordinary business. In 1781, Congress had approved the Virginia-sponsored resolution to instruct JJ to cede the Mississippi to Spain in return for an alliance by a vote of seven states. See 2: 389; 31: 595–600; 23: 487, 499, 544–45, 548–49; 24: 51; and 10: 1236.
35. See 23: 544–46, 554–55; 24: 34. New Jersey, Virginia, and North Carolina instructed their delegates to vote against lifting the restrictions on JJ’s negotiations. See , 4: 448–49; 9: 268–69, 316, 324, 359, 360; 23: 460–61; 24: 153; and 10: 1228–29, 1240. JJ later recommended that Congress rescind its secrecy injunction so far as to allow delegates to explicitly deny that Congress intended to surrender the American claim to navigate the Mississippi. See his report to Congress of 2 Sept. 1788, DS, DNA: PCC, item 81, 3: 147–51 (EJ: 3956); LbkCs, DNA: PCC, item 125, 157–61 (EJ: 3736); DNA: PCC, item 124, 3: 190–95 (EJ: 4629); NNC: JJ Lbk. 3; 34: 530–34.
36. JM reported that settlers near Pittsburgh were agitated by the reported intention of Congress to close the river and might form a connection with Britain. He identified Hugh Henry Brackenridge as one of those who spoke in the Pennsylvania assembly in favor of instructing the Pennsylvania delegates to oppose closing the river and commented that the appointment of John Armstrong Jr. “throws that State into the right Scale.” He also hoped that Rhode Island could be brought to the southern viewpoint. See 24: 34, 109, 110n7, 196.
37. See 9: 189, 231, 280–81, 287, 301; PGW: Confederation Series, 4: 362. For Gardoqui’s concern about Virginia’s instructions, see 1: 154, 158, 163, 165, 167.
38. See 23: 573; 24: 49–53; and 140. For support for the policy of forbearance in South Carolina, see Edward Rutledge to JJ, 12 Nov. 1786, below.
39. King reported that “by agreement” the record of the vote was kept in the hands of the president until he and Monroe returned from Philadelphia. See 23: 574–75; 24: 51.
40. JM thought that JJ’s cautious nature would revolt at so irregular a sanction. See 24: 153.
41. See JJ to Gardoqui, 6 Oct. 1786, below; and 23: 574–75, 583–84, 595–96; and 9: 173–74. On Gardoqui’s dispatches, see 1: 140, 141, 153, 154, 374–80; GW’s undated notes, based on information provided by JJ in 1789, indicate that JJ had been unable to obtain the “smallest acknowledgement” from Gardoqui that the Americans had any right to navigate the river or to admit any article with respect to forbearance. Gardoqui, JJ reported, did not seem averse to this idea “by implication,” but refused to make any commitment. See “Negotiations with Spain” (notes in Washington’s hand on JJ’s negotiations with Gardoqui), n.d., DLC: Washington, Series 4 (EJ: 10604).
42. See 3: 288–90; and 102–8.
43. JM to Randolph, 11 Mar., and to TJ, 19 Mar. 1787, 9: 307–8, 317–22.
44. JJ’s report of 11 Apr. 1787, below, indicates that he had met with Gardoqui a number of times since restrictions on his power to negotiate were removed, but does not specify when. JM was the probable author of the Virginia resolutions. Gardoqui found them so objectionable that he travelled to Philadelphia to meet with GW about them. In a letter of 19 May, he remarked that he wished the Virginia resolutions had not passed because they would make an “unhappy impression” in Madrid. On 29 Oct. 1787, he informed GW that the 1786 resolutions might have prevented agreement on the treaty, that London newspapers had reported that TJ had been ordered to Madrid, and that it must be taken for granted that he would “indubitably avail himself of the above mention’d opposition & instructions.” Virginia reaffirmed its position on the matter of navigation of the river in a new resolution of 12 Nov. 1787, which Gardoqui reported to Floridablanca on 31 Dec. 1787. These resolutions were never delivered to the Virginia delegates, however. See PJM, 9: 181–84; PGW: Confederation Series, 5: 190–91, 393–95; 1: 163, 374; 8: xxxi.
45. See 9: 309–12, 319–21. “Winking” apparently did occur. In July 1787 Richard Henry Lee argued that a “most lucrative contraband Trade from the Ocean & on the Mississippi which a friend might wink at, but which a vigilant and powerful enemy will prevent” as one of the advantages to be gained from the proposed treaty. William S. Smith reported that he had found that, “in some instances,” American merchants could bring “remittances” down the Mississippi and make a “safe deposit at New Orleans, & from thence, … to those European ports, the owners may think proper to order them. See 24: 357; and Smith to JJ, 12 Sept. 1787, ALS, DNA: PCC, item 92, 304–19 (EJ: 10849).
46. See 9: 307–12, 319–21; and JJ’s report on George Rogers Clark’s activities at 12 Apr. 1787, below.
47. See 3: 499–503. For a published threat that American veterans would defend their right to use the Mississippi, see JJ’s report on John Sullivan, 4 Oct. 1787, below.
48. See JJ’s report on the state of negotiations with Gardoqui, 11 Apr. 1787, below. The boundaries authorized by Floridablanca in 1787 approximated those specified in Pinckney’s Treaty in 1795. See 57–58.
49. See JJ’s Report on Moving Negotiations with Spain to Madrid, 20 Apr. 1787, below; and JJ to the President of Congress, 9 May 1787, LS, DNA: PCC, item 25, 2: 469, 472 (EJ: 10698).
50. See JJ to Gardoqui, 17 Oct. 1788, , 4: 6 (EJ: 2337); LbkC, DNA: PCC, item 125, 174–75 (EJ: 3741); Dft, NNC (EJ: 5850); 1: 385–98; and 102–6. For speculation that the death of José de Gálvez would allow Floridablanca more latitude in accommodating American demands, see William Stephens Smith to JJ, 12 Sept. 1787, ALS, DNA: PCC, item 92, 304–19 (EJ: 10849).
51. See JJ’s Report Regarding Navigation of the Mississippi River, 2 Sept., DS, DNA: PCC, item 81, 3: 147–51 (EJ: 3956); LbkCs, DNA: PCC, item 125, 157–61 (EJ: 3736); DNA: PCC, item 124, 3: 190–95 (EJ: 4629); NNC: JJ Lbk. 3; 34: 530–34..
52. See 11: 318–19, 332–33.