"If, with the simple plea of right, unaccompanied with the menaces of power and unaided by events either in Europe or America, less is at present obtained than justice requires, or than the policy of France should have granted, the undersigned trust that the sincerity and patience of their efforts to obtain all that their country had a right to demand, will not be drawn in question."

CHAPTER IV

NEGOTIATIONS AND TREATY WITH SPAIN AND ALGIERS.

THE condition of the negotiations between Spain and the United States, at the adoption of the Constitution, has already been described. Both parties had arrived at that point where their differences were distinct and irreconcilable; Spain having asserted a positive and prohibitory right to the navigation of the Mississippi, and the United States having exhausted every conceivable modification to which they could give even a qualified assent.

Not long after Mr. Jay's return from Spain, where he had resided as minister during the Revolution, Mr. Carmichael, who remained as Chargé d'Affaires, received from the Spanish government, what had never been vouchsafed to Mr. Jay, a formal recognition as the diplomatic representative of the United States; and the recognition was accompanied by circumstances intended. to imply, on the part of the government, its distinguished consideration. The negotiations were, however, transferred from Madrid to Philadelphia, to be conducted by Mr. Jay, then Secretary of Foreign Affairs, and Don

Diego de Gardoqui, the Spanish representative. Their failure has been narrated in the opening chapter of this volume.

In 1790, the probability of a rupture between Spain and England induced the government of the United States to send a special messenger to Mr. Carmichael, charged with instructions, to be used if circumstances permitted, suggesting that in case of war the part of the United States was uncertain, and would be difficult. Mr. Jefferson intimated, that the unsettled condition of our affairs with Spain might give a direction to our conduct not altogether desirable; and directed the United States minister, in conversation with the Spanish secretary, to "impress him thoroughly with the necessity of an early, and even immediate, settlement of this matter, and of a return to the field of negotiations for this purpose; and though it must be done with delicacy, yet he must be made to understand, unequivocally, that a resumption of negotiation is not desired on our part, unless he can determine, in the first opening of it, to yield the immediate and full enjoyment of that navigation."

Circumstances, however, did not take the favorable turn hoped for; and nothing was done until the administration received an intimation from the Spanish government, that it would resume negotiations at Madrid. Washington accordingly nominated, in December, 1791, Mr. Carmichael, then Chargé d'Affaires in Spain, and Mr. Short, then Chargé d'Affaires in France, Commissioners

Plenipotentiary, to negotiate and conclude "a convention or treaty concerning the navigation of the river Mississippi by the citizens of the United States." The commissioners were amply and thoroughly instructed on three points: I. Boundary. II. The navigation of the Mississippi. III. Commerce.

I. Boundary. Spain claimed certain possessions within the limits of the United States, as having been taken by force from the British during the revolutionary war. To this claim, the reply was, 1. That Spain had acted, along with Holland and France, as an associate of the United States in that war; that, having a common enemy, each sought that enemy wherever he was to be found; that dislodging the British from frontier settlements, where they threatened the colonial possessions of Spain, and even holding such possessions by force to prevent the return of the British, could raise no right against the lawful possessors, who were acting with Spain against a common enemy. 2. That, even supposing such possession to be held as a conquest of the places in dispute, conquest is, in its fullest extent, only an inchoate title, which must afterwards be perfected by treaty with the rightful possessor. Now either Great Britain or the United States were rightful The United States had never by any possessors. treaty perfected any such title; and Great Britain, by her treaty with Spain of 1783, had expressly stipulated, that Spain should restore all conquests without com

pensation, except Minorca and Majorca. And the United States, standing by the treaty of 1782 exactly in the place of Great Britain, was entitled to the benefit of this return. 3. That the Spanish government had expressly and voluntarily declared, through Count Florida Blanca, to General Lafayette, that it recognized the limits of the United States as defined in the treaty of peace between Great Britain and the United States, and authorized him so to state to the United States' government.

To

II. The Navigation of the Mississippi. Spain claimed the right to prohibit the navigation of the river, from the 31st degree of latitude, where the southern boundary of the United States crossed, on to the Gulf, resting her claim upon the possession of both banks. this the United States replied, 1. That the navigation of the river had been granted by Spain to England, by the treaty of 1763. 2. That by the treaty of peace of 1782, the United States were placed in the position of Great Britain, and that nothing had transpired during the war which was closed by the treaty of 1782, which could possibly affect the right of navigation guaranteed by the treaty of 1763. And 3. That by the law of nations, the United States, holding the upper portion of the river, and possessing a territory of such immense extent, had a right to the navigation of the river, as an outlet created by Providence itself.

On the subject of the boundary and navigation, the