1783-1787.
THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED
LOSS OF THE WESTERN SETTLEMENTS.
The Confederation, although preceded by a cession of Western territory
from the State of New York for the use of the United States, contained
no grant of power to Congress to hold, manage, or dispose of such
property. There had been, while the Articles of Confederation were under
discussion in Congress, a proposal to insert a provision, giving to
Congress the sole and exclusive right and power to ascertain and fix the
western boundary of such States as claimed to the Mississippi or the
South Sea, and to lay out the land beyond the boundary so ascertained
into separate and independent States, from time to time, as the numbers
and circumstances of the inhabitants might require.[298] This proposal
was negatived by the vote of every State except Maryland and New
Jersey.[299] Its rejection caused the adoption of the Confederation to
be postponed for a period of more than two years after it was submitted
to the States.[300] Virginia had set up claims to an indefinite extent
of territory, stretching far into the Western wilderness, which were
looked upon with especial jealousy by Maryland; and when the Articles of
Confederation came before the legislature of that State for
consideration, the absence of any provision vesting in the Union any
control over these claims, or any power to ascertain and fix the western
boundaries of the great States, became at once a cause of irritation and
alarm. The steps taken by Maryland to have this power introduced into
the Articles have already been detailed.[301] But the Articles could not
be amended. Congress could only make efforts to remove this impediment
to their adoption, by recommending to the States to cede their
territorial claims to the Union. The first step which they took, for
this purpose, was to recommend to the State of Virginia, and all the
other States similarly situated, not to make sales of unappropriated
lands during the continuance of the war.[302] This was followed by a
full consideration of the subject presented by the objections of
Maryland and the remonstrance of Virginia. Declining to reopen the
question of the merits or policy of attempting to engraft the proposed
power upon the Confederation, Congress deemed it more advisable to
endeavor to procure a surrender of a portion of the territorial claims
of the several States.[303] In pressing a recommendation to this effect,
they were greatly aided by the course of the State of New York, which
had already authorized its delegates in Congress to limit its western
boundaries, and to cede a portion of its vacant lands to the United
States.[304] They then immediately declared, by resolve, the purposes
for which such cessions were to be held. The territories were to be
disposed of for the common benefit of the United States; to be settled
and formed into distinct republican States, which should become members
of the Federal Union, and have the same rights of sovereignty, freedom,
and independence as the other States. Each State so formed was to
contain a suitable extent of territory, not less than one hundred, nor
more than one hundred and fifty miles square; the necessary expenses
incurred by any State in acquiring the territory ceded, were to be
reimbursed; and the lands were to be granted or settled at such times,
and under such regulations, as should thereafter be agreed upon by the
United States in Congress assembled, or any nine or more of them.[305]
The cessions were made under the guaranties of this resolve. Strictly
speaking, there was no express constitutional power under which Congress
could thus act, either before or after the adoption of the Articles of
Confederation. Before that period, if the United States could acquire
and hold lands, for any purpose, it could only be by the common
attribute of sovereignty belonging to every government. Perhaps this
power existed, by implication, in the revolutionary government; but the
compact which was to constitute the new government contained no
authority for the establishment of new States within the limits of the
Union. But when, aside from the Articles of Confederation, and before
they had been adopted, the Revolutionary Congress undertook, in 1780, to
hold out these inducements to the States, as motives for their adoption
of that instrument, and these motives were acted upon and the cessions
made, it must be taken that the territory came rightfully into the
possession of the United States. Whether the adoption of the Articles,
containing no power for the government of such territories, or for the
admission of new States into the Union, did not place the new government
in a position where, if it acted at all, it would act beyond the scope
of its constitutional authority, certainly admitted of grave
question.[306] But the acquisition of the territory itself rested upon
acts, which were so directly and expressly connected with the
establishment of the new Union under the Confederation, as to make the
acquisition itself part of the fundamental conditions of that Union, and
the principal guaranty of its continuance. Among the declared purposes
for which these acquisitions were made, was that of forming them into
new States, to be admitted into the Union; and as all the States
acquiesced in and embraced this purpose, they may be said to have
conferred upon Congress an implied power to legislate to carry it into
effect. Still, the want of an express authority in the Articles thus to
deal with acquired territory was afterwards felt and insisted upon, as
the Confederation drew towards the close of its career.[307]
Virginia, in 1781, offered to make a cession to the United States of her
title to lands northwest of the Ohio, upon certain conditions, which
were not satisfactory, and the subject had not been acted upon in
Congress when the revenue system of 1783 was adopted for recommendation
to the States. Looking to the prospect of vacant lands, as a means of
hastening the extinguishment of the public debts, as well as of
establishing the harmony of the Union, Congress accompanied the
recommendation of the revenue system by new solicitations to the States
which had made no cessions of their public lands, or had made them in
part only, to comply fully with the former recommendations. This drew
from the State of New Jersey, apprehensive that the offer of Virginia
might be accepted, a remonstrance against the cession proposed by that
State, as partial, unjust, and illiberal.[308] Congress again took the
subject into consideration, examined the conditions which the
legislature of Virginia had annexed to their proposed grant, declared
some of them inadmissible, and stated the conditions on which the
cession could be received.[309] Virginia complied with the terms
proposed by Congress, and upon those terms ceded to the United States
all right, title, and claim, both of soil and jurisdiction, which the
State then had to the territory within the limits of its charter, lying
to the northwest of the river Ohio. That magnificent region, in which
now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and
Wisconsin, became the property of the United States, by a grant of
twenty lines, executed in Congress by Thomas Jefferson and three of his
colleagues, on the 1st day of March, 1784.[310]
Soon after this cession had been completed, Congress passed a resolve
for the regulation of the territory that had been or might be ceded to
the United States, for the establishment of temporary and permanent
governments by the settlers, and for the admission of the new States
thus formed into the Union.[311] This resolve provided, that the
territory which had been or might be ceded to the United States, after
the extinguishment of the Indian title, and when offered for sale by
Congress, should be divided into separate States, in a manner specified;
that the settlers on such territory, either on their own petition or on
the order of Congress, should receive authority to form a temporary
government; and that when there should be twenty thousand free
inhabitants within the limits of any of the States thus designated, they
should receive authority to call a convention of representatives to
establish a permanent constitution and government for themselves,
provided that both the temporary and permanent governments should be
established on these principles, as their basis:--1. That they should
for ever remain a part of the Confederacy of the United States of
America. 2. That they should be subject to the Articles of Confederation
and the acts and ordinances of Congress, like the original parties to
that instrument. 3. That they should in no case interfere with the
disposal of the soil by Congress. 4. That they should be subject to pay
a part of the federal debts, present and prospective, in the same
measure of apportionment with the other States. 5. That they should
impose no tax upon lands, the property of the United States. 6. That
their respective governments should be republican. 7. That the lands of
non-resident proprietors should not be taxed higher than those of
residents, in any new State, before its delegates had been admitted to
vote in Congress.
The resolve also contained a provision, which appears to have been
designed to meet the want of constitutional power, under the Articles of
Confederation, relative to the admission of new States. It was declared,
that whenever any of the States thus formed should have as many free
inhabitants as the least numerous of the thirteen original States, it
should be admitted by its delegates into Congress on an equal footing
with the original States, provided the assent of so many States in
Congress should be first obtained, as might at the time be competent to
such admission. It was further declared, that, in order to adapt the
Articles of Confederation to the condition of Congress when it should be
thus increased, it should be proposed to the original States, parties to
that instrument, to change the rule, which required a vote of nine
States, to a vote of two thirds of all the States in Congress; and that
when this change had been agreed upon, it should be binding upon the new
States.
After the establishment of a temporary government, and before its
admission into the Union, each of the new States was to have the right
to keep a member in Congress, with the privilege of debating, but not of
voting. It was also provided, that measures not inconsistent with the
principles of the Confederation, and necessary for the preservation of
peace and good order among the settlers in any of the said new States,
until they had assumed a temporary government, might, from time to time,
be taken by the United States in Congress assembled.
These provisions were to stand as a charter of compact and as
fundamental constitutions between the thirteen original States and each
of the new States thus described, unalterable from and after the sale of
any part of the territory of such State, but by the joint consent of the
United States in Congress assembled, and of the particular State to be
affected.[312]
New and urgent recommendations followed the passage of this resolve,
pressing the States to consider that the war was now happily brought to
a close, by the services of the army, the supplies of property by
citizens, and loans of money by citizens and foreigners, constituting a
body of creditors who had a right to expect indemnification, and that
the vacant territory was an important resource for this great
object.[313]
The subject does not seem to have again occupied the attention of
Congress until the spring of the following year, when a proposition was
introduced and committed, to exclude slavery and involuntary servitude,
otherwise than in punishment of crimes, from the States described in the
resolve of April 23d, 1784, and to make this provision part of the
compact established by that resolve.[314]
Soon afterwards, a cession was made by Massachusetts of all its right
and title, both of soil and jurisdiction, to the Western territory lying
within the limits of the charter of that State.[315] In the succeeding
month, Congress adopted an ordinance for ascertaining the mode of
disposing of the Western lands to settlers.[316] In the course of the
next year, the cession by Connecticut was made, after various
negotiations, with a reservation to that State of the property in a
considerable tract of country, since called the Connecticut Reserve,
lying to the south of Lake Erie, and now embraced within the State of
Ohio.[317]
Before this transaction had been completed, it had become manifest, from
the knowledge that had been obtained of the country northwest of the
Ohio, that it would be extremely inconvenient to lay it out into States
of the extent and dimensions described in the resolve of October 10,
1780, under which the cession of Virginia had been made; and the
legislature of that State were accordingly asked to modify their act of
cession, so as to enable Congress to lay out the territory into not more
than five nor less than three States, as the situation and circumstances
of the country might require.[318] This suggestion was complied
with.[319]
A cession by South Carolina then followed, of all its claim to lands
lying towards the river Mississippi;[320] but no other cessions were
made to the United States under the Confederation; those of Georgia and
North Carolina having been made after the adoption of the
Constitution.[321]
It appears, therefore, that, with the exception of the claims of South
Carolina to territory lying due west from that State towards the river
Mississippi, the United States, before the 13th of July, 1787, had
become possessed of the title to no other territory than that which had
been surrendered to them by the States of New York, Virginia,
Massachusetts, and Connecticut. The great mass of this territory was
that embraced within the cession of Virginia, and lying to the northwest
of the river Ohio; and after the whole title to this region, with the
exception of some reserved tracts, had become complete in the United
States, it was subject to the resolves of 1780 and of 1784. The
provisions of the resolve of 1784, however, were soon seen to be
inconvenient and inapplicable to the pressing wants of this region.
Immediate legislation was plainly demanded for this territory, which
could not wait the slow process of forming first temporary and then
permanent governments, as had been contemplated by that resolve.
Congress had had cast upon it the administration of an empire, exterior
to the Confederation, and rapidly filling with people, in which the
rights and tenure of property, the preservation of order and
tranquillity, and the shaping of its political and social destinies,
required instant legislation. This legislation was therefore provided in
the celebrated Ordinance for the Government of the Northwestern
Territory, enacted July 13, 1787, which was designed to supersede and in
terms directly repealed the resolve of 1784. As this fundamental law for
a new and unsettled country--at that time a novel undertaking--must
always be regarded with interest in every part of the world, and as it
lies at the foundation of the civil polity of a sixth part of these
United States, its principles and provisions should be carefully
examined.
The territory was, for the purposes of temporary government, constituted
one district, subject to be divided into two, as future circumstances
might require. An equal distribution of property among the children of
persons dying intestate, with a life estate to the widow in one third of
the real and personal estate, was made the law of the territory, until
it should be altered by its legislature. Persons of full age were
empowered to dispose of their estates by a written will, executed in the
presence of three witnesses. Real estates were authorized to be conveyed
by deed, executed by a person of full age, acknowledged and attested by
two witnesses. Both wills and deeds were required to be registered.
Personal property was transferable by delivery.
The civil government of the territory was to consist of executive,
legislative, and judicial branches. A Governor was to be appointed from
time to time by Congress, and to be commissioned for three years,
subject to removal; but he was to reside in the district, and to have a
freehold estate there in one thousand acres of land, while in the
exercise of his office. A Secretary was also to be appointed from time
to time by Congress, and to be commissioned for four years, subject to
removal, but to reside in the district, and to have a freehold estate
there in five hundred acres of land, while in the exercise of his
office. There was also to be appointed a court of common law
jurisdiction, to consist of three judges, any two of whom should form a
court; they were to reside in the district, and to have each a freehold
estate there in five hundred acres of land, while in the exercise of
their office; their commissions to continue in force during good
behavior.
The Governor and Judges, or a majority of them, were to adopt and
publish in the district such laws of the original States, criminal and
civil, as might be necessary and best suited to the circumstances of the
district, to be in force in the district until the organization of the
General Assembly, unless disapproved by Congress, to whom, from time to
time, they should be reported;--but the legislature, when constituted,
were to have authority to alter them as they should think fit.
Magistrates and other civil officers were to be appointed by the
Governor, previous to the organization of the General Assembly, for the
preservation of peace and good order. After the organization of the
General Assembly, the powers and duties of magistrates and other civil
officers were to be regulated and defined by the legislature, but their
appointment was to remain with the Governor.
For the prevention of crimes and injuries, the laws to be adopted or
made were to have force in all parts of the district, and for the
execution of process, criminal and civil, the Governor was to make
proper divisions of the territory, and to lay out the portions where the
Indian titles had been extinguished, from time to time, into counties
and townships, subject to future alteration by the legislature.
As soon as there should be five thousand free male inhabitants, of full
age, in the district, upon giving proof thereof to the Governor, they
were to receive authority to elect representatives from their counties
or townships, to represent them in the General Assembly. For every five
hundred male inhabitants, there was to be one representative; and so on
progressively the right of representation was to increase, until the
number of representatives should amount to twenty-five, after which
their numbers and proportions were to be regulated by the legislature.
The qualifications of a representative were to be previous citizenship
in one of the United States for three years, and residence in the
district, or a residence of three years in the district, with a
fee-simple estate, in either case, of two hundred acres of land within
the district. The qualifications of electors were to be a freehold in
fifty acres of land in the district, previous citizenship in one of the
United States, and residence in the district, or the like freehold and
two years' residence in the district.
The Ordinance then proceeded to state certain fundamental articles of
compact between the original States and the people and States in the
territory, which were to remain unalterable, except by common consent.
The first provided for freedom of religious opinion and worship. The
second provided for the right to the writ of _habeas corpus_; for trial
by jury; for a proportionate representation in the legislature; for
judicial proceedings according to the course of the common law; for
offences not capital being bailable; for fines being moderate, and
punishments not cruel nor unusual; for no man's being deprived of his
liberty or property, but by the judgment of his peers or the law of the
land; for full compensation for property taken or services demanded for
the public; and that no law should ever be made, or have force in the
territory, that should in any manner whatever interfere with or affect
private contracts or engagements, previously formed, _bona fide_ and
without fraud. The third provided for the encouragement of religion and
education, for schools, and for good faith towards the rights and
property of the Indian tribes. The fourth provided that the territory
and the States to be formed therein should for ever remain a part of the
Confederacy, subject to the constitutional authority of Congress; that
the inhabitants should be liable to be taxed proportionately for the
public expenses; that the legislature in the territory should never
interfere with the primary disposal of the soil by Congress, nor with
their regulations for securing the title to purchasers; that no tax
should be imposed on lands, the property of the United States; that
non-resident proprietors should not be taxed more than residents; and
that the navigable waters leading into the Mississippi and St. Lawrence,
and the carrying-places between them, should be common highways and for
ever free.
The fifth provided, that there should be formed in the territory not
less than three, nor more than five States, with certain boundaries; and
that whenever any of the States should contain sixty thousand free
inhabitants, such State should be (and might be before) admitted by its
delegates into Congress, on an equal footing with the original States in
all respects whatever, and should be at liberty to form a permanent
constitution and State government, provided it should be republican, and
in conformity with these articles of compact.
The sixth provided, that there should be neither slavery nor involuntary
servitude in the territory, otherwise than in the punishment of crimes;
but that fugitives owing service in other States might be reclaimed.
American legislation has never achieved any thing more admirable, as an
internal government, than this comprehensive scheme. Its provisions
concerning the distribution of property, the principles of civil and
religious liberty which it laid at the foundation of the communities
since established under its sway, and the efficient and simple
organization by which it created the first machinery of civil society,
are worthy of all the praise that has ever attended it. It was not a
plan devised in the closet, upon theoretical principles of abstract
fitness. It was a constitution of government drawn by men who
understood, from experience, the practical working of the principles
which they undertook to embody. Those principles were, it is true, to be
applied to a state of society not then formed; but they were taken from
states of society in which they had been tried with success. The equal
division of property; general, not universal suffrage, but a suffrage
guarded by some degree of interest in society; representative
government; the division of the three grand departments of political
power; freedom of religious opinion and worship; the _habeas corpus_,
trial by jury, and the course of the common law; the right to be bailed
for offences not capital, and the prohibition of immoderate fines and
cruel or unusual punishments; the great principle of compensation for
property or service demanded by the public, and the legislative
inviolability of contracts; the encouragement of schools and the means
of education,--were all taken from the ancient or recent constitutions
of States, from which the greater part of the inhabitants of the new
territory would necessarily come. A community founded on these
principles was predestined to prosperity and happiness.
But it was in the provisions of the Ordinance relative to the admission
into the Union of the new States to be formed upon this territory, that
the relation between the existing government of the United States and
its great dependency was afterwards found to involve serious
difficulties. The Union was at that time a confederacy of thirteen
States, originally formed mainly with reference to the exigencies of the
war; and, although the Articles of Confederation had been ratified under
circumstances which gave to the United States the authority to acquire
this property, they had vested in Congress no power to enlarge the
Confederacy by the admission of new States. Yet the Ordinance undertook
to declare that new States should be admitted into the Congress of the
United States on an equal footing with the existing States in all
respects whatever, without proposing to submit that question to the
original parties to the Confederacy.
It does not appear from contemporary evidence that this difficulty
attracted public attention, at the time of the passage of the Ordinance.
In the year 1787, the Confederation was laboring under far more pressing
and alarming defects than the want of strict constitutional power to
create new States. Public attention was consequently more engaged with
the consideration of evils which affected the prosperity of the original
States themselves, than with the destiny of the new communities, or the
method by which they were to be brought into the Union. It was not
immediately perceived, also, that a property, capable at no distant day
of becoming a vast mine of wealth to the United States, as a great and
independent revenue, had come under the management of a single body of
men, constituted originally without reference to such a trust, and with
no declared constitutional provisions for its administration. When,
however, the Constitution was in the process of formation, the necessity
for provisions under which Congress could dispose of the public lands,
and by which new States could be admitted into the Union, was at once
felt and conceded on all sides.[322]
Far more serious difficulties, however, attended the management by the
Confederation of the interests of the Western country;--difficulties
which commenced immediately after the Peace, and continued to increase,
until the course taken by Congress had nearly lost to the Union the
whole of that immense region which now pours its commerce down the
Mississippi and its great tributary waters. These difficulties sprang
from the inherent weakness of the federal government,--from the absolute
incapacity of Congress, constituted as it was, to deal wisely, safely,
and efficiently with the foreign relations of the country and its
internal affairs, under the delicate and critical circumstances in which
it was then placed. After the Treaty of Peace, the Western settlements,
flanked by the dependencies of Great Britain at the north and of Spain
at the south, and rapidly filling with a bold, adventurous, and somewhat
lawless population, whose ties of connection with the Eastern States
were almost sundered by the remoteness of their position and the
difficulties of communication, stood upon a pivot, where accident might
have thrown them out of the Union. This population found themselves
seated in a luxuriant and fertile country, capable of a threefold
greater production than the States eastward of the Alleghany and
Appalachian Mountains, and intersected by natural water communications
of the most ample character, all tending to the great highway of the
Mississippi. A soil richer than any over which the Anglo-Saxon race had
hitherto spread itself upon this continent, in any of its temperate
climes; large plains and meadows, capable, without labor, of supporting
millions of cattle; and fields destined to vie with the most favored
lands on the globe in the production of wheat, were already accumulating
upon the banks of their great rivers a weight of produce far beyond the
necessities of subsistence, and loudly demanding the means of reaching
the markets of the world. The people of the Atlantic States knew little
of the resources or situation of this country. They valued it chiefly as
a means of paying the public debts by the sale of its lands; but until
they were in imminent danger of losing it, from the inefficiency of the
national government, they had little idea of the supreme necessity of
securing for it an outlet to the sea, if they would preserve it to the
Union.
Washington, in the autumn of 1784, after his retirement to Mount
Vernon, made a tour into the Western country, for the express purpose of
ascertaining by what means it could be most effectually bound to the
Union. The policy of opening communications eastward, by means of the
rivers flowing through Virginia to the Atlantic Ocean struck him at
once. On his return, he addressed a letter to the Governor of the State,
in which he recommended the appointment of a commission, to make a
survey of the whole means of natural water communication between Lake
Erie and the tide-waters of Virginia. He does not seem at this time to
have considered the navigation of the Mississippi as of great
importance; but he thought rather that the opening of that river would
have a tendency to separate the Western from the Eastern States.[323] A
year later, he held a clear opinion, that its navigation ought not at
present to be made an object by the United States, but that their true
policy was to open all the possible avenues between the Atlantic States
and the Western territory, and that, until this had been done, the
obstructions to the use of the Mississippi had better not be
removed.[324] Those obstructions, however, involved the hazard of a loss
of the territory to which the navigation of that river had already
become extremely important. Their nature is, therefore, now to be
explained.
The Treaty of Peace with Great Britain recognized, as the southern
boundary of the United States, a line drawn from a point where the
thirty-first degree of north latitude intersected the river Mississippi,
along that parallel due east to the middle of the river Appalachicola;
thence along the middle of that river to its junction with the Flint
River; thence in a straight line to the head of St. Mary's River; and
thence down the middle of that river to the Atlantic Ocean.[325] At the
time of the negotiation of this treaty West Florida was in the
possession of Spain; and a secret article was executed by the British
and American plenipotentiaries, which stipulated that in case Great
Britain, at the conclusion of a peace with Spain, should recover or be
put in possession of West Florida, the north boundary between that
province and the United States should be a line drawn from the mouth of
the river Yassous, where it unites with the river Mississippi, due east
to the river Appalachicola.[326] The treaty also stipulated, that the
navigation of the Mississippi, from its source to the ocean, should for
ever remain free and open to the subjects of Great Britain and the
citizens of the United States.[327]
When the treaty came to be ratified and published, in 1784, the Spanish
government was already acquainted with this secret article. Justly
assuming that no treaty between Great Britain and the United States
could settle the boundaries between the territories of the latter power
and those of Spain, or give of itself a right to navigate a river
passing wholly through their dominions, they immediately caused it to be
signified to Congress, that, until the limits of Louisiana and the two
Floridas should be settled and determined, by an admission on the part
of Spain that they had been rightfully described in the Treaty with
England, they must assert their territorial claims to the exclusive
control of the river; and also, that the navigation would under no
circumstances be conceded, while Spain held the right to its
control.[328] To accommodate these difficulties, Congress resolved to
send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his
departure was prevented by the arrival in the United States of Don Diego
Guardoqui, as Minister from Spain, charged with the negotiation of a
treaty.[329]
Preparatory to this negotiation, the first instruction which Mr. Jay
received from Congress was, to insist upon the right of the United
States to the territorial boundaries and the free navigation of the
Mississippi, as settled by their treaty with Great Britain.[330] Upon
this point, however, the Spanish Minister was immovable. A long
negotiation ensued, in which he evinced entire readiness to make a
liberal commercial treaty with the United States, conceding to their
trade very important advantages; but at the same time refusing the right
to use the Mississippi. Such a treaty was regarded as extremely
important to the United States. There was scarcely a single production
of this country that could not be advantageously exchanged in the
Spanish European ports for gold and silver. The influence of Spain in
the Mediterranean, with Portugal, with France, with the States of
Barbary, and the trade with her Canaries and the adjacent islands,
rendered a commercial alliance with her of the utmost importance. That
importance was especially felt by the Eastern and Middle States, whose
influence in Congress thus became opposed to the agitation of the
subject of opening the Mississippi.[331] Indeed, the prevailing opinion
in Congress, at this time, was for not insisting on the right of
navigation as a necessary requisite in the treaty with Spain; and there
were some important and influential persons in that body ready to agree
to the abandonment of the right, rather than defer longer a free and
liberal system of trade with a power able to give conditions so
advantageous to the United States.[332] The Eastern States considered a
commercial treaty with Spain as the best remedy for their distresses,
which flowed, as they believed, from the decay of their commerce. Two of
the Middle States joined in this opinion. Virginia, on the other hand,
opposed all surrender of the right.[333]
In this posture of affairs, Mr. Jay proposed to Congress a middle
course. Believing, as Washington continued to believe,[334] that the
navigation of the Mississippi was not at that time very important, and
that it would not become so for twenty-five or thirty years, he
suggested that the treaty should be limited to that period, and that one
of its articles should stipulate, that the United States would forbear
to use the navigation of the river below their territories to the ocean.
It was supposed that such a forbearance, carrying no surrender of the
right, would, at the expiration of the treaty, leave the whole subject
in as favorable a position as that in which it now stood. Besides, the
only alternative to obtaining such an article from Spain was to make war
with her, and enforce the opening of the river. The experiment, at
least, it was argued, would do no injury, and might produce much
good.[335]
These arguments prevailed, so far as to cause a change in Mr. Jay's
instructions, by a vote, which was deemed by him sufficient to confer
authority to obtain such an article as he had suggested, but which was
clearly unconstitutional. Seven States against five voted to rescind the
instructions of August 25, 1785, by which the Secretary had been
directed to insist on the right of navigation, and not to conclude or
sign any treaty until he had communicated it to Congress.[336] Mr. Jay
accordingly agreed with the Spanish Minister on an article which
suspended the use of the Mississippi, without relinquishing the right
asserted by the United States.[337]
While these proceedings were going on, and before the vote of seven
States in Congress had been obtained in favor of the present suspension
of this difficult controversy, an occurrence took place at Natchez,
which aroused the jealousy of the whole West. A seizure was made there,
by the Spanish authorities, of certain American property, which had been
carried down the river for shipment or sale at New Orleans.[338] The
owner, returning slowly in the autumn to his home, in the western part
of North Carolina, by a tedious land journey through Kentucky, detailed
everywhere the story of his wrongs and of the loss of his adventure. The
news of this seizure, as it circulated up the valley from below,
encountered the intelligence coming from the eastward, that Congress
proposed to surrender the present use of the Mississippi. Alarm and
indignation fired the whole population of the Western settlements. They
believed themselves to be on the point of being sacrificed to the
commercial policy of the Atlantic States; and, feeling that they stood
in the relation of colonists to the rest of the Union, they held
language not unlike that which the old colonies had held towards
England, in the earlier days of the great controversy.
They surveyed the magnificent region which they were subduing from the
dominion of Nature;--the inexhaustible resources of its soil already
yielding an abundance, which needed only a free avenue to the ocean to
make them rich and prosperous;--and they felt that the mighty river
which swept by them, with a volume of waters capable of sustaining the
navies of the world, had been destined by Providence as a natural
channel through which the productions of their imperial valley should be
made to swell the commerce of the globe. But the Spaniard was seated at
the outlet of this noble stream, sullenly refusing to them all access to
the ocean. To him they must pay tribute. To enrich him, they must till
those luxuriant lands, which gave, by an almost spontaneous production,
the largest return which American labor had yet reaped under the
industry of its own free hands. Their proud spirits, unaccustomed to
restraint, and expanding in a liberty unknown in the older sections of
the country, could not brook this vassalage. Into the comprehensive
schemes of statesmen, who sought to unite them with the East by a great
chain of internal improvements, and thus to blend the interests of the
West with the commercial prosperity of the whole country, they were too
impatient, and too intent upon the engrossing object of their own
immediate advantage, to be able to enter.
What, they exclaimed, could have induced the legislature of the United
States, which had been applauded for their assertion and defence of the
rights and privileges of the country, so soon to endeavor to subject a
large part of their dominion to a slavery worse than that to which Great
Britain had presumed to subject any part of hers? To give up to the
Spaniards the greatest share of the fruits of their toils,--to surrender
to them, on their own terms, the produce of that large, rich, and
fertile country, and thus to enable them to command the benefits of
every foreign market,--was an intolerable thought. What advantage, too,
would it be to the Atlantic States, when Spain, from the amazing
resources of the Mississippi, could undersell them in every part of the
world? Did they think by this course of policy to prevent emigration
from a barren country, loaded with taxes and impoverished by debts, to
the most luxurious and fertile soil within the limits of the Union? The
idea was vain and presumptuous. As well might the fishes of the sea be
prevented from gathering on a bank that afforded them ample nourishment.
The best and largest part of the United States was not thus to be left
uncultivated; a home for savages and wild beasts. Providence had
destined it for nobler purposes. It was to be the abode of a great,
prosperous, and cultivated people,--of Americans in feeling, in rights,
in spirit, incapable of becoming the bondmen of Spain, while the rest
of their country remained free. Their own strength could achieve for
them what the national power refused or was unable to obtain. Twenty
thousand effective men, west of the Alleghanies, were ready to rush to
the mouth of the Mississippi, and drive the Spaniards into the sea.
Great Britain stood with open arms to receive them. If not countenanced
and succored by the federal government, their allegiance would be thrown
off, and the United States would find too late that they were as
ignorant of the great valley of the Mississippi, as England was of the
Atlantic States when the contest for independence began.[339]
Such was the feeling that prevailed in the Western country, as soon as
it became known that a treaty was actually pending, by which the right
to navigate the Mississippi might be suspended for a quarter of a
century. That it should have been accompanied by acts of retaliation and
outrage against the property of Spanish subjects, was naturally to have
been expected. A certain General Clarke, pretending to authority from
the State of Virginia, undertook to enlist men and establish a garrison
at Port St. Vincennes, ostensibly for the protection of the district of
Kentucky, then under the jurisdiction of Virginia. He made a seizure
there of some Spanish property for the purpose of clothing and
subsisting his men, and sent an officer to the Illinois, to advise the
settlers there of the seizures of American property made at Natchez, and
to recommend them to retaliate for any outrages the Spaniards might
commit upon their property.[340]
The executive of Virginia disavowed these acts, as soon as officially
informed of them; ordered the parties to be brought to punishment; and
sent a formal disclaimer, through their delegates in Congress, to the
Spanish Minister.[341] Guardoqui was not disturbed. He expected these
occurrences, and maintained his ground, refusing to yield the right of
navigating the river; and having assented to Mr. Jay's proposal of an
article which suspended the use for a period of twenty-five years, he
was quite ready to go on and conclude the treaty.
The people of the Western country, however, began to form committees of
correspondence, in order to unite their counsels and interests.[342] The
inhabitants of Kentucky sent a memorial to the General Assembly of
Virginia, which induced them to instruct their delegates in Congress to
oppose any attempt to surrender the right of the United States to the
free use of the Mississippi, as a dishonorable departure from the
comprehensive and benevolent feeling that constituted the vital
principle of the Confederation, and as provoking the just resentment and
reproaches of the Western people, whose essential rights and interests
would be thereby sacrificed. They also instructed their delegates to
urge such negotiations with Spain as would obtain her consent to
regulations for the mutual and common use of the river.[343] The members
from Virginia, with one exception, concurred in the policy of these
instructions,[344] and at first addressed themselves to some
conciliatory expedient for obviating the effect of the vote of seven
States.
They first represented to Guardoqui that it would be extremely
impolitic, both for the United States and Spain, to make any treaty
which should have the effect of shutting up the Mississippi. They stated
to him, that such a treaty could not be enforced; that it would be the
means of peopling the Western country with increased rapidity, and would
tend to a separation of that country from the rest of the Union; that
Great Britain would be able to turn the force that would spring up there
against Spanish America; and that the result would be the creation of a
power in the valley of the Mississippi hostile both to Spain and the
United States. These representations produced no impression. The Spanish
Minister remained firm in the position which he had held from the first,
that Spain never would concede the claim of the United States to
navigate the river. He answered, that the result of what had been urged
was, that Congress could make no treaty at all, and consequently that
the trade of the United States must remain liable to be excluded from
the ports of Spain.[345]
Foiled in this quarter, the next expedient, for those who felt the
necessity of preventing such a treaty as had been contemplated, was to
gain time, by transferring the negotiation to Madrid; and Mr. Madison
introduced a resolution into Congress for this purpose, which was
referred to the Secretary for Foreign Affairs.[346] In a few days, the
Secretary reported against the proposal, and nothing remained for the
opponents of the treaty, but to attack directly the vote of seven
States, under which the Secretary had acted in proceeding to adjust with
the Spanish Minister an article for suspending the right of the United
States to the common use of the river below their southern boundary.
The Articles of Confederation expressly declared, that the United States
should not enter into any treaty or alliance, unless nine States in
Congress assented to the same.[347] It was very justly contended,
therefore, that, to proceed to negotiate a treaty authorized by a vote
of only seven States, would expose the United States to great
embarrassment with the other contracting party, since the vote made it
certain that the treaty could not be constitutionally ratified; and that
the vote itself, having passed in a case requiring the assent of nine
States, was not valid for the purpose intended by it. This was not
denied; but the advocates of the treaty, by means of a parliamentary
rule, resisted the introduction of a resolution to rescind the vote of
seven States.[348]
But while this dangerous subject was pending, the affairs of the country
had taken a new turn. The Convention at Annapolis had been held, in the
autumn of 1786, and the Convention called to revise the system of the
federal government was to meet in May, 1787. It had become sure and
plain, that a large increase of the powers of the national government
was absolutely essential to the continuance of the Union and the
prosperity of the States. Every day the situation of the country was
becoming more and more critical. No money came into the federal
treasury; no respect was paid to the federal authority; and all men saw
and admitted that the Confederation was tottering to its fall. Some
prominent persons in the Eastern States were suspected of leaning
towards monarchy; others openly predicted a partition of the States into
two or more confederacies; and the distrust which had been created by
the project for closing the Mississippi rendered it extremely probable,
that the Western country at least would be severed from the Union.
The advocates of that project recoiled, therefore, from the dangers
which they had unwittingly created. They saw, that the crisis required
that harmony and confidence should be studiously cherished, now that the
great enterprise of remodelling the government upon a firmer basis was
to be attempted. They saw that no new powers could be obtained for the
Federal Constitution, if the government then existing were to burden
itself with an act so certain to be the source of dissension, and so
likely to cause a dismemberment of the Confederacy, as the closing of
the Mississippi. Like wise and prudent men, therefore, they availed
themselves of the expected and probable formation of a new government,
as a fit occasion for disposing of this question; and after an effort to
quiet the apprehensions that had been aroused, the whole matter was
postponed, by general consent, to await the action of the great
Convention of May, 1787.[349] After the Constitution had been formed and
adopted, the negotiation was formally referred to the new federal
government which was about to be organized, in March, 1789, with a
declaration of the opinion of Congress that the free navigation of the
river Mississippi was a clear and essential right of the United States,
and ought to be so considered and supported.[350]
FOOTNOTES:
[298] October 15, 1777. Secret Journals, I. 328.
[299] Ibid.
[300] See the account of the adoption of the Confederation, ante, pp.
131-141.
[301] Ante, pp. 131-136.
[302] October 30, 1779. Journals, V. 401, 402.
[303] September 6, 1780.
[304] February 19, 1780.
[305] October 10, 1780.
[306] The Federalist.
[307] Ibid.
[308] June 20, 1783.
[309] September 13, 1783.
[310] The granting part of the deed of cession, exclusive of its
recitals, is as follows: "That we, the said Thomas Jefferson, Samuel
Hardy, Arthur Lee, and James Munroe, by virtue of the power and
authority committed to us by the act of the said General Assembly of
Virginia before recited, and in the name and for and on behalf of the
said Commonwealth, do by these presents convey, transfer, assign, and
make over unto the United States in Congress assembled, for the benefit
of the said States, Virginia inclusive, all right, title, and claim, as
well of soil as of jurisdiction, which the said Commonwealth hath to the
territory or tract of country within the lines of the Virginia charter,
situate, lying, and being to the northwest of the river Ohio, to and for
the uses and purposes, and on the conditions, of the said recited act."
The cession was made with the reservation of such a portion of the
territory ceded, between the rivers Scioto and Little Miami, as might be
required to make up the deficiencies of land on the south side of the
Ohio, called the Green River lands, reserved for the Virginia troops on
continental establishment. (Journals, IX. 47-49.) Subsequently, the act
of cession was altered, so as to admit of the formation of not more than
five, nor less than three States, of a size more convenient than that
described in the act of cession and in the resolve of October 10, 1780.
(Journals, XI. 139, 140. July 9, 1786.)
[311] April 23, 1784. Journals, IX. 153.
[312] April 23, 1784. Journals, IX. 153.
[313] April 29, 1784. Journals, IX. 184.
[314] This proposition was introduced by Rufus King, March 16, 1785, and
was committed by the votes of _eight_ States against _four_.
[315] April 19, 1785.
[316] May 20, 1785.
[317] September 14, 1786. Journals, XI. 221-223. The deed of cession,
and the act of Connecticut recited in it, do not disclose this
reservation. The territory ceded is described by certain lines which
include less than the whole claim of Connecticut. It appears from the
Journals, under the date of May 22-26, 1786, and from various
propositions considered between those dates, that the State of
Connecticut claimed to own a larger extent of territory than she
proposed to cede; and by way of compromise, her claim was so far acceded
to, that Congress agreed to accept of a cession of less than the whole.
The reservation embraced about six millions of acres. See Sparks's
Washington, IX. 178, note, where it appears that the right of the State
to this territory was considered very feeble at the time.
[318] July 9, 1786.
[319] December 30, 1788.
[320] August 9, 1789.
[321] That of North Carolina was made February 25, 1790, and that of
Georgia, April 24, 1802.
[322] See Mr. Madison's notes of the Debates in the Confederation.
Elliot, V. 128, 157, 190, 211, 376, 381.
[323] His recommendation contemplated a survey of James River and the
Potomac, from tide-water to their respective sources; then to ascertain
the best portage between those rivers and the streams capable of
improvement which run into the Ohio; then to traverse and survey those
streams to their junction with the Ohio; then, passing down the Ohio to
the mouth of the Muskingum, to ascend that river to the carrying-place
to the Cuyahoga; then down the Cuyahoga to Lake Erie, and thence to
Detroit. He also advised a survey of Big Beaver Creek, and of the
Scioto, and of all the waters east and west of the Ohio, which invited
attention by their proximity and the ease of land transportation between
them and the James and Potomac Rivers. "These things being done," he
said, "I shall be mistaken if prejudice does not yield to facts,
jealousy to candor, and finally, if reason and nature, thus aided, do
not dictate what is right and proper to be done." (Writings of
Washington, IX. 65.) This suggestion was adopted, and a commission
appointed.
[324] Writings, IX. 63, 117-119. August 22, 1785.
[325] Article II. Journals, IX. 26.
[326] Executed November 30, 1782. Secret Journals, III. 338.
[327] Article VIII. Journals, IX. 29.
[328] June 25, 1784. Communicated to Congress November 19, 1784. Secret
Journals, III. 517, 518.
[329] Guardoqui arrived and was recognized July 2, 1785. Secret
Journals, III. 563.
[330] August 25, 1785. Secret Journals, III. 585, 586.
[331] See the communication made by Mr. Jay to Congress, August 3, 1786.
Secret Journals, IV. 43.
[332] Henry Lee, then in Congress, wrote to Washington on the 3d of
July, 1786, as follows: "Your reasoning is perfectly conformable to the
prevalent doctrine on that subject in Congress. We are very solicitous
to form a treaty with Spain for commercial purposes. Indeed, no nation
in Europe can give us conditions so advantageous to our trade as that
kingdom. The carrying business they are like ourselves in, and this
common source of difficulty in adjusting commercial treaties between
other nations does not apply to America and Spain. But, my dear General,
I do not think you go far enough. Rather than defer longer a free and
liberal system of trade with Spain, why not agree to the exclusion of
the Mississippi? This exclusion will not, cannot, exist longer than the
infancy of the Western emigrants. Therefore, to these people what is now
done cannot be important. To the Atlantic States it is highly important;
for we have no prospect of bringing to a conclusion our negotiations
with the court of Madrid, but by yielding the navigation of the
Mississippi. Their Minister here is under positive instructions on that
point. In all other arrangements, the Spanish monarch will give to the
States testimonies of his regard and friendship. And I verily believe,
that, if the above difficulty should be removed, we should soon
experience the advantages which would flow from a connection with
Spain." (Writings of Washington, IX. 173, note.)
[333] Washington's Writings, IX. 205, 206, note.
[334] Washington had not changed his opinion, at the time of these
negotiations. On the 18th of June, 1786, he wrote to Henry Lee, in
answer to his letter above quoted: "The advantages with which the inland
navigation of the rivers Potomac and James is pregnant, must strike
every mind that reasons upon the subject; but there is, I perceive, a
diversity of sentiment respecting the benefits and consequences which
may flow from the free and immediate use of the Mississippi. My opinion
of this matter has been uniformly the same; and no light in which I have
been able to consider the subject is likely to change it. It is, neither
to relinquish nor to push our claim to this navigation, but in the mean
while to open _all_ the communications which Nature has afforded between
the Atlantic States and the Western territory, and to encourage the use
of them to the utmost. In my judgment, it is matter of very serious
concern to the well-being of the former to make it the interest of the
latter to trade with them; without which, the ties of consanguinity,
which are weakening every day, will soon be no bond, and we shall be no
more, a few years hence, to the inhabitants of that country, than the
British and Spaniards are at this day; not so much, indeed, because
commercial connections, it is well known, lead to others, and united are
difficult to be broken. These must take place with the Spaniards, if the
navigation of the Mississippi is opened. Clear I am, that it would be
for the interest of the Western settlers, as low down the Ohio as the
Big Kenhawa, and back to the Lakes, to bring their produce through one
of the channels I have named; but the way must be cleared, and made easy
and obvious to them, or else the ease with which people glide down
streams will give a different bias to their thinking and acting.
Whenever the new States become so populous and so extended to the
westward as really to need it, there will be no power which can deprive
them of the use of the Mississippi. Why, then, should we prematurely
urge a matter which is displeasing, and may produce disagreeable
consequences, if it is our interest to let it sleep? It may require some
management to quiet the restless and impetuous spirits of Kentucky, of
whose conduct I am more apprehensive in this business than I am of all
the opposition that will be given by the Spaniards." (IX. 172, 173.)
On the 26th of July of the same year, he again wrote to the same
gentleman, expressing the same opinions; and on the 31st of October, he
said that these sentiments "are controverted by only one consideration
of weight, and that is, the operation which the occlusion of the river
may have on the minds of the Western settlers, who will not consider the
subject in a relative point of view, or on a comprehensive scale, and
may be influenced by the demagogues of the country to acts of
extravagance and desperation, under the popular declamation, that their
interests are sacrificed." In July, 1787, he retained the same views as
to the true policy of the different sections of the country interested
in this question, but admitted that, from the spirit manifested at the
West, it had become a moot point to determine, when every circumstance
was brought into view, what was best to be done. (IX. 172, 180, 205,
261.)
[335] See Mr. Jay's reasoning, Secret Journals, IV. 53, 54.
[336] August 29, 1786. Secret Journals, IV. 109, 110. The States which
voted to rescind these instructions were New Hampshire, Massachusetts,
Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, and
Maryland; Virginia, North and South Carolina, and Georgia, voted not to
rescind. Another resolution was carried on the following day (August
30), by the votes of seven States, instructing the Secretary to insist
on the territorial limits or boundaries of the United States, as fixed
in the Treaty with Great Britain, and not to form any treaty with the
Spanish Minister, unless those boundaries were acknowledged and secured.
Ibid. 111-116.
[337] This agreement was made between the 29th of August, the date of
the rescinding resolution, and the 6th of October, 1786. See Mr. Jay's
communication to Congress under the latter date, Secret Journals, IV.
297-301.
[338] This seizure was made on the 6th of June, 1786. Secret Journals,
IV. 325.
[339] See the documents laid before Congress, April 13, 1787. Secret
Journals, IV. 315-328. On the 30th of January, 1787, Mr. Jefferson thus
writes to Mr. Madison, from Paris: "If these transactions give me no
uneasiness, I feel very differently at another piece of intelligence, to
wit, the possibility that the navigation of the Mississippi may be
abandoned to Spain. I never had any interest westward of the Alleghany;
and I never will have any. But I have had great opportunities of knowing
the character of the people who inhabit that country; and I will venture
to say, that the act which abandons the navigation of the Mississippi is
an act of separation between the Eastern and Western country. It is a
relinquishment of five parts out of eight of the territory of the United
States; an abandonment of the fairest subject for the payment of our
public debts, and the chaining those debts on our own necks, _in
perpetuam_. I have the utmost confidence in the honest intentions of
those who concur in this measure; but I lament their want of
acquaintance with the character and physical advantages of the people,
who, right or wrong, will suppose their interests sacrificed on this
occasion to the contrary interests of that part of the Confederacy in
possession of present power. If they declare themselves a separate
people, we are incapable of a single effort to retain them. Our citizens
can never be induced, either as militia or as soldiers, to go there to
cut the throats of their own brothers and sons, or rather, to be
themselves the subjects instead of the perpetrators of the parricide.
Nor would that country quit the cost of being retained against the will
of its inhabitants, could it be done. But it cannot be done. They are
able already to rescue the navigation of the Mississippi out of the
hands of Spain, and to add New Orleans to their own territory. They will
be joined by the inhabitants of Louisiana. This will bring on a war
between them and Spain; and that will produce the question with us,
whether it will not be worth our while to become parties with them in
the war, in order to reunite them with us, and thus correct our error.
And were I to permit my forebodings to go one step further, I should
predict that the inhabitants of the United States would force their
rulers to take the affirmative of that question. I wish I may be
mistaken in all these opinions." (Jefferson, II. 87.)
[340] Secret Journals, IV. 311-313.
[341] February 28, 1787.
[342] Madison. Elliot's Debates, V. 97.
[343] These instructions were adopted in November, 1786. Pitkin, II.
207. They were laid before Congress, April 19, 1787. Madison. Elliot's
Debates, V. 103.
[344] Henry Lee did not approve of this policy. See Washington's Works,
IX. 205, note.
[345] See Madison's account of two interviews with Guardoqui, March 13
and 19, 1787. Elliot, V. 98, 100. At the first of these interviews,
Guardoqui stated that he had had no conference with Mr. Jay since the
previous October, and never expected to confer with him again.
[346] April 18, 1787. Madison. Elliot, V. 102. On the next day (April
19) the instructions of Virginia were laid before Congress, but a motion
to refer them also to the Secretary was lost, Massachusetts and New York
voting against it, and Connecticut being divided. Ibid. When Mr. Jay's
report came under consideration, Mr. Gorham of Massachusetts, according
to Madison, avowed his opinion, that the shutting of the Mississippi
would be advantageous to the Atlantic States, and wished to see it shut.
Ibid. 103.
[347] Article IX.
[348] Madison. Elliot, V. 104, 105.
[349] Ibid.
[350] September 16, 1788. Secret Journals, IV. 449-454.