The Jay Papers Ii: The Forging Of The Nation

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I have often reminded him that the adjacent Country was filling fast with People, and that the Time must and would come, when they would not submit to seeing a fine River flow before their Doors without using it as a Highway to the Sea for the Transportation of their Productions—that it would therefore be wise to look forward to that Event and take care not to sow in the Treaty any Seeds of future Discord—He said that the Time we alluded to was far distant, and that Treaties were not to provide for contingencies so remote and future. … The Truth is, that Courts never admit the Force of any Reasoning or Arguments but such as apply in their Favor; and it is equally true, that even if our Right to that Navigation, or to any Thing else, was expressly declared in Holy Writ, we should be able to provide for the Enjoyment of it no otherwise than by being in capacity to repel force by force.—

Circumstanced as we are, I think it would be expedient to agree that the Treaty should be limited to twenty five or thirty Years, and that one of the Articles should stipulate that the United States would forbear to use the Navigation of that River below their Territories to the Ocean. …

Whether Mr. Gardoqui would be content with such an Article I cannot determine, my Instructions restraining me from even sounding him respecting it—I nevertheless think the Experiment worth trying for several reasons.—

  1. 1. Because unless that Matter can in some way or other be settled, the Treaty however advantageous will not be concluded.—
  2. 2. As that Navigation is not at present important, nor will probably become much so, in less than twenty five or thirty years, our Forbearance to use it while we do not want it, is no great sacrifice.
  3. 3. Spain now excludes us from that Navigation, and with a strong Hand holds it against us—she will not yield it peaceably, and therefore we can only acquire it by War —now as we are not prepared for a war with any Power, as many of the States would be little inclined to a war with Spain for that Object, at this Day; and as such a War would for those and a variety of obvious Reasons be inexpedient, it follows, that Spain will for a long Space of Time yet to come exclude us from that Navigation. Why … should we not (for a valuable Consideration too) consent to forbear to use, what we know is not in our Power to use.
  4. 4. If Spain and the United States should part on this Point—what are the latter to do? Will it after that be consistent with their Dignity to permit Spain forceably to exclude them from a Right, which at the Expence of a beneficial Treaty, they have asserted? They will find themselves obliged either to do this and be humiliated, or they must attack Spain. Are they ripe and prepared for this? I wish I could say they are. …

If such a Compromise should be attempted and not succeed, we shall lose nothing by it—for they who take a Lease admit the Right of the Lessor.…

With respect to territorial Limits, it is clear to me that Spain can justly claim nothing East of the Mississippi but what may be comprehended within the Bounds of the Floridas. How far those Bounds extend, or ought to extend, may prove a Question of more Difficulty to negociate than to decide. Pains I think should be taken to conciliate and settle all such Matters amicably, and it would be better even to yield a few Acres than to part in ill Humour. If their Demands when ascertained, should prove too extravagant, and too pertinaciously adhered to, one Mode of avoiding a Rupture will still be left Vizt. referring that Dispute to impartial Commissioners. …

It is much to be wished that all these Matters had lain dormant for Years yet to come—but such Wishes are vain—these Disputes are agitating—they press themselves upon us, and must terminate in Accommodation, or War, or Disgrace. The last is the worst that can happen, the second we are unprepared for, and therefore our Attention and Endeavours should be bent to the first. …

J OHN J AY

In Congress, the southerners—from whose home states most of the western settlers came—assailed Jay for abandoning the West; the fact is that Jay, Washington, and other statesmen failed to appreciate the speed with which the empty spaces of the West would be filled by American settlers, and assumed that it would take about a generation before the balance would turn so much in America’s favor that either by diplomacy or force these concessions could then be wrested from Spain. What Jay saw was a nation, rushing headlong toward political anarchy, being forced to fight a foreign war for which it was unprepared. While Congress by a sectional vote authorized Jay to move ahead with the treaty as he had outlined it, he realized full well that under the Articles of Confederation any treaty that the Secretary for Foreign Affairs might sign had to receive the votes of two thirds of the thirteen states, and that, since five states had voted against liberalizing his instructions, the nine necessary for ratification were probably unobtainable. This lesson of the Jay-Gardoqui treaty negotiations was not lost on those framers of the Constitution who hailed from the South. They made sure that the new national charter would require a two-thirds majority of senators present for the ratification of a treaty.