Gentlemen:—
Agreeable to your resolve of yesterday, I proceed to lay before you a subject of importance, which has for some time employed the deliberation of Congress. Some time prior to my arrival at New York, Don Diego de Gardoque, the minister of Spain, appeared at the seat of Congress, and produced a commission from his Catholic Majesty to fix the boundary between the United States and the King, his master, in which was contained some general expressions that implied a power to negotiate a treaty of commerce. In consequence whereof, the United States, in Congress assembled, granted to John Jay, Esq., Secretary of Foreign Affairs, plenipotentiary powers to negotiate a treaty of commerce and fix the boundary of the United States with Mr. Gardoque, insisting as an ultimatum of the free navigation of the river Missecippey and the boundary as stipulated by the treaty with Great Britain. This subject remained
in a state of privacy until Tuesday, the 30th of May last, when a letter was received in Congress from the Secretary of Foreign Affairs, who complained of an obstruction that prevented his proceeding on the negotiation with Mr. Gardoque, and requested Congress to appoint a committee invested with equal powers to assist him in the negotiation, and desired that the existence of such a committee should be kept a secret, to which Congress did not agree, but the day following thought proper to appoint a committee to confer with Mr. Jay on the subject and give information to the House. In this situation the business remained until Tuesday, the 1st of August, when Mr. King moved to have the committee discharged and the subject referred to a committee of the House. To this proposition there arose various objections. It was at length agreed that Mr. Jay should appear before the House on the Thursday following, to give an account of his proceedings on that business, at which time the Secretary appeared and produced two letters from Mr. Gardoque, introductory to the negotiation, in which the ambassador denied the right of navigating the Mississippi to be in the United States. He used some arguments to evince the advantages that would arise to the United States by closing with the offer of the King of Spain. The Secretary then offered various reasons to discover the advantages that would arise from a treaty of commerce with Spain, and the disadvantages consequent on a refusal, and urged in pressing terms the expediency of relinquishing the right of navigating the river Mississippi for the space of 25 or 30 years, and concluded by reading the articles of the proposed treaty, the substance of which were as follows, viz.: The trade to be on principles of perfect reciprocity, a tariff to be settled by commissioners in one year after the ratification, importation to be freely made in each other’s vessels, the duties to be paid by each, in the ports of the other, the same as those paid by the natives. Masts and spars to be purchased from the United States for the use of the navy of Spain and paid in specie, provided they are as good and as cheap as those procured from the Baltic. Permission also to go to the Canaries per ports in the West Indies, and in South America to be shut, and the articles of tobacco to be prohibited in her European ports. The Secretary then withdrew, and Congress, after various debates, agreed to refer the subject to a committee of the whole, who accordingly entered on the business on Thursday, the 10th of August, and continued on that subject until Wednesday, the 23rd, at which time the committee agreed to report on Monday, the 28th, when the subject was again agitated with that warmth which might have reasonably been expected on a matter of such importance, and on Wednesday, the 30th of August, the question was taken, when seven States voted to repeal the ultimatum and give up the navigation of the Mississippi, viz., New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey and Pennsylvania. This measure was opposed by Maryland, Virginia, North Carolina, South Carolina and Georgia, who used their utmost endeavors to fall upon conciliating terms, offering to grant the King of Spain a duty of 2½ per cent. for all produce landed at New Orleans, and to forbear carrying any kind of merchandise up the river, but return in empty boats, which proposal was refused. The arguments now turned on the propriety of seven States repealing an ultimatum, which enlarged the powers of a negotiator, when nine States was required by the Federal compact to enter on treaties. Mr. King observed that nine States was only competent to enter on treaties, but seven were sufficient to repeal, and the power which could repeal the whole might certainly repeal any part. Various attempts were made to procure the yeas and nays on this important question, which was repeatedly evaded, and at length set aside by the previous question. On Monday, the 4th of September, it was agreed by the contending parties to let the matter rest until Mr. Monroe and Mr. King returned from Philadelphia, being appointed to attend the Assembly of Pennsylvania. After their return, the subject was renewed and attempts made to prevent the journals of Congress on that subject from being delivered to the Secretary of Foreign Affairs; but all in vain, for on Wednesday, the 26th of September, they were delivered up, and we have reason to fear the treaty is now on foot, if not completed. It will rest with your Honorable House to determine the expediency of instructing your delegates either to consent to or oppose the ratification, as shall appear most advisable. Thus, gentlemen, I have given you a concise account of the proceedings of Congress on the subject of the Spanish treaty. I beg leave to subjoin the reasons that induced me to oppose the measure.First. It was my opinion that the United States in Congress Assehbled are not by the Federal compact invested with power to dispose of any of the privileges, whether natural or acquired, of the individual States, without their consent first obtained. Admit the position, and our dearest privileges are rendered precarious and insecure.
Grant Congress the power excluding the Mississippi, and by parity of reason every other river in the United States must be at their disposal, which appears an absurdity, inadmissible. Vattell on the Law of Nations, in his chapter of mixed rights, observes that navigable rivers are not annexed to the sovereignty, nor can they be added to the domain without the express grant of the people.Second. The partial advantages offered by the proposed treaty, the Eastern States are to receive the benefits, by the sale of their fish and oil, which are consumed in Spain, and the Southern States are to pay the purchase, by giving up the Mississippi; whilst tobacco, the staple commodity of some of the States, is excluded, and the subjects of Spain are admitted into all our ports without exception, while the citizens of the United States are precluded from the West India Islands and South America. Spain grants us no exclusive privileges; she has it in her power to encourage the trade of other nations to a degree that may amount to a prohibition of the United States, and the reciprocity proposed by the project exists only in term. The duties paid in the ports of Spain are from 15 to 20 per cent., whilst those paid in the United States are at present 2½, and should the import take place at 5 per cent., the tariff proposed may be evaded, as it requires joint consent of parties. Under these circumstances, it is not difficult to dtermine where the balance of advantages will remain.
Third and lastly. The pernicious consequences inseparably connected with the measure, the alienation of the citizens and the depreciation of the value of the land on the Western waters. On this subject it is needless to enlarge, as the disadvantages arising therefrom must appear conspicuous to every gentleman of moderate discernment. One circumstance it may be proper to add. By a letter received in Congress on Tuesday, the 26th of September, written by Mr. Smith from London, advising Congress to guard against the British influence in the Western country.
Having annexed my reasons for opposing the treaty, you, gentlemen, will be able to judge of the propriety of my conduct. I presume every other necessary intelligence has been laid before your Honorable House by his Excellency.
December 16th, 1786.