James Madison Papers

Draft of Letter to John Jay, Explaining His Instructions, [17 October] 1780

Draft of Letter to John Jay,
Explaining His Instructions

Draft (NA: PCC, No. 25, I, 239–49). This letter in JM’s hand constituted the report of the Madison (chairman)-Sullivan-Duane committee appointed on 6 October (above, Notes on Observations of Barbé-Marbois, [6–16 October 1780], headnote). Submitted to Congress on 16 October, the letter was agreed to the next day in slightly amended form, as indicated below. The version printed in the Journals of the Continental Congress, XVIII, 935–47, differs unimportantly in punctuation, capitalization, and spelling from the following reproduction of the letter from its manuscript. This letter is in the form of a commentary upon the instructions to Jay, United States minister to Spain, adopted by Congress on 4 October, after being drafted by a committee of which JM’s colleague Joseph Jones had been a prominent member (ibid., XVIII, 900–902; Jones to JM, 19 September, n. 4, and 2 October 1780, n. 9).

[17 October 1780]

The Committee appointed to draught a letter to the Ministers Plenipotentiary at the Courts of Versailles and Madrid, explaining the reasons and principles on which the instructions to Mr. Jay of the 4th. inst: are founded1 report the following to Mr. Jay, a copy of which with the resolution directing the draught, to be also inclosed to Dr. Franklin.


Congress having in their instructions of the 4th. inst: directed you to adhere strictly to their former instructions relating to the boundaries of the United States,2 to insist on the navigation of the Mississippi for the Citizens of the United States in common with the subjects of his Catholic Majesty, as also on a free port or ports below the Northern limit of W. Florida & accessible to Merchant ships, for the use of the former; and being sensible of the influence which these claims on the part of the United States may have on your negociations with the Court of Madrid, have thought it expedient to explain the reasons and principles on which the same are founded, that you may be enabled to satisfy that Court of the equity and justice of their intentions.

With respect to the first of these articles by which the river Miss. is fixed as the boundary between the Spanish settlements and the United States, it is unnecessary to take notice of any pretensions founded on a priority of discovery, of occupancy or on conquest. It is sufficient that by the definitive treaty of Paris 1763 Art. 7 all the territory now claimed by the United States was expressly and irrevocably ceded to the King of G. Britain—and that the United States are in consequence of the revolution in their Government entitled to the benefits of that cession.

The first of these positions is proved by the treaty itself. To prove the last, it must be observed that it is a fundamental principle in all lawful Governments and particularly in the constitution of the British Empire, that all the rights of sovereignty are intended for the benefit of those from whom they are derived and over whom they are exercised. It is known also to have been held for an inviolable principle by the United States whilst they remained a part of the British Empire, that the Sovereignty of the King of England with all the rights & powers included in it, did not extend to them in virtue of his being acknowledged and obeyed as King by the people of England or of any other part of the Empire, but in virtue of his being acknowledged and obeyed as King by the people of America themselves; and that this principle was the basis, first of their opposition to, and finally of their abolition of, his authority over them.3 From these principles it results that all the territory lying within the limits of the States as fixed by the Sovereign himself, was held by him for their particular benefit, and must equally with his other rights and claims in quality of their sovereign be considered as having devolved on them in consequence of their resumption of the Sovereignty to themselves.4

In support of this position it may be further observed that all the territorial rights of the King of G. Britain within the limits of the United States accrued to him from the enterprizes, the risks, the sacrifices, the expence in blood and treasure, of the present inhabitants and their progenitors. If in latter times expences and exertions have been borne by any other part of the Empire in their immediate defence it need only be recollected that the ultimate object of them was the general security and advantage of the empire, that a proportional share was borne by the States themselves, and that if this had not been the case, the benefits resulting from an exclusive enjoyment of their trade have been an abundant compensation. Equity and justice therefore perfectly coincide in the present instance with political and constitutional principles.

No objection can be pretended against what is here said, except that the King of G. Britain was at the time of the rupture with his Catholic Majesty possessed of certain parts of the territory in question, and consequently that his C——M. had and still has a right to regard them as lawful objects of conquest.5 In answer to this objection it is to be considered, 1st. that these possessions are few in number and confined to small spots. 2. that a right founded on conquest being only coextensive with the objects of conquest, cannot comprehend the circumjacent territory. 3. that if a right to the said territory depended on the conquest of the British posts within it the United States have already a more extensive claim to it, than Spain can acquire, having by the success of their arms obtained possession of all the important posts and settlements on the Illinois and Wabash, rescued the inhabitants from British domination, and established civil government in its proper form over them. They have moreover established a post on a strong and commanding situation near the mouth of the Ohio.6 Whereas Spain has a claim by conquest to no post above the Northern bounds of W. Florida except that of the Natches, nor are there any other British posts below the mouth of the Ohio for their arms to be employed against. 4. that whatever extent ought to be ascribed to the right of conquest, it must be admitted to have limitations which in the present case exclude the pretensions of his Catholic Majesty.7 If the occupation by the King of G. Britain of posts within the limits of the United States as defined by charters derived from the said King when constitutionally authorized to grant them, makes them lawful objects of conquest to any other power than the United States, it follows that every other part of the United States that now is or may hereafter fall into the hands of the Enemy is equally an object of conquest. Not only N. York Long Island & the other islands in its vicinity, but almost the entire states of S. Carolina and Georgia, might by the interposition of a foreign power at war with their Enemy be for ever severed from the American Confederacy, and subjected to a foreign yoke. But is such a doctrine consonant to the rights of nations or the sentiments of humanity? does it breathe that spirit of concord and amity which is the aim of the proposed alliance with Spain? would it be admitted by Spain herself if it affected her own dominions? Were for example a British armament by a sudden enterprize to get possession of a seaport a trading town or maritime province in Spain and another power at war with Britain should before it could be reconquered by Spain wrest it from the hands of Britain, would Spain herself consider it as an extinguishment of her just pretensions? or would any impartial nation consider it in that light? As8 to the Proclamation of the King of G. Britain of 1763 forbidding his governors in N. America to grant lands westward of the sources of the rivers falling into the Atlantic Ocean, it can by no rule of construction militate against the present claims of the United States. That Proclamation, as is clear both from the title and tenor of it, was intended merely to prevent disputes with the Indians, and an irregular appropriation of vacant land to individuals; and by no means either to renounce any part of ye cessions made in the treaty of Paris, or to affect the bounderies established by antient charters. On the contrary it is expressly declared that the lands and territory prohibited to be granted, were within the sovereignty and dominion of that crown, notwithstanding the reservation of them to the use of the Indians.9

The right of the United States to western territory as far as the Mississippi having been shewn there are sufficient reasons for them to insist on that right as well as for Spain not to wish a relinquishment of it.

In the first place the river Mississipi will be a more natural, more distinguishable and more precise boundary than any other that can be drawn eastwardly of it; and consequently will be less liable to become a source of those disputes which too often proceed from uncertain boundaries between nations.

Secondly. It ought not to be concealed that although the vacant territory adjacent to the Mississippi should be relinquished by the United States to Spain, yet the fertility of its soil, and its convenient situation for trade might be productive of intrusions by the Citizens of the former which their great distance would render it difficult to restrain and which might lead to an interruption of that harmony which it is so much the interest and wish of both should be perpetual.

Thirdly. As this territory lies within the charter limits of particular States and is considered by them as no less their property than any other territory within their limits, Congress could not relinquish it without exciting discussions between themselves & those States concerning their respective rights and powers which might greatly embarrass the public councils of the United States and give advantage to the common enemy.

Fourthly. The territory in question contains a number of inhabitants who are at present under the protection of the United States and have sworn allegiance to them. These could not by voluntary transfer be subjected to a foreign jurisdiction without manifest violation of the common rights of mankind and of the genius and principles of the American Governments.

Fifthly. In case the obstinacy and pride of G. Britain should for any length of time continue an obstacle to peace a cession of this territory rendered of so much value to the United States by its particular situation, would deprive them of one of the material funds on which they rely for pursuing the war against her. On the part of Spain, this territorial fund is not needed for and perhaps could not be applied to the purposes of the war and from its situation is otherwise of much less value to her than to the United States.

Congress have the greater hopes that the pretensions of his Catholic Majesty on this subject will not be so far urged as to prove an insuperable obstacle to an alliance with the United States, because they conceive such pretensions to be incompatible with the treaties subsisting between France and them which are to be the basis and substance of it. By Art. 11 of the Treaty of Alliance eventual and defensive the possessions of the United States are guarantied to them by his most Xn Majesty. By Art: 12 of the same treaty intended to fix more precisely the sense and application of the preceding Article, it is declared that this guarantee shall have its full force and effect the moment a rupture shall take place between France and England. All the possessions therefore belonging to the United States at the time of that rupture, which being prior to the rupture between Spain and England must be prior to all claims of conquest by the former, are guarantied to them by his Most Xn Majesty.10 Now that in the possessions thus guarantied was meant by the Contracting parties to be included all the territory within the limits assigned to the United States by the Treaty of Paris, may be inferred from Art: 5 of the Treaty abovementioned, which declares that if the United States should think fit to attempt the reduction of the British power remaining in the Northern parts of America, or the Islands of Bermudas &c. those Countries shall in case of success be confederated with or dependent upon the United States: For if it had not been understood by the parties that the Western territory in question known to be of so great importance to the United States and a reduction of it so likely to be attempted by them, was included in the general guarantee, can it be supposed than [that] no notice would have been taken of it when the parties extended their views not only to Canada but to the remote & unimportant Island of Bermudas. It is true these acts between France and the United States are in no respect obligatory on his Catholic Majesty until he shall think fit to accede to them. Yet as they shew the sense of his Most Xn Majesty on this subject with whom his C. M is intimately allied, as it is in pursuance of an express reservation to his C. M in a secret act subjoined to the treaties aforesaid of a power to accede to those treaties that the present overtures are made on the part of the United States, and as it is particularly stated in that Act, that any conditions which his C. M shall think fit to add are to be analogous to the principal aim of the Alliance and conformable to the rules of equality reciprocity & friendship, Congress entertain too high an opinion of the equity moderation and wisdom of his C M not to suppose, that when joined to these considerations they will prevail against any mistaken views of interest that may be suggested to him.

The next object of the instructions is the free navigation of the Mississippi for the citizens of the United States in common with the subjects of his C M.

On this subject the same inference may be made from Art: 7 of the Treaty of Paris, which stipulates this right in the amplest manner to the King of G. Britain,11 and the devolution of it to the United States as was applied to the territorial claims of the latter. Nor can Congress hesitate to believe that even if no such right could be inferred from that treaty that the generosity of his C. M would suffer the inhabitants of these States to be put into a worse condition in this respect by their alliance with him in the character of a sovereign people, than they were in when subjects of a power who was always ready to turn their force against his Majesty; especially as one of the great objects of the proposed alliance is to give greater effect to the common exertions for disarming that power of the faculty of disturbing others.

Besides, as the United States have an indisputable right to the possession of the East bank of the Mississippi for a very great distance, and the navigation of that river will essentially tend to the prosperity and advantage of the Citizens of the United States that may reside on the Mississippi or the waters running into it, it is conceived that the circumstance of Spain’s being in possession of the banks on both sides near its mouth, cannot be deemed a natural or equitable bar to the free use of the river. Such a principle would authorize a nation disposed to take advantage of circumstances to contravene the clear indications of nature and providence, and the general good of mankind.

The Usage of nations accordingly seems in such cases to have given to those holding the mouth or lower parts of a river no right against those above them, except the right of imposing a moderate toll, and that on the equitable supposition that such toll is due for the expence and trouble the former may have been put to.

“An innocent passage (says Vattel) is due to all nations with whom a State is at peace; and this duty comprehends troops equally with individuals.”12 If a right to a passage by land through other countries may be claimed for troops which are employed in the destruction of Mankind; how much more may a passage by water be claimed for commerce which is beneficial to all nations.

Here again it ought not to be concealed that the inconveniencies which must be felt by the inhabitants on the waters running westwardly under an exclusion from the free use of the Mississippi would be a constant and increasing source of disquietude on their part, of more rigorous precautions on the part of Spain, and of an irritation on both parts, which it is equally the interest and duty of both to guard against.

But notwithstanding the equitable claim of the United States to the free navigation of the Mississippi and its great importance to them, Congress have so strong a disposition to conform to the desires of his C. M that they have agreed that such equitable regulations may be entered into as may be a Requisite security against contraband; provided the point of right be not relinquished and a free port or ports below the 31st: degree of N. L. and accessible to Merchant ships be stipulated to them.13

The reason why a port or ports as thus described was required must be obvious. Without such a stipulation the free use of the Mississippi would in fact amount to no more than a free intercourse with New Orleans and the other ports of Louisiana. From the rapid current of this river it is well known that it must be navigated by vessels of a peculiar construction and which will be unfit to go to sea. Unless therefore some place be assigned to the U. S. where the produce carried down the river and the merchandis[e] [a]rriving from abroad may be reposited till they can be respectively taken away by the proper vessels there can be no such thing as a foreign trade.

There is a remaining consideration respecting the navigation of the Mississippi, which deeply concerns the maritime powers in general but more particularly their most Xn and Catholic Majesties. The Country watered by the Ohio with its large branches having their sources near the lakes on one side, and those running N. Westward and falling into it on the other sides will appear from a single glance on a map to be of vast extent. The circumstance of its being so finely watered, added to the singular fertility of its soil and other advantages presented by a new country, will occasion a rapidity of population not easy to be conceived. The spirit of emigration has already shewn itself in a very strong degree, notwithstanding the many impediments which discourage it. The principal of these impediments is the war with Britain which can not spare a force sufficient to protect the emigrants against the incursions of the Savages. In a very few years after peace shall take place this Country will certainly be overspread with inhabitants. In like manner as in all other new settlements, agriculture, not manufactures will be their employment. They will raise wheat corn Beef Pork tobacco hemp flax and in the southern parts perhaps, rice and indigo in great quantities. On the other hand their consumption of foreign manufactures will be in proportion, if they can be exchanged for the produce of their soil. There are but two channels through which such commerce can be carried on,—the first is down the river Mississippi—the other is up the rivers having their sources near the lakes, thence by short portages to the lakes or the rivers falling into them, and thence through the lakes and down the St. Lawrence. The first of these channels is manifestly the most natural and by far the most advantageous. Should it however be obstructed, the second will be found far from an impracticable [one]. If no obstructions should be thrown in its course down the Mississippi, the exports from this immense tract of Country will not only supply an abundance of all necessaries for the W. Indies Islands, but serve for a valuable basis of general trade, of which the rising spirit of commerce in France & Spain will no doubt particularly avail itself. The imports will be proportionally extensive and from the climate as well as other causes will consist in a great degree of the manufactures of the same countries. On the other hand should obstructions in the Mississippi force this trade into a contrary direction through Canada, France and Spain and the other maritime powers will not only lose the immediate benefit of it to themselves, but they will also suffer by the advantage it will give to G. Britain. So fair a prospect would not escape the commercial sagacity of this nation. She would embrace it with avidity; she would cherish it with the most studious care; and should she succeed in fixing it in that channel, the loss of her exclusive possession of the trade of the United States might prove a much less decisive blow to her maritime preeminence and tyranny than has been calculated.

The last clause of the instructions respecting the navigation of the waters running out of Georgia through West Florida, not being included in the ultimatum, nor claimed on a footing of right requires nothing to be added to what it speaks itself. The utility of the privilege asked to the State of Georgia and consequently to the Union is apparent from the geographic-representation of the Country. The motives for Spain to grant it must be found in her equity generosity and disposition to cultivate our friendship and intercourse.

These observations you will readily discern are not communicated in order to be urged at all events and as they here stand in support of the claims to which they relate. They are intended for your private information and use and are to be urged so far and in such form only as will best suit the temper and sentiments of the Court at which you reside, and best fulfil the object of them.14

1Besides making minor changes in the earlier portion of this paragraph, Congress altered from here on to read, “reported a draft which was agreed to as follows” (Journals of the Continental Congress, XVIII, 935).

2On 14 August 1779 Congress defined the boundaries of the United States upon which “the Commissioner … to negotiate a treaty of Peace with Great Britain” must insist (ibid., XIV, 956–59).

3JM’s affirmation that during the colonial period the English were a people distinct from the Americans, although both owed allegiance to the same monarch, harmonizes with the opening paragraph of the Declaration of Independence.

4Here, as well as in the later paragraph beginning “Thirdly,” JM’s stress upon the sovereignty of each of the thirteen states, and upon the fact that they and not the United States owned territory, squared with his position in the continuing controversy between the “big” and “little” states over the cession of the West.

5Barbé-Marbois’s “answer” to “Obj: 1” in his “Observations” bore upon this point (above, 6–16 October 1780).

6JM of course refers to, and somewhat exaggerates the extent of, the victories of George Rogers Clark acting under a Virginia commission. In 1778–1779 he and his troops erected Fort Nelson, a settlement soon named Louisville, at the falls of the Ohio River.

7Less than three months after the date of this letter, a Spanish military expedition captured the British post of St. Joseph on the southeastern shore of Lake Michigan.

8The rest of this paragraph is an addition, written by someone other than JM on a separate sheet, bearing also the note—“amendment pasd to be inserted in the Blanke in the 4 page.”

9William Macdonald, ed., Select Charters and Other Documents Illustrative of American History, 1606–1775 (New York, 1899), pp. 270–71.

10The treaty of alliance between France and the United States was signed on 6 February 1778 (Henry Steele Commager, ed., Documents of American History [2d ed.; 2 vols. in 1; New York, 1940], I, 106). Under the “Family Compact” Spain entered the war later that year as an ally of France, not of the United States.

11By the definitive Treaty of Paris, 10 February 1763, France ceded to Britain all land east of the Mississippi River except the island and town of New Orleans “provided that the navigation of the river Mississippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and expressly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its Mouth.… the vessels belonging to the subjects of either nation shall not be stopped … or subjected to the payment of any duty whatsoever” (William Macdonald, ed., Select Charters and Other Documents, pp. 263–64). Shortly after the conclusion of the Treaty of Paris, Louis XV of France ceded all of the territory of Louisiana west of the Mississippi, and including New Orleans, to his uncle, Charles III of Spain.

12A Swiss jurist, Emmerich de Vattel (1714–1767), published at Neuchâtel and London in 1758, Le droit des gens, ou principes de la loi naturelle appliques à la conduite et aux affaires des nations et des souverains. JM here translates a sentence from Book III, chap. vii, paragraph 119 (James Brown Scott, ed.; 2 vols.; Washington, 1916), II, 93–94.

13By the Royal Proclamation of 1763, the northern boundary of the newly created province of West Florida was fixed at 31° north latitude, from the Mississippi River eastward to the Apalachicola River (William Macdonald, ed., Select Charters and Other Documents, p. 268).

14Dispatched on 28 October 1780, the instructions and this letter were received by John Jay on 30 January 1781. He later remarked that the letter stated “particularly and ably the right of the United States to the free navigation of the river Mississippi …” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, D.C., 1889). description ends , IV, 738; Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, D.C., 1921–36). description ends , V, 430–31). For a continuation of the Mississippi navigation issue, see below, Bland to Jefferson, 22 November 1780.

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