From William Carmichael and William Short
Aranjuez April 18. 1793.
When we had last the honor of addressing you we mentioned the delay which had taken place with respect to the business with which we are charged here. We then hoped that delay had ceased as we were just informed that His Majesty had designated the person to treat with us on his behalf. We have found ourselves however much mistaken in our hope.
As soon as it was announced to us that M. de Gardoqui was the person, we waited on him and expressed to him our satisfaction that His Majesty's choice had fallen on a person so well acquainted with the subjects of which we were to treat, and also with the dispositions of the U.S. and their desire to cultivate the friendship of His Catholic Majesty. He shewed evident marks of being pleased with this nomination, and gave us the strongest assurances of his desire that a business so long depending, should be brought to a conclusion agreeable to both parties. He added that he hoped the negotiation would be carried on in the same familiar and friendly manner to which he had been accustomed in America; and other things of the sort which are always used more or less on such occasions, according to the humour of the person, and which prove nothing as to the main object.
After waiting a few days in the expectation of his announcing to us officially his nomination and fixing the time and manner of proceeding to the conferences, we learned from him that he was delayed by his powers and instructions not having been made out, which being to be done in another department was not under his control. At length we wrote him a letter on the 24th. of Febry., having concerted it with him, expressive of our desire to proceed to a communication of our respective full powers; this he desired, that he might have an opportunity of pressing the foreign department.
From that time we continued seeing him very frequently always expressing our desire to proceed to business and recieving assurances from him of his reciprocating it fully—of his having done every thing to hasten the making out his powers and instructions—of his recieving daily promises that it should be done—and of his waiting for nothing else. In this manner things passed delayed from day to day until the 23d. of March when we had our first conference.
We have now had three meetings on three successive saturdays, the ministerial occupations of M. de Gardoqui not allowing him to have them more than once a week, and not always so often; as that which was to have taken place on the last saturday was postponed by him. Although such conferences are meer conversations in order that the two parties may settle as many previous points as possible and find out what will be the best mode of discussing between them such as present the greatest difficulty, yet we think it proper to give you a general idea of what has passed in those which have already taken place, as they have discovered a disposition in this court very different from what we imagine was expected in America at the time of our commission being formed.
We begun, after having communicated the originals of our respective full-powers and interchanged copies of them, by mentioning that although they embraced a variety of objects of mutual concern to the two countries, we would confine ourselves in the first instance to the two leading ones—namely the navigation of the Mississipi, and the territorial limits. We stated these points and supported them by the arguments which are contained in your report to the President—considering always the right to the former as unquestionable, and of course the means of exercising it as the only object of negotiation.
M. de Gardoqui discovered evident signs of impatience under this statement, and much surprize, either real or feigned, at it. He assured us that no consideration whatever would ever induce his Majesty to acknowlege a right in us to this navigation—and he seemed to consider our claim to the limits under the treaty with England as extravagant and unwarrantable, regarding this treaty as an agreement made between two people to dispose of the property of a third. You will see lower down his ideas as to the acquisition of this property by Spain.
We observed to him on what he said was the determination of H M, as to the navigation, that we knew not how to suppose that H M so conspicuously remarkable among the sovereigns of Europe for his love of justice, would refuse to acknowledge a right, as soon as that right should be exhibited to his view established by proofs as unquestionable as those of a geometrical truth, and founded equally on what all men hold sacred—both natural and conventional law.
As to the former, he held the very extraordinary doctrine, for a diplomatic negotiator, of its deserving no attention, having never yet bound any power further than suited their convenience. As to the second, he considered the treaties as not giving us a right, or at least as not being obligatory on Spain, in the instance where she was not a party. You will easily suppose that such opinions were not attempted to be supported by argument. The most general and desultory assertions only were brought forward—such as that the King would never hear of the treaty made between us and England, to dispose of what belonged to him—that we had no right to navigate any where on the Mississipi but on our own shore—that he would never consent to advise H M to acknowlege our right to navigate it throughout its extent &c. &c. He would hardly agree that the exclusive right of Spain to this navigation had any beginning—and could not be brought to say precisely at what time this exclusive right did commence or how. Indeed it really appeared a point about which he was uncertain at that moment.
He was less scrupulous in affirming the origin of the right of Spain to the territory within our limits. He stated it to be by conquest during the late war. On its being observed to him that by the usages of nations hitherto respected, conquest could give only an inchoate right in any case,1 and that its accomplishment depended on treaty—and that the treaty so far from comprehending, did expressly exclude the conquest now contended for—and that Spain not being at war with us, no right of any kind could be claimed against us—the doctrine was neither acknowleged or denied, though there appeared an evident ignorance of it. It was replied to by sometimes pretending that all that was now claimed by Spain was comprehended in the cession by England of the Floridas (their previous treaty with us being considered as null and void) and sometimes by positions which would lead to a very new and unexpected system—that Spain until she had acknowleged our independence had a right to make conquests within our limits. This was laid down as the great difference between the rights of Spain and of France derivable from the successes of their arms within any part of the U.S. It was acknowleged that France for instance had no right to York town—but given clearly to be understood that if the Spanish forces had taken possession of Charleston or any other place, the case as to Spain would have been different. We could only observe thereon that we did suppose that Spain would be the last power to set on foot seriously such an unlimited system of conquest, as being certainly at least as dangerous for her as any other. And indeed we are persuaded that the length to which this doctrine was carried was more the result of the heat of conversation than of cool reflection.
When it was observed to him that this court had formerly entertained different ideas with respect to the limits, as was demonstrable from what had passed between the Count de Florida Blanca and the Mis. de la fayette, he treated that subject in the most contemptuous manner—adding that he had written to the Count on it from America, who had affirmed it to be the grossest misrepresentation on the part of M. de la fayette. We observed to him that the letters which had passed between them on that subject being in their office of foreign affairs would shew how far this had been a misrepresentation and that we must refer him to them.
It would have been evidently useless to have pressed this subject any further at that time. Had Count de Florida Blanca been still more explicit on this head, still it would probably have no weight with the present ministry. It could only serve to give additional force to argument hereafter and shew in a clearer view the injustice of the present system of this court as to that question.
M. de Gardoqui afterwards went into some detail of the manner in which this subject had been conducted with respect to him whilst employed therein in America. He complained in more clear terms of the delay which had been made use of, and which he had mentioned to us previously whenever we had pressed him and taken notice of the delay here. We observed to him that the expiring stages of a government and the transition from one form to another would unavoidably have produced that delay. To this he replied that he had remained a long time after the establishment of the new government—and that he should have remained still longer to have continued the negotiation if he had not acquired full proof that the system had been adopted on the part of the U.S. of taking no other step then, and of leaving the subject to time.
He proceeded in telling us that he and Mr. Jay had for a long time meditated on the difficulties which presented themselves—that they both had been as desirous of removing them as any persons could be expected to be in future, and that he thought they had by sacrifices on both sides succeeded as far as could be done. He said they had agreed on the basis of the treaty between themselves—but that Mr. Jay chusing to take the opinion of Congress on some parts of it (those with respect to the navigation and limits) had consulted them thereon and was to have given him their answer—that he, on his part, had announced this to his court who had from that time been expecting in vain the answer. He gave us to understand that he expected that we should be charged with this answer. He endeavored to give us from recollection the substance of what had been agreed on between him and Mr. Jay. It was as follows.
Commerce—Conformable to the articles annexed to his letter to Mr. Jay of the 25th. of May 1786. which you forwarded to us—he stated them as being the propositions of Mr. Jay, to which he had assented. Limits—to begin somewhere about the mouth of the Yazou—from thence a straight line in that parallel to the Apalachicola, from thence towards St. Mary's river by a line about the direction of which he seemed uncertain, and down that river to the ocean. The Navigation of the Mississipi—to be used in the following manner: our citizens to carry their productions in their own vessels to the limits agreed on where magazines should be constructed—from thence they should be taken by Spanish boats and carried to N. Orleans—if there should not be Spanish boats enough for that purpose (although he was convinced there would be) then he thought the American boats passing on to N. Orleans would be connived at. Whether our vessels were to be allowed to come from the sea to recieve these productions at N. Orleans was to be the subject of further negotiation, as well as the toll to be paid. And all this they could not consent to insert in a public treaty, lest other nations should claim a like admission into this colonial possession; and was therefore to have been a private article. He took the precaution of adding that no answer having been given by Congress on Mr. Jay's reference to them no decision therefore had been taken thereon by his court; and of course he could not pretend to say that H.M. would consent to these conditions at present, although he would have done it formerly.
He was assured that no decision on such articles would ever be asked from him by us—nothing respecting such having been communicated to us by you was a convincing proof that government had considered them not capable of being deliberated on.
In the course of these conferences he had mentioned that the limits and navigation were objects of much less importance than we appeared to make them—both Spain and the U.S. having much more territory than they knew what to do with, and the use of the river against stream being impracticable even if allowed by Spain. We observed thereon that taking these positions for granted, he must agree that the King of Spain was much more the uncontrolled arbiter of limits, and much less obliged to consult the prejudices (as he seemed to consider them) of the inhabitants, than was the government of the U.S.—that moreover by our constitution the limits of each state were guaranteed to them—and therefore not under the control of the general government—that as to the navigation, if impracticable, it would not be exercised, and consequently that Spain should have no objection to recognize our right thereto, and that not doing it under that view of the subject, shewed that much less importance was annexed to the friendship of the U.S. than we had hoped.
It was replied to this that the admission of foreigners to any of the Spanish colonial possessions was an innovation, and that Government was much more averse to the smallest innovation, in any of their colonial regulations, than in those at home (the exception in favor of French vessels for a limited time being a case of necessity which of course did not admit of its being taken as a general rule)—and further that although it was evident the current of the river would not admit of its being ascended for the purposes of commerce, yet it facilitated the descent; and that European manufactures carried through the U.S. into the Western country would be brought down the river, and smuggled into their possessions, if our vessels were allowed to go there. He seemed also to fear much the propagation of principles of independence among them by communication with our citizens. We obviated both objections as we thought, and shewed that the U.S. would have an interest to see the Spanish possessions dependent on Spain if they enjoyed all they claimed, which was the navigation of the river. He said this would be the case if men were reasonable enough to follow what was their interest, but that there were so many instances to the contrary (he cited the attempts of France to propagate their own principles as a living instance) that such considerations were little to be relied on.
The conduct of their agents in America with respect to us in at least exciting the animosity of the Indians towards us, was incidentally touched on—it was roundly denied and affirmed on the contrary that their standing instructions were directly opposed thereto. We told him the U.S. had no doubt of the dispositions of H.M. on such subjects and of course were persuaded that the conduct of those agents was not warranted thereby—but that the proofs of their conduct were established on the strongest testimony. It was evident however that it did not appear so to him. We shall have occasion necessarily to bring forward this subject in more serious terms and accordingly it was not pushed further at that time.
M. de Gardoqui deviated from it to complain in very bitter terms of the manner in which the Spanish navigation and commerce had been treated by the regulations of the U.S. He said that the few vessels of this country which were formerly employed were completely expelled from thence. When we observed to him that whatever regulations had been made, were common to all foreign countries, and that Spain though without a treaty was treated as the most favored nation there, he insisted that whatever might be the appearance the effect was not so, since as the Spanish commissaries had informed them, their vessels had ceased going to the ports of the U.S. whilst those of other nations went there. Spain he observed was a country sui generis as to commerce—that there was no reciprocity in the treatment respectively of Spanish subjects and American citizens in America and Spain. He advanced that Spain had no need of the U.S.—whereas the U.S. having no mines of gold and silver2 could not do without Spain in order to procure these indispensable articles. However absurd this may appear, and whatever ignorance it may betray of the true principles of commercial and political economy, yet we are persuaded they are his real sentiments.
It would have been lost labor to have combated rooted prejudices of that kind by serious argument. We only replied to them therefore by observing that as long as food should continue to be an indispensable ingredient in the wants of men, we trusted that cornfields would be found to be the surest and most inexhaustible mines of gold and silver. We added that we were persuaded however that nothing hostile had been intended against the commerce of Spain—and that he would find that the U.S. had the fullest disposition on the contrary to cultivate and increase the commercial relations of the two countries.
He told us (which he seemed to desire we should consider as a proof of his frankness) that he had advised His Majesty, immediately on being informed of our regulations, to levy an additional duty on our fish and flour, as the surest means of making us treat them differently. This additional duty was intended as an excess to be paid by us above other foreigners; and he informed us that it was only delayed to take place with a general regulation of their commercial system which he was about forming. We doubt however whether what he told us of the additional duty has been hitherto seriously intended—although we cannot assure you, should the growing connexions between this country and England be carried to the degree of which they seem susceptible under present circumstances, that this menace would not be realized in favor of the English fishery.
From this general statement of what has hitherto passed here you will see that their ideas at present with respect to the two leading objects of our commission are out of the circle of negotiation under the instructions we received from you. It was matter of embarrassment therefore to us not to have been informed what overtures had been made from this court and induced the President to send a commission for treating here, after Mr. Carmichael had informed you of their intention to send a minister for that purpose to America.
We found ourselves placed therefore under circumstances of much delicacy arising from the explicit declarations of M. de Gardoqui,3 and the present unsettled relations of this country with England.4 Had we insisted on the sine quibus non5 of your instructions as preliminaries we should inevitably have been obliged to have broken off the conferences which could not have been done without eclat, as an express commission had been sent here for the purpose of treating. It was evident that this would have been playing into the hands of England by exciting alarm in this court with respect to us. We have therefore thought it our duty to temporize and without giving any hope of our abandoning any part of our rights we have proceeded to canvass the subjects of our commission in general as has been stated to you. Under other circumstances we should have proceeded immediately to have6 supported them by the arguments which your report to the President furnishes, and which could have been opposed only by an open and manifest refusal of incontrovertible right and of course exhibited to the view of all the world the justice of resorting to other means for obtaining it. At present we should unquestionably obtain nothing by urgency. And as we have full conviction that they would now refuse what we should insist on, we should not be the wiser for7 forcing them to express this determination by writing.
We think it our duty therefore to give it as our opinion that whatever preparatory8 steps would be taken by government in the case of this refusal of our right, should be taken under present circumstances as we consider unquestionable the determination of this court to refuse it when pressed. Our intention is not to press this determination until we shall see with more certainty the influence of French affairs on them and their connexions with England. As great changes have taken place therein (since your instructions were given) with which you will have been duly made acquainted, we flatter ourselves also with learning soon the further intentions of the President arising therefrom. Should the conferences in the meantime come to a close we shall endeavour that it be without recieving9 such a refusal as it might be difficult for them to retract from hereafter.
No body can say what changes may take place in the relations of European powers nor in how short a time. We do not scruple however to say that until some considerable change shall take place from the present and excite the alarms of this country with respect to England, they will not be induced by meer negotiation to yield our rights. Such a position however we believe did exist at the time of the Nootka negotiation and we think it probable that such will occur again.10
Whatever may occur, or whatever progress may be made in any direction you may count on being informed of with as much expedition and punctuality as may depend on us. This would be done sooner and more regularly if we were not obliged to wait for such conveyances11 as it may be proper to make use of. This will be sent under cover to Colo. Humphreys by an express despatched from hence by the Portuguese Ambassador. We have the honor &c.
PrC (DLC: Short Papers); in Short's hand, with conclusion of letter added in ink by him (see note 11 below); written partly in code (see note 4 below); at foot of first page: “The Secretary of State for the United States. Philadelphia.” Dft (same); in Short's hand; consists of small sheet pasted to PrC containing several paragraphs written en clair with words to be encoded underscored (see notes 3 and 10 below); only emendations affecting content have been noted below. Tr (CtY); entirely en clair; at head of text: “(Duplicate)”; contains minor variations in wording. PrC (DLC). Tr (DNA: RG 46, Senate Records, 3d Cong., 1st sess.); entirely en clair; at head of text: “(Duplicate)”; contains minor variations in wording. Tr (Lb in same, TR); entirely en clair. Recorded in SJL as received 22 July 1793. Enclosed in TJ to Thomas Pinckney, 11 Sep. 1793.
- Preceding three words interlined.
- Preceding two words interlined.
- Dft begins here.
- Except where noted, these and subsequent words in italics are in code, the text being supplied from Short's Dft and verified by the Editors using partially reconstructed Code No. 10.
- Words written en clair and underscored by Short.
- In Dft Short wrote “reduced our claims to writing and.”
- Here in Dft “making” is canceled.
- Word interlined in Dft.
- Sentence to this point and preceding sentence interlined in Dft in place of heavily emended section which originally read “Should that be delayed too long, to bring the conferences to a close without exacting a positive re.”
- Dft ends here.
- From this point Short completed the PrC in ink.