Conceived in Liberty, Volume 5: The New Republic: 1784–1791

The settlers who poured into the Southwest after the war somehow expected that they would be able to trade down the Mississippi River. The Mississippi, rather than the east-west trade across the almost impassable Appalachian Mountains, was the natural trading route for the western inhabitants. Yet, it should have been evident to them that Spain, in unchallenged possession of both sides of the lower Mississippi (even the aggressive United States did not dispute Spain’s possession of West Florida below the 31st parallel), had no particular reason to open the Mississippi to American trade. Hostile to the new republic and understandably fearful of its potential expansion westward and southward, Spain was in no mood to relax prevailing mercantilist policies for the benefit of the United States. The Americans, to be sure, argued that Britain had granted the U.S. free navigation of the Mississippi in the peace treaty, but here American arguments were even more absurd than in their claims to the Southwest above the 31st parallel. Since Britain had granted West Florida to Spain, Britain had no power whatever to grant any aspect of the Mississippi, and hence the free navigation clause in law or in reason was meaningless. Yet, the western migrants who should have realized the situation reacted in anger and shock when they discovered that Spain proposed to keep the Mississippi closed to their trade.8

With the advent of peace, Spain closed the lower Mississippi River to American trade in early 1784, raising a storm of shock and bitter protests and even rumbled threats of war by some Americans. Alarmed at this frenzied reaction, Spain sent Don Diego de Gardoqui as a special envoy to New York City, where Congress was now sitting, to negotiate a treaty. The idea was to regularize all outstanding questions: territorial, political, and commercial, between the two nations, and to do this before the population explosion in the West built up enormous pressure against Spanish territory. Spain was prepared to yield a substantial amount. In particular, they were prepared to grant to the U.S. the right to trade in Spain and Spanish colonial ports, a trade that America had enjoyed during the war and had supplied hard cash for American exports. The port of Havana was particularly important in the trade with the Spanish colonies. On boundary questions, Spain was also prepared to be extremely generous, and for the sake of American quiescence was willing to abandon its well-founded claim to all the land south and west of the Tennessee River, and to be content with the Yazoo River parallel at the northern boundary of West Florida. This would have yielded all the land north of the mouth of the Yazoo, including what is now western Tennessee, most of Mississippi and Alabama, and northwestern Georgia. In return, Spain sought a mutual guarantee of boundaries, which would have meant a permanent alliance in the Western Hemisphere. On the Mississippi River question, however, Spain was adamant, and Gardoqui was not permitted to yield on it.

Gardoqui arrived at New York in July 1785 and launched continuing negotiations with John Jay, Congress’ Secretary for Foreign Affairs. Jay was sympathetic to these just and highly favorable terms, but was hamstrung by congressional orders to conclude nothing without congressional approval, nor to yield an inch of insistence upon the “right” of free American navigation of the Mississippi or on the American claim to push Spain’s West Florida boundary down to the 31st parallel. The latter claim was advanced on the absurd ground that Britain had so defined West Florida in the peace treaty—at a time when West Florida, whose boundary had always been at the Yazoo, was in Spanish possession.

Jay and Gardoqui came to agree, along Spanish-proposed lines, on a projected treaty of commerce and alliance for thirty years. The alliance provided a mutual guarantee of boundaries in the Western Hemisphere. In the commercial clauses of the treaty, Spain granted American merchants commercial reciprocity between the U.S., Spain, the Canary Islands and such ports as Havana. The merchants of either nation were to be given the treatment accorded to each country’s own citizens. The merchants were to be free to introduce all manufactures and products of either country, except tobacco, with tariffs to be worked out on a principle of reciprocity. As a special bonus, Spain agreed to help the United States oust Britain from her military forts in the Northwest Territory and to guarantee the purchase in specie of a certain amount of American hardwood every year.

Jay and Gardoqui were thus in close agreement on the terms of the proposed treaty. There remained, however, the big stumbling block of the congressional mandate for free navigation of the Mississippi. As a result, Jay decided to propose to Congress that it agree to forbear using the Mississippi for the duration of any agreed-upon treaty. In this way, Congress would not even be ceding the principle of navigation in approving the proposed treaty.

No more reasonable proposal could have been put to Congress, which received the plan at the end of May 1786. Short of making war upon Spain, which almost no one was willing to undertake, Americans would not be trading down the Mississippi in any case. Such an American claim, moreover, was unheard of in international law or polity. For the mere forbearance of exercising this “right,” America was being offered the privilege of a highly favorable trade with Spain. Yet the proposal generated a fierce controversy and split Congress into two sectional camps.

To the northern delegates there was no problem; the Jay proposal was intelligent and judicious, and it provided a welcome and important trade for America.9 Furthermore, there was a healthy distrust of the West and a realization that accelerating migration there was generating a potentially aggressive and even separatist people, sharply cut off as they were from commerce from the East by the Appalachian Mountains. The fact that land speculators in the East opposed migration in order to keep new settlers there and thus appreciate the value of their lands, does not negate the cogency of the northern position. The southern states, however, trapped in a precarious hold on the southwestern settlers, were heavily immersed in speculation in western lands, including several members of Congress. The South was largely politically and economically committed to support the western hysteria about a Jay sellout of their frenetic claims. James Madison, Patrick Henry, and Thomas Jefferson were among the Virginians in opposition. Some southerners, in contrast, were able to rise above these political and personal considerations: George Washington generally favored the treaty, as did Richard Henry Lee and his nephew Henry Lee, a member of Congress. Henry Lee’s arguments for the great advantages of a “free liberal system of trade with Spain” were really not belied by his acceptance of a bribe from Gardoqui, who was ever ready to ply sympathetic Americans with his favors.

There was another important reason for the sharp North-South sectional split on the western issue. For already slavery, rapidly disappearing in the northern states, was becoming a sectional issue. To all Americans the West meant the Southwest, for the area north of the Ohio was not only unsettled, it was largely under the control of the British military outposts. It was the Southwest that was receiving a heavy influx of new settlers. Therefore the rapid admission of new western states would magnify the political strength of the southern slave states and diminish the strength of the free North. Here was another favor propelling both southern enthusiasm, and northern hostility, toward western expansion.

Finally, after a furious struggle, Congress at the end of 1786 passed a motion by the Massachusetts delegation to abandon its insistence on Mississippi navigation and on the 31st parallel in its instructions to John Jay. The vote was seven to five, strictly sectional, with every state north of Maryland voting for repeal, and every state from Maryland southward voting opposed (Delaware was not in attendance). But the vote was a pyrrhic victory; any treaty would need the vote of nine states for approval and the southern states gave notice that they would do battle to the end. Blocked by implacable southern hostility, further negotiations had become useless, and Gardoqui broke them off in the spring of 1787. Gardoqui, moreover, had now realized that the western hysteria was now escalating into profound disillusionment with a United States that could have passed such a treaty. As a result, many in the West were beginning to toy with the idea of seceding from the United States altogether, and in some way linking up with Spain to secure free navigation of the Mississippi. In truth, the secession movement and the proposed linkage with Spain was a highly sensible western turn toward their natural southern route of trade and communication.

The idea of western secession and subsequent linkage with Spain was first broached to the fascinated Gardoqui at the end of August 1786 by Dr. James White, a congressman from North Carolina. White, a highly educated speculator in Cumberland land, was a friend and business associate of William Blount and Governor Richard Caswell, two of the dominant men in North Carolina. Shortly after his bold proposal, White was chosen for the important post of Superintendent of Indian Affairs for the Southern Department. The Spanish Foreign Minister, delighted by White’s suggestion, instructed Gardoqui that westerners could be sure of the free use of the Mississippi should they secede and then ask Spain for protection.

Meanwhile, Kentucky politics were undergoing an upheaval. In the fall of 1786 Kentucky’s military and political leader, George Rogers Clark, had raided, confiscated, and destroyed the property of several Spanish merchants in the Vincennes area of the Illinois territory. Moreover, Clark encouraged rumors that he was planning an attack on the Spanish Southwest territory to drive the Spanish out of the Mississippi. The fabulous young adventurer and intriguer General James Wilkinson, who had only come to Kentucky a few years earlier, was able to use this incident as the lever for Clark’s political downfall. Wilkinson, now the political leader of Kentucky, also conceived of the idea of western secession as well as a tie-in with Spain.

In the summer of 1787 the daring Wilkinson, determined to be the “George Washington of the West,” went along to New Orleans and there presented his scheme to the eager Spanish officials. In the interest of secession and linkage with Spain, Wilkinson advised Spain to stand firm on the Mississippi question, while at the same time he now urged friends in Congress to accept the Jay-Gardoqui Treaty, thus providing a double impetus for western revolt. Taking a secret oath of allegiance to Spain, Wilkinson persuaded the Spaniards to grant him the lucrative personal right to trade with New Orleans so as to build up a Spanish connection with the West.

In Kentucky, political power was in the hands of Wilkinson’s group who was involved in the secession scheme. Members included Harry Innes, Benjamin Sebastian, and George Muter. In addition, the Wilkinsonian John Brown was elected Kentucky delegate to the Confederation Congress. Virginia Governor Edmund Randolph, a business associate of Wilkinson’s and a heavy speculator in Kentucky lands, seemed undisturbed by hints of plans for western independence.

During 1788 the various western threads began to tie together: James Robertson, undisputed head of the Cumberland settlement, declared his willingness to join the Kentucky plans, and James White, traveling far for the cause, inducted John Sevier of the State of Franklin into the secession plan. This was not difficult, since Sevier was about to be arrested for treason to North Carolina for his Franklin activities. Sevier wrote Gardoqui of his support and asked for loans and military aid from Spain. Robertson, too, wrote to the Spanish governor of Louisiana, Esteban Miró, and proudly informed Miró that they had just succeeded in getting North Carolina to organize the Cumberland territory into the “District of Mero” named in the governor’s honor. Sevier also tried to induce the Spanish to approve the Muscle Shoals project and grant it an outlet to the Gulf of Mexico.

When Congress postponed the question of Kentucky’s admission into the Union because of the current changeover to the Constitution of the United States in mid-1788, Wilkinson saw that the hour of decision had arrived. Now in July 1788, a Kentucky convention was in session to frame a constitution for the new western state. Wilkinson, Brown and their colleagues tried hard at this convention, and at another convention in November, to push through the formation of Kentucky as an independent state and therefore a state free of the Union. But the true motives of the planners had now become public, aided by the apostasy of George Muter, and Kentucky decided to ask Congress humbly for admission to the Union. The leaders of Kentucky, lacking Wilkinson’s bold imagination and insight into western problems, had dealt a grave blow to the idea of western secession.
At the end of the year Virginia passed another act confirming the secession of Kentucky, but this time its terms of the bequest were harsher. Virginia veterans were to be allowed unlimited time to lay their claims to bounty lands in Kentucky; furthermore, Kentucky was to be required to pay her part of Virginia’s public debt. These harsh terms encouraged renewed attention to the proposal by Wilkinson, thus keeping alive the idea of secession on behalf of Spain. Kentucky refused to accept the conditions, and Virginia then agreed to rescind them in another act of separation at the end of 1789. The rest was routine: a convention completed the formation of the state of Kentucky in mid-1790 and Congress agreed to admit the new state to the Union in February 1791, and it officially became a state in June 1792. 

The rebellious lands of the Tennessee area were similarly quieted by a worried North Carolina, which agreed in early 1790 to cede its western lands to the United States. In 1790 Congress promptly created and organized the Southwest Territory consisting of North Carolina’s seceded western lands and a narrow strip southward that had been seceded to the U.S. by South Carolina in 1787. This step effectively ended the Southwest movement for secession from the U.S. The leaders of the secession intrigue were shrewdly coopted into the United States system: John Sevier, for example, was pardoned for this “treason” by North Carolina and given a handsome appointment as Brigadier General by that state; James Robertson was also made a Brigadier General. Andrew Jackson, a young North Carolina lawyer who recently moved to the Cumberland and became an ardent secessionist, was made Attorney General of the Mero District. Finally, none other than William Blount, the dominant political force in North Carolina and extensive speculator of the southwestern lands, was appointed governor of the Southwest Territory as well as Superintendent of Indian Affairs for the region.

While western intrigues with Spain were progressing, Britain, ensconced in the Northwest, was by no means quiescent. Britain’s idea was to promote a different type of secession of the West—a secession that would link up with Britain and proceed to open up the Mississippi River by driving the Spanish out of the area. During 1788, Lord Dorchester, Governor General of Canada, dispatched the veteran Tory Dr. John Connolly to sound out western leaders in Pittsburgh and Kentucky on this scheme. James Wilkinson expressed interest, and evidently kept the idea in reserve in case the Spanish project should fail. Several Pennsylvanian and western leaders were favorable to the scheme and a Committee of Correspondence was created in Kentucky to promote the plan.

In response to the rising pressures for western separation, the northern states became frightened at these rumblings and decided to reverse the decision of 1786 and reaffirm a hard line on Mississippi navigation. In September 1788, the North Carolina delegation urged stridently and preposterously that Congress resolve that the United States “have a clear, absolute and unalienable claim to the free navigation of the River Mississippi,” which was supported not only by treaties but also purportedly “by the great law of nature.” John Jay apparently felt it necessary to make public confession of his sins and he told Congress that “circumstances and discontents” had changed his views on the question of Mississippi navigation. Congress then resolved “that the free navigation of the River Mississippi is a clear and essential right of the United States,” and Gardoqui, seeing that further negotiations would be useless, promptly sailed for home in October 1789.10

• 8[Editor’s footnote] For more on the Mississippi question in the Treaty of Paris, see Rothbard, Conceived in Liberty, vol. 4, pp. 1470–79; pp. 356–65.
• 9Historians have tended to slight the advantages and manifest justice of the Jay-Gardoqui treaty. Thus, Samuel Flagg Bemis, after conclusively demonstrating the absurdity of the western claim of a “right” to navigate the Mississippi, suddenly turns upon Jay in a burst of patriotic fervor and vainglory. Samuel Flagg Bemis, Pinckney’s Treaty: America’s Advantage from Europe’s Distress (New Haven, CT: Yale University Press, 1960), p. 88. On the other hand, properly appreciative of the Jay-Gardoqui treaty is Forrest McDonald, E Pluribus Unum (Boston: Houghton Mifflin, [1979] 1965), pp. 144–46.
• 10[Editor’s footnote] Bemis, Pinckney’s Treaty, pp. 1–148; Abernethy, Western Lands and the American Revolution, pp. 317–53.