Article Title: "Letter from the Minister of Spain to the Secretary of State. Exchange between minister Yrujo and Pickering about rights of navigation on the Mississippi and also the principle of ""free ships make free goods."" "
Author:
Published in: Connecticut Courant
Place of Publication: Hartford, CT
Publication Date: 6/19/1797




[No. XVI.]
Letter from the minister of Spain to the Secretary of State, dated 6th May, 1797.
(TRANSLATION.)
SIR,
The king, my master, desirous of drawing closer the connections of friendship and good correspondence already subsisting between Spain and the United States, concluded with them on the 27th of October, 1795, a treaty dictated by the most generous principlesopening to the Americans the navigation of the Missisippi to the ocean, and ceding to the United States a considerable portion of territory, by agreeing to draw a line of demarcation between the possessions of both parties. Equally, animated by the desire of diminishing for humanity the horrors of war, he adopted the liberal principle, that free ships shall make free goods. This stipulation was in reality an incalculable advantage to the American citizens, who, by the extention of their navigation, the geographical situation of their country, and the nature of their political connections at that epocha, promised a neutrality as advantageous as durable. At the same time his majesty agreed by the said treaty, that articles necessary for the construction and repair of vessels should not be deemed contraband. In a word, the concessions on the part Spain, for cementing a sincere union between both nations were such, that the treaty was received throughout the United States with enthusiasm, and with the most evident marks of general approbation. In these circumstances, the king my master, who had to efficaciously advanced the interests of America, promised himself, by the effect of a good correspondence, as sacred among nations as between individuals, that the United States at least would not contribute to the injury of Spain.
What should be the surprize of his majesty on knowing that this country had contracted engagements with England prejudicial to his rights and to the interests of his subjects, nearly at the same time in which, with so much liberality, he was giving to the United States the most striking proofs of the most sincere friendship.
Upon the whole, the king, my master, well persuaded that England, in her treaty with America, had surprised the good faith of the federal government, reserved to himself to make, on a proper opportunity, the necessary representations ; not doubting but that the United States would place Spain, in relation to other powers, upon that footing of equality without which the neutrality adopted by America would exist only in appearance, be purely nominal. But experiencing, since the declaration of the war against G. Britain, injuries and evils which be had foreseen from the moment he was informed of the English treaty, he finds himself under the necessity of anticipating this step, and therefore had ordered me to make to this government, thro you, the following observations:
By the 15th article of the treaty concluded between his majesty and the United States, it is stipulated that the subjects of the king, and the American citizens, may navigate with their vessels and cargoes freely to all the ports except such as are declared blockaded, making the neutral flag secure the goods which they may have on board ; so that they cannot be seized even tho they should belong to an enemy. His majesty hastened with pleasure to adopt a principle to useful to humanity, altho for the relations hinted above, it was to operate more advantageously to the American citizens than to his subjects.
His majesty ought to have expected on the part of the American government, disposition equally friendly, and as their adoption would not prove injurious to those powers who should establish them, that this should form a general rule in all their engagements of a like nature ; but unfortunately, the 17th article of the English treaty has dissipated this agreeable hope, for it not only permits English vessels to take and carry into port those of America, upon the arbitrary ground of suspicion, but also to take and seize enemy property or merchandize found under the American flag. In short, the principle, That Free ships make free goods, was then destroyed ; and his majesty is reduced to the disadvantageous situation of feeling the property of his subjects seized with impunity, under the safeguard of neutrality, whilst a state of war requires that his squadrons and ships should respect English property, on board of American vessels. Can it then be supposed, with good faith, that the king intended voluntarily to go into a stipulation, the observance of which should require from his subjects nothing but detriment and injury ? An adherence to the principle adopted by the king implicitly lead him to a reciprocity complete in all its circumstances.
Nor are the injuries to Spain, arising out of the 18th article of the treaty with Great Britain, less palpable. From it, like the proceeding, arise great losses to the American navigation ; but the damages which the subjects of the king and his royal service experience, are still of much greater confederation. By that article England and the United States agree, that timber for ship-building, tar, rosin, copper in sheets, sails, hemp, cordage, and generally whatever may serve directly to the equipment of vessels shall be declared contraband. In the 16th article of the treaty with Spain, after enumerating those articles which should be deemed such, it is stipulated that all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sailcloth, anchors, wood of all kinds, and all other things proper for the construction and repair of vessels, shall be looked upon as articles, of free commerce. What then is the consequence of those contradictory stipulations ? Is it not abandoning to English the exclusive commerce of naval stores ? And is it not giving her, in a maritime war like the present, a powerful arm, which she uses to the injury of Spain, whilst the latter must suffer from avarice or the high price of an article to her to absolutely necessary ? You will say in reply, that Spain entered voluntarily into these stipulations ; but could it ever have been expected, that America would have made almost at the same moment, such, on her part, as should cause the king my master to repeat of his generosity and great beneficence?
In the preamble to the Spanish treaty, its object is said to be for the mutual advantage and reciprocal utility of both countries: I leave you to determine what advantages either Spain or America can derive from the 15th and 16th articles of their treaty, whilst those of the 17th and 18th of the English treaty remain in full force.
Thus far I have represented merely the injury done to the interests of Spain ; but, I shall now state to you a point in which her rights are essentially concerned; I mean the navigation of the Missisippi.
The just ground upon which Spain refused to acknowledge the mutual and illegal cession which England made to the United States, in the 8th article of the treaty of 3rd Sept. 1783, of the free navigation of the Missisippi to the ocean : the necessity in which America has found herself of recurring to a special treaty with Spain, for obtaining it, and above all, the tenor of 4th article of the said treaty, in which it is agreed that the free navigation of the said river to the ocean belongs exclusively to the subjects of the king and to the citizens of the United States, had given his majesty reason to believe that the federal government by this stipulation, annulled as illegal, the claim which it had made with England, as to this point, in the 8th article of the treaty of 1783. But his majesty has seen with equal surprise, that the United States not only pretend to confirm that right to England by the 3d article of their commercial treaty, but that they have since the conclusion of that with Spain, in which the navigation of the Missisippi is confined exclusively to the Spaniards and Americans, agreed to the explanatory article signed here by yourself and the English Charge des Affaires, Mr. Bond, on the 4th of May, 1796, in which it is declared, that no other stipulation or treaty concluded since by either of the contracting parties with any other power or nation is understood in any manner to derogate from the right to the free communication and commerce guaranteed by the 3d article of the treaty to the subjects of his Britannic majesty.
The king my master finds so much the more difficulty in reconciling this stipulation concerning the navigation of the Missisippi in article 3d of the English treaty, confirmed by the explanatory article of the 4th of May, with the 4th article of that with Spain, as on examining the original right of England, none is found to exist, and the United States alone hold that which Spain ceded in the said article of the treaty with them. In order to convince you of this, let us examine the stipulation of the former treatiesor which I give the following extract.
By the 6th article of the preliminary treaty made on the 3d November 1762, between France and Great Britain, and by the definitive treaty signed on the 10th of February, 1763, it is stipulated that all that part of Louisiana situated on the east of the Missisippi, excepting New-Orleans and its dependencies, should belong to Great Britain.
By the 8th article of the provisional treaty concluded between the United States of America and Great Britain, on the 30th of Nov. 1782, and the definitive treaty signed on the 3d of Sept. 1783, it is stated, that the navigation of the Missisippi from its force to the ocean shall forever remain and be free to the subjects of G. Britain and the citizens of the United States.
By the preliminary articles of the treaty concluded between Spain and England, and definitive treaty signed on the 3d of September, 1783, Great Britain ceded to Spain all East and West Florida, which two provinces were the only territory that that nation had remaining in this part of the continent.
In the 5th article, in which this cession is stipulated, not a single word is said relative to the navigation of the Missisippi, nor do the other articles say any thing on the subject.
When England signed these preliminary articles with the United States of America, in 1782, Great Britain still held all the right to East and West Florida, because then she had not ceded forever those provinces to Spain, as is proved afterwards by the treaty of 1783, and without the least mention therein of the Missisippi.
Therefore England, having ceded East and West Florida in 1783, and not having referred the right to the navigation of the navigation of the Missisippi, of course lost it entirely when she made Spain mistress of the two banks.
The only right which the United States had in the navigation of that river was founded on the stipulations derived from EnglandBut having changed their political existence by the declaration of their independence, and having by this act separated their interest from those of Great Britain, the liberty of navigating Missisippi did not follow to the United States, but by a special treaty which had just been concluded between Spain and this country.
So far goodHow can the United States without the consent of Spain, cede to England the right of navigating the Missisippi which is granted only to themselves ? And in virtue of what privilege can the federal government give the navigation of this river to a nation who has renounced all her rights thro the medium of solemn treaties, and who not only does not hold a single port, but also does not possess a single inch of land on its banks ?
This single exposition in conjunction with the opinion of all jurists, that the navigation of rivers naturally belongs to him who possesses the two banks, evidently manifests the injury done to the rights of Spain in the third article of the English treaty, and the explanatory article signed on the 4th of May, 1796.
The king of Spain, desirous of preserving the best harmony and friendship with this country, as protector of the interests of his subjects, has ordered me to represent to this government what I have just mentioned, and his majesty relying upon the equity of his demands, hopes that the United States, animated by the fame sentiments, will come to a composition, which without injuring the American citizens, shall assure the happiness of his subjects, and guard the rights of his sovereignty.
I with the pleasure embrace this opportunity of renewing my wishes to serve you, and what God may preserve your life many years. Your most obedient servant,
CARLOS MARTINEZ DE YRUJO.Timothy Pickering, Esq.,Secretary of State.
Philadelphia, 6th May, 1797.
Faithfully translated from the original, by
GEORGE TAYLOR, Jun.[No. XVII.]
Letter from the Secretary of State to the Minister of his Catholic Majesty, dated May 27, 1797.Department of State, Philadelphia, May 17, '97.
SIR,
I have the honor to acknowledge the receipt of your letter of the 6th inst. which has been laid before the President of the United States. It contains three subjects of complaints, as arising out of the treaty of amity, commerce and navigation between the United States and Great Britain. 1. That the principle that free ships make free goods, is thereby destroyed : the 17th article not only permitting English vessels to take and carry into port those of America, upon the arbitrary ground of suspicion, but also to take and seize enemies property or merchandize found under the American flag.
2. That by the 18th article of that treaty, timber for ship building, tar, rozin, copper in sheets, sails, hemp and cordage, generally, what ever may serve directly to the equipment of vessels, are declared contraband.
3. That by the 3d article of that treaty, and the explanatory article thereto, the United States have ceded and confirmed to Great Britain the right of navigating the river Missisippi ; a right which you say the United States themselves acquired by virtue of their treaty with Spain.
Your letter also contains various intimations, which, in connection with these three copies of complaint, it will be proper for me to notice.
It is very true that our treaty with Spain was received throughout the United States with satisfaction and general approbation ; because it closed a dispute which had been pending many years between the two countries, by his Catholic Majesty's acceding to the claims of the United States (which they deemed founded in right) to the free navigation of the Mississippi, from its fource to the ocean ; and to their southern boundary line as described in the treaty of peace of 1783, between the United States and Great Britain. We are also satisfied with the engagement of his Catholic Majesty to compensate our mercantile citizens for the losses they had sustained by the capture of their vessels and cargoes by teh subjects of his majesty, during the late war between Spain and France. All these were acts of substantial justice which were necessarily approved by every upright mind. All the other stipulations of the treaty between the United States and his Catholic Majesty were wholly voluntary, and perfectly reciprocal ; so that neither of the two contracting parties could say that they had granted or received a favor. I make this observation because of the numrerous intimations in your letter, that by these other stipulations, benefits and advantages had been granted by his Catholic Majesty to the United States, without receiving from them any equivalent : intimations for which we see no foundation. To instance in the articles which constitute the two first subjects of your complaint.
1. Free ships make free goods. It is impossible that the two contracting parties should ever have conceived that this rule, as between themselves, could have any operation, except when one was at wawr and the other at peace. The United States being in the latter situation, have a right to carry in their vessels goods of the enemies of Spain, without being liable, on that account to capture. On the other hand, if the United States were at war, and Spain at peace, her subjects would have a right to transport in their vessels the goods of our enemies, free from capture by the armed vessels of the United States. And thus this stipulation is exactly equal on both sides.
2. Ship timber, and naval stores are, by the laws of nations, contraband of war : but the United States and Spain, for their mutual benefit, agreed to consider them as free goods, in order that either party remaining at peace might safely continue its commerce in those articles, even by carrying them to the enemies of the other. And thus this rule will operate equally like the former.
You compare the liberal stipulations in these two articles with those of a contrary nature in the treaty between the United States and Great Britain ; and ask, what should be the suprize of his Catholic Majesty on knowing of the latter engagements ?After remarking, that if those stipulations were liberal on the part of Spain, they were alike liberal on the part of the United States seeing they were perfectly reciprocal ; permit me to say, that the engagements with Great Britain do not appear to offer any cause for " surprize," on the part of his Catholic Majesty ; because his majesty had seen, during the whole course of the American war, how steadily Great-Britain persisted, in opposition to the demands of all the maritime powers, to maintain her claims under the law of nations, to capture enemies property, and timber, and naval stores as contraband in neutral ships. His majesty had also seen in the present war, in which he was for a time a party with Great Britain against France, that Great Britain continued to avow, and practice upon the same principles. And with such a perfect knowedge of the principles conduct of Great Britain ; and while she was still engaged in the war with a power which she strenuosly endeavored to deprive of timber and naval stores, and whose mercanile shipping was greatly reduced ;could his Catholic Majesty expect that Great Britain would relinquish her legal rights, to a nation (the United States) which abounded in materails for building and equipping ships, and whose vessels adapted to the carrying trade traversed every sea and visited every part of the globe ?You seem to imagine there is the more reason for " surprize," because, as you say, the engagements between the United States and Great Britain were contracted " nearly at the same time""almost at the same moment"with our stipulations with his Catholic Majesty :But allow me to bring to your recollection the periods when these different treaties were formed. That with Great Britain was concluded on th 19th day of November, 1794 : That with Spain, on the 27th October, 1795.Further, the treaty with Great Britain was published in Philadelphia, on the first day of July, 1795 ; almost four months before the treaty with his Catholic Majesty was concluded ; and nearly ten months before it received his ratification, at which time (Spain and the United States being then at peace with all the world) it does not appear that his Catholic Majesty found the smallest difficulty in giving his final sanction to his treaty with the U. S. on account of their prior treaty with Great Britain. Moreover, Mr. Thomas Pinckney, who negociated the treaty with Spain, being privy to the whole negociation with Great Britain, and perfectly acquainted with every article of the British treaty, it is hardly to be doubted, that he communicated to the prince of peace every information concerning it which had any relation to his negociation with Spain. The mode of proceeding in the cases of captures of American vessels, is precisely the same in both treaties and the most material expressions in the 7th article of the British treaty, are copied into the 21st of the treaty with Spain.
I am now to consider your third complaint.That relating to the navigation of the Missisippi.
You enter into an examination of the right of the United States to this navigation ; and draw this conclusion, That there right is derived solely from the cession of his Catholic Majesty, by the 4th article of his treaty with the United States : hence you are induced to ask, " How can the United States, without the consent of Spain, cede to England the right of navigating the Missisippi, which is granted only to themselves ?"If, Sir, your statement was correct, there could be no question in the case. If the right of the United States to the navigation of the Misisippi originated in their treaty with Spain, which was concluded on the 27th of Oct.1795, it requires no argument to prove that they could not have granted the right of that navigation to Great Britain on the 19th of November, 1794.
But I might deny that the United States ever granted the right of navigating the Missisippi to Great Britain. A recurrence to the treaties to which you refer, will prove that she possessed that right by the peace of 1763 ; and that she has never formally relinquished it. I do not, indeed, conceive the enquiry essential to the subject of your present complaint ; but as you have thot fit to go into it, you will allow me to follow you.
By the definitive treaty of peace concluded the 10th of February 1763, France, then possessed of Louisiana, ceded to Great Britain all her possessions on the east side of the Missisippi, except the town and island of New-Orleans. And it was likewise stipulated " That the navigation of the river Missisippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its whole length and breadth, 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 people of the United States being then subjects of the king of Great Britain, they of course participated in the right of navigating the river Missisippi : and by the 8th article of the provisional treaty between the United States and Grat Britain, concluded the 30th of November 1782, and the definitive treaty of peace concluded the 3d of September 1783, this right was confirmed ; it being therein stipulated, that " the navigation of the river Missisippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States."
By the definitive treaty of peace between Spain and Great Britain, concluded the 3d of September 1783, the latter ceded to Spain " East-Florida, as also West-Florida ;" but the river Missisippi, as you observe, is, not even mentioned in the treaty. What is the just inference from this circumstance, the United States need not decide. Doubtless Great Britain conceived it important to hold a right to the navigation of it : and all parties, at that time, certainly supposed that parts of her territories joined its eastern side, and propably no one can now say they do not. But however this silence with regard to the navigation of the Missisippi, in the treaty between Spain and Great Britain, may be construed whether the latter by not reserving, is to be considered as relinquishing her right to it : or by not expressly relinquishing, is to be understood to retain it ; it is proper to consider the nature and effect of the stipulations on this subject, between her and the United States, (Concluded in the last page.)
(Continued from page second.)
When peace was made between the two powers in 1783, both were entitled to the free navigation of the Missisippi ; and both desiring to preserve this right, they mutually stipulated for its continuance : but neither pledged to maintain it for the other : though each is bound not to interrupt the other in the exercise of that right. The treaty of London concluded on the 19th of November 1794, contains, as to this point, no new grant, on either side : but their respective rights are recognized : it being declared, in the 3d article, that " the river Missisippi shall according to the treaty of peace, be entirely open to both parties." Had this declaration been wholly omitted, the right of Great Britain to the Missisippi would have been neither increased nor diminished. But because the 4th article of the subsequent treaty with Spain, excited some apprehensions in Great Britain, that it might countenance an attempt to exclude her from the navigation of the Missisippi, the explanatory article which you mention was formed, declaring, That no stipulations in any treaty subsequently concluded by either party can be understood to derogate from the rights of free intercourse and commerce secured by the said third article to the subjects of his Britannic majesty, and to the citizens of the United States.The fourth article of our treaty with Spain received its peculiar form with the design that it might not derogate from the prior stipulations of the United States with Great Britain. And this, as I shall presently show you, was perfectly understood by the government of Spain. And let me assure you, that the federal government no more seeks the excuse, than it merits the imputation " that England, by her treaty with America, had surprised its good faith."
In discussing their respective projects of a treaty, it appears that the prince of peace, on the part of Spain, proposed that Mr. Pinckney, on the part of the United States, should enter into a stipulation which would have gone to the exclusion of Great Britain from the navigation of the Missisippi. To this project Mr. Pinckney returned the following answer :
" The words ' alone' and ' exclusively' should be omitted ; for Spain could scarcely confide in the good faith of the United States, or in the convention she is about to conclude with them, if they agreed to an article which would be an infraction of a treaty previously concluded : for by the treaty of peace between the United States and Great Britain, concluded in 1783, it is stipulated that the navigation of the river Missisippi shall continue free to the subjects of Great Britain and to the citizens of the United States."
Here, sir, you see that the federal government, far from " giving his Catholic majesty (as you suggest) reason to believe that they had annulled, as illegal, the claims which they had made with England, as to this point, in the 8th article of the treaty of 1783"expressly declared that the attempt would be a violation of the good faith of the United States pledged to Great Britain in the treaty.
To get rid of the embarrassments, the particular form of expression which we find in the fourth article of the treaty with Spain was adopted. You will observe, sir, that this, like every other treaty, contains, generally, the joint stipulation of the contracting parties. Such is the stipulation of the United States and Sain in the beginning of the 4th article : " It is likewise agreed that the western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel or bed of the river Missisippi, from the northern boundary of the said states to the completion of the thirty first degree of latitude north of the equator." Then follows the clause respecting the navigation of the Missisippi. " And his Catholic majesty has likewise agreed that the navigation of the said river, in its whole breadth, from its source to the ocean shall be free only to his subjects, and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention." Here Spain is the sole party to the excluding clause. And the 21st article of the treaty presents a similar instance of a joint and separate stipulation. The two contracting parties jointly agree on the mode of adjusting the claims of American citizens for the losses they had sustained from the capture of their vessels by the subjects of Spain : and then " His Catholic majesty undertakes to cause the same to be paid."Now it might with as much propriety be affirmed that the United States are by this clause bound to contribute (and equally with his Catholic majesty) to those payments, as be inferred from the declarations of his Catholic majesty singly, in the 4th article, relative to the exclusive navigation of the Missisippi, that the United States have thereby engaged to exclude from it the subjects of Great Britain.
The simple fact is, that the United States were contending with Spain for the free navigation of the Missisippi for themselves ; and by this clause in the fourth article of the treaty their claim was admitted. Any declaration of his Catholic majesty alone, to exlude other nations, was to them quite immaterial.
Thus, sir, I have answered to all your complaints, and, I hope, satisfactorily. The United States equally with his Catholic majesty, are desirous of preserving the best harmony between the two countries ; and the American government will always be disposed to adopt any proper measures for that end.
I have the honor to be,
with great respect, Sir,
Your most obedient servant,
TIMOTHY PICKERING.The Chevalier de Yrujo,Envoy Extraordinary, and Minister Plenipotentiary of his Catholic Majesty to the U. States of America.



Connecticut Courant 6/19/1797 2:3-5
CITATION SEARCH THUMBNAILS DOWNLOADS PDF VIEWER PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00002327/00001
 Material Information
Title: Connecticut Courant 6/19/1797 2:3-5
Physical Description: Unknown
 Record Information
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: aleph - 0000000-1
oclc - 747453175
System ID: UF00002327:00001

Downloads

This item has the following downloads:

( PDF )

( TXT )


Full Text


Article Title: "Letter from the Minister of Spain to the Secretary of State. Exchange between minister
Yrujo and Pickering about rights of navigation on the Mississippi and also the principle of '"'free ships
make free goods.'"""
Author:
Published in: Connecticut Courant
Place of Publication: Hartford, CT
Publication Date: 6/19/1797




[No. XVI.]
Letter from the minister of Spain to the Secretary of State, dated 6th May, 1797.
(TRANSLATION.)
SIR,
The king, my master, desirous of drawing closer the connections of friendship and good
correspondence already subsisting between Spain and the United States, concluded with them on the
27th of October, 1795, a treaty dictated by the most generous principlesopening to the Americans the
navigation of the Missisippi to the ocean, and ceding to the United States a considerable portion of
territory, by agreeing to draw a line of demarcation between the possessions of both parties. Equally,
animated by the desire of diminishing for humanity the horrors of war, he adopted the liberal principle,
that free ships shall make free goods. This stipulation was in reality an incalculable advantage to the
American citizens, who, by the extention of their navigation, the geographical situation of their country,
and the nature of their political connections at that epocha, promised a neutrality as advantageous as
durable. At the same time his majesty agreed by the said treaty, that articles necessary for the
construction and repair of vessels should not be deemed contraband. In a word, the concessions on
the part Spain, for cementing a sincere union between both nations were such, that the treaty was
received throughout the United States with enthusiasm, and with the most evident marks of general
approbation. In these circumstances, the king my master, who had to efficaciously advanced the
interests of America, promised himself, by the effect of a good correspondence, as sacred among
nations as between individuals, that the United States at least would not contribute to the injury of
Spain.
What should be the surprise of his majesty on knowing that this country had contracted engagements
with England prejudicial to his rights and to the interests of his subjects, nearly at the same time in
which, with so much liberality, he was giving to the United States the most striking proofs of the most
sincere friendship.
Upon the whole, the king, my master, well persuaded that England, in her treaty with America, had
surprised the good faith of the federal government, reserved to himself to make, on a proper
opportunity, the necessary representations ; not doubting but that the United States would place
Spain, in relation to other powers, upon that footing of equality without which the neutrality adopted by
America would exist only in appearance, be purely nominal. But experiencing, since the declaration
of the war against G. Britain, injuries and evils which be had foreseen from the moment he was
informed of the English treaty, he finds himself under the necessity of anticipating this step, and
therefore had ordered me to make to this government, thro you, the following observations:
By the 15th article of the treaty concluded between his majesty and the United States, it is stipulated
that the subjects of the king, and the American citizens, may navigate with their vessels and cargoes
freely to all the ports except such as are declared blockaded, making the neutral flag secure the
goods which they may have on board ; so that they cannot be seized even tho they should belong to
an enemy. His majesty hastened with pleasure to adopt a principle to useful to humanity, altho for the
relations hinted above, it was to operate more advantageously to the American citizens than to his
subjects.
His majesty ought to have expected on the part of the American government, disposition equally






friendly, and as their adoption would not prove injurious to those powers who should establish them,
that this should form a general rule in all their engagements of a like nature ; but unfortunately, the
17th article of the English treaty has dissipated this agreeable hope, for it not only permits English
vessels to take and carry into port those of America, upon the arbitrary ground of suspicion, but also
to take and seize enemy property or merchandize found under the American flag. In short, the
principle, That Free ships make free goods, was then destroyed ; and his majesty is reduced to the
disadvantageous situation of feeling the property of his subjects seized with impunity, under the
safeguard of neutrality, whilst a state of war requires that his squadrons and ships should respect
English property, on board of American vessels. Can it then be supposed, with good faith, that the
king intended voluntarily to go into a stipulation, the observance of which should require from his
subjects nothing but detriment and injury ? An adherence to the principle adopted by the king
implicitly lead him to a reciprocity complete in all its circumstances.
Nor are the injuries to Spain, arising out of the 18th article of the treaty with Great Britain, less
palpable. From it, like the proceeding, arise great losses to the American navigation ; but the
damages which the subjects of the king and his royal service experience, are still of much greater
confederation. By that article England and the United States agree, that timber for ship-building, tar,
rosin, copper in sheets, sails, hemp, cordage, and generally whatever may serve directly to the
equipment of vessels shall be declared contraband. In the 16th article of the treaty with Spain, after
enumerating those articles which should be deemed such, it is stipulated that all kinds of cotton,
hemp, flax, tar, pitch, ropes, cables, sails, sailcloth, anchors, wood of all kinds, and all other things
proper for the construction and repair of vessels, shall be looked upon as articles, of free commerce.
What then is the consequence of those contradictory stipulations ? Is it not abandoning to English
the exclusive commerce of naval stores ? And is it not giving her, in a maritime war like the present, a
powerful arm, which she uses to the injury of Spain, whilst the latter must suffer from avarice or the
high price of an article to her to absolutely necessary ? You will say in reply, that Spain entered
voluntarily into these stipulations ; but could it ever have been expected, that America would have
made almost at the same moment, such, on her part, as should cause the king my master to repeat
of his generosity and great beneficence?
In the preamble to the Spanish treaty, its object is said to be for the mutual advantage and reciprocal
utility of both countries: I leave you to determine what advantages either Spain or America can derive
from the 15th and 16th articles of their treaty, whilst those of the 17th and 18th of the English treaty
remain in full force.
Thus far I have represented merely the injury done to the interests of Spain ; but, I shall now state to
you a point in which her rights are essentially concerned; I mean the navigation of the Missisippi.
The just ground upon which Spain refused to acknowledge the mutual and illegal cession which
England made to the United States, in the 8th article of the treaty of 3rd Sept. 1783, of the free
navigation of the Missisippi to the ocean : the necessity in which America has found herself of
recurring to a special treaty with Spain, for obtaining it, and above all, the tenor of 4th article of the
said treaty, in which it is agreed that the free navigation of the said river to the ocean belongs
exclusively to the subjects of the king and to the citizens of the United States, had given his majesty
reason to believe that the federal government by this stipulation, annulled as illegal, the claim which it
had made with England, as to this point, in the 8th article of the treaty of 1783. But his majesty has
seen with equal surprise, that the United States not only pretend to confirm that right to England by
the 3d article of their commercial treaty, but that they have since the conclusion of that with Spain, in
which the navigation of the Missisippi is confined exclusively to the Spaniards and Americans, agreed
to the explanatory article signed here by yourself and the English Charge des Affaires, Mr. Bond, on
the 4th of May, 1796, in which it is declared, that no other stipulation or treaty concluded since by
either of the contracting parties with any other power or nation is understood in any manner to
derogate from the right to the free communication and commerce guaranteed by the 3d article of the
treaty to the subjects of his Britannic majesty.
The king my master finds so much the more difficulty in reconciling this stipulation concerning the
navigation of the Missisippi in article 3d of the English treaty, confirmed by the explanatory article of






the 4th of May, with the 4th article of that with Spain, as on examining the original right of England,
none is found to exist, and the United States alone hold that which Spain ceded in the said article of
the treaty with them. In order to convince you of this, let us examine the stipulation of the former
treatiesor which I give the following extract.
By the 6th article of the preliminary treaty made on the 3d November 1762, between France and
Great Britain, and by the definitive treaty signed on the 10th of February, 1763, it is stipulated that all
that part of Louisiana situated on the east of the Missisippi, excepting New-Orleans and its
dependencies, should belong to Great Britain.
By the 8th article of the provisional treaty concluded between the United States of America and Great
Britain, on the 30th of Nov. 1782, and the definitive treaty signed on the 3d of Sept. 1783, it is stated,
that the navigation of the Missisippi from its force to the ocean shall forever remain and be free to the
subjects of G. Britain and the citizens of the United States.
By the preliminary articles of the treaty concluded between Spain and England, and definitive treaty
signed on the 3d of September, 1783, Great Britain ceded to Spain all East and West Florida, which
two provinces were the only territory that that nation had remaining in this part of the continent.
In the 5th article, in which this cession is stipulated, not a single word is said relative to the navigation
of the Missisippi, nor do the other articles say any thing on the subject.
When England signed these preliminary articles with the United States of America, in 1782, Great
Britain still held all the right to East and West Florida, because then she had not ceded forever
those provinces to Spain, as is proved afterwards by the treaty of 1783, and without the least mention
therein of the Missisippi.
Therefore England, having ceded East and West Florida in 1783, and not having referred the right to
the navigation of the navigation of the Missisippi, of course lost it entirely when she made Spain
mistress of the two banks.
The only right which the United States had in the navigation of that river was founded on the
stipulations derived from EnglandBut having changed their political existence by the declaration of
their independence, and having by this act separated their interest from those of Great Britain, the
liberty of navigating Missisippi did not follow to the United States, but by a special treaty which had
just been concluded between Spain and this country.
So far goodHow can the United States without the consent of Spain, cede to England the right of
navigating the Missisippi which is granted only to themselves ? And in virtue of what privilege can the
federal government give the navigation of this river to a nation who has renounced all her rights thro
the medium of solemn treaties, and who not only does not hold a single port, but also does not
possess a single inch of land on its banks ?
This single exposition in conjunction with the opinion of all jurists, that the navigation of rivers
naturally belongs to him who possesses the two banks, evidently manifests the injury done to the
rights of Spain in the third article of the English treaty, and the explanatory article signed on the 4th of
May, 1796.
The king of Spain, desirous of preserving the best harmony and friendship with this country, as
protector of the interests of his subjects, has ordered me to represent to this government what I have
just mentioned, and his majesty relying upon the equity of his demands, hopes that the United States,
animated by the fame sentiments, will come to a composition, which without injuring the American
citizens, shall assure the happiness of his subjects, and guard the rights of his sovereignty.
I with the pleasure embrace this opportunity of renewing my wishes to serve you, and what God may
preserve your life many years. Your most obedient servant,
CARLOS MARTINEZ DE YRUJO.Timothy Pickering, Esq.,Secretary of State.
Philadelphia, 6th May, 1797.
Faithfully translated from the original, by
GEORGE TAYLOR, Jun.[No. XVII.]
Letter from the Secretary of State to the Minister of his Catholic Majesty, dated May 27,
1797.Department of State, Philadelphia, May 17, '97.
SIR,






I have the honor to acknowledge the receipt of your letter of the 6th inst. which has been laid before
the President of the United States. It contains three subjects of complaints, as arising out of the
treaty of amity, commerce and navigation between the United States and Great Britain. 1. That the
principle that free ships make free goods, is thereby destroyed : the 17th article not only permitting
English vessels to take and carry into port those of America, upon the arbitrary ground of suspicion,
but also to take and seize enemies property or merchandize found under the American flag.
2. That by the 18th article of that treaty, timber for ship building, tar, rozin, copper in sheets, sails,
hemp and cordage, generally, what ever may serve directly to the equipment of vessels, are declared
contraband.
3. That by the 3d article of that treaty, and the explanatory article thereto, the United States have
ceded and confirmed to Great Britain the right of navigating the river Missisippi; a right which you say
the United States themselves acquired by virtue of their treaty with Spain.
Your letter also contains various intimations, which, in connection with these three copies of
complaint, it will be proper for me to notice.
It is very true that our treaty with Spain was received throughout the United States with satisfaction
and general approbation ; because it closed a dispute which had been pending many years between
the two countries, by his Catholic Majesty's acceding to the claims of the United States (which they
deemed founded in right) to the free navigation of the Mississippi, from its force to the ocean ; and to
their southern boundary line as described in the treaty of peace of 1783, between the United States
and Great Britain. We are also satisfied with the engagement of his Catholic Majesty to compensate
our mercantile citizens for the losses they had sustained by the capture of their vessels and cargoes
by teh subjects of his majesty, during the late war between Spain and France. All these were acts of
substantial justice which were necessarily approved by every upright mind. All the other stipulations
of the treaty between the United States and his Catholic Majesty were wholly voluntary, and perfectly
reciprocal ; so that neither of the two contracting parties could say that they had granted or received a
favor. I make this observation because of the numerous intimations in your letter, that by these other
stipulations, benefits and advantages had been granted by his Catholic Majesty to the United States,
without receiving from them any equivalent : intimations for which we see no foundation. To instance
in the articles which constitute the two first subjects of your complaint.
1. Free ships make free goods. It is impossible that the two contracting parties should ever have
conceived that this rule, as between themselves, could have any operation, except when one was at
wawr and the other at peace. The United States being in the latter situation, have a right to carry in
their vessels goods of the enemies of Spain, without being liable, on that account to capture. On the
other hand, if the United States were at war, and Spain at peace, her subjects would have a right to
transport in their vessels the goods of our enemies, free from capture by the armed vessels of the
United States. And thus this stipulation is exactly equal on both sides.
2. Ship timber, and naval stores are, by the laws of nations, contraband of war : but the United
States and Spain, for their mutual benefit, agreed to consider them as free goods, in order that either
party remaining at peace might safely continue its commerce in those articles, even by carrying them
to the enemies of the other. And thus this rule will operate equally like the former.
You compare the liberal stipulations in these two articles with those of a contrary nature in the treaty
between the United States and Great Britain ; and ask, what should be the suprize of his Catholic
Majesty on knowing of the latter engagements ?After remarking, that if those stipulations were liberal
on the part of Spain, they were alike liberal on the part of the United States seeing they were perfectly
reciprocal; permit me to say, that the engagements with Great Britain do not appear to offer any
cause for" surprise," on the part of his Catholic Majesty ; because his majesty had seen, during the
whole course of the American war, how steadily Great-Britain persisted, in opposition to the demands
of all the maritime powers, to maintain her claims under the law of nations, to capture enemies
property, and timber, and naval stores as contraband in neutral ships. His majesty had also seen in
the present war, in which he was for a time a party with Great Britain against France, that Great
Britain continued to avow, and practice upon the same principles. And with such a perfect knowledge
of the principles conduct of Great Britain ; and while she was still engaged in the war with a power






which she strenuosly endeavored to deprive of timber and naval stores, and whose mercanile
shipping was greatly reduced ;could his Catholic Majesty expect that Great Britain would relinquish
her legal rights, to a nation (the United States) which abounded in materails for building and
equipping ships, and whose vessels adapted to the carrying trade traversed every sea and visited
every part of the globe ?You seem to imagine there is the more reason for" surprise," because, as
you say, the engagements between the United States and Great Britain were contracted " nearly at
the same time'"'almost at the same moment"with our stipulations with his Catholic Majesty :But allow
me to bring to your recollection the periods when these different treaties were formed. That with
Great Britain was concluded on th 19th day of November, 1794 : That with Spain, on the 27th
October, 1795.Further, the treaty with Great Britain was published in Philadelphia, on the first day of
July, 1795 ; almost four months before the treaty with his Catholic Majesty was concluded ; and nearly
ten months before it received his ratification, at which time (Spain and the United States being then
at peace with all the world) it does not appear that his Catholic Majesty found the smallest difficulty in
giving his final sanction to his treaty with the U. S. on account of their prior treaty with Great Britain.
Moreover, Mr. Thomas Pinckney, who negotiated the treaty with Spain, being privy to the whole
negotiation with Great Britain, and perfectly acquainted with every article of the British treaty, it is
hardly to be doubted, that he communicated to the prince of peace every information concerning it
which had any relation to his negotiation with Spain. The mode of proceeding in the cases of
captures of American vessels, is precisely the same in both treaties and the most material
expressions in the 7th article of the British treaty, are copied into the 21st of the treaty with Spain.
I am now to consider your third complaint.That relating to the navigation of the Missisippi.
You enter into an examination of the right of the United States to this navigation ; and draw this
conclusion, That there right is derived solely from the cession of his Catholic Majesty, by the 4th
article of his treaty with the United States : hence you are induced to ask, " How can the United
States, without the consent of Spain, cede to England the right of navigating the Missisippi, which is
granted only to themselves ?"If, Sir, your statement was correct, there could be no question in the
case. If the right of the United States to the navigation of the Misisippi originated in their treaty with
Spain, which was concluded on the 27th of Oct. 1795, it requires no argument to prove that they could
not have granted the right of that navigation to Great Britain on the 19th of November, 1794.
But I might deny that the United States ever granted the right of navigating the Missisippi to Great
Britain. A recurrence to the treaties to which you refer, will prove that she possessed that right by the
peace of 1763 ; and that she has never formally relinquished it. I do not, indeed, conceive the enquiry
essential to the subject of your present complaint; but as you have thot fit to go into it, you will allow
me to follow you.
By the definitive treaty of peace concluded the 10th of February 1763, France, then possessed of
Louisiana, ceded to Great Britain all her possessions on the east side of the Missisippi, except the
town and island of New-Orleans. And it was likewise stipulated " That the navigation of the river
Missisippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its
whole length and breadth, 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 people of the United States being then subjects of the king of Great Britain, they of
course participated in the right of navigating the river Missisippi : and by the 8th article of the
provisional treaty between the United States and Grat Britain, concluded the 30th of November 1782,
and the definitive treaty of peace concluded the 3d of September 1783, this right was confirmed ; it
being therein stipulated, that" the navigation of the river Missisippi, from its source to the ocean, shall
forever remain free and open to the subjects of Great Britain and the citizens of the United States."
By the definitive treaty of peace between Spain and Great Britain, concluded the 3d of September
1783, the latter ceded to Spain " East-Florida, as also West-Florida ;" but the river Missisippi, as you
observe, is, not even mentioned in the treaty. What is the just inference from this circumstance, the
United States need not decide. Doubtless Great Britain conceived it important to hold a right to the
navigation of it : and all parties, at that time, certainly supposed that parts of her territories joined its
eastern side, and probably no one can now say they do not. But however this silence with regard to






the navigation of the Missisippi, in the treaty between Spain and Great Britain, may be construed
whether the latter by not reserving, is to be considered as relinquishing her right to it : or by not
expressly relinquishing, is to be understood to retain it; it is proper to consider the nature and effect
of the stipulations on this subject, between her and the United States, (Concluded in the last page.)
(Continued from page second.)
When peace was made between the two powers in 1783, both were entitled to the free navigation of
the Missisippi ; and both desiring to preserve this right, they mutually stipulated for its continuance :
but neither pledged to maintain it for the other : though each is bound not to interrupt the other in the
exercise of that right. The treaty of London concluded on the 19th of November 1794, contains, as to
this point, no new grant, on either side : but their respective rights are recognized : it being declared,
in the 3d article, that" the river Missisippi shall according to the treaty of peace, be entirely open to
both parties." Had this declaration been wholly omitted, the right of Great Britain to the Missisippi
would have been neither increased nor diminished. But because the 4th article of the subsequent
treaty with Spain, excited some apprehensions in Great Britain, that it might countenance an attempt
to exclude her from the navigation of the Missisippi, the explanatory article which you mention was
formed, declaring, That no stipulations in any treaty subsequently concluded by either party can be
understood to derogate from the rights of free intercourse and commerce secured by the said third
article to the subjects of his Britannic majesty, and to the citizens of the United States.The fourth
article of our treaty with Spain received its peculiar form with the design that it might not derogate
from the prior stipulations of the United States with Great Britain. And this, as I shall presently show
you, was perfectly understood by the government of Spain. And let me assure you, that the federal
government no more seeks the excuse, than it merits the imputation " that England, by her treaty with
America, had surprised its good faith."
In discussing their respective projects of a treaty, it appears that the prince of peace, on the part of
Spain, proposed that Mr. Pinckney, on the part of the United States, should enter into a stipulation
which would have gone to the exclusion of Great Britain from the navigation of the Missisippi. To this
project Mr. Pinckney returned the following answer:
"The words ' alone' and ' exclusively' should be omitted ; for Spain could scarcely confide in the good
faith of the United States, or in the convention she is about to conclude with them, if they agreed to an
article which would be an infraction of a treaty previously concluded : for by the treaty of peace
between the United States and Great Britain, concluded in 1783, it is stipulated that the navigation of
the river Missisippi shall continue free to the subjects of Great Britain and to the citizens of the United
States."
Here, sir, you see that the federal government, far from " giving his Catholic majesty (as you suggest)
reason to believe that they had annulled, as illegal, the claims which they had made with England, as
to this point, in the 8th article of the treaty of 1783"expressly declared that the attempt would be a
violation of the good faith of the United States pledged to Great Britain in the treaty.
To get rid of the embarrassments, the particular form of expression which we find in the fourth article
of the treaty with Spain was adopted. You will observe, sir, that this, like every other treaty, contains,
generally, the joint stipulation of the contracting parties. Such is the stipulation of the United States
and Sain in the beginning of the 4th article : " It is likewise agreed that the western boundary of the
United States, which separates them from the Spanish colony of Louisiana, is in the middle of the
channel or bed of the river Missisippi, from the northern boundary of the said states to the completion
of the thirty first degree of latitude north of the equator." Then follows the clause respecting the
navigation of the Missisippi. " And his Catholic majesty has likewise agreed that the navigation of the
said river, in its whole breadth, from its source to the ocean shall be free only to his subjects, and the
citizens of the United States, unless he should extend this privilege to the subjects of other powers by
special convention." Here Spain is the sole party to the excluding clause. And the 21st article of the
treaty presents a similar instance of a joint and separate stipulation. The two contracting parties
jointly agree on the mode of adjusting the claims of American citizens for the losses they had
sustained from the capture of their vessels by the subjects of Spain : and then " His Catholic majesty
undertakes to cause the same to be paid."Now it might with as much propriety be affirmed that the






United States are by this clause bound to contribute (and equally with his Catholic majesty) to those
payments, as be inferred from the declarations of his Catholic majesty singly, in the 4th article, relative
to the exclusive navigation of the Missisippi, that the United States have thereby engaged to exclude
from it the subjects of Great Britain.
The simple fact is, that the United States were contending with Spain for the free navigation of the
Missisippi for themselves ; and by this clause in the fourth article of the treaty their claim was
admitted. Any declaration of his Catholic majesty alone, to exclude other nations, was to them quite
immaterial.
Thus, sir, I have answered to all your complaints, and, I hope, satisfactorily. The United States equally
with his Catholic majesty, are desirous of preserving the best harmony between the two countries;
and the American government will always be disposed to adopt any proper measures for that end.
I have the honor to be,
with great respect, Sir,
Your most obedient servant,
TIMOTHY PICKERING.The Chevalier de Yrujo, Envoy Extraordinary, and Minister Plenipotentiary of
his Catholic Majesty to the U. States of America.




University of Florida Home Page
© 2004 - 2011 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated May 24, 2011 - - mvs