The appointment of Mr. Carmichael and Mr. Short, as commissioners to negotiate, with the court of Spain, a treaty or convention relative to the navigation of the Mississippi, and which perhaps may be extended to other interests, rendering it necessary that the subjects to be treated of should be developed, and the conditions of arrangement explained:
The Secretary of State reports to the President of the United States the following observations on the subjects of negotiation between the United States of America and the court of Spain, to be communicated by way of instruction to the commissioners of the United States, appointed as before mentioned, to manage that negotiation.
These subjects are,
I. Boundary.
II. The navigation of the Mississippi.
III. Commerce.
I. As to boundary, that between Georgia and Florida is the only one which will need any explanation. Spain sets up a claim to possessions within the State of Georgia, founded on her having rescued them by force from the British during the late war. The following view of the subject seems to admit no reply:
The several States now comprising the United States of America, were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at the head of their respective governments the executive magistrate who presided over the one they had left, and thereby secured, in effect, a constant amity with the nation. In this stage of their government their several boundaries were fixed; and particularly the southern boundary of Georgia, the only one now in question, was established at the 31st degree of latitude from the Apalachicola westwardly; and the western boundary, originally the Pacific ocean, was, by the treaty of Paris, reduced to the middle of the Mississippi. The part which our chief magistrate took in a war, waged against us by the nation among whom he resided, obliged us to discontinue him, and to name one within every State. In the course of this war we were joined by France as an ally, and by Spain and Holland as associates; having a common enemy, each sought that common enemy wherever they could find him. France, on our invitation, landed a large army within our territories, continued it with us two years, and aided us in recovering sundry places from the possession of the enemy. But she did not pretend to keep possession of the places rescued. Spain entered into the remote western part of our territory, dislodged the common enemy from several of the posts they held therein, to the annoyance of Spain; and perhaps thought it necessary to remain in some of them, as the only means of preventing their return. We, in like manner, dislodged them from several posts in the same western territory, to wit: Vincennes, Cahokia, Kaskaskia, &c., rescued the inhabitants, and retained constantly afterwards both them and the territory under our possession and government. At the conclusion of the war, Great Britain, on the 30th of November, 1782, by treaty acknowledged our independence, and our boundary, to wit: the Mississippi to the west, and the completion of the 31st degree, &c. to the south. In her treaty with Spain, concluded seven weeks afterwards, to wit, January 20th, 1783, she ceded to her the two Floridas, which had been defined in the proclamation of 1763, and Minorca; and by the eighth article of the treaty, Spain agreed to restore, without compensation, all the territories conquered by her, and not included in the treaty, either under the head of cessions or restitutions, that is to say, all except Minorca and the Floridas. According to this stipulation, Spain was expressly bound to have delivered up the possessions she had taken within the limits of Georgia, to Great Britain, if they were conquests on Great Britain, who was to deliver them over to the United States; or rather, she should have delivered them to the United States themselves, as standing quoad hoc in the place of Great Britain. And she was bound by natural rights to deliver them to the same United States on a much stronger ground, as the real and only proprietors of those places which she had taken possession of in a moment of danger, without having had any cause of war with the United States, to whom they belonged, and without having declared any; but, on the contrary, conducting herself in other respects as a friend and associate. Vattel, 1. 3, 122.
It is an established principle, that conquest gives only an inchoate treaty of peace, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor. Had Great Britain been that former proprietor, she was so far from confirming to Spain the right to the territory of Georgia, invaded by Spain, that she expressly relinquished to the United States any right that might remain in her; and afterwards completed that relinquishment, by procuring and consolidating with it the agreement of Spain herself to restore such territory without compensation. It is still more palpable, that a war existing between two nations, as Spain and Great Britain, could give to neither the right to seize and appropriate the territory of a third, which is even neutral, much less which is an associate in the war, as the United States were with Spain. See, on this subject, Grotius, 1. 3, c. 6, § 26. Puffendorf, 1. 8, c. 17, § 23. Vattel, 1. 3, § 197, 198.
On the conclusion of the general peace, the United States lost no time in requiring from Spain an evacuation of their territory This has been hitherto delayed by means which we need not explain to that court, but which have been equally contrary to our right and to our consent.