The worst footing on which the determination of the ground could be placed, would be a reference to joint commissioners; because their disagreement, a very probable, nay, a certain event, would undo the whole convention, and leave us exactly where we now are. Unless indeed they will engage to us, in case of such disagreement, the highest ground at the Detour aux Anglais, of convenient extent, including the landings and harbor thereto adjacent. This would ensure us that ground, unless better could be found and mutually preferred, and close the delay of right under which we have so long labored for peace-sake.
It will probably be urged, because it was urged on a former occasion, that, if Spain grants to us the right of navigating the Mississippi, other nations will become entitled to it by virtue of treaties giving them the rights of the most favored nation.
Two answers may be given to this:
1. When those treaties were made, no nations could be under contemplation but those then existing, or those at most who might exist under similar circumstances. America did not then exist as a nation; and the circumstances of her position and commerce, are so totally dissimilar to everything then known, that the treaties of that day were not adapted to any such being. They would better fit even China than America; because, as a manufacturing nation, China resembles Europe more. When we solicited France to admit our whale oils into her ports, though she had excluded all foreign whale oils, her minister made the objection now under consideration, and the foregoing answer was given. It was found to be solid; and the whale oils of the United States are in consequence admitted, though those of Portugal and the Hanse towns, and of all other nations, are excluded. Again, when France and England were negotiating their late treaty of commerce, the great dissimilitude of our commerce (which furnishes raw materials to employ the industry of others, in exchange for articles whereon industry has been exhausted) from the commerce of the European nations (which furnishes things ready wrought only) was suggested to the attention of both negotiators, and that they should keep their nations free to make particular arrangements with ours, by communicating to each other only the rights of the most favored European nation. Each was separately sensible of the importance of the distinction; and as soon as it was proposed by the one, it was acceded to by the other, and the word European was inserted in their treaty. It may fairly be considered then as the rational and received interpretation of the diplomatic term, "gentis amicissimæ"[32] that it has not in view a nation unknown in many cases at the time of using the term, and so dissimilar in all cases as to furnish no ground of just reclamation to any nation.
But the decisive answer is, that Spain does not grant us the navigation of the river. We have an inherent right to it; and she may repel the demand of any other nation by candidly stating her act to have been, what in truth it is, a recognition only, and not a grant.
If Spain apprehends that other nations may claim access to our ports in the Mississippi, under their treaties with us, giving them a right to come and trade in all our ports, though we would not choose to insert an express stipulation against them, yet we shall think ourselves justified to acquiesce in fact, under any regulations Spain may from time to time establish against their admission.
Should Spain renew another objection, which she relied much on before that the English at the Revolution treaty could not cede to us what Spain had taken from them by conquest, and what of course they did not possess themselves, the preceding observations furnish sufficient matter for refutation.
To conclude the subjects of boundary and navigation, each of the following conditions is to be considered by the commissioners as a sine quâ non.
1. That our southern boundary remain established at the completion of thirty-one degrees of latitude on the Mississippi, and so on to the ocean, as has been before described, and our western one along the middle of the channel of the Mississippi, however that channel may vary, as it is constantly varying, and that Spain cease to occupy or to exercise jurisdiction in any part northward or eastward of these boundaries.
2. That our right be acknowledged of navigating the Mississippi, in its whole breadth and length, from its source to the sea, as established by the treaty of 1763.