History of the United States Constitution. George Ticknor Curtis

Western country, as soon as it became known that a treaty was actually pending, by which the right to navigate the Mississippi might be suspended for a quarter of a century. That it should have been accompanied by acts of retaliation and outrage against the property of Spanish subjects, was naturally to have been expected. A certain General Clarke, pretending to authority from the State of Virginia, undertook to enlist men and establish a garrison at Port St. Vincennes, ostensibly for the protection of the district of Kentucky, then under the jurisdiction of Virginia. He made a seizure there of some Spanish property for the purpose of clothing and subsisting his men, and sent an officer to the Illinois, to advise the settlers there of the seizures of American property made at Natchez, and to recommend them to retaliate for any outrages the Spaniards might commit upon their property.340

      The executive of Virginia disavowed these acts, as soon as officially informed of them; ordered the parties to be brought to punishment; and sent a formal disclaimer, through their delegates in Congress, to the Spanish Minister.341 Guardoqui was not disturbed. He expected these occurrences, and maintained his ground, refusing to yield the right of navigating the river; and having assented to Mr. Jay's proposal of an article which suspended the use for a period of twenty-five years, he was quite ready to go on and conclude the treaty.

      The people of the Western country, however, began to form committees of correspondence, in order to unite their counsels and interests.342 The inhabitants of Kentucky sent a memorial to the General Assembly of Virginia, which induced them to instruct their delegates in Congress to oppose any attempt to surrender the right of the United States to the free use of the Mississippi, as a dishonorable departure from the comprehensive and benevolent feeling that constituted the vital principle of the Confederation, and as provoking the just resentment and reproaches of the Western people, whose essential rights and interests would be thereby sacrificed. They also instructed their delegates to urge such negotiations with Spain as would obtain her consent to regulations for the mutual and common use of the river.343 The members from Virginia, with one exception, concurred in the policy of these instructions,344 and at first addressed themselves to some conciliatory expedient for obviating the effect of the vote of seven States.

      They first represented to Guardoqui that it would be extremely impolitic, both for the United States and Spain, to make any treaty which should have the effect of shutting up the Mississippi. They stated to him, that such a treaty could not be enforced; that it would be the means of peopling the Western country with increased rapidity, and would tend to a separation of that country from the rest of the Union; that Great Britain would be able to turn the force that would spring up there against Spanish America; and that the result would be the creation of a power in the valley of the Mississippi hostile both to Spain and the United States. These representations produced no impression. The Spanish Minister remained firm in the position which he had held from the first, that Spain never would concede the claim of the United States to navigate the river. He answered, that the result of what had been urged was, that Congress could make no treaty at all, and consequently that the trade of the United States must remain liable to be excluded from the ports of Spain.345

      Foiled in this quarter, the next expedient, for those who felt the necessity of preventing such a treaty as had been contemplated, was to gain time, by transferring the negotiation to Madrid; and Mr. Madison introduced a resolution into Congress for this purpose, which was referred to the Secretary for Foreign Affairs.346 In a few days, the Secretary reported against the proposal, and nothing remained for the opponents of the treaty, but to attack directly the vote of seven States, under which the Secretary had acted in proceeding to adjust with the Spanish Minister an article for suspending the right of the United States to the common use of the river below their southern boundary.

      The Articles of Confederation expressly declared, that the United States should not enter into any treaty or alliance, unless nine States in Congress assented to the same.347 It was very justly contended, therefore, that, to proceed to negotiate a treaty authorized by a vote of only seven States, would expose the United States to great embarrassment with the other contracting party, since the vote made it certain that the treaty could not be constitutionally ratified; and that the vote itself, having passed in a case requiring the assent of nine States, was not valid for the purpose intended by it. This was not denied; but the advocates of the treaty, by means of a parliamentary rule, resisted the introduction of a resolution to rescind the vote of seven States.348

      But while this dangerous subject was pending, the affairs of the country had taken a new turn. The Convention at Annapolis had been held, in the autumn of 1786, and the Convention called to revise the system of the federal government was to meet in May, 1787. It had become sure and plain, that a large increase of the powers of the national government was absolutely essential to the continuance of the Union and the prosperity of the States. Every day the situation of the country was becoming more and more critical. No money came into the federal treasury; no respect was paid to the federal authority; and all men saw and admitted that the Confederation was tottering to its fall. Some prominent persons in the Eastern States were suspected of leaning towards monarchy; others openly predicted a partition of the States into two or more confederacies; and the distrust which had been created by the project for closing the Mississippi rendered it extremely probable, that the Western country at least would be severed from the Union.

      The advocates of that project recoiled, therefore, from the dangers which they had unwittingly created. They saw, that the crisis required that harmony and confidence should be studiously cherished, now that the great enterprise of remodelling the government upon a firmer basis was to be attempted. They saw that no new powers could be obtained for the Federal Constitution, if the government then existing were to burden itself with an act so certain to be the source of dissension, and so likely to cause a dismemberment of the Confederacy, as the closing of the Mississippi. Like wise and prudent men, therefore, they availed themselves of the expected and probable formation of a new government, as a fit occasion for disposing of this question; and after an effort to quiet the apprehensions that had been aroused, the whole matter was postponed, by general consent, to await the action of the great Convention of May, 1787.349 After the Constitution had been formed and adopted, the negotiation was formally referred to the new federal government which was about to be organized, in March, 1789, with a declaration of the opinion of Congress that the free navigation of the river Mississippi was a clear and essential right of the United States, and ought to be so considered and supported.350