In A Slaveholders' Union, George William Van Cleve argues that southerners voted in favor of the Northwest Ordinance - including its antislavery Article 6 - enacted by the Continental Congress July 13, 1787, as part of a quid pro quo with the north. The quo, he maintains, was northern agreement to abandon the position, in treaty negotiations with the Spanish, that the United States should be willing to relinquish American navigation rights to the Mississippi for several decades.
By way of background, on July 20, 1785, the Continental Congress empowered John Jay to enter into negotiations with Spain to obtain a treaty "establishing and fixing the boundaries between the territories of the said United States and those of His Catholick Majesty, and for promoting the general harmony and mutual interest of the two Nations."
On August 25, 1785, Congress tightened Jay's instructions, directing him to insist that Spain grant America "the free Navigation of the Mississippi, from the source to the Ocean":
Resolved, That the last paragraph in the instructions to the Secretary to the United States for the department of foreign Affairs, passed July 20th, 1785, for entering into a treaty, compact or convention with the Encargado de Negocios of his Catholick Majesty, in the words following:
That the Secretary to the United States of America for the department of foreign Affairs be, and he is hereby instructed, previous to his making propositions to Don Diego de Gardoqui, or agreeing with him on any Article, Compact or Convention, to communicate to Congress the propositions to be made or received relative to such Article, Compact or Convention," be repealed, and that the following be substituted in its place:
That the Secretary to the United States for the Department of foreign Affairs be and he is hereby instructed, in his plan of a treaty with the Encargado de Negocios of his Catholick Majesty, particularly to stipulate the right of the United States to their territorial bounds, and the free Navigation of the Mississippi, from the source to the Ocean, as established in their Treaties with Great Britain; and that he neither conclude nor sign any treaty, compact or convention, with the said Encargado de Negocios, until he hath previously communicated it to Congress, and received their approbation.
In negotiations with the Spanish representative, Don Diego de Gardoqui, however, Jay reached an impasse. Although Gardoqui appeared willing to grant commercial concessions advantageous to the states of the north east, he absolutely refused to consider granting the United States any rights of navigation on the Mississippi. In August 1786, Jay notified Congress of the impasse and recommended that Congress authorize him to relinquish navigation rights on the Mississippi for twenty-five years:
My attention is chiefly fixed on two obstacles, which at present divide us, viz. the Navigation of the Mississippi, and the territorial limits between them and us.
My Letters written from Spain, when our affairs were the least promising, evince my opinion respecting the Mississippi, and oppose every idea of our relinquishing our right to navigate it. I entertain the same sentiments of that right, and of the importance of retaining it, which I then did.
Mr. Gardoqui strongly insists on our relinquishing it. We have had many Conferences and much reasoning on the subject, not necessary now to detail. His concluding answer to all my Arguments has steadily been, that the King will never yield that point, nor consent to any compromise about it; for that it always has been, and continues to be, one of their Maxims of policy, to exclude all Mankind from their American shores.
I have often reminded him that the adjacent Country was filling fast with people; and that the time must and would come, when they would not submit to seeing a fine river flow before their doors without using it as a high way to the sea for the transportation of their productions; that it would therefore be wise to look forward to that event, and take care not to sow in the treaty any seeds of future discord. He said that the time alluded to was far distant; and that treaties were not to provide for contingencies so remote and future. For his part he considered the rapid settlement of that Country as injurious to the States, and that they would find it necessary to check it. Many fruitless Arguments passed between us; and tho' he would admit that the only way to make treaties and friendship permanent, was for neither party to leave the other any thing to complain of; yet he would still insist, that the Mississippi must be shut against us. The truth is, that Courts never admit the force of any reasoning or Arguments but such as apply in their favor; and it is equally true, that even if our right to that Navigation, or to any thing else, was expressly declared in Holy Writ, we should be able to provide for the enjoyment of it no otherwise than by being in capacity to repel force by force.
Circumstanced as we are, I think it would be expedient to agree that the treaty should be limited to twenty five or thirty years, and that one of the Articles should stipulate that the United States would forbear to use the Navigation of that River below their territories to the Ocean. Thus the duration of the treaty and of the forbearance in question would be limited to the same period.
Whether Mr. Gardoqui would be content with such an Article, I cannot determine, my instructions restraining me from even sounding him respecting it. I nevertheless think the experiment worth trying . . ..
Based on Jay's recommendation, on Monday August 28, 1786 Congress, sitting as Committee of the Whole, reported resolutions recommending that Jay be permitted to concede navigation of the Mississippi if necessary:
Resolved, That so much of the resolution of Congress of the 25 day of August, 1785, being an instruction to the Secretary of the United States for the department of foreign affairs, as are contained in the following words, namely, "And that the following be substituted in its place, 'that the Secretary to the U. S. for the department of foreign affairs be and hereby is instructed, in his plan of a treaty with the encargado de Negocios of his catholic Majesty, particularly to stipulate the right of the U. S. to their territorial bounds, and the free navigation of the Mississippi from the source to the Ocean, established in their treaties with Great Britain; and that he neither conclude nor sign any treaty, compact or convention with the said encargado de Negocios until he hath previously communicated it to Congress and received their approbation,'" be, and the same is hereby repealed and made void.
Resolved, That the secretary of the U. S. for the department of foreign affairs be and hereby is instructed, if in the course of his negotiation with the encargado de Negocios of his catholic Majesty, it shall be found indispensable for the conclusion of the same, that the U. S. and their citizens, for a limited time, should forbear to use so much of the river Mississippi as is south of the southern boundary of the U. S., that he be and hereby is authorized and directed, on behalf of the United States, to consent to an article or articles stipulating on their part and that of their citizens a forbearance of the use of the said river Mississippi, for a period not exceeding years, from the point where the southern boundary of the U. S. intersects the said river, to its mouth or the Ocean; provided that such stipulation of a forbearance of the use of the said river for a limited time as aforesaid, shall not be construed to extinguish the right of the U. S., independent of such stipulation, to use and navigate the said river from its source to the Ocean; provided farther, that the Secretary of foreign Affairs shall not stipulate on behalf of the U. S., in favour of the exclusive navigation and use of the said river Mississippi by his Catholic Majesty and his subjects, below its intersection of the southern boundary of the U. S., unless it shall be agreed and stipulated in the same treaty, that the navigation and use of the said river from the intersection aforesaid to its head or source be and continue common to the U. S. and his Catholic Majesty and to their respective citizens and subjects. And the said secretary of foreign Affairs is hereby farther instructed, firmly to insist on the territorial boundaries of the United States southwardly and westwardly, as fixed by the definitive treaty of peace and friendship between the U. S. of America and his Britannic Majesty; and on no condition to consent to a treaty, unless the same shall contain a quit claim of all pretended rights and claims of his catholic Majesty to territory within the U. S. eastwardly of the Mississippi and northerly of the Floridas; whether the said rights or claims are pretended in virtue of conquest or otherwise. And if in the course of the negotiation a question should arise relative to the precise boundary line between the U. S. and the Floridas, the said Secretary of foreign Affairs is hereby instructed that the Floridas do not, and ought not of right to extend to the Northward of the boundary line between them and the U. S. as fixed by the definitive treaty aforesaid, and that he shall not in any event by treaty or otherwise consent to the extent of the Floridas northerly of a line or boundary of the U.S. adjacent to the Floridas, specified in a separate Article of the provisional Articles between the U.S. and Great Britain, at Paris, on the 30 day of November, 1782. And provided that a disagreement shall take place between the said Secretary of foreign Affairs and the Encargado de Negocios of his C. Majesty, by the latter's insisting on the boundary line as specified by the aforesaid separate article, and the former's insisting on the boundary line as fixed in the aforesaid definitive treaty, the said Secretary of foreign Affairs is hereby authorised to agree to the settlement and final decision of such disagreement by Commissaries mutually appointed for that purpose; for the appointment of whom and for all other purposes incident to the final determination of the said disagreement by Commissaries, conformable to the laws of Nations, the said Secretary of foreign Affairs is hereby invested with full powers on behalf of the U.S. of America.
In votes at the end of August 1786, the resolutions authorizing changes in Jay's instructions failed to pass. The Journals of the Confederation Congress do not contain a breakdown of the votes, but other sources uniformly report that a majority of states voted in favor of the resolutions (7 to 5). They failed only because passage required a supermajority of nine states pursuant to Article IX of the Articles of Confederation, which provided in relevant part:
The united States in congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the united States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of the majority of the united States in congress assembled.
The voting was apparently strictly sectional lines, the northern states in favor, the southern states opposed.
Although Jay's revised instructions failed for want of a supermajority, leading southern politicians, including James Monroe, James Madison and Thomas Jefferson were, in Van Cleve's words, "outraged by the willingness of the 'eastern' states to accept what they believed was a betrayal of Southern regional interests that would greatly damage their hopes for western development."
And herein, Van Cleve hypothesizes, lies the quo. In 1787, negotiations with Spain remained unfinished, and northerners continued to maintain that Jay's instructions should be modified. In return for southern votes in favor of the Northwest Ordinance, Van Cleve maintains, southerners elicited promises that northerners would desist from continued efforts to change Jay's instructions.
Now, having gone on at far greater length than I originally planned concerning the background, my purpose here is not to review all of the evidence that Van Cleve cites in support of his theory. I will content myself with quoting one tantalizing letter to which Van Cleve refers.
The letter in question, dated July 10, 1787, is from Benjamin Hawkins, a North Carolina delegate to the Continental Congress, to Richard Caswell, the Governor of North Carolina. In the letter, written three days before the passage of the Northwest Ordinance, Hawkins mysteriously refers to "a variety of circumstances unnecessary as well perhaps as improper to relate" that may advance the "protection of our Western Citizens, and of securing and preserving our right to the free and common use of the navigation of the Mississipi" (emphasis added):
New-York the 10th July 1787
I wrote to your Excellency in June, and informed you of my intention, to return to North Carolina immediately on the arrival of Mr. Burton: And accordingly I sat out as early as practicable by the way of Philadelphia.
Mr. [John B.] Ashe & Mr. [Robert] Burton having thought proper to return to North Carolina, for reasons which they did assign to you, the State for a short period was unrepresented.
It being of great importance to the Union at this time particularly, that Congress should be and continue in session, the members present and the secretary wrote after me and Mr. [William] Blount and requested our return. The letters reached me on the eave of my departure for Virginia, and although I had but scanty means of support, having not drawn on the public resources and my own being nearly exhausted yet I determined to return induced thereto in a great measure From a hope of being able to procure some aid from the Union towards the protection of our Western Citizens, and of securing and preserving our right to the free and common use of the navigation of the Mississipi.
The first we find to be impracticable from the want of information, and, our having but seven States represented in Congress. But the latter, which is very interesting to the Western citizens of the southern States, as it regards their peace and welfare, has at length, from a variety of circumstances unnecessary as well perhaps as improper to relate, been put in a better situation than heretofore.
As soon as another State shall arrive, And in the expectation of the return of Mr. Ashe & Burton agreeable with their promise, I shall set again for North Carolina and Mr. Blount to the Convention in Philadelphia.
The Secretary for foreign affairs will send you some information from Mr. Adams, of an attempt to counterfeit our currency in Great-Britain. With that Kingdom we have no prospects of a commercial Treaty.
It may be deemed unnecessary and important in me to say (although I concur in opinion, with the most respectable of our citizens) that it is indispensably necessary for the well-being of the Southern States, that they should keep up respectable representations in Congress untill their rights are perfectly secured.
I have the honor to be, with great & sincere esteem, D Sir, Yr. Excellencys Most obt Servt., Benjamin Hawkins
And yes, in case you were wondering I have it on good authority that Governor Caswell's portrait was painted by his five year old son using fingerpaints.