[Part II of Rothbard's newly edited and released Conceived in Liberty, vol. 5, The New Republic: 1784–1791.] The Old Northwest With the cession of the claims of Virginia and other states to the lands of the Old Northwest, and the passage of its Ordinance of 1784 (applying to all western lands), Congress had nationalized the public domain and pledged itself ...
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The Old Northwest
With the cession of the claims of Virginia and other states to the lands of the Old Northwest, and the passage of its Ordinance of 1784 (applying to all western lands), Congress had nationalized the public domain and pledged itself to allow full self-government to any settlers of new territory whenever the territory should amass a population of 20,000 or more. New states were to be carved out of these territories when their population equaled that of the free citizens of the smallest of the existing states.1
On May 20, 1785, Congress adopted the Ordinance of 1785, which elaborated a detailed policy for Congress on surveys and sales of the western lands. The Ordinance provided for congressional surveyors to map out the land before sale, and for the land to be divided into New England-style “townships” and parceled out into rigid rectangular surveys of six square miles in the New England fashion. This contrasted to the natural boundary method of surveying used in the South. The rigid rectangular method compelled the purchases of sub-marginal land within an otherwise good “rectangle.” Townships would be divided into minimum units of 640 acre sections, and these sections could be sold at public auction with a minimum imposed price of $1.00 per acre payable in specie or the equivalent in public securities. This minimum land price was high and discouraged settlement as frontier lands in the states were selling on much more favorable terms. Furthermore, each township would be forced to pay $36 to Congress for its (unasked for) surveying. This provision reflected the desire of Congress to milk revenue from the purchasers of western land, a desire that came higher than any attention to the rights or the needs of the settlers themselves. This imposed great hardship on the settlers, and insured that wealthy speculators would buy most of the land tracts. Indeed, large speculative land companies were influential in inducing Congress to set the high minimum price and the minimum acreage for land sales. Four sections of land in each township were to be reserved to Congress, to be distributed as it saw fit, and one section was forced to be set aside for public schools. One-third of the gold, silver, or copper to be found on the western lands was also to be reserved to the sovereign Congress—a policy all too reminiscent of royal reservations in colonial days—but this assertion of power was never applied and became a dead letter. The liberals in Congress, led by David Howell of Rhode Island and Melancton Smith of New York, narrowly managed to expunge a section that would have compelled the establishment of the religion of the majority of the local inhabitants.
The relatively liberal Ordinance of 1785, as well as the superior Ordinance of 1784, was a reflection of Virginia’s previous triumph over the powerful companies of land speculators that had dominated the politics of Maryland, New Jersey, and other Middle Atlantic states, but this triumph proved to be short-lived, for there soon followed an orgy of congressional privileges to land speculators. Hardly had Congress begun the laborious process of surveying (which it had insisted on monopolizing) when it controverted its previously moderate liberal policy of land distribution and fell prey to the wiles of new groups of land speculators.
A group of New England ex-army officers of the Revolutionary War, headed by Generals Rufus Putnam and Samuel Holden Parsons, had long intrigued to grab large tracts of western lands. Finally, in 1786, Putnam and Parsons organized a statewide convention in Boston of Massachusetts veterans to form a joint-stock company called the Ohio Company of Associates (no connection with the pre-revolutionary Ohio Company formed by Virginia speculators). The new Ohio Company asked for the huge grant of one million acres. When Parsons’ request made little headway, the company sent one of its organizers to lobby Congress, the Reverend Manasseh Cutler of Ipswich Village, Massachusetts, former lawyer and army chaplain. Cutler’s wily lobbying made a deep imprint upon Congress, whose president was the highly receptive General Arthur St. Clair, an old-time Pennsylvania speculator in western lands and one of the leaders of the diehard conservative Republican Party in Pennsylvania. Cutler cemented his success by linking his fortunes to the New York reactionary William Duer, an old business associate of Robert Morris and the powerful secretary of the Board of the Treasury established by Congress. The influential Duer, who would handle the financial arrangements of the mammoth land sale, was eager to acquire a million or more acres of Ohio land east of the Scioto River and west of the Ohio Company tract. Linking forces, Cutler and Duer—over the impassioned objections of New York’s radical Congressman Abraham Yates—pushed through Congress in the autumn of 1787 a gigantic deal for land monopoly. Cutler and the Ohio Associates were sold a huge tract of 1.5 million acres in Ohio, partially payable in land bounty certificates owed to the Continental Army, certificates that were selling for ten cents on the dollar on the open market. As a result of this and other special deductions, the Ohio Company was allowed to pay for their huge tract of land eight to ten cents an acre, in contrast to the one dollar required of ordinary purchasers of smaller sections at public auction. Thus were the at least moderately liberal provisions of the Ordinance of 1785 swept away on behalf of these influential land monopolists. Even more monopolistic was the similar privilege granted to Duer’s “Scito Project,” which bought nearly 3.5 million acres along the Ohio River of land originally arranged for Cutler. Much of the initial payment by Cutler, which launched the contract, was secretly advanced to him by Duer.
In order to cement these speculative projects, something had to be done to fasten the rule of the land companies over the western settlers. As a result, Cutler was instrumental in changing America’s entire land policy by replacing the Ordinance of 1784 with the Ordinance of 1787. Thomas Jefferson’s highly liberal Ordinance of 1784, allowing full self-government to settlers as soon as a territory reached a population of 20,000, greatly inconvenienced the land companies, for it meant that Congress and its favored land speculators might lose control of the West to the actual settlers. Indeed, settlers were increasingly squatting and developing western land in complete disregard of Congress or the land companies, thus challenging the authority of both august institutions. As early as 1785 Congress prohibited all settlement north of the Ohio River and soon sent troops to the frontier to burn the cabins of the squatters. But the settlers stubbornly returned to their lands when the troops departed. One settler put the case for all of them with great cogency:
All mankind … have an undoubted right to pass into every vacant country, and to form their constitution, and that … Congress is not empowered to forbid them, neither is Congress empowered from that Confederation [of the U.S.] to make any sale of the uninhabited lands to pay the public debts, which is to be by a tax levied and lifted by the authority of the legislature of each state.2
The Northwest Ordinance, satisfying the aims of the land companies, was adopted on July 13, 1787, to apply only to the territory north of the Ohio River. While the system of land sales was continued along the lines of 1785, settler self-government was replaced by territorial government in the hands of Congress. Specifically, Congress would appoint a governor, a secretary, and three judges to govern and apply any laws they chose from the thirteen states. The settlers would be allowed to elect an assembly, but the appointed governor had an absolute veto on all legislation. The governor could choose a council from men nominated by the assembly. Furthermore, the governor (and Congress) were to have full control over the militia and the appointment of militia officers. The entire plan was almost a parody of royal colonial government. After the population reached 60,000 it might vote a constitution and establish a state government. Land-company domination of the new government for the Northwest Territory was revealed in the first congressional appointments: General Arthur St. Clair as governor and General Samuel Holden Parsons as one of the judges.
One of the most important provisions of the Northwest Ordinance was the prohibition of slavery (and servitude) in the Northwest Territory. The clause was passed without southern opposition, apparently because the South had little hope of slavery being established north of the Ohio; furthermore, the clause was offset by the agreement that fugitive slaves in the West from other states might be apprehended and returned. A crucial difference, moreover, from Jefferson’s original plan of 1784, was that slavery was outlawed only in the Northwest rather than in the entire western public domain.
Other large land grants in the Ohio region rapidly followed. In 1788 John Cleves Symmes, a wealthy and influential politician from New Jersey, was sold 330,000 acres of Ohio land on the Miami River, west of the other grants and on the same bargain terms. Also, Connecticut, in return for surrendering its claims to western lands, was granted in 1786 a tract of 3.5 million acres bordering on the bottom of Lake Erie. The bulk of this area, known as Connecticut’s Western Reserve, was in turn sold to the Connecticut Company in the mid-1790s.
Despite the huge subsidies, the schemes of the Ohio and Scioto Companies quickly collapsed. The Ohio Company did little more than found Marietta, at the mouth of the Muskingum River; while the fly-by-night Scioto Company collapsed, succeeding only in the fiasco of swindling French settlers in founding the village of Gallipolis. The land was actually owned by the Ohio Company, so when the settlers arrived, they found their deeds to the land worthless. Symmes’ venture also fared none too well, although he succeeded in founding the town of Cincinnati. By 1790, there were several thousand American inhabitants of the Northwest Territory distributed between Cincinnati, Marietta, and Gallipolis. Governor St. Clair’s exercise of autocratic power soon led him into trouble with the American settlers and the Indians, who were understandably bitter at the invasion of lands that they claimed they never ceded to the white man.
The Indians, indeed, had cause for complaint. Congress earlier had arrogantly pronounced the western Indians subjects of the United States who had forfeited their rights by their hostility to the American cause during the Revolution. In particular, all Indian titles to their lands were declared void, and Indians were peremptorily ordered to move west of the Miami and Maumee Rivers—in short, to evacuate all their towns and hunting grounds in the Ohio country. To prevent American exercise of sovereignty over them, the Indians of the Northwest met at a general conference at Sandusky and at Niagara in the fall of 1783 and the summer of 1784, to plan confederation against American aggression.
An even greater obstacle to effectuating an American takeover of the Northwest was the British insistence on retaining the key Northwest forts of Oswego, Niagara, Detroit, and Michilimackinac.3 The British army, remaining there to protect the British fur trade from American and settler invasion, encouraged the Indians in joint resistance against the menacing prospect of an American invasion. To the anguished American outcry that the British occupation was in direct violation of the peace treaty, the British could promptly reply with a tu quoque: for after all, the Americans were completely violating the treaty clause pledging no legal obstacles to a collection of prewar debts owed to British subjects, and they were also making no effort to comply with the treaty’s restoration of confiscated Loyalist property. Despite its affirmation, Congress could not force the states to collect prewar British debts; indeed, attempts in various cities caused riots and threats of assassination against the would-be debt collectors. The Americans, in their turn, used as their excuse for violating the treaty a previous British violation: evacuating British troops had taken with them several thousand black slaves, some of whom were allowed their freedom, while others were sold again into slavery in the West Indies.4
The Continental Army had disbanded with the advent of peace, and the states would not stand for such a gross assumption of central power as a peacetime standing army. But Congress evaded this clear policy by creating a temporary western force, made up of militia from several states interested in grabbing the Northwest. This small contingent under the command of General Josiah Harmar of Pennsylvania was, however, scarcely in a position to attack the British and Indian forces in the Northwest. Indeed, their only action was to burn private settlements which had dared to venture north of the Ohio River in defiance of congressional will. During the remainder of the 1780s congressional policy toward the Indians could best be described as two-faced. Thus, the Northwest Ordinance piously pledged that “the utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent …” Yet, Governor Arthur St. Clair was at the same instructed by Congress not to “neglect any opportunity … of extinguishing the Indian rights to the westward as far as the River Mississippi.”5
Before St. Clair’s appointment, a bizarre movement developed for a new state of Illinois, stimulated by Congress’ Ordinance of 1784. The war-created Illinois County of Virginia had collapsed late in the conflict. After the war, however, the adventurer John Dodge, former Indian agent for Virginia in Illinois, seized the military command of the village of Kaskaskia and proceeded without authorization of any kind to govern and terrorize its French citizenry. Dodge and Dorsey Pentecost, former head of the Virginia militia in the west, cooked up a petition for a new state of Illinois, but the petition had few supporters and the movement got nowhere.
Meanwhile, directly to the east of the Northwest Territory, the state of Pennsylvania was succeeding in expanding its territory at the expense of other states and the nascent new-state movements. In accordance with a bi-state agreement of 1779, the long-disputed Pennsylvania-Virginia boundary was finally settled in 1785, with Pennsylvania acquiring Pittsburgh and environs. Further east, a congressional court in 1782 arbitrarily awarded Pennsylvania jurisdiction over the Connecticut settlers of the Wyoming Valley, but on condition that the land titles of the settlers be upheld. Pennsylvania ignored this proviso and promptly sent militia to drive out the settlers, spurred on by the speculative land claims of leading Pennsylvania legislators. Connecticut’s Susquehanna Company, organizers of the settlement, defended its colonists, and civil war raged, the settler resistance being led by frontiersmen John Franklin, under the Company promise of land grants. Ethan Allen and his Green Mountain Boys went down to aid the Wyoming settlers. Franklin proposed the formation of a new state of Westmoreland, to include the Susquehanna Valley of New York as well as Wyoming Valley in Pennsylvania. Oliver Wolcott of Connecticut drafted a constitution for Westmoreland, but the state of Connecticut completely betrayed its colonists and left them to the mercies of Pennsylvania, in return for the retention of the Ohio Western Reserve in 1786. Pennsylvania’s jurisdiction was firmly resisted by the embattled settlers until Pennsylvania finally agreed to confirm the land titles of the pre-1782 settlers. John Franklin, however, was seized and tried by the Pennsylvania authorities.6
The Old Southwest
In the Southwest the Americans faced an at least equally difficult situation. At the end of the war, about 10,000 American settlers lived in these southwestern enclaves: central Kentucky, what is now northeastern Tennessee on the Holston River, and on the Cumberland River in north-central Tennessee. To the south, Spain claimed all the land south and west of the Tennessee River, covering western Tennessee and what is now Mississippi and Alabama. The Spanish claim, by conquest and occupation, was in fact far more tenable than that of America, which had sent no settlers into the deep Southwest. Its only claim was based on the peace treaty in which Great Britain had transferred lands no longer in its effective possession. Spain, too, tried to use the Indians of the Southwest as a buffer against American expansion.
Despite these hazards, the coming of peace saw the beginning of a flood of migration westward into the settlements of Kentucky and western Tennessee, doubling their population in one year. Many of the new settlers came armed with land-company grants, veterans’ land rights and other such special privileges granted by Virginia and North Carolina, and were even able to oust many of the original settlers from the land. Dissatisfaction was particularly rife in western North Carolina, where the conservative-dominated legislature in 1783 threw open the western country to an orgy of speculative land grants. After doing so, North Carolina cunningly ceded its western lands to the Confederation Congress on condition that all of its speculative land grants be validated. But now the Holston River settlers, taking advantage of the cession and of the recently passed Ordinance of 1784, elected a convention which met in late August to form their own government and looked forward to becoming a new western state. The guiding spirit of the new-state movement was Colonel Arthur Campbell, of Washington County in southwestern Virginia, who urged the formation of a new state of Franklin to consist of what is now eastern Tennessee, chunks of southeastern Kentucky, southwestern Virginia, western North Carolina, northwest Georgia, and northeastern Alabama. However, the Holston convention of December 1784 was more modest and confined itself to Holston territory that North Carolina had already ceded; in accordance with the Ordinance of 1784 the convention declared a new state of Franklin, elected John Sevier governor, and asked Congress for admission as a new state. Campbell, however, persisted in leading a movement in Washington County to secede from Virginia and join the new state of Franklin. Campbell persuaded the county not to send any delegates to the Virginia House and he organized meetings condemning the oppression of Virginia’s tax and militia laws. Throughout 1785 Campbell waged a successful struggle with Governor Patrick Henry, an opponent of secession, over retention of his and his followers’ county offices.
In November 1785 a decisive confrontation occurred in the Franklin convention. On one side were the conservative forces, led by Governor Sevier, who had opposed the Franklin movement at the beginning and who wanted to remain a quasi-adjunct of North Carolina, limiting Franklin territory to North Carolina cessions and retaining a North Carolina type of constitution. In particular, Sevier wished to keep a North Carolina land law and a judicial system to foster land speculation, for Sevier himself was a leading land speculator. Thus, Sevier managed to reintroduce into the Holston settlement the hated land laws and land grants of North Carolina. In opposition, Arthur Campbell, the Reverend William Graham, and the Reverend Samuel Houston, led a struggle for a greater Franklin to include southwestern Virginia, and to form a new frame of government free from North Carolina’s influence and based on highly liberal and radical principles. Campbell’s proposed constitution would have instituted a one-house legislature, universal manhood suffrage, voting by secret ballot, and a referendum of all bills to the people before they could become law. In short, the legislature would propose, and the people would dispose of, all legislation; the people, in effect, would have been a second house of the legislature. But Sevier’s victory at the convention meant that the claims of North Carolina land speculators remained essentially intact, and Campbell understandably lost interest in his own Franklin movement.
Meanwhile, North Carolina, reacting in horror to the new state of Franklin, repealed the cession of its western lands to the United States in the autumn of 1784. Sevier could not risk his popularity by acceding to North Carolina sovereignty, but he was, as we have seen, successful in keeping Franklin in the North Carolina orbit. The state remained precariously independent, however, and virtual civil war within Franklin erupted in 1787 as North Carolina tried to reestablish jurisdictions. In every Holston county there was now dual power, each with a set of Franklin and a set of North Carolina officials. Generally, the northern Holston counties were willing to return to North Carolina, while the southern counties, encroaching on Cherokee territory, were more fiercely committed to independence for fear that North Carolina would not defend their right to exist.
Another western land scheme, the Muscle Shoals project, was a land company attempt to grab and settle land at the bend of the Tennessee River south of the North Carolina line and hence under Georgia’s asserted jurisdiction. Two of the main rulers of North Carolina, Congressmen William Blount and Governor Richard Caswell, both conservatives and inveterate land speculators, organized a land company with other leading western figures, including John Sevier. Also included were a set of influential Georgia politicians who obtained an agreement from Georgia in early 1784 to establish there a county of Tennessee. Georgia appointed a board of commissioners to report on the lands and function as Justices of the Peace for the county; three of the seven commissioners were members of Blount’s Muscle Shoals Company. Sevier, one of the commissioners, was made colonel-commandant of the county. The difficulties of the state of Franklin, however, as well as the growing disenchantment of Georgia officialdom, blocked the advance of the Muscle Shoals scheme during 1784. When Georgia proved reluctant to get involved with the Indians in the area, Blount and the other promoters turned to South Carolina, another state with claims in the region. Influenced by General Wade Hampton, one of the organizers of Blount’s company, South Carolina made large grants of land in the “Bend of Tennessee” area during 1786. Georgia was also persuaded, after a struggle, to grant large tracts of land to the commissioners of the new “Tennessee County.”
With the advent of peace, the citizens of the Kentucky region had begun a drive for independence from Virginia and for statehood. Particularly grievous to the Kentucky land speculators was Virginia’s recent tax of five shillings per hundred acres on all large Kentucky land grants. This action turned the leading Virginians living in Kentucky, most of whom were land speculators in Virginia grants, in favor of a statehood which they had previously opposed. This, plus other tax burdens, the lack of independence of the Kentucky militia, and poor judicial service from the state of Virginia, ignited the postwar Kentucky statehood movement. Proceeding very cautiously, the voters of Kentucky, in three separate elections and three conventions at Danville during 1784–85, deliberated until finally unanimously demanding Virginia’s recognition as a “free, sovereign, and independent republic.” The goal was a separate state and then admission to the U.S. Virginia, in gentle resignation, resolved in June 1786 to accept Kentucky as a separate state if requested by another convention, the acceptance to take effect when Kentucky would in turn be accepted by Congress. One vital clause was Virginia’s insistence that Kentucky retain the validity of all land claims previously established under Virginia law—a clause that dampened some of the ardor of the Kentucky settlers for independence. Indeed, the Kentucky statehood movement had been captured by the Virginia land speculators from the original liberal settler-oriented advocates led by Arthur Campbell. Kentucky’s seemingly imminent statehood, furthermore, was challenged during 1786 by its preoccupation with combating Indian forays.7
The Jay-Gardoqui Treaty and the Mississippi River
The settlers who poured into the Southwest after the war somehow expected that they would be able to trade down the Mississippi River. The Mississippi, rather than the east-west trade across the almost impassable Appalachian Mountains, was the natural trading route for the western inhabitants. Yet, it should have been evident to them that Spain, in unchallenged possession of both sides of the lower Mississippi (even the aggressive United States did not dispute Spain’s possession of West Florida below the 31st parallel), had no particular reason to open the Mississippi to American trade. Hostile to the new republic and understandably fearful of its potential expansion westward and southward, Spain was in no mood to relax prevailing mercantilist policies for the benefit of the United States. The Americans, to be sure, argued that Britain had granted the U.S. free navigation of the Mississippi in the peace treaty, but here American arguments were even more absurd than in their claims to the Southwest above the 31st parallel. Since Britain had granted West Florida to Spain, Britain had no power whatever to grant any aspect of the Mississippi, and hence the free navigation clause in law or in reason was meaningless. Yet, the western migrants who should have realized the situation reacted in anger and shock when they discovered that Spain proposed to keep the Mississippi closed to their trade.8
With the advent of peace, Spain closed the lower Mississippi River to American trade in early 1784, raising a storm of shock and bitter protests and even rumbled threats of war by some Americans. Alarmed at this frenzied reaction, Spain sent Don Diego de Gardoqui as a special envoy to New York City, where Congress was now sitting, to negotiate a treaty. The idea was to regularize all outstanding questions: territorial, political, and commercial, between the two nations, and to do this before the population explosion in the West built up enormous pressure against Spanish territory. Spain was prepared to yield a substantial amount. In particular, they were prepared to grant to the U.S. the right to trade in Spain and Spanish colonial ports, a trade that America had enjoyed during the war and had supplied hard cash for American exports. The port of Havana was particularly important in the trade with the Spanish colonies. On boundary questions, Spain was also prepared to be extremely generous, and for the sake of American quiescence was willing to abandon its well-founded claim to all the land south and west of the Tennessee River, and to be content with the Yazoo River parallel at the northern boundary of West Florida. This would have yielded all the land north of the mouth of the Yazoo, including what is now western Tennessee, most of Mississippi and Alabama, and northwestern Georgia. In return, Spain sought a mutual guarantee of boundaries, which would have meant a permanent alliance in the Western Hemisphere. On the Mississippi River question, however, Spain was adamant, and Gardoqui was not permitted to yield on it.
Gardoqui arrived at New York in July 1785 and launched continuing negotiations with John Jay, Congress’ Secretary for Foreign Affairs. Jay was sympathetic to these just and highly favorable terms, but was hamstrung by congressional orders to conclude nothing without congressional approval, nor to yield an inch of insistence upon the “right” of free American navigation of the Mississippi or on the American claim to push Spain’s West Florida boundary down to the 31st parallel. The latter claim was advanced on the absurd ground that Britain had so defined West Florida in the peace treaty—at a time when West Florida, whose boundary had always been at the Yazoo, was in Spanish possession.
Jay and Gardoqui came to agree, along Spanish-proposed lines, on a projected treaty of commerce and alliance for thirty years. The alliance provided a mutual guarantee of boundaries in the Western Hemisphere. In the commercial clauses of the treaty, Spain granted American merchants commercial reciprocity between the U.S., Spain, the Canary Islands and such ports as Havana. The merchants of either nation were to be given the treatment accorded to each country’s own citizens. The merchants were to be free to introduce all manufactures and products of either country, except tobacco, with tariffs to be worked out on a principle of reciprocity. As a special bonus, Spain agreed to help the United States oust Britain from her military forts in the Northwest Territory and to guarantee the purchase in specie of a certain amount of American hardwood every year.
Jay and Gardoqui were thus in close agreement on the terms of the proposed treaty. There remained, however, the big stumbling block of the congressional mandate for free navigation of the Mississippi. As a result, Jay decided to propose to Congress that it agree to forbear using the Mississippi for the duration of any agreed-upon treaty. In this way, Congress would not even be ceding the principle of navigation in approving the proposed treaty.
No more reasonable proposal could have been put to Congress, which received the plan at the end of May 1786. Short of making war upon Spain, which almost no one was willing to undertake, Americans would not be trading down the Mississippi in any case. Such an American claim, moreover, was unheard of in international law or polity. For the mere forbearance of exercising this “right,” America was being offered the privilege of a highly favorable trade with Spain. Yet the proposal generated a fierce controversy and split Congress into two sectional camps.
To the northern delegates there was no problem; the Jay proposal was intelligent and judicious, and it provided a welcome and important trade for America.9 Furthermore, there was a healthy distrust of the West and a realization that accelerating migration there was generating a potentially aggressive and even separatist people, sharply cut off as they were from commerce from the East by the Appalachian Mountains. The fact that land speculators in the East opposed migration in order to keep new settlers there and thus appreciate the value of their lands, does not negate the cogency of the northern position. The southern states, however, trapped in a precarious hold on the southwestern settlers, were heavily immersed in speculation in western lands, including several members of Congress. The South was largely politically and economically committed to support the western hysteria about a Jay sellout of their frenetic claims. James Madison, Patrick Henry, and Thomas Jefferson were among the Virginians in opposition. Some southerners, in contrast, were able to rise above these political and personal considerations: George Washington generally favored the treaty, as did Richard Henry Lee and his nephew Henry Lee, a member of Congress. Henry Lee’s arguments for the great advantages of a “free liberal system of trade with Spain” were really not belied by his acceptance of a bribe from Gardoqui, who was ever ready to ply sympathetic Americans with his favors.
There was another important reason for the sharp North-South sectional split on the western issue. For already slavery, rapidly disappearing in the northern states, was becoming a sectional issue. To all Americans the West meant the Southwest, for the area north of the Ohio was not only unsettled, it was largely under the control of the British military outposts. It was the Southwest that was receiving a heavy influx of new settlers. Therefore the rapid admission of new western states would magnify the political strength of the southern slave states and diminish the strength of the free North. Here was another favor propelling both southern enthusiasm, and northern hostility, toward western expansion.
Finally, after a furious struggle, Congress at the end of 1786 passed a motion by the Massachusetts delegation to abandon its insistence on Mississippi navigation and on the 31st parallel in its instructions to John Jay. The vote was seven to five, strictly sectional, with every state north of Maryland voting for repeal, and every state from Maryland southward voting opposed (Delaware was not in attendance). But the vote was a pyrrhic victory; any treaty would need the vote of nine states for approval and the southern states gave notice that they would do battle to the end. Blocked by implacable southern hostility, further negotiations had become useless, and Gardoqui broke them off in the spring of 1787. Gardoqui, moreover, had now realized that the western hysteria was now escalating into profound disillusionment with a United States that could have passed such a treaty. As a result, many in the West were beginning to toy with the idea of seceding from the United States altogether, and in some way linking up with Spain to secure free navigation of the Mississippi. In truth, the secession movement and the proposed linkage with Spain was a highly sensible western turn toward their natural southern route of trade and communication.
The idea of western secession and subsequent linkage with Spain was first broached to the fascinated Gardoqui at the end of August 1786 by Dr. James White, a congressman from North Carolina. White, a highly educated speculator in Cumberland land, was a friend and business associate of William Blount and Governor Richard Caswell, two of the dominant men in North Carolina. Shortly after his bold proposal, White was chosen for the important post of Superintendent of Indian Affairs for the Southern Department. The Spanish Foreign Minister, delighted by White’s suggestion, instructed Gardoqui that westerners could be sure of the free use of the Mississippi should they secede and then ask Spain for protection.
Meanwhile, Kentucky politics were undergoing an upheaval. In the fall of 1786 Kentucky’s military and political leader, George Rogers Clark, had raided, confiscated, and destroyed the property of several Spanish merchants in the Vincennes area of the Illinois territory. Moreover, Clark encouraged rumors that he was planning an attack on the Spanish Southwest territory to drive the Spanish out of the Mississippi. The fabulous young adventurer and intriguer General James Wilkinson, who had only come to Kentucky a few years earlier, was able to use this incident as the lever for Clark’s political downfall. Wilkinson, now the political leader of Kentucky, also conceived of the idea of western secession as well as a tie-in with Spain.
In the summer of 1787 the daring Wilkinson, determined to be the “George Washington of the West,” went along to New Orleans and there presented his scheme to the eager Spanish officials. In the interest of secession and linkage with Spain, Wilkinson advised Spain to stand firm on the Mississippi question, while at the same time he now urged friends in Congress to accept the Jay-Gardoqui Treaty, thus providing a double impetus for western revolt. Taking a secret oath of allegiance to Spain, Wilkinson persuaded the Spaniards to grant him the lucrative personal right to trade with New Orleans so as to build up a Spanish connection with the West.
In Kentucky, political power was in the hands of Wilkinson’s group who was involved in the secession scheme. Members included Harry Innes, Benjamin Sebastian, and George Muter. In addition, the Wilkinsonian John Brown was elected Kentucky delegate to the Confederation Congress. Virginia Governor Edmund Randolph, a business associate of Wilkinson’s and a heavy speculator in Kentucky lands, seemed undisturbed by hints of plans for western independence.
During 1788 the various western threads began to tie together: James Robertson, undisputed head of the Cumberland settlement, declared his willingness to join the Kentucky plans, and James White, traveling far for the cause, inducted John Sevier of the State of Franklin into the secession plan. This was not difficult, since Sevier was about to be arrested for treason to North Carolina for his Franklin activities. Sevier wrote Gardoqui of his support and asked for loans and military aid from Spain. Robertson, too, wrote to the Spanish governor of Louisiana, Esteban Miró, and proudly informed Miró that they had just succeeded in getting North Carolina to organize the Cumberland territory into the “District of Mero” named in the governor’s honor. Sevier also tried to induce the Spanish to approve the Muscle Shoals project and grant it an outlet to the Gulf of Mexico.
When Congress postponed the question of Kentucky’s admission into the Union because of the current changeover to the Constitution of the United States in mid-1788, Wilkinson saw that the hour of decision had arrived. Now in July 1788, a Kentucky convention was in session to frame a constitution for the new western state. Wilkinson, Brown and their colleagues tried hard at this convention, and at another convention in November, to push through the formation of Kentucky as an independent state and therefore a state free of the Union. But the true motives of the planners had now become public, aided by the apostasy of George Muter, and Kentucky decided to ask Congress humbly for admission to the Union. The leaders of Kentucky, lacking Wilkinson’s bold imagination and insight into western problems, had dealt a grave blow to the idea of western secession.
At the end of the year Virginia passed another act confirming the secession of Kentucky, but this time its terms of the bequest were harsher. Virginia veterans were to be allowed unlimited time to lay their claims to bounty lands in Kentucky; furthermore, Kentucky was to be required to pay her part of Virginia’s public debt. These harsh terms encouraged renewed attention to the proposal by Wilkinson, thus keeping alive the idea of secession on behalf of Spain. Kentucky refused to accept the conditions, and Virginia then agreed to rescind them in another act of separation at the end of 1789. The rest was routine: a convention completed the formation of the state of Kentucky in mid-1790 and Congress agreed to admit the new state to the Union in February 1791, and it officially became a state in June 1792.
The rebellious lands of the Tennessee area were similarly quieted by a worried North Carolina, which agreed in early 1790 to cede its western lands to the United States. In 1790 Congress promptly created and organized the Southwest Territory consisting of North Carolina’s seceded western lands and a narrow strip southward that had been seceded to the U.S. by South Carolina in 1787. This step effectively ended the Southwest movement for secession from the U.S. The leaders of the secession intrigue were shrewdly coopted into the United States system: John Sevier, for example, was pardoned for this “treason” by North Carolina and given a handsome appointment as Brigadier General by that state; James Robertson was also made a Brigadier General. Andrew Jackson, a young North Carolina lawyer who recently moved to the Cumberland and became an ardent secessionist, was made Attorney General of the Mero District. Finally, none other than William Blount, the dominant political force in North Carolina and extensive speculator of the southwestern lands, was appointed governor of the Southwest Territory as well as Superintendent of Indian Affairs for the region.
While western intrigues with Spain were progressing, Britain, ensconced in the Northwest, was by no means quiescent. Britain’s idea was to promote a different type of secession of the West—a secession that would link up with Britain and proceed to open up the Mississippi River by driving the Spanish out of the area. During 1788, Lord Dorchester, Governor General of Canada, dispatched the veteran Tory Dr. John Connolly to sound out western leaders in Pittsburgh and Kentucky on this scheme. James Wilkinson expressed interest, and evidently kept the idea in reserve in case the Spanish project should fail. Several Pennsylvanian and western leaders were favorable to the scheme and a Committee of Correspondence was created in Kentucky to promote the plan.
In response to the rising pressures for western separation, the northern states became frightened at these rumblings and decided to reverse the decision of 1786 and reaffirm a hard line on Mississippi navigation. In September 1788, the North Carolina delegation urged stridently and preposterously that Congress resolve that the United States “have a clear, absolute and unalienable claim to the free navigation of the River Mississippi,” which was supported not only by treaties but also purportedly “by the great law of nature.” John Jay apparently felt it necessary to make public confession of his sins and he told Congress that “circumstances and discontents” had changed his views on the question of Mississippi navigation. Congress then resolved “that the free navigation of the River Mississippi is a clear and essential right of the United States,” and Gardoqui, seeing that further negotiations would be useless, promptly sailed for home in October 1789.10
The Diplomacy of the Confederation
Not all the diplomacy of the postwar period was such a failure as the negotiations with Spain and Great Britain. As soon as the peace treaty was signed, America, freed from the fetters of British mercantilism and eager to trade with all nations, instructed the peace commissioners (John Jay, John Adams, and Benjamin Franklin) to negotiate commercial treaties with all willing countries. While peace negotiations were still underway, Franklin had already signed a treaty with Sweden in April 1783. The treaty was based on the libertarian American “Plan of 1776” for freedom of trade and the safeguarding of neutrals’ rights: in particular, restricting contraband that could be seized by belligerent partners, the freedom of neutral shipping between belligerent ports, and the principle that free ships make free goods. The Swedish treaty made the further liberal addition of agreeing to convoy each other’s neutral ships in time of war.11
In 1784 Congress established another treaty commission, with Thomas Jefferson replacing John Jay. Their new instructions—in the “Plan of 1784”—added advanced libertarian features to the old Plan: e.g., providing immunity to civilians and unfortified towns during war, prohibiting privateering between the treaty parties in case of war between them, and restricting the scope of blockades. But the most creative innovation in the Plan for protecting neutrals’ rights was a new rule on contraband. Previously, warring nations could confiscate contraband articles even on neutral ships; now contraband was to be purchased, rather than seized by force (John Adams, indeed, wished to abolish the contraband category altogether and thus preserve neutral rights totally).
The first treaty concluded under the new instructions was signed with Prussia in 1785. This admirably advanced treaty not only provided for neutral convoys, but also for purchase of contraband and abolition of all privateering between the two countries, even if they were at war. These provisions were, in the words of Franklin, “for the interest of humanity in general, that the occasions of war, and the inducements to it, should be diminished.” The ultimate goal of these endeavors, according to Jefferson, was to be “the total emancipation of commerce and the bringing together of all nations for a free intercommunication of happiness.”
In colonial days British payment of tribute had protected American shipping from depredations by pirates from the Barbary States of North Africa. The good offices of Spain, however, enabled Adams and Jefferson to conclude a favorable treaty in 1787 with the Sultan of Morocco. Exacting only nominal tribute, the Sultan agreed on friendly peaceful commercial relations and on treating captives of any mutual wars of the future as prisoners of war, rather than slaves, as had been the custom. However, the rulers of the other Barbary States—Algiers, Tripoli, Tunis—continued to prey on American ships and enslave their sailors or hold them for ransom. For a peace treaty they demanded from the United States a large tribute. The aggressive Jefferson preferred war to tribute and tried to organize a joint European war against the Barbary pirates, but Congress would not support this bellicosity. Thus, John Adams trenchantly pointed out that the demanded tribute would be far cheaper than any American war against Barbary, but John Jay, the Secretary for Foreign Affairs, preferred to do nothing about Barbary in order to win American public opinion for his nationalist schemes: the lure being the use of national force to the benefit of American shipping in the Mediterranean. This Mediterranean trade particularly included exports of fish, wheat, and flour. In fact, Jay could breezily write upon hearing of Algiers declaring war against American shipping: “This war does not strike me as a great evil. The more we are ill-treated abroad, the more we shall unite and consolidate at home. Besides, as it may become a nursery for seamen, and lay the foundation for a respectable navy, it may eventually prove more beneficial than otherwise.” In short, welcome pillaging of American ships so as to seduce the public into looking for a strong national government for protection.
As for Great Britain, it not only refused to leave the Northwest forts, but also to sign any commercial treaties with the United States. Here, Prime Minister William Pitt the Younger yielded to the pressure of British shipowners and American Tories in Canada who wanted a monopoly of the British West Indies export trade. Indeed, although John Adams was sent as Minister to Great Britain, Britain refused to send even a diplomatic representative to the new nation. Instead, Britain intrigued not only with Indians and westerners, but also with the independent state of Vermont. Still kept out of the Union, Vermont was at least willing to listen to the idea of Union with Canada, since its natural trade route was the St. Lawrence River. The British as late as 1789 talked with Ethan and Ira Allen about a commercial treaty and possible reunion with Britain. Vermont, however, decided against this course and would eventually be admitted as the first new state of the Union in early 1791.12
- 1. [Editor’s footnote] For more on the western lands, see Rothbard, Conceived in Liberty, vol. 4, pp. 1483–86, 1527–29; pp. 369–72, 413–15.
- 2. Jensen, The New Nation, p. 357.
- 3. British troops also remained in the northern New York forts of Oswegatchie, Pointe-aur-Fer, and Dutchman’s Point.
- 4. [Editor’s footnote] Southerners also argued that the debts were incurred during an unjust mercantilist regime. See Rothbard, Conceived in Liberty, vol. 3, pp. 1071–72; pp. 307–08.
- 5. William T. Hagan, American Indians (Chicago: University of Chicago Press, 1961), p. 42.
- 6. [Editor’s footnote] Jensen, The New Nation, pp. 169–70, 276–81, 327–39, 350–59; Burnett, The Continental Congress, pp. 682–88; Nettels, The Emergence of a National Economy, pp. 142–55; Thomas Perkins Abernethy, Western Lands and the American Revolution (New York: Russell and Russell, 1959), pp. 309–10; A.M. Sakolski, The Great American Land Bubble (New York: Harper & Brothers Publishers, 1932), pp. 99–123.
- 7. [Editor’s footnote] Jensen, The New Nation, pp. 327–37; Abernethy, Western Lands and the American Revolution, pp. 288–324.
- 8. [Editor’s footnote] For more on the Mississippi question in the Treaty of Paris, see Rothbard, Conceived in Liberty, vol. 4, pp. 1470–79; pp. 356–65.
- 9. Historians have tended to slight the advantages and manifest justice of the Jay-Gardoqui treaty. Thus, Samuel Flagg Bemis, after conclusively demonstrating the absurdity of the western claim of a “right” to navigate the Mississippi, suddenly turns upon Jay in a burst of patriotic fervor and vainglory. Samuel Flagg Bemis, Pinckney’s Treaty: America’s Advantage from Europe’s Distress (New Haven, CT: Yale University Press, 1960), p. 88. On the other hand, properly appreciative of the Jay-Gardoqui treaty is Forrest McDonald, E Pluribus Unum (Boston: Houghton Mifflin,  1965), pp. 144–46.
- 10. [Editor’s footnote] Bemis, Pinckney’s Treaty, pp. 1–148; Abernethy, Western Lands and the American Revolution, pp. 317–53.
- 11. [Editor’s footnote] The Plan of 1776 refers to the agreement made with France to recognize American independence and promote free trade. Rothbard, Conceived in Liberty, vol. 4, pp. 1346–53; pp. 232–39.
- 12. [Editor’s footnote] Nettels, The Emergence of a National Economy, pp. 5–6, 67; Jensen, The New Nation, pp. 161–68, 211–13; Dumas Malone, Jefferson and the Rights of Man (Boston: Little, Brown and Co., 1951), pp. 22–33; Chilton Williamson, Vermont in Quandary, 1763–1825 (Montpelier: Vermont Historical Society, 1949), pp. 156–61, 294.