The Treaty That Wasn't: Foreign Policy Under the Confederation

GalvezIn 2014, the United States Congress conferred honorary American citizenship upon Bernardo de Galvez (left), 228 years after his death.  He became the eighth person so honored, joining such luminaries as Winston Churchill, Mother Teresa, Lafayette, and Casimir Pulaski.

Who was Galvez, and what had he done? During the Revolutionary War, he had fought on behalf of Spain, which was fighting Great Britain at the same time as, although independently of, the United States.  Galvez had driven the British out of the Gulf Coast and the southern Mississippi Valley.  

And in so doing, he dropped a foreign policy problem into the lap of the Congress which met under the Articles of Confederation, which threatened to sunder the country into east versus west as well as north versus south, and forced a reexamination of centuries-old treaty-making practice.

Spanish settlers began living in what is now the southern United States in 1565, when Pedro Menendez de Aviles founded St. Augustine.  The settlers called their colony La Florida, and it eventually stretched from just east of New Orleans to just south of Georgia. The Spaniards occasionally crossed swords with the southern British colonies, so Great Britain seized Florida as part of the settlement (1763) which ended the Seven Years War.  Spain was compensated (at the expense of France) with sovereignty over Louisiana, including the west bank of the Mississippi River and a small area surrounding New Orleans at the river’s mouth.  However, the peace treaty required that Spain allow British ships to transit New Orleans and trade up and down the Mississippi River. 

For the next 20 years, Great Britain governed East and West Florida as the 14th and 15th American colonies (see top map).  East Florida included the peninsula which makes up most of the present state.  West Florida ran west along the Gulf Coast to the Mississippi River and north to what is now Vicksburg, Mississippi.  Much of both Floridas was still controlled by American Indians.  However, where Europeans held sway, along the seacoast and major rivers, British settlers quickly displaced Spaniards--many of whom decamped for Cuba. 

FloridasDuring the American Revolution, the settlers did not rebel, and would have been happy to remain British subjects. Spain, however, saw an opportunity to regain its former colony—and deputized Galvez to do so.  He drove the British out of West Florida (1779-81), relieving British pressure on the southern American states.  By the end of the Revolutionary War (1783), it was obvious the British would have to abandon East Florida as well.

Americans offered Galvez moral support, and even a little military support in the form of American volunteers who joined his expedition.  However, the United States and Spain left one matter hanging—how much territory would Spain regain after the war?  In general, Americans were satisfied to see Spain retain the Florida peninsula and the Gulf coast, which weren’t in the path of western expansion.  But, Spain wanted more.

The British negotiated separate peace treaties (1783) with the United States and Spain.  Great Britain would abandon her 15 American colonies--but to whom?  To the Americans, Britain ceded everything east of the Mississippi and south of Canada down to the 31st parallel—including part of the land they had been governing as West Florida.  And, Great Britain transferred her treaty right to navigate the Mississippi to the United States.  To Spain, Britain ceded “Florida” without delineating its boundaries. 


Spain scoffed at Britain’s pretension in establishing boundaries (in the American treaty) over territory she no longer controlled, and scoffed even harder at the notion that Britain’s right to navigate the Mississippi was a “bearer certificate” that could be transferred without Spanish approval. Spain claimed all of both Floridas, and a great deal of further territory east of the Mississippi (see shaded area on bottom map), as a result of Galvez’s conquests.  The boundary between Spain and the United States, she asserted, would be negotiated between those two countries alone.  And, Spain (1784) interdicted American commerce on the Mississippi. 

Thus it was that Don Diego de Gardoqui, a Spanish diplomat with a background—unusual for the Spanish court—in commerce and finance, showed up in New York in 1785 to negotiate with American diplomats, who would be appointed and instructed by Congress.  The two sides would attempt to resolve the boundary and navigation issues dividing the two countries. 

The earliest Continental Congresses, meeting in 1774 and 1775, did not think of themselves as conducting foreign policy.  They were attempting to address grievances with Great Britain, which was not then a foreign country.  It was the estranged Mother Country.

As the Revolutionary War gathered steam and Congress edged toward independence, the delegates began to take a wider view of the world.  John Adams wrote in October 1775, “Suppose We assume an intrepid Countenance, and Send Ambassadors at once to foreign Courts.  What Nation shall We court? Shall We go to the Court of France, or the Court of Spain, to the States General of the United Provinces? . . . If We Should is there a Probability, that Our Ambassadors would be received, or so much as heard or seen by any Man or Woman in Power at any of these Courts?”  By fall 1775, Congress was sending unofficial emissaries to Europe to find out.

With independence in 1776, matters came out into the open.  Congress dispatched Benjamin Franklin and others to France to seek a treaty of commerce, a military alliance, and cash loans, and these efforts bore fruit in 1778.  The war with Great Britain now became a matter of foreign policy as well, and when the British indicated receptivity to peace talks, Congress sent commissioners there to negotiate.

The drafters of the Articles of Confederation (1776-77), as members of Congress, limited their own power over domestic affairs, but made certain to retain plenary control over foreign policy. Congress, per Article IX, would exercise “the sole and exclusive power” of declaring war and making peace, sending and receiving ambassadors, and entering into treaties and alliances with foreign countries.  A declaration of war, or a treaty or alliance, could not come into effect “unless nine states assent to the same”—that is, two thirds of the total.

The lodging of these powers in a legislative body (Congress) represented a departure from European practice, under which ambassadors typically acted as personal representatives of their monarch.  Monarchs were expected to ratify, more or less automatically, any treaty negotiated in good faith by their ambassador, since to do otherwise would repudiate the work of their own representative.  Congress, on the other hand, would appoint and instruct ambassadors as a group, and her membership might change between when a treaty was negotiated and when it was ratified.  What standards would apply?  This remained to be worked out.

The Articles were ratified in 1781, and peace came in 1783.  With the coming of peace, American foreign policy objectives evolved.  Congress still required loans (see Finances), and wished to negotiate easier terms for the repayment of earlier loans.  But now, as well, Congress needed to solve the boundary dispute with Spain.  And in addition, Congress wished to secure commercial agreements, establishing terms of trade, with as many European countries as possible.

Americans were already trading with foreign countries, commercial agreement or no.  In one famous example, a syndicate of American merchants sent a trading ship to China in 1784, and made money despite the lack of a prior trade agreement--or any prior contact--between America and China.  

Operating outside of a commercial agreement, however, entailed risk for merchants.  Foreign governments might suddenly close ports or forbid trade in certain articles, or raise tariffs and harass merchants on shore.  Commercial agreements foreclosed against these possibilities, guaranteeing each side “most favored nation” status with the other, specifying exactly what could or could not be traded, and providing resolution procedures in case of disputes.  With commercial agreements in place, merchants could trade with more security and less risk.  With less risk, merchants would likely trade more, stimulating the American economy.

Don Gardoqui determined to lever the American desire for a commercial agreement to the advantage of Spain in his negotiations with the United States.  Spain, uniquely among European countries, bought more from the United States (mostly food and lumber) than she sold--and Spanish merchants paid in hard silver coin.  Americans were anxious to protect and expand this trade.

Gardoqui thus offered a favorable commercial agreement to the United States, even offering to guarantee and increase Spanish government purchases of lumber for the imperial Navy.  But in return, he refused to allow American commerce down the Mississippi, and he offered little if any retreat from the expansive Spanish boundary claim.  

Since Gardoqui had traveled to New York, Congress deputized the Secretary of Foreign Affairs, John Jay, to negotiate on its behalf for the United States. Congress instructed Jay (July 20, 1785) to hew to the British treaties with respect to the boundaries of Florida and the American right to navigate the Mississippi.

Under these instructions, negotiations went nowhere.  And yet, American merchants—especially in New York and New England—wanted a commercial agreement.  With matters at an impasse, Jay returned to Congress in summer 1786.  Might his instructions be modified to allow the United States to forego navigation on the Mississippi for a number (25 or 30) of years, in return for an immediate commercial agreement?  

Congress and the nation erupted in debate. Southern settlers were already pouring over the mountains into Kentucky (then part of Virginia) and Tennessee (then part of North Carolina).  For these settlers, access to the Mississippi was everything, and trade with Spain was nothing.  Charles Pinckney of South Carolina warned that surrendering the Mississippi would “destroy all connection between (the Atlantic states) and the inhabitants of the western country: for, after you have rendered (the Westerners) thus dependent on Spain, by using the first opportunity in your power to sacrifice their interests to those of the Atlantic States, can they be blamed for immediately throwing themselves into (Spanish) arms for that protection and support which you have denied them?”  James Monroe of Virginia denounced Jay as “negotiating expressly for the purpose of defeating the object of his instructions, and by a long train of intrigue and management seducing the representatives of the states to concur in it.”

On the other side, Rufus King of Massachusetts dismissed Western concerns as unimportant, because “every citizen of the Atlantic states, who emigrates to the westward by the Allegheny is a total loss to our confederacy . . . I have ever been opposed to encouragement of western emigrants”.  On August 29, 1786, Congress voted:


Fifteen delegates from seven northern states voted unanimously to repeal that portion of Jay’s instructions that forbade him to surrender the right of navigation of the Mississippi.  Fourteen delegates from five southern states voted unanimously against.  Delaware was absent; her delegates had left Congress in June, and no replacements would arrive until March 1787. The motion carried, seven states to five.

Or did it? The Articles required nine states to ratify a treaty. Did it not follow, then, that only a majority of nine states could instruct a commissioner in negotiating a treaty?  Otherwise, by the monarchical principle, nine states would be morally required to ratify what as many as six of them had opposed.  “If a treaty entered into in pursuit of instructions be not ratified, by the law of nations it is causa belli,” said Pinckney on August 30.  He offered a resolution that the previous day’s action was unconstitutional.  It was rejected by the reverse vote—five states in favor, seven opposed. 

There matters sat. The Southern states had sustained a nominal defeat, but had taken the air out of the treaty negotiations.  Jay and Gardoqui went through the motions of talking for several more months, but never agreed on a treaty, and knew ratification was unlikely even if they did agree.  Finally both parties agreed to set matters aside while the United States debated the Constitution of the United States (COTUS). 

The COTUS convention reviewed the treaty-making power at length.  After the Jay-Gardoqui debate, Southern delegates were wary of any arrangement that might allow treaties to be made by a sectional majority.  The COTUS provided that the President could negotiate treaties, but that they could only be ratified with the consent of two thirds of the Senate.  It was understood that Senators would apply independent judgment, and the monarchical principle no longer applied. “However proper or safe it may be in governments where the executive magistrate is an hereditary monarch to commit to him the entire power of making treaties,” wrote Alexander Hamilton in the Federalist Papers, “it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration.” 

As matters turned out, the American failure to negotiate a treaty with Spain, under the Confederation, was a blessing.  Spain continued to buy American goods without a commercial agreement, and even opened the Mississippi to select Westerners in a delusional attempt to foment a Western secession movement.  In 1793 Europe erupted into continent-wide war, and Spain, fighting first France and then Great Britain, needed America more than America needed Spain.  In 1795 the Washington administration negotiated a treaty with Spain which gave the United States everything it wanted—free navigation of the Mississippi, the southern boundary with Florida, and favorable terms of trade.  The Senate ratified it unanimously.

In time the controversy was forgotten, so that the Congress of 2014 could remember Bernardo de Galvez as a commander who had beaten the British during the Revolutionary War, and not as the source of a Spanish claim to half of the southwest. The city of Galveston, Texas honors his memory. 

The dispute with Spain was the most important foreign policy problem faced by the Confederation government, but it was not the only one. The government had a mixed record in dealing with other foreign policy problems.  The Congress certainly had able representatives overseas in Benjamin Franklin, John Adams, Thomas Jefferson, and (until his recall to New York) John Jay.  These diplomats negotiated eight treaties during the Confederation period—the preliminary and final peace treaties with Great Britain, two conventions with France to delay loan repayments, and commercial agreements with the Netherlands, Sweden, Prussia, and Morocco.  All were favorable toward the United States, and all were ratified by Congress without a dissenting vote. 

Agreement With: Signed At: Ratified Vote
Convention on Loan repayment France July 16, 1782 Versailles Jan. 22, 1783 voice
Commercial Agreement Netherlands Oct. 8, 1782 the Hague Jan. 23, 1783 voice
Preliminary Peace Treaty Great Britain Nov. 30, 1782 Paris Apr. 15, 1783 voice
Convention on Loan Repayment France Feb. 25, 1783 Versailles Oct. 31, 1783 voice
Commercial Agreement Sweden Apr. 3, 1783 Paris July 29, 1783 voice
Final Peace Treaty Great Britain Sep. 3, 1783 Paris Jan. 14, 1784 9-0
Commercial Agreement Prussia Sep. 10, 1783 various May 16, 1786 9-0
Commercial Agreement Morocco June 23, 1786 Marrakech July 18, 1787 voice

British Forts

The government failed, however, in asserting its authority against Great Britain.  Great Britain, unlike Spain, granted the United States a favorable boundary settlement (with Canada) in the treaties which ended the Revolutionary War—but then failed to honor the treaties by evacuating its forts which lay on the American side of the boundary (see map).  The British offered, as justification, that American state governments were also violating the treaty by making it difficult or impossible for British citizens to recoup debts owed to them by Americans. Congress had no authority to force the states to comply, and the matter carried over into the Washington administration.  

The government also failed in dealing with the infamous Barbary pirates from the lands which are now Algeria, Tunisia, and Libya.  Algerine corsairs seized an American merchant ship in 1785, and held the crew for ransom under deplorable conditions.  All of the Barbary states (except Morocco) demanded substantial tribute payments to allow American commerce in the Mediterranean, knowing that the alternative of war would be (for the Americans) even more expensive.  The Confederation government had neither the money for tribute nor the navy for war.  The captives languished in slavery, American ships avoided the Mediterranean, and these problems also carried over into the Washington administration and beyond.

Sources: Journals of the Continental Congress, Volume 31; Letters of Delegates to Congress, Volume 2; Albert Bemis, Pinckney's Treaty: A Study of American Advantage from Europe's Distress, 1783-1800, 1926; Norman Graebner, Foreign Affairs and the Founding Fathers, From Confederation to Constitution, 1776-1787, 2011; Samuel Crandall, Treaties: Their Making and Enforcement, 1924; Kathleen DuVal, Independence Lost: Lives on the Edge of the American Revolution, 2015.

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