257

Jay's treaty with England - Its provisions

Text of the Jay Treaty.

Immediately after Congress adjourned in March, 1795, news arrived. that on November 19, 1794, a treaty of amity, commerce and navigation between the United States and Great Britain had been signed.* A copy of the treaty was received by the Secretary of State on March 7, 1795, and without delay the President devoted himself to earnest consideration of its contents. He was in some doubt in respect to its ratification, but finally reached the conclusion that it was the best obtainable.†

We have spoken previously of Jay's appointment to a special mission to England, and of the critical circumstances under which he entered upon his task. Arriving at London about the middle of June, 1794, Jay immediately opened negotiations with Lord Grenville, who had been commissioned by the king to treat with the

American envoy.* Jay's instructions were of a positive nature. He was to demand compensation for the British spoliations of American commerce and to insist that provisions were not to be considered as contraband of war, save when an attempt were made to carry them to a place actually besieged. He was to demand the immediate surrender of the frontier posts and to stipulate that the Americans be compensated for the slaves carried off by the British in violation of the treaty. When these matters were satisfactorily adjusted, Jay was to conclude a commercial treaty on the basis of reciprocity in navigation and trade regulations. Should he be unable to reach an amicable agreement regarding the matters just mentioned, he was to drop negotiations and report to the home government for further instructions. The commissioners of both nations were de

* Pellew, John Jay, pp. 300-301.

His instructions and the diplomatic correspondence are in American State Papers, Foreign

258

sirous to conclude a treaty which would be perfectly acceptable to their respective governments, and therefore negotiations proceeded rapidly. When the treaty was signed, Jay wrote to Washington that "to do more was impossible. I ought not to I ought not to conceal from you that the confidence reposed in your personal character was visible throughout the negotiations."*

The principal provisions of the treaty were as follows:

traders within the jurisdiction of such posts were to be protected therein and to enjoy their property unmolested. Article III. provided that both parties might freely trade with the Indians in their respective territories in America, with the exception of the country "within the limits of the Hudson's Bay Company." The River Mississippi was to be opened to both parties. The United States agreed, where full compensation for losses and damages sustained by British merchants could not be obtained by reason of legal impediments being placed in their way for collecting debts due them by American merchants, to make "full and complete compensation for the same to said creditors." These claims were to be

The British government was to withdraw its troops and garrisons from the western posts before June 1, 1796, and in the meantime, all settlers and

Relations, vol. i., pp. 470-520; Annals of Congress, 4th Congress, 1st session, App., pp. 2374-2503. For some of Randolph's letters, see Conway, Edmund Randolph, p. 227 et seq.

* On the negotiations, see American State Papers, Foreign Relations, vol. i., p. 476 et seq.; Jay, Life of John Jay, vol. i., pp. 322-340; Pellew, John Jay, p. 301 et seq.

The text will be found in Statutes-at-Large, vol. viii., pp. 116-129; Annals of Congress, 4th Congress, App., pp. 2504-2519; Revised Statutes relating to the District of Columbia (ed. 1875), pp. 269-282; American State Papers, Foreign Relations, vol. i., pp. 520-525; MacDonald, Select Documents, pp. 114-130; Snow, Treaties and Topics in American Diplomacy, pp. 68-73;

Treaties and Conventions of the United States

with Foreign Powers, pp. 379–395. See also Appendix i. at the end of the present chapter.

whose awards were to be final" both as to the justice of the claim and to the amount of the sum to be paid to the creditor or claimant." By Article VII. Great Britain was to make compensation to American merchants for "losses and damage by reason of irregular captures or condemnation of their vessels and their property under color of authority or commissions from his Majesty," such claims to be adjudicated by five commissioners. Article IX. provided that British subjects holding lands in the territory of the United States, or American citizens holding lands in British dominions, should continue to hold them according to the nature and tenure of their respective estates and titles

therein. Article X. stipulated that debts due from individuals of one nation to individuals of the other should not be sequestered or confiscated. Article XII. permitted direct trade between the United States and the British West Indies, but restrained the United States from carrying molasses, sugar, coffee, cocoa or cotton either from the islands or from the United States to any part of the world; nor could merchandise of the growth, manufacture, or produce of the States or of the Islands be transported in American vessels of more than 70 tons. (This article was suspended, however, by the resolution of the Senate advising ratification, and its suspension was accepted by Great Britain.) Reciprocal and perfect liberty of commerce and navigation between the United States and British dominions in Europe was bespoken, neither to be subject to higher duties than prevailed with other nations, save that the British government reserved the right to countervail American foreign duties. American vessels were to be admitted freely into the ports of the British East Indies, but not to carry on a coasting trade there. Prizes made by ships of war and privateers belonging to either party could enter and depart from the ports of the other without molestation; and no shelter or refuge was allowed to vessels preying upon subjects or citizens of the parties involved in this treaty. Jay was unable, however, to obtain a stipulation that

259

free ships should make free goods, and hence the question of contraband was not definitely decided, remaining, as heretofore, a matter to be determined by the existing law of nations. In the original draft of the treaty prepared by Jay and submitted to Lord Grenville was also the following article: "It is agreed that if it should unfortunately happen that Great Britain and the United States should be at war, there shall be no privateers commissioned by them against each other." But this pro

vision was not adopted. Jay was convinced that the treaty he had concluded was the best obtainable and believed it to be for the best interests of the United States to accept it.

Thus, it will be seen, the only grievance that the treaty promised to terminate was England's occupancy of American territory. Yet, what guarantee was there that England would withdraw on or before June 1, 1796, when a similar provision incorporated in the treaty of 1783 had not been complied with? Moreover, no compensation was allowed for losses sustained by the United States by the previous detention of the posts. Beside such provisions as were odious to all Americans regardless of political affiliations, there were some that were particularly offensive to the French partisans. For the terms of the Jay treaty rendered the French interpretation of the treaties between France and the United States impossible to the latter. For instance, France

260

*

maintained that she had the right to fit out privateers and sell prizes in American ports, whereas the Jay treaty provided (Art. XXIV.) that it should not be lawful "for any foreign privateers who have commissions from any other Prince or State in enmity with either nation to arm their ships in the ports of either of the said parties, nor to sell what they have taken, nor in any other manner to exchange the same, and Article XXIII. provided that "the ships of war of each of the contracting parties shall, at all times, be hospitably received in the ports of the other," and that (Art. XXV.) “it shall be lawful for the ships of war and privateers belonging to the said parties respectively to carry whithersoever they please the ships and goods taken from their enemies," and sell them there. Again, France had maintained that by her treaties she could furnish Americans with commissions against England, but Jay's treaty provided (Art. XXI.) " that the subjects and citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act for any foreign Prince or State, enemies to the other party; nor shall the enemies of one of the parties be permitted to invite, or endeavor to enlist in their military service, any of the subjects or citizens of the other party," and the subject or citizen who had such a commission or letter of marque could be punished "as a

pirate." Though the Jay treaty expressly provided (Art. XXV.) that

nothing in this treaty shall be construed or operate contrary to former and existing public treaties with other sovereigns and states," what satisfaction was this to the French partisans when the Federalist interpretation of the treaties with France would prevail?

There were several other clauses in the Jay treaty displeasing to the Republicans. Jay had been instructed to open to the United States a direct trade with the West Indies, but by Article XII. of the treaty that trade. was limited to vessels of 70 tons or less; and, while British ships of any tonnage were to be admitted to American ports for West Indian commerce, the United States was restrained from carrying molasses, sugar, coffee, cocoa or cotton, either from the islands or from the United States, to any part of the world. The British conceded (Art. XIII.) free trade with the British East Indies in all articles of which the importation or exportation, respectively, to or from the said territories, shall not be entirely prohibited." But, in return for this concession, it was agreed (Art. XV.) that no other or higher duties shall be paid by the ships or merchandise of the one party in the ports of the other than such as are paid by the like vessels or merchandise of all other nations. Nor shall any other or higher duty be imposed in one country on the importation of any articles

66

66

the growth, produce, or manufacture of the other, than are or shall be pay able on the importation of the like articles being the growth, produce, or manufacture of any other foreign of any other foreign country." Thus the United States was restrained from showing any special favors to any country in return for similar concessions from such country unless the same favor be extended also to England, no matter whether she did or did not reciprocate. Thus this country was bound to submit to any insults to which England might subject it, or go to

war.

* * *

The last article is perhaps the most extraordinary of them all, for it provided that the first ten articles of this treaty shall be permanent and that the subsequent articles, except the twelfth, shall be limited in their duration to twelve years, but subject to this condition, that whereas, the said twelfth article will expire by the limitation contained therein, at the end of two years from the signing of the preliminary or other articles of peace, which shall terminate the present war in which his Majesty is engaged, it is agreed that proper measures shall by concert be taken for bringing the subject of that article into amicable treaty and discussion so early before the expiration of the said term as that new arrangements on that head may by that time be perfected and ready to take place." But if no arrangements should be made," all the articles in this treaty

261

except the first two, shall then cease and expire together." Thus, as Gordy says: "It seemed as though England proposed to compel the United States. to accept such conditions relating to the West India trade as she saw fit to impose by withdrawing the meagre advantages conferred by the other commercial articles if this country did not consent to them."*

Hence, when it became known that Jay had signed a treaty by which England could still impress American seamen and compel them to fight against France; which, in fact, compelled us to aid England in her attempt to starve out the country that had helped us gain our freedom from this very

*

Gordy, Political History, p. 244. Schouler says: "No rational interpretation of such a treaty can leave a doubt in candid minds that the United States government, having plain grievances against King George, and plain opportunities for annoyance, yielded all the favors in her power to bestow, for the sake of getting these grievances redressed for the first time, and redressed only just far enough to obviate the necessity of immediate war. Jay, who represented the injured country, though honorable and patriotic, had always been a timid negotiator on America's behalf; and in this mission he was so painfully conscious that a dangerous contest of arms would follow his failure to make terms with the aggressor, that he most likely encouraged the less scrupulous statesman, who treated with him, to turn the opportunity to England's best account, by obtaining all the commercial advantages for the European struggle she wished from us, without undergoing the humiliation of asking for them, thus paring the claws of a neutral who had angrily threatened to use them, while pretending that the British lion was submitting to that operation. It is probable that Jay could not have gained more for his country; but it is certain that he might have surrendered less, and so given an equally pacific exit to his mission."- United States, vol. i., pp. 308-309.