Front Page Titles (by Subject) JAY TO EDMUND RANDOLPH. 1 - The Correspondence and Public Papers of John Jay, vol. 4 (1794-1826)
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JAY TO EDMUND RANDOLPH. 1 - John Jay, The Correspondence and Public Papers of John Jay, vol. 4 (1794-1826) 
The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 4 (1794-1826).
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JAY TO EDMUND RANDOLPH.1
London, September 13, 1794.
Hitherto my letters have communicated to you but little information of much importance, except on one point. Although all the general objects of my mission were opened at once, and were received with every indication of the same candour and disposition to agreement with which they were stated, yet the nature of the business turned the immediate and more particular attention of both parties to the affair of the captures; the result has been communicated to you.
A number of informal conversations on other points then took place, and every difficulty which attended them came into view, and was discussed with great fairness and temper; the inquiry naturally led to the fact, which constituted the first violation of the treaty of peace? The carrying away of the negroes contrary to the 7th article of the treaty of peace, was insisted upon as being the first aggression. To this it was answered, in substance, that Great Britain understood the stipulation contained in that article, in the obvious sense of the words which expressed it, viz., as an engagement not to cause any destruction, nor to carry away any negroes or other property of the American inhabitants; or, in other words, that the evacuation should be made without depredation; that no alteration in the actual state of property was operated or intended by that article, that every slave, like every horse, which escaped or strayed from within the American lines, and came into the possession of the British army, became, by the laws and rights of war, British property; and, therefore, ceasing to be American property, the exportation thereof was not inhibited by the stipulation in question; that to extend it to the negroes, who, under the faith of proclamations, had come in to them, of whom they thereby acquired the property, and to whom, according to promise, liberty had been given, was to give to the article a greater latitude than the terms of it would warrant, and was also, unnecessarily, to give it a construction which, being odious, could not be supported by the known and established rules for construing treaties. To this was replied the several remarks and considerations which are mentioned at large in a report which I once made to Congress on this subject, and which, for that reason, it would be useless here to repeat; on this point we could not agree.
I then brought into view another circumstance, as affording us just cause of complaint, antecedent to any of those urged against us, viz., that, from the documents recited and stated in Mr. Jefferson’s letter to Mr. Hammond, it appears that the posts were not only not evacuated within the reasonable time stipulated by treaty but also that no orders for the purpose had, at least within that time, if ever, been given.
To this it was answered, that the provisional articles were signed at Paris on the 30th of November, 1782; that those articles were to constitute the treaty of peace proposed to be concluded between Great Britain and the United States, but which treaty was not to be concluded till terms of peace should be agreed upon between Great Britain and France; that the treaty of peace was not concluded until the 3d of September, 1783; that it was not ratified in America until the 14th of January, 1784; and that the ratification was not received in London until the 28th May, 1784, nor exchanged until the end of that month; that, according to the laws of nations, treaties do not oblige the parties to begin to execute the engagements contained in them, until they have received their whole form that is, until after they shall have been ratified by the respective sovereigns that are the parties to them, and until after those ratifications shall have been exchanged; that, therefore, it was not until the end of May, 1784, that Great Britain was bound to give any orders to evacuate the posts; that such orders could not arrive at Quebec, until in July, 1784; and, consequently, that the allegations of a breach of the treaty by the non-execution of the article respecting the posts, grounded on circumstances prior to the 13th July, 1784, are evidently unfounded; that, in the interval between the arrival and publication in America, of the provisional articles, and the month of July, 1784, by which time, at soonest, orders (issued after the exchange of the ratifications of the treaty of peace, the last of May) could reach Quebec, incontestible violations of the treaty had taken place in the United States; that reason and the practice of nations warrant, during a suspension of hostilities, only such measures as result from a continuance of the status quo, until the final exchange of ratifications; that in opposition to this, new legislative acts had, in the interval before mentioned, been passed, which were evidently calculated to be beforehand with the treaty, and to prevent its having its full and fair operation on certain points and objects, when it should be ratified and take effect; that these acts were the first violations of the treaty, and justified Great Britain in detaining the posts until the injuries caused by their operation should be compensated.
That Great Britain was not bound to evacuate the posts, nor to give any orders for the purpose, until after the exchange of the ratifications, does appear to me to be a proposition that cannot be reasonably disputed.
That certain legislative acts did pass in the United States, in the interval aforesaid, which were inconsistent with the treaty of peace, is equally certain; but it does not thence necessarily follow that those acts were without justice, even as relative to the treaty, for precedent violations on the part of Great Britain would justify subsequent retaliation on the part of the United States. Here again the affair of the negroes emerged, and was insisted upon, and was answered as before. I confess, however, that his construction of that article has made an impression upon my mind, and induced me to suspect that my former opinion on that head may not be well founded.
Thus it became evident that admissions of infractions of the treaty of peace, and that this or that party committed the first aggression, were not to be expected, and that such discussions would never produce a settlement.
It then became advisable to quit those topics, and to try and agree on such a set of reciprocal concessions as (balancing each other) might afford articles for a treaty, so beneficial to both parties as to induce them to bury in it all former questions and disputes. This idea gave occasion to a variety of propositions of different kinds, which it would be tedious and useless to enumerate, and of which you will readily conceive there were some that could not meet with mutual approbation; among those which were mentioned was one for altering essentially our boundaries in the northwestern corner of the United States; this I regarded as inadmissible, and hoped would not be persisted in; one for doing us complete justice respecting captures; one for partially opening to us a trade with the West India Islands; one for our paying the damages sustained by British creditors by lawful impediments; this was strongly insisted on. I did not think it utterly inadmissible in case we received proper justice and privileges under other articles; for then, in my judgment, it would not be advisable to part and separate on that point, and various reasons convinced me it would be adhered to; one for putting the ships and merchants of both parties on an equal footing. In short, in order to bring the whole subject comprehensively to view, nothing that occurred was omitted to be mentioned; these were free conversations, neither of us considering the other as being committed by anything that was said or proposed.
It was necessary then to select points for mutual consideration, and quitting desultory discussions, to fix our attention on certain propositions, each being at liberty to propose what he pleased, and again to retract his proposition, if, on mature reflection, he should be so inclined: with this view, after returning home, I selected the following, and having reduced them to writing, sent them to Lord Grenville for his consideration; in the mean time employing myself in reflecting, and endeavouring to decide in my own mind, how far, and with what modifications or omissions, it would be proper to adopt them:
August 6th, 1794.
Mr. Jay presents his compliments to Lord Grenville, and encloses some outlines for a convention and treaty of commerce; some of them appear to him questionable. More mature reflection, and the light which usually springs from mutual discussions, may occasion alterations. Many of the common articles are omitted, and will be inserted of course. It is very desirable that it may be concluded in season to arrive about the 1st of November.
Right Honorable Lord Grenville, etc., etc.
The paper that was enclosed is in these words, viz
Whereas between His Majesty the King of Great Britain and the United States of America there do exist mutual complaints, and consequent claims, originating as well in certain articles of their treaty of peace as in the law of nations relative to the respective rights of belligerent and neutral nations:
And whereas both the said parties being sincerely desirous to establish permanent peace and friendship, by a convention that may be satisfactory and reciprocally advantageous, have respectfully empowered their undersigned ministers to treat of, and conclude the same:
And whereas the said ministers find it impossible to admit the said mutual complaints and claims of the first description, to be well founded in their existing extent; and to the end that the obstacles to concord and agreement, which thence arise, may be done away, they have agreed that all the said complaints and claims shall be forever merged and sunk in the following articles, viz.
The boundaries of the United States, as delineated in the said treaty of peace, and every article in the said treaty contained, are hereby recognized, ratified, and forever confirmed; but, inasmuch as the parties differ as to which is the river intended by the treaty, and therein called the river St. Croix, it is agreed that the said question shall be referred to the final decision of ——— commissioners, to be appointed and empowered as follows, viz.
Whereas it is doubtful whether the river Mississippi extends so far to the northward as to be intersected by the west line from the Lake of the Woods, which is mentioned in the said treaty, it is agreed that the actual extent of the said river to the northward shall be explored and ascertained by commissioners for that purpose, to be appointed and authorized as follows, viz.
It is agreed that if, from the report of said commissioners, it shall appear that the said river does not extend so far to the northward as to be intersected by the west line aforesaid, by reason whereof the boundary lines of the United States in that quarter would not close, then, and forthwith thereupon, such a closing line shall be established as shall be adjudged and determined to be most consistent with the true intent and meaning of the said treaty by ——— commissioners, to be appointed and authorized in the manner prescribed in the article relative to those who are to decide which is the river St. Croix, intended by the said treaty; with these differences only, viz.
It is agreed that His Majesty shall withdraw all his troops and garrisons from every post and place within the limits of the United States, by the 1st of June next, and that all settlers and traders within the precincts or commands of said posts and garrisons shall continue to have and enjoy, unmolested, all their property of every kind, and shall be protected therein; and may either remain and become citizens of the United States, or may sell their land or other property, and remove, with their effects, at any time within two years from the 1st of June next.
It is agreed that His Majesty will cause full and complete satisfaction and compensation to be made for all vessels and property of American citizens which have been, or, during the course of the present war, shall be, illegally captured and condemned, under color of authority and commissions derived from him; and that in all cases where it shall be apparent full justice and compensation cannot be obtained and actually had, in the ordinary course of judicial proceedings; and for this purpose ——— commissioners shall be appointed and empowered in manner following, viz.
And whereas debts bona fide contracted before the peace, and remaining unpaid by American debtors to British creditors, have probably, in some instances, been prejudiced and rendered more precarious by the lawful impediments which, after the peace, did for some time exist, to their being prosecuted and recovered, it is agreed that in all cases where it shall be apparent that the said creditors, by the operation of the said impediments, on the security and value of their debts, have sustained damage, for which adequate reparation cannot now be obtained, and actually had, in the ordinary course of judicial proceedings (it being understood that in these damages, interest shall be included only in cases where, according to equity and good conscience, all things being considered, it ought to be allowed and paid), the United States will make full and complete satisfaction and compensation to the said creditors for the same; and for this purpose commissioners shall be appointed and authorized in the manner prescribed in the preceding article; with these differences only, viz.
It is agreed that it shall be and may be lawful for the said United States and their citizens to carry, in their own vessels, of the burthen of one hundred tons, or under, from the said United States, any goods, wares, and merchandises, which British vessels now carry from the United States, to any of His Majesty’s islands and ports in the West Indies; and shall pay in the said islands and ports only such rates of tonnage as British vessels do, or shall be liable to, pay in the United States; and only such other charges, imposts, and duties, as British vessels and cargoes laden in, and arriving from, the United States, now are, or hereafter shall be, lawfully liable to in the said islands and ports; and that it shall and may be lawful for the said American vessels to purchase, lade, and carry away, from the said islands and ports, all such of the productions and manufactures of the said islands as they may think proper, and paying only such duties and charges on exportation as such vessels and cargoes, if British, would be liable to; Provided always, That they carry and land the same in the United States, and at no place whatever out of the same; it being expressly agreed and declared, that West India productions or manufactures shall not be transported in American vessels, either from His Majesty’s said islands, or from the United States, to any part of the world except the United States, reasonable sea stores excepted, and excepting, also, rum made in the United States from West India molasses.
It is agreed that all the other ports and territories of His Majesty, whatsoever and wheresoever, (not comprehended within the limits of his chartered trading companies) shall be free and open to the citizens of the United States, and that they, and their vessels and cargoes, shall therein enjoy all the commercial rights, and pay only the same duties and charges, either on importation or exportation, as if they were British merchants’ vessels and cargoes, except that they shall pay the same rate of tonnage as may be charged on British vessels in the United States. And, on the other hand, it is agreed that all the ports and territories of the United States, without exception, shall be free and open to British merchants and subjects, and that they and their vessels and cargoes shall therein enjoy all the commercial rights, and pay only the same duties and charges as if they were American merchants’ vessels and cargoes; it being the intention of this article that, in His Majesty’s territories (except as before excepted) American merchants and merchant vessels shall be exactly on the same footing with British merchants and merchant vessels, and that British merchants and merchant vessels shall, in all the territories of the United States, be exactly on the same footing with American merchants and merchant vessels, tonnage only excepted.
The trade between the United States and the British West Indies shall be considered as regulated and explained by the preceding article, and therefore as being excluded from the operation of the following articles:
It is agreed that all the productions and manufactures of His Majesty’s dominions in any part of the world may freely be imported in British or American vessels into the United States, subject equally and alike to the duties on importation which may there be established; and that all the productions and manufactures of the United States may be freely imported in American or British vessels into any of the said dominions of His Majesty, subject equally to the duties on importation which may there be established.
And to the end that these duties may be made reciprocal, it is agreed that additional articles for that purpose shall be negotiated and added to this convention as soon as may be conveniently done.
It is agreed that when Great Britain is at war and the United States neutral, no prizes taken from, or by, Great Britain shall be sold in the United States; and that, when the United States are at war, and Great Britain neutral, no prizes taken from, or by, the United States shall be sold in His Majesty’s dominions.
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, and that the merchants and others residing in each other’s countries shall be allowed nine months to retire with their effects, and shall not be liable to capture on their way home to their respective countries.
It is agreed that British subjects who now hold lands in the United States, and American citizens who now hold land in His Majesty’s dominions, shall continue to hold them according to the nature and tenure of their estates and titles therein, and may grant, and sell, and devise the same, as, and to whom they please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens.
It is agreed that neither debts due from individuals of the one nation to individuals of the other, nor shares or moneys which they may have in the funds, or in the public or private banks, shall ever, in any event of war or national differences be sequestered or confiscated; except that, in case of war, and only during its continuance, payment may be suspended, it being both unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority, on account of national differences and discontents.
From the 6th to the 30th of August nothing of importance occurred.
On the 30th day of August Lord Grenville wrote me a letter, and enclosed two draughts or projets of treaties. The letter is in these words, viz.:
August 30th, 1794.
I have now the honor to transmit to you two projets, the one for regulating all points in dispute between His Majesty and the United States, the other for the establishment of commercial regulations. You will perceive that I have proceeded in forming these projets on the foundation of the paper you communicated to me, but that I have occasionally made such variations as seemed to me just and expedient. I have thought that some time might be saved by communicating them to you in this manner. Whenever you have sufficiently considered them to be enabled to converse, either on the whole, or on any distinct branches of so extensive a subject, I shall be very much at your order, having very sincerely at heart the speedy and favorable conclusion of our negotiation.
It would have been more satisfactory to me if I had found it practicable to send you these projets sooner; but you will, I am sure, be sensible of the circumstances which must, at this conjuncture, have interfered with the preparation of an arrangement intended to comprehend so extensive a subject, and to lay the foundation of lasting harmony and friendship between our two countries. Even in the state in which I now send you these papers, I am apprehensive that some verbal corrections may occur as necessary to give full effect to the objects intended to be provided for, supposing those objects to be mutually consented to; and I think there are one or two points, on which we have occasionally touched in our conversations, for which no provision is made in these projets. But I have preferred making the communication in its present shape rather than that any further delay should be created, and I trust, with real confidence, to your candor, respecting such further suggestions as I may occasionally see ground to state to you. I have the honor to be, &c. &c.
The draughts, or projets, are as follows, viz.:
First, the Preamble.
Article 1. It is agreed that His Majesty will withdraw all his troops and garrisons from the posts within the boundary line assigned by the treaty of peace to the United States. This evacuation shall take place on or before the first of June, 1796, and all the proper measures shall, in the interval, be taken by concert between His Majesty’s Governor General in America, and the Government of the United States, for settling the previous arrangements which may be necessary respecting the delivery of the said posts. All settlers and traders within the precincts or jurisdiction of said posts shall continue to have and to enjoy, unmolested, all their property of every kind, and shall be protected therein so long as they shall think proper to remain there, and shall be at full liberty to remove at such times as they shall think proper, and to sell their lands, houses, or effects, or to retain the property thereof. It shall at all times be free to His Majesty’s subjects, and to the Indians who are to the southward and westward of the Lakes, to pass and repass with their goods and merchandises, and to carry on their commerce within or without the jurisdiction of the said posts, in the manner hitherto accustomed, and without any hindrance or molestation from the officers or citizens of the United States. The several waters, carrying places, and roads, adjacent to the lakes, or communicating with them, shall continue to be free and open to His Majesty’s subjects, and to the Indians, for that purpose; and no impediment or obstacle shall be given to the passage of goods or merchandise of any kind; nor shall any duty be attempted to be levied upon them.
Art. 2. In order to remove all uncertainty with respect to said boundary line assigned to the United States by the said treaty of peace, the following arrangements have been agreed upon, between the two contracting parties to the said treaty, and are to be considered as forming a part thereof:
First. That, whereas doubts have arisen what river was truly intended, under the name of the river St. Croix, mentioned in the said treaty, and forming a part of the boundary therein described, that question shall be referred to the final decision of commissioners in London, to be appointed in the following manner, viz.: That one commissioner shall be named by His Majesty, and one by the United States, and that the said two commissioners shall agree on the choice of a third, or, if they cannot so agree, that they shall each propose one person, and that, of the two names so proposed, one shall be drawn by lot, in the presence of the two original commissioners; and that the three commissioners so appointed shall be sworn impartially to examine and decide the said question, according to such documents as shall respectively be laid before them, on the part of the British Government, and of the United States.
Secondly. That whereas it is now understood that the river Mississippi would, at no point thereof, be intersected by such westward line as is described in the said treaty: and, whereas it was stipulated, by the said treaty, that the navigation of the Mississippi should be free to both parties, it is agreed that the boundary line should run in the manner described by the said treaty, from the Lake Huron, to the northward of the Isle Philippeaux, in Lake Superior; and that from thence the said line shall proceed to the bottom of West Bay, in the said lake; and from thence, in a due west course, to the river of the Red Lake; or eastern branch of the Mississippi; and down the said branch to the main river of the Mississippi; and that, as well on the said branch, as on (——— or ——— through Lake Superior; and from thence to the water communication between the said lake, and the Lake of the Woods, to the point where the said water communication shall be intersected by a line running due north from the mouth of the River St. Croix, which falls into the Mississippi below the falls of St. Anthony, and that the boundary line shall proceed from such point of intersection, in a due southerly course, along the said line to the Mississippi, and that, as well on the said water communication, as on) every part of the Mississippi where the same bounds the territory of the United States, the navigation shall be free to both parties, and His Majesty’s subjects shall always be admitted to enter freely into the bays, ports, and creeks, on the American side, and to land and dwell there for the purposes of their commerce; and, for greater certainty, the undersigned ministers have annexed to each of the copies of this treaty a copy of the map made use of by them, with the boundaries marked thereon, agreeably to this article; and the boundaries of the United States, as fixed by the said treaty of peace, and by this treaty, together with all the other articles of the said treaty, are hereby recognized, ratified and forever confirmed.
Art. 3. Whereas it is alleged, by divers British merchants and others, His Majesty’s subjects, that debts, to a considerable amount, which were bona fide contracted before the peace, still remain owing to them by citizens or inhabitants of the United States, and that, by the operation of various lawful impediments since the peace, not only the full recovery of the said debts has been delayed, but also the security and value thereof has been impaired and lessened, and that, in many instances, the British creditors cannot now obtain, by the ordinary course of judicial proceedings, full and just relief for the loss and damage so sustained by them, it is agreed, that, in all cases where such relief cannot, for whatever reason, be now had by British creditors, in the ordinary course of justice, the United States of America will make full and complete satisfaction to the said creditors; and that, for this purpose, commissioners shall be appointed and authorized to act in America, in manner following, that is to say: two commissioners shall be named by His Majesty, and two by the United States, and a fifth by the unanimous choice of the other four; but, if they shall not agree in such choice, then one name shall be proposed by the British commissioners, and one by the commissioners of the United States, and one of the two names so proposed shall be drawn by lot, in the presence of the said original commissioners; and in case of death, sickness or necessary absence, the places of the said commissioners shall be respectively supplied in the same manner as such commissioners respectively were first appointed. The said five commissioners shall be sworn to hear all such complaints as shall, within the space of eighteen months from their first sitting, or within such further time as they shall see cause to allow for that purpose, be preferred to them, by British creditors, or their representatives, in virtue of this article, and impartially to determine the same, according to the true intent of this article, and of the treaty of peace.
And the said commissioners, in awarding such sums, as shall appear to them to be due to the said creditors by virtue of this article, are empowered to take into their consideration, and to determine, all claims, on account either of principal or interest, in respect of the said debts, and to decide respecting the same, according to the merits of the several cases, due regard being had to all the circumstances thereof, and as equity and justice shall appear to them to require; and the said commissioners shall be empowered to examine all persons, on oath, touching the premises, and also to receive in evidence, at their discretion, and according as they shall think most consistent with equity and justice, all written depositions, or books, or papers, or copies, or extracts thereof, every such deposition, book, paper, copy or extract, being duly authenticated, according to the legal forms now respectively existing in the two countries, or in such other manner as the said commissioners shall see cause to prescribe and require.
Three of the said commissioners shall constitute a board, and be empowered to do any act appertaining to the said commission; provided that in every such case, one of the commissioners named on each side, and the fifth commissioner, chosen as above, shall be present; and all decisions shall be made by the majority of voices of the commissioners then present.
The award of the said commissioners, or any three of them, as aforesaid, shall, in all cases, be final and conclusive, both as to the justice of the claim, and to the amount of the sum to be paid to the claimant; and the United States undertake to cause the same to be paid to such claimants, without deduction, in sterling money and in such place or places, and at such time or times, as shall be awarded by the said commissioners; and on condition of such releases to be given by the claimant of his demands against individuals, as to them shall appear just and reasonable.
Art. 4th. Whereas complaints have been made by divers merchants and others, citizens of the United States, that, during the course of the war in which His Majesty is now engaged, they have sustained considerable loss and damage, by reason of irregular or illegal captures, and condemnation of their vessels, under color of authority or commission from His Majesty; and that, from various circumstances belonging to the said cases, adequate compensation for the said losses cannot now be obtained by the ordinary course of judicial proceedings, it is agreed that, in all such cases, where adequate compensation cannot, for whatever reason, be now had by the said merchants and others, full and complete satisfaction will be made by the British Government, to the said complainants; and that, for this purpose, commissioners shall be appointed and authorized to act, in London, in the same manner, and with the same powers and authorities, and subject to the same restrictions as the commissioners named in the third article of this treaty; and that the award of the said commissioners shall, in like manner, be final and conclusive in all respects. And His Britannic Majesty engages to cause to be paid to such complainants, respectively, the amount of all sums so awarded, without deduction, in sterling money, and at such time or times, and in such place or places, as shall be awarded by the said commissioners, and on condition of such releases, on the part of the complainants, of their demands against individuals, as to the said commissioners shall appear just and reasonable.
And it is further agreed that, if it shall appear that, in the course of the war, loss and damage has been sustained by His Majesty’s subjects, by reason of the capture of their vessels and merchandise, such capture having been made, either within the limits of the jurisdiction of the said States, or by vessels armed in the ports of the said States, or by vessels commanded or owned by the citizens of the said States, the United States will make full satisfaction for such loss or damage, the same being to be ascertained by commissioners, in the manner already mentioned in this article.
Art. 5th. It is agreed that, with respect to the neutral commerce which one party may carry on with the European enemies of the other, when engaged in war, the principles to be observed by Great Britain towards the United States, and reciprocally by the United States towards Great Britain, shall always, and in all points, be the same as those which shall at that time be observed by the said parties, respectively, towards the most favored neutral nations of Europe, with the exception of such particular privileges as may, before the commencement of the war to which the same shall apply, have been granted, by special treaty, to particular European nations, and with such extensions or modifications as may occasionally be established by special treaty, between Great Britain and the United States, for their mutual convenience.
Art. 6th. It is agreed that, in all cases where vessels shall be captured or detained, on just suspicion of having on board enemies’ property, or of carrying to the enemy any of the articles which are contraband of war, the said vessels shall be brought to the nearest or most convenient port; and that all proper measures shall be taken to prevent delay in deciding the case of ships so brought in for adjudication, and in the payment or recovery of any indemnification adjudged or agreed to be paid to the masters or owners of such ships.
Art. 7th. When one of the contracting parties is engaged in war, and the other remains neutral, the said neutral Power shall not suffer the ships, vessels, goods, or merchandise of the other, which may be taken at sea or elsewhere, by the enemy, to be brought into any of its ports or dominions, and much less to be there sold or exchanged; but shall publicly forbid anything of that kind to be done. And if any ships, vessels, goods, or merchandise, of either of the contracting parties, or their people, or subjects, so taken, at sea, or elsewhere, shall be carried into the ports or countries of the other, by the enemy, neither the same, nor any part thereof, shall be allowed to be sold or exchanged in that port, or in any other place in the dominion of the said neutral party. The master of the ship or vessel so taken, as also the mariners and passengers of every description, shall, as soon as they arrive, be immediately set at liberty; and the said ship or vessel so brought, shall not be permitted to stay in that harbor, but shall be obliged immediately to leave the port, with her goods, merchandise, and lading, and without being allowed to return to the same, or to any other port in the dominions of the said neutral party; Provided, nevertheless, that nothing in this article shall be construed to derogate from the public treaties which have already been entered into by either of the contracting parties with other nations; but in so far as such treaties do not interfere, and in all cases to which they do not apply, the above article shall remain in full force, and shall be executed accordingly. And the contracting parties will not, in future, conclude any treaty in derogation of this article.
Art. 8th. It is agreed that the subjects and inhabitants of the kingdoms, provinces, and dominions, of the contracting parties, shall exercise no acts of hostility or violence against each other, either by sea or by land, or in rivers, streams, ports, or havens, under any color or pretence whatsoever, and particularly, that the subjects or people of either party shall not receive any patent, commission, or instruction, for arming, and acting at sea as privateers, or any letters of reprisal, as they are called, from any Prince or States, enemies to the other party; neither shall they arm ships in such manner as is above said, nor go out to sea therewith, for the purpose of exercising any act of violence against the subjects or people of the other contracting party; nor shall they, in any manner, molest or disturb the said subjects or people; to which end sufficient laws and regulations shall, if necessary, be provided; and, as often as it is required by either party, strict and express prohibitions shall be renewed and published, in all the territories, countries, and dominions, of each party, wheresoever, that no one shall, in any wise, use such commissions, or letters of reprisal, or engage in any such acts of hostility as aforesaid, under the pain of severe punishment, to be inflicted on the transgressors, besides their being liable to make full restitution and satisfaction to those to whom they have done any damage. Neither shall any letters of reprisal be hereafter granted by either of the said contracting parties, to the prejudice or detriment of the subjects of the other; except, only, in such case wherein justice is denied or delayed; which denial or delay of justice shall not be regarded as verified, unless the petition of the person who desires the said letters of reprisal shall be communicated to the minister residing there on the part of the Government against whose subjects or people they are granted, that, within the space of four months, or sooner, if it be possible, they may manifest the contrary, or procure the satisfaction which may be justly due.
Art. 9th. Neither of the said contracting parties shall permit the ships or goods, belonging to the subjects of the other, to be taken within the limits of their respective jurisdictions, on their coasts, nor in the ports or rivers of their dominions, by ships of war, or others, having commission from any prince, republic, or city, whatsoever; but, in case it should so happen, both parties shall employ their united force to obtain reparation of the damage thereby occasioned.
Art. 10th. If it should unfortunately happen that a war should break out between Great Britain and the United States, all merchants and others residing in the two countries, respectively, shall be allowed nine months to retire with their effects, and shall be protected from capture on their way home: Provided, always, that this favor is not to extend to those who shall act contrary to the established laws. And it is further agreed, that neither debts due from individuals of the one nation to individuals of the other, nor shares or moneys which they may have in the public funds, or in the public or private banks, shall ever, in any event of war or national differences, be sequestered or confiscated; it being both unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other, and in their respective governments, should ever be destroyed or impaired, by national authority, on account of national differences and discontents.
Art. 11th. It is agreed that British subjects, who now hold lands in the territories of the United States, and American citizens, who now hold lands in His Majesty’s dominions, shall continue to hold them, according to the nature and tenure of their estates and titles therein; and may grant and sell, and devise the same, as, and to whom, they please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens.
Art. 1st. It is agreed that there shall be, between the dominions of His Britannic Majesty in Europe, and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation, and a free admission of all ships belonging to either party, whether the same be ships of war or merchant vessels; and that the subjects and inhabitants of the two countries, respectively, shall have liberty, freely and securely, and without hindrance or molestation of any kind, to come, with their said ships and their cargoes, to the lands, countries, cities, ports, places, and rivers, within the dominions and territories aforesaid; to enter into the same, to resort thereto, and to remain and reside therein without any limitation of time; also, to hire, purchase, and possess, houses and warehouses, for the purpose of their commerce; and, generally, that the merchants and traders, on each side, shall enjoy the most complete protection and security for their commerce; but subject always, as to what respects this article, to the general laws and statutes of the two countries, respectively.
Art. 2nd. It shall be free for the two contracting parties, respectively, to appoint consuls for the protection of trade, to reside in the dominions and territories aforesaid, the same being of the nation on whose behalf they shall be so appointed, and not otherwise; and such consul shall enjoy the liberties and rights which belong to them by reason of their functions: but either party may except, from the general liberty of residence of such consuls, such particular places as such party shall judge proper to be so excepted.
Art. 3rd. The vessels of the two contracting parties, respectively, coming to the dominions or territories aforesaid, shall enjoy the same liberty in respect of the entry and discharge of their lawful cargoes, and all other regulations which respect the general convenience and advantage of commerce, as now are, or shall, at any time, be enjoyed by any other foreign nation, which shall be the most favored in that respect; and no distinction shall exist, of tonnage or other duties, (such light house duties excepted as are levied for the profit of individuals or of corporations) by which the vessels of the one party shall pay, in the ports of the other, any higher or other duties than shall be paid, in similar circumstances, by the vessels of the foreign nation the most favored in that respect, or by the vessels of the party into whose ports they shall come.
Art. 4th. No article, being of the growth, produce, or manufacture, of any of the dominions or territories of the one party, shall pay, on being imported directly from the said territories or dominions, into the ports of the other, any higher or other duties than shall be there paid for the like articles, on importation from any other foreign country.
Art. 5th. No new prohibition shall be laid in any of the territories or dominions aforesaid, by one of the contracting parties, on the importation of any article, being of the growth, produce, or manufacture, of the territories or dominions of the other; nor shall articles, being of the growth, produce, or manufacture, of any other country, be prohibited to be imported into the dominions of one of the contracting parties, by the vessels of the other, except such articles only as are now so prohibited.
Art. 6th. With respect to the territories and dominions of His Britannic Majesty in the West Indies, the following arrangements have been agreed to by the contracting parties.
His Majesty consents that it shall and may be lawful, during the time hereinafter limited, for the citizens of the United States of America to carry to any of His Majesty’s islands and ports in the West Indies, from the United States, in their own vessels, not being above the burthen of seventy tons, any goods or merchandise being of the growth or produce of the said States, which it is or may be lawful to carry to the said islands and ports from the said States in British vessels and that the said American vessels and their cargoes shall pay there no other or higher duties than shall be payable by British vessels, in similar circumstances: And that it shall be lawful to the said American citizens to purchase, load, and carry away, in their said vessels, to the United States, from the said islands and ports, all such articles, being of the growth and produce of the said islands, as may, by law, be carried from them to the said States in British vessels; and subject only to the same duties and charges on exportation to which British vessels are or shall be subject in similar circumstances. Provided, always, that they carry and land the same in the United States only; it being expressly agreed and declared that, during the continuance of this article, the United States will prohibit the carrying any West India productions or manufactures in American vessels, either from His Majesty’s Islands, or from the United States, to any part of the world except the United States—reasonable sea stores excepted, and excepting also rum made in the United States from West India molasses.
It is agreed that this article, and every matter and thing therein contained, shall continue to be in force during the continuance of the war in which His Majesty is now engaged, and also for two years from and after the day of the signature of the preliminary articles of peace by which the same may be terminated.
And it is further agreed, that, at the expiration of the said term, the two contracting parties will treat further concerning the arrangement of their commerce in this respect, according to the situation in which His Majesty may then find himself as with respect to the West Indies, and with a view to the mutual advantage and extension of commerce.
Art. 7th. This treaty, and all the matters therein contained, except the sixth article, shall continue to be in force for twelve years from the day of the exchange of the ratifications thereof; and if, during the continuance of this treaty, there shall arise, on either side, any complaint of the infraction of any article thereof, it is agreed that neither the whole treaty, nor any article thereof, shall, on that account, be suspended, until representation shall have been made to the Government by the Minister of the party complaining; and even if redress shall not then be obtained, four months’ notice shall be given previous to such suspension.
To the before mentioned letter I returned the following answer, viz.:
Pall-Mall, Royal Hotel,
I was yesterday honoured with your Lordship’s letter of the 30th August, with the projets and map which accompanied it. I consider the articles in these projets as being (like those in our conversations) merely for mutual consideration.
In these projets several parting points present themselves; some of them, I presume, may be easily accommodated, but there are others which create in my mind serious apprehensions. One of these articles (being without the limits of my authority) I think I ought now to particularize; it is the one which proposes a cession of territory in the northwestern corner of the United States. It is proper, also, that I should say with frankness that, in my opinion, many circumstances and considerations which shall be submitted to your Lordship will restrain the United States from such a cession.
This article would entirely frustrate my hopes, if I had not reason to persuade myself that the enlarged and enlightened policy of excluding secondary from a competition with primary objects will always harmonize with your Lordship’s mind. The present occasion is great, and, though critical, yet auspicious to the establishment of confidence and friendship between the two countries. With the magnitude and importance of these objects, the projets in question really do not strike me as being commensurate. I am aware that, in forming them, your Lordship had many difficulties growing out of the subject, and probably some others to encounter, and that your attention was constantly divided between a multitude of great and pressing affairs.
The negotiation now becomes delicate, and I should experience more than a proportionate embarrassment were it not for my confidence in your Lordship’s candour and liberality, and for those sentiments of esteem, as well as respect, with which I have the honour to be, etc.
The Rt. Hon. Lord Grenville, etc.
The proposed alterations in our northwestern boundary, and the consequential cession and dereliction of territory, appeared to me to be a point which I ought, without delay, to state to his Lordship in the light in which it appeared to me. I therefore prepared and sent him enclosed in a note, the following remarks, viz.:
Royal Hotel, Pall-Mall,
Mr. Jay presents his compliments to Lord Grenville, and requests the favor of his Lordship to name a time for receiving Mr. Jay on the subject of the proposed treaties. In the meantime Mr. Jay has the honour of submitting the remarks herewith enclosed to his Lordship’s consideration.
Remarks on that part of the second article of the projet of a treaty for terminating all differences between Great Britain and the United States of America, which purports a cession or dereliction by the latter of the country lying to the westward and northward of either of the two lines therein proposed and described.
For this cession or dereliction two reasons are assigned, viz.:
1st. That it is now understood that the river Mississippi would, in no part thereof, be intersected by a west line from the Lake of the Woods.
2d. That it was stipulated by the treaty of peace that the navigation of the river Mississippi should be free to both parties.
Admitting the fact in the first of these reasons to be well founded, it shows only that the northern and western lines of the United States do not meet and close, and, therefore, that it is necessary to fix on a line for closing them. But no argument thence results that either Great Britain or the United States ought to cede or to acquire any territory further than what such closing line may possibly render unavoidable.
That the Mississippi would, in no point thereof, be intersected by a west line from the Lake of the Woods is a fact involved in too much uncertainty to be assumed as a foundation for national stipulation; for however it may be conjectured or supposed, yet it still remains to be ascertained.
The map sent to Mr. Jay by Lord Grenville, viz., Faden’s, published in 1793, informs us that the river Mississippi has been ascended only as far up as about the forty-fifth degree of north latitude—that is, about a degree above the Falls of St. Anthony, so that its further extent and course towards the north are yet to be discovered.
On the same map, Faden lays down a stream connected with the marshy lake, near the forty-fifth degree of latitude, and thus denominates it: “Mississippi by conjecture.”
He also lays down on the same map a stream connected with the White Bear Lake, near the latitude forty-six, and thus denominates it: “Mississippi by conjecture.”
He also lays down on the same map a stream connected with the Red Lake in latitude forty-seven, and thus denominates it: “Red Lake River, or Lahonton’s Mississippi.”
Inasmuch, therefore, as three different streams, found in the immense wilderness above latitude forty-five, are conjectured to be the Mississippi, it is plain that, so far from being certain how far that river runs to the north, we really are yet to learn where it does run, and which of the rivers in that wilderness it is. How then can it be assumed, as a fact resting on good evidence, that the Mississippi would at no point thereof be intersected by a west line from the Lake of the Woods?
Individuals differing about boundaries depending on the course and extent of brooks and streams, settle questions of that kind by actual surveys. States usually, and with good reason, do the same. Why be content with delusive conjectures and probabilities when absolute certainty can easily be had? Let a survey be accurately made by joint commissioners, and at joint expense. The United States are ready to adopt that measure and to enter into the necessary stipulations and arrangements.
If it should appear on such a survey that the west line would intersect the Mississippi, no room for further question or dispute will remain; but if the contrary should prove to be the case, then, as the northern and western lines of the United States would not close, the manner of closing them will naturally and necessarily come under consideration. Several modes of closing them may be devised, neither of which may be altogether agreeable to both parties. Unless they shall be able to agree, let joint commissioners, at joint expense, and upon oath, fix a closing line in the manner which they shall judge most consonant with the true meaning and intent of the treaty of peace. The United States are ready to enter into such eventual stipulations as may be necessary for that purpose.
The second reason assigned for this cession is, “that it was stipulated by the treaty of peace that the navigation of the Mississippi should be free to both parties.”
From this stipulation it is argued, as a natural and necessary inference, that it was in the expectation and intention of the parties that they should and would both border, not only on the river, but also on the navigable part of it.
This inference seems to be violent. A right freely to navigate a bay, a strait, a sound, or a river is perfect without, and does not necessarily presuppose the dominion and property of lands adjacent to it.
But, although, from a right to navigate the river Mississippi, a right to adjacent lands cannot be inferred, yet, when that right is connected with the circumstance that both parties were to be bounded by a line terminating at the river, it is thought to be thence presumable that the parties expected and intended the said line would and should terminate at a navigable part of it. They might or might not have intended it. Whether they did or not can only be discovered from their concomitant words and actions. On looking into the treaty for words indicating such intention, our search proves fruitless; there are no such words in it, nor the least shadow of a stipulation or declaration on the point. If we review the plain and manifest design of the treaty relative to boundaries, we find the idea of such intention uniformly contradicted. The treaty, in delineating the boundaries of the United States, passes from the northwest angle of Nova Scotia to the head of the Connecticut River; then down that river to the fifty-fifth degree of latitude; then on that line of latitude to the River Iroquois; then (quitting that line of latitude) to Lake Ontario; then, from lake to lake through their connecting waters, until it arrives at the Lake of the Woods, and passing through it to the northwesternmost point thereof, proceeds on a due west course to the Mississippi, etc.
Now it was always well known, and the maps show it, that the Lake of the Woods is situated at a great distance in the north, above the latitude of the Falls of St. Anthony, which interrupt the navigation of the Mississippi, and consequently that a due west line from the Lake of the Woods must of necessity strike the river above those falls, and as far above them as the latitude of the lake is above the latitude of the falls.
Again, it was not then known, nor is it yet known, how far the Mississippi runs navigable beyond those falls, nor whether any, or how many, other falls intervene between them and its source. The parties therefore being entirely ignorant of the extent and of the course and of the character of the river high above the falls, could not possibly have judged, or divined, or guessed whether the place or part of the river at which the west line would strike it was navigable or not. How, then, could they expect or intend anything about it? Nothing could be more obvious than that a due west line might terminate on the river at a place not navigable, and had navigation been in view it seems strange that the treaty should not contain a provision that if the said west line, on being actually run, should strike the river at a place where it was not navigable, then the said line should be declined so many degrees southerly as might be necessary to bring it to the first navigable water of the river. Yet nothing like this is to be found in the treaty.
It is not difficult to discern from the treaty, and so was the fact, that other ideas and views governed the direction of the boundary lines.
The question then was, where would it be most convenient to both parties, and, all things considered, where would be most wise and prudent, that the boundaries between them should be fixed? Two lines were proposed and considered, one from the point before mentioned, on Connecticut River, and running straight on the line of the forty-fifth degree of latitude, west to the Mississippi; the other was the one adopted and established by the treaty. The official papers of the British ministers which respect that negotiation will probably show that Great Britain had the choice of these two lines, and that she preferred the latter.
This choice and preference gives no support to the idea that she then contemplated navigable water in that part of the Mississippi which was supposed to penetrate into Canada. The first line, if adopted, would have favoured it, and fair presumption might have classed that among the reasons of preference; but notwithstanding this, Great Britain did not prefer it; on the contrary, as the waters would form a line which never could be mistaken, and afforded great conveniences to both parties, the line of the waters was preferred by both. This water line was, by mutual consent, terminated at the northwesternmost point of the Lake of the Woods; it was agreed that the Mississippi should bound the United States on the west, nothing then remained but to agree on the course which the closing line, from the lake to the river, should run; and a due west course was agreed upon, without any expectation or design that it would or should there meet the navigable water. The truth is, that the stipulation respecting the navigation of the river, being free to both parties, was an afterthought, and gave occasion to a new and subsequent article, viz., the eighth. Even in the drawing of that article, when the navigation of the river became an object of contemplation, no connection was introduced between the right mentioned in that article and the boundaries designated in the second article; no facilities were asked, or proposed, or stipulated, for a water or any other communication between Canada and the navigable water of the Mississippi, which doubtless would have been the case had such a communication been then in view, especially considering the absolute uncertainty and extreme improbability of that river being navigable above the high latitude of the Lake of the Woods.
From the before mentioned circumstances and considerations it seems fairly to result that the two reasons assigned for the cession in question, as a matter of equity and right, do not afford it a solid foundation.
If this conclusion be just, it precludes the necessity of showing at large that none of the inferences ascribed to the said two reasons involve a claim to tracts of country so extensive as either of the two proposed and marked on the map, each of which includes more than thirty thousand square miles; and that without taking into computation the extensive country lying between (what in the subjoined diagrams are for the purpose of computation regarded as) the west sides of these tracts and the Mississippi, and to the southward of the west line form the Lake of the Woods, and which country would on either of these plans become also annexed to Canada.
In order that you may have an accurate idea of the lines proposed by Lord Grenville, I here insert copies of the diagrams mentioned in the foregoing remarks. (Nos. 1 and 2.)
On the 5th of September Lord Grenville wrote me the following note, viz.:
Downing Street, September 5, 1794.
Lord Grenville presents his compliments to Mr. Jay. He has received Mr. Jay’s note, with the enclosed remarks, and will be glad to see him at his office tomorrow, at twelve o’clock. Lord Grenville has, in the mean time, the honor to enclose to Mr. Jay some observations which have occurred to him on the perusal of the paper which he received from Mr. Jay.
The observations enclosed with this note were as follows, viz.:
Observations Respecting the Northwestern Boundary of the United States of America.
It cannot for a moment be admitted, that the proposed arrangement on the subject of the Northwestern boundary, is properly to be considered in the manner in which it is spoken of by Mr. Jay, namely, as a cession, or dereliction of territory on the part of the United States.
Their boundary to the northwest, as fixed by the treaty, is a line “to be drawn from the Lake of the Woods, in a due west course to the Mississippi.” There are in this agreement two distinct parts:
1st. That the boundary line should be drawn in a due westerly course from the Lake of the Woods; and,
2d. That it should likewise be drawn in a due westerly course to the Mississippi.
If such a line cannot in fact be drawn, between those points, there can be no ground for considering one part of this stipulation as more permanently fixed than the other, or as affording a more equitable ground for any future arrangement; and it would be quite as reasonable for this country to consider as a cession of territory, on our part, the adoption of any other boundary than that of a due westerly line striking the Mississippi, as for the United States to urge that such a cession exists on their part, if such a line is not drawn from the Lake of the Woods.
To this consideration must be added, that which so plainly results from the article respecting the free navigation of the Mississippi; on which head it seems sufficient for the present to remark that such a right evidently and necessarily implies the possibility of access to that river, without passing through a foreign territory.
Little objection occurs to making an actual survey, except that of delay. If, on that survey, the stipulations in the treaty should be found to be compatible with the real geography of the country, it is certain that no further dispute could exist on that point.
But, if we have from the best information on the subject sufficient reason to believe that no such line can be drawn as mentioned in the treaty, it cannot be desirable, when all the interests of the two countries with relation to each other are under discussion, with a view to lasting friendship, to leave unsettled so material a ground of difference as that of an unascertained boundary. The mode of settling that point is necessarily connected with the general result of the present negotiation. If no more can be accomplished on any other point, than the doing strict justice between the parties, according to existing treaties and the laws of nations, the appointment of commissaries, as proposed by Mr. Jay, does not appear ill adapted to obtain the same object as to this point: provided that those commissaries are distinctly enabled to take into their consideration the 8th article, and to give to that stipulation such effect as they shall think it ought in justice to have, in the formation of a new boundary line.
But, if the negotiation should lead to new stipulations of mutual advantage, no subject appears more proper for the application of that principle, than one in which there exist two doubtful and contradictory claims, founded on an agreement which cannot by any possibility be executed; especially if it be true, as it is considered here, that this is a point where any advantage, whatever it should be, which Great Britain might acquire, would, under all circumstances, be found at least equally beneficial to the United States.
Downing Street, 5th September, 1794.
Expecting that when we met, the first of the above projets would, as first in the order of things, be first considered, my attention was more immediately confined to it; but the time consumed in preparing the remarks before mentioned left me very little leisure to employ in forming satisfactory opinions on the different parts of this projet; several, however, occurred to me, of which I made short notes; they are as follows. You will find the numbers marked in the margin of the projet.
Note 1. In what capacity are they so to remain? As British subjects or American citizens? If the first, a time to make their election should be assigned.
2. If his Majesty’s subjects are to pass into the American territories for the purposes of Indian trade, ought not American citizens to be permitted to pass into His Majesty’s territories for like purposes.
3. If the American Indians are to have the privilege of trading with Canada, ought not Canada Indians to be privileged to trade with the United States?
4. If goods for Indian trade be introduced duty free by British traders, how is the introduction of other goods with them to be prevented? And for this privilege, operating a loss to American revenue, what reciprocal benefit is to be allowed?
5. Why should the commissioners for ascertaining the river St. Croix, meet and decide in London? Is it not probable that actual views and surveys, and the testimony and examination of witnesses on the spot, will be necessary?
6. Why confine the mutual navigation of the Mississippi to where the same bounds the territory of the United States?
7. Why should perpetual commercial privileges be granted to Great Britain on the Mississipi, etc., when she declines granting perpetual commercial privileges to the United States anywhere?
8. This preamble, connected with the silence of the treaty as to the negroes carried away, implies that the United States have been aggressors; it also unnecessarily impeaches their judicial proceedings.
9. On no principle ought more to be asked, than that the United States indemnify creditors for losses and damages caused by the impediments mentioned.
10. The word had is not sufficiently definite; the object being not only sentence, decree, or judgment, but payment and satisfaction.
11. Sterling money fluctuates according to exchange; this should be fixed.
12. Why not place these captures on the footing with the others, and charge the United States only in cases where justice and complete compensation cannot be had from judicial proceedings?
13. Why provide only for neutral commerce with European enemies? The whole of this article is so indefinite as to be useless.
14. What are or shall be deemed contraband in the sense of this article?
15. As the United States have permitted the French to sell prizes in the United States, should not the restriction not to do it in future commence at the expiration of the present war?
16. There should be an article against the impressment of each other’s people.
17. This united force should be confined to the moment of aggression.
18. The confiscation of debts, etc. This article should be in the treaty of commerce.
On the 6th of September, agreeable to Lord Grenville’s appointment, I waited upon him; we spent several hours in discussing the several topics which arose from these notes, and some others, which in the course of the conversation occurred. He promised to take what I had offered into consideration, and manifested throughout the conversation every disposition to accommodate that could be wished: we may not finally be able to agree. If we should not, it would, in my opinion, occasion mutual regret, for I do believe that the greater part of the Cabinet, and particularly Lord Grenville, are really disposed and desirous not only to settle all differences amicably, but also to establish permanent peace, good humor, and friendship between the two countries.
On the 8th of September I received from Lord Grenville the following letter, enclosing the papers mentioned in it, viz.:
St. James’s Square, Sept. 7, 1794.
In order to narrow as much as possible the objects of our discussions, I have stated in the enclosed paper what occurs to me on the different points to which your notes apply, except the second, third, and fourth articles of those notes, which I have reserved for further examination and inquiry. I expect that, by Tuesday or Wednesday at furthest, I shall be able to converse further with you on those points, as well as with respect to what you suggested on the subject of the East Indies. The points in discussion will then be reduced within a small compass, but they certainly do not relate to the least important parts of our negotiation. With respect to them, I can only say, that you shall continue to find in me the same openness of discussion, and the same desire to state to you, without reserve, what I think may be conceded to the object of speedy conciliation, and what the interest and honor of my country, and the duty which I owe to the king, oblige me to insist upon, as necessary for that object. It is with sentiments of very real esteem and respect, that I have the honor to be, &c., &c.
P.S.—I also send a note of two alterations to be made in the commercial projet in consequence of our conversation of yesterday.
To the Hon. Mr. Jay, &c.
Observations Enclosed with the Above Letter.
No. 1. In consequence of the observation contained in the first remark, Lord Grenville proposes to add, in the first article of the projet, after the words, “property thereof,” at the end of the first paragraph, these words: “and such of them as shall continue to reside there for the purposes of their commerce, shall not be compelled to become subjects of the United States, or to take any oath of allegiance to the Government thereof, but shall be at full liberty so to do (if they think proper) within one year after the evacuation of the posts, which period is hereby assigned to them for making their choice in this respect.” Considering the length of the first article, now increased by this addition, it may be better to divide it into two—the second beginning with the words, “It shall at all times be free” &c. &c.
Articles, 2, 3, and 4 reserved for further examination.
5. The meeting of the commissioners respecting the river St. Croix is proposed to be in London, because it is supposed that the great mass of evidence on the subject is here. A power may be given to them, either to direct a local survey, or to adjourn to America, but it seems very unlikely that this would become necessary.
6. No idea was entertained of confining the mutual navigation of the Mississippi to that part of the river where it bounds the territory of the United States. That qualification was intended only to have reference to the free admission of British merchants and ships, into the bays, ports, and creeks of the United States, on the Mississippi; nor would it have been proposed at all, to repeat in this article, what is so distinctly stipulated in the treaty of peace, respecting the free navigation of the Mississippi, except for the purpose of expressly extending that stipulation to every part of the waters now proposed to form a part of the boundary.
7. The right of admission into ports, &c. for the purposes of trade, and the general liberty of commerce, spoken of in this article, are not considered as commercial privileges, such as are usually made the subject of temporary regulation by special treaties of commerce. Great Britain by no means declines to give the same rights permanently to America, as with respect to those parts of her dominions which are open to foreign commerce. These rights are, indeed, now generally acknowledged to be incident to a state of amity and good correspondence; and if it is proposed to particularize them, as with respect to the Mississippi, this is done only with the view of removing the possibility of such doubts as were formerly raised here upon the subject.
8. On the fullest reconsideration of this preamble, Lord Grenville sees no ground to think it liable to the objection made by Mr. Jay, particularly when compared with the preamble proposed for the fourth article. The proceedings in both articles are grounded on the allegations of individuals. The truth of those allegations is referred to the decision of the commissioners. Lord Grenville’s opinion respecting the prior aggression of the United States, as well as his reasons for that opinion, are well known to Mr. Jay; but he has no wish to introduce into the proposed treaties any discussion of that point. He is therefore very ready to consider any form of words which Mr. Jay may suggest for those articles, as better suited to the two objects to which they are directed—those of justice to individuals, and conciliation between the Governments; and this applies equally to the remarks Nos. 9 and 10.
11. The substitution of the word specie, as suggested by Mr. Jay, seems fully to meet the object here mentioned.
12. What Mr. Jay here desires, was intended to be done, and was indeed conceived to be implied in the general words at the end of the article. But Lord Grenville sees no objection to the insertion of express words for the purpose.
13. Lord Grenville explained to Mr. Jay, this morning, the reason of the insertion of the word European, in the place here referred to. The subject is connected with the larger consideration to which their conversation led, and from the further discussion of which Lord Grenville is inclined to hope that mutual advantage may arise. Mr. Jay will observe, that the subject to which his remark, No. 15, applies, is one instance among many, which might be brought to show that this article would not be inefficient.
14. To meet the object which was this morning suggested in conversation on this article, Lord Grenville would propose the adoption of the following additional article, to come in immediately after the eighth. Lord Grenville has, in conformity to what was mentioned by Mr. Jay, used the words of Vattel:
“In order to regulate what is in future to be esteemed contraband, it is agreed that, under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket rests, bandeliers, gunpowder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, halberds, lances, javelins, horses, horse furniture, holsters, belts, and generally all other implements of war; as also timber for shipbuilding, tar, or rosin, sheet copper, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels; unwrought iron and fir planks only excepted. And all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.
“And whereas corn, grain, or provisions, can be considered as contraband in certain cases only, namely, when there is an expectation of reducing the enemy by the want thereof, it is agreed that, in all such cases, the said articles shall not be confiscated; but that the captors, or, in their default, the government under whose authority they act, in this respect, shall pay to the masters or owners of such vessels the full value of all such articles, together with a reasonable mercantile profit thereon, and also the freight and demurrage incident to their detention.”
15. It seems by no means unreasonable, that the effect of this stipulation should be extended to the existing war, as a natural consequence of the good understanding to be established by this negotiation, and by the removal of all existing differences. And it would tend to prevent so many occasions of acrimony and dispute, on both sides, that Lord Grenville thinks it highly desirable to maintain this article in its present form.
16. Lord Grenville sees no reason whatever to object to this article.
17. This remark seems also perfectly just, and will be best met by omitting the concluding part of this article.
18. Lord Grenville rather thinks this article ought to be permanent, for the mutual interest of both countries; but he is content to leave this point to the decision of Mr. Jay, who is much too enlightened not to see the effect which a contrary conduct to that here prescribed must produce as with respect to America.
Art. 2. Omit these words: “the same being of the nation on whose behalf they shall be appointed, and not otherwise”; and insert, in lieu thereof, “the same being first approved by the government of the country in which they shall be so appointed to reside, and not otherwise.”
Art. 3. The last sentence to run thus: “by which the vessels of the one party shall pay, in the ports of the other, any higher or other duties than shall be paid in similar circumstances by the vessels of the foreign nation the most favored in that respect, or any higher or other duties than shall be paid in similar cases by the vessels of the party itself into whose ports they shall come.”
Thus, sir, I have given you a very particular and correct account of the negotiation. Many observations and explanatory remarks might be added. I might also inform you, that I had strenuously urged the justice of compensation for the detention of the posts; and that I consider the privilege of trading to the West Indies as providing for claims of that kind. On this privilege, and the probability of its being revived after the expiration of the term assigned for its duration, I could enlarge, but it does not strike me as necessary to go into further details, nor indeed could I at present find time for the purpose.
It will not escape you that the articles, now under consideration, will doubtless undergo many alterations, before they assume that final form in which they will either be accepted or rejected; and, therefore, that it would not be proper to publish them at present. I think that, in the course of a few weeks, the questions, now under discussion, will be decided. No time shall be lost in communicating to you the result.
Another subject remains to be mentioned. It appeared to me advisable that our people should have precise and plain instructions relative to the prosecution of appeals and claims, in cases of capture. For that purpose, I applied to Sir William Scott, and requested him, in concert with Dr. Nicholl, to prepare them. We conversed on the subject, and I explained to him my views and objects.
On the 10th of September I received them, enclosed with the following letter from Sir William, which I insert on account of the friendly disposition towards our country which it manifests, and which appears to me to be less uncommon here than we generally suppose, viz.:
To his Excellency, John Jay, Esq., etc.
I have the honor of sending the paper drawn up by Dr. Nicholl and myself; it is longer and more particular than, perhaps, you meant, but it appeared to be an error on the better side rather to be minute, than to be too reserved, in the information we had to give; and it will be in your excellency’s power either to apply the whole or such parts as may appear more immediately pertinent to the objects of your inquiry.
I take the liberty of adding that I shall, at all times, think myself much honored by any communications from you, either during your stay here, or after your return, on any subject in which you may suppose that my situation can give me the power of being at all useful to the joint interests of both countries: if they should ever turn upon points in which the duties of my official station appear to me to impose upon me an obligation of reserve, I shall have no hesitation in saying that I feel them to be such. On any other points on which you may wish to have an opinion of mine, you may depend on receiving one that is formed with as much care as I can use, and delivered with all possible frankness and sincerity.
I have the honor to be, with great respect, &c.
Commons, September 10, 1794.
Paper Enclosed in the Foregoing Letter.
We have the honor of transmitting, agreeably to your excellency’s request, a statement of the general principles of proceeding in prize causes, in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdictions.
The general principles of proceeding cannot, in our judgment, be stated more correctly or succinctly, than we find them laid down in the following extract from a report made to His late Majesty, in the year 1753, by Sir George Lee, then Judge of the Prerogative Court, Dr. Paul, His Majesty’s Advocate General, Sir Dudley Ryder, His Majesty’s Attorney General, and Mr. Murray (afterwards Lord Mansfield), His Majesty’s Solicitor General:
“When two powers are at war, they have a right to make prizes of the ships, goods, and effects, of each other, upon the high seas. Whatever is the property of the enemy may be acquired by capture at sea; but the property of a friend cannot be taken, provided he observes his neutrality.
“Hence, the law of nations has established, that the goods of an enemy, on board the ship of a friend, may be taken.
“That the lawful goods of a friend, on board the ship of an enemy, ought to be restored.
“That contraband goods going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war is a departure from neutrality.
“By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, lawful prize.
“Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as a prize, in a court of admiralty, judging by the law of nations and treaties.
“The proper and regular court for these condemnations is the court of that State to whom the captor belongs.
“The evidence to acquit or condemn, with, or without, costs and damages, must, in the first instance, come merely from the ship taken, viz.: the papers on board, and the examination, on oath, of the master, and other principal officers; for which purpose, there are officers of admiralty in all the considerable seaports of every maritime power at war, to examine the captains, and other principal officers, of every ship, brought in as a prize, upon general and impartial interrogatories; if there do not appear from thence ground to condemn, as enemy’s property or contraband, goods going to the enemy, there must be an acquittal, unless, from the aforesaid evidence, the property shall appear so doubtful, that it is reasonable to go into further proof thereof.
“A claim of ship or goods must be supported by the oath of somebody, at least as to belief.
“The law of nations requires good faith; therefore, every ship must be provided with complete and genuine papers, and the master, at least, should be privy to the truth of the transaction.
“To enforce these rules, if there be false or colorable papers; if any papers be thrown overboard; if the master and officers, examined in preparatorio, grossly prevaricate; if proper ship’s papers are not on board; or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehavior or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimants, in case of acquittal and restitution: on the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages: for which purpose, all privateers are obliged to give security for their good behavior; and this is referred to and expressly stipulated, by many treaties.
“Though, from the ship’s papers, and the preparatory examinations, the property does not sufficiently appear to be neutral; the claimant is often indulged with time to send over affidavits to supply that defect: if he will not show the property, by sufficient affidavits, to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captor is justified in bringing her in, and excused paying costs, because he is not in fault; or, according to the circumstances of the case, may be justly entitled to receive his costs.
“If the sentence of the court of admiralty is thought to be erroneous, there is, in every maritime country, a superior court of review, consisting of the most considerable persons, to which the parties, who think themselves aggrieved, may appeal; and this superior court judges by the same rule which governs the court of admiralty, viz.: the law of nations, and the treaties subsisting with that neutral Power, whose subject is a party before them.
“If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive.
“This manner of trial and adjudication is supported, alluded to, and enforced, by many treaties.
“In this method, all captures at sea were tried, during the last war, by Great Britain, France, and Spain, and submitted to by the neutral Powers; in this method, by courts of admiralty acting according to the law of nations, and particular treaties, all captures at sea have immemorially been judged of in every country of Europe. Any other method of trial would be manifestly unjust, absurd, and impracticable.”
Such are the principles which govern the proceedings of the prize courts. The following are the measures which ought to be taken by the captor, and by the neutral claimant, upon a ship and cargo being brought in as prize:
The captor, immediately upon bringing his prize into port, sends up, or delivers upon oath, to the registry of the court of admiralty, all papers found on board the captured ship. In the course of a few days, the examinations in preparatory, of the captain and some of the crew of the captured ship are taken upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought, and which are also forwarded to the registry of the admiralty, as soon as taken; a monition is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested to appear, and show cause why the ship and goods should not be condemned; and at the expiration of twenty days, the monition is returned into the registry with a certificate of its service, and, if any claim has been given, the cause is then ready for hearing, upon the evidence arising out of the ship’s papers, and preparatory examinations.
The measures taken on the part of the neutral master, or proprietor of the cargo, are as follows:
Upon being brought into port, the master usually makes a protest, which he forwards to London, as instructions (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship, and such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself, as soon as he has undergone his examination, goes to London to take the necessary steps.
The master, correspondent, or consul, applies to a proctor, who prepares a claim, supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed, belong, and that no enemy has any right or interest in them. Security must be given, to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein.
If the captor has neglected, in the meantime, to take the usual steps (but which seldom happens, as he is strictly enjoined, both by his instruction and by the prize act, to proceed immediately to adjudication) a process issues against him on the application of the claimant’s proctor, to bring in the ship’s papers and preparatory examinations, and to proceed in the usual way.
As soon as the claim is given, copies of the ship’s papers and examinations are procured from the registry, and upon the return of the monition, the cause may be heard. It, however, seldom happens, (owing to the great pressure of business, especially at the commencement of a war,) that causes can possibly be prepared for hearing immediately upon the expiration of the time for the return of the monition. In that case, each cause must necessarily take its regular turn; correspondent measures must be taken by the neutral master, if carried within the jurisdiction of a vice-admiralty court, by giving a claim, supported by his affidavit, and offering security for costs, if the claim should be pronounced grossly fraudulent.
If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the court where the sentence was given, or before a notary public, (which regularly should be entered within fourteen days after the sentence,) and he afterwards applies at the registry of the lords of appeal in prize causes (which is held at the same place as the registry of the high court of admiralty) for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the high court of admiralty, and within nine months, if in a vice admiralty court, but may be taken out at later periods if a reasonable cause can be assigned for the delay that has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause. It directs the registry to transmit a copy of all the proceedings of the inferior court; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for this inhibition, security is given on the part of the appellant, to the amount of two hundred pounds, to answer costs, in case it should appear to the court of appeals that the appeal is merely vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party and his proctor, by showing the instrument under seal, and delivering a note or copy of the contents. If the party cannot be found, and the proctor will not accept the service, the instrument is to be served viis and modis; that is, by affixing it to the door of the last place of residence, or, by hanging it upon the pillars of the Royal Exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court; a certificate of the service is endorsed upon the back of the instrument, sworn before a surrogate of the superior court, or before a notary public, if the service is abroad.
If the cause be adjudged in a vice admiralty court, it is usual, upon entering an appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent, in England, who carries it to a proctor, and the same steps are taken to procure and serve the inhibition, as where the cause has been adjudged in the high court of admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition may be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.
Upon an appeal, fresh evidence may be introduced, if, upon hearing the cause, the lords of appeal shall be of opinion that the case is of such doubt as that further proof ought to have been ordered by the court below.
Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined by their clerks, and others acquainted with the transaction, and with the real property of the goods claimed. In corroboration of these affidavits may be annexed original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by the affidavits of persons who can speak to their authenticity; and if copies or extracts, they should be collated and certified by public notaries. The affidavits are sworn before the magistrates or others, competent to administer oaths in the country where they are made, and authenticated by a certificate from the British consul.
The degree of proof to be required depends upon the degree of suspicion and doubt that belongs to the case. In cases of heavy suspicion and great importance, the court may order what is called “plea and proof”; that is, instead of admitting affidavits and documents introduced by the claimants only, each party is at liberty to allege, in regular pleadings, such circumstances as may tend to acquit or condemn the capture, and to examine witnesses in support of the allegations, to whom the adverse party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are not often resorted to.
Standing commissions may be sent to America, for the general purpose of receiving examinations of witnesses in all cases where the court may find it necessary, for the purposes of justice, to decree an inquiry to be conducted in that manner.
With respect to captures and condemnations at Martinico, which are the subjects of another inquiry contained in your note, we can only answer, in general, that we are not informed of the particulars of such captures and condemnations: but as we know of no legal court of admiralty established at Martinico, we are clearly of opinion that the legality of any prizes taken there, must be tried in the high court of admiralty of England, upon claims given, in the manner above described, by such persons as may think themselves aggrieved by the said captures.
We have the honor to be, &c.,
Commons, September 10, 1794.
I take the liberty of advising that these instructions with a proper title prefixed, be printed in a pamphlet, and published for general information.
You will find herewith enclosed a copy of the instructions of the king and council, revoking the order to capture neutral vessels laden with corn, etc., bound to France. A gazette of 6th September, containing an order restraining impressments, etc., and a gazette of 9th September, containing a copy of the order of 6th August, relative to appeals and claims, of which copies have already been sent to you.
I have the honour to be, etc.,
[1 ]In this communication to his government Jay gives a history of the progress of his negotiations at the British Court and outlines the terms of the treaty agreed upon. The text of the treaty, as finally concluded, with further correspondence, appears in “American State Papers: Foreign Relations,” vol. i., p. 520.