Alexander Hamilton Papers

Notes of Objections to the British Treaty, [August 1795]

Notes of Objections to the British Treaty1

[New York, August, 1795]

Article II2
Decius3 Cato4
I Posts imperfectly described should be enumerated 1 reparation for loss of Trade by the detention
II Boundary assigned by the Treaty of Peace part in dispute may furnish pretext for detaining post 2 compensation for expences of the Indian War
III Time limited too remote to hope for performan [ce] 3 public punishment of the British subjects who appeard in arms with them
IV Not pleasing that the inhabitants may remain & continue British subjects 4 Removal of Lord Dorchester
V “precin[c]ts or jurisdiction” indefinite 5 No reliance on their promise
V A Treaty of peace gave us the posts what benefit by this article5 6. should have had a gurantee or surety for the performance & should have seen that it took place during the pressure of circumstances
Article III6
I Disadvantageous from the relative extent 7 promise to evacuate was produced by fear of French victories—every thing ascribed to France—glad to debase our own government charged constantly by that party with meaness & perfidy
II The whole furr Trade which we might have secured to ourselves will be participated with G Britain if not fall into their hands.
III Our vessels excluded from sea ports &c & such parts of Rivers—while they are admitted into all our ports 8 Is it a matter of little moment that she detains garrisons a twelve month longer
A British Trader may set out from Canada—traverse our lakes &c to N York or Philad 9 a million of dollars in Indian Wars & loss of Indian Trade 800 000 Dollars

4000,000 of Dollars Capital
Why ought we not to have free navigation of St Laurance and other British Rivers? 10 magnaminity of France would have procured us reparation
Instead of this are stopped in our passage down at the highest port of Entry from the sea State of Europe state of England submission to Denmark & Sweden even to Genoa7

I Curious provision not to admit beyond the highest ports of Entry. 11 rights to Traders a cession of Territory8
What would G B desire more than such an admission?

Charles Town
Inderdiction of duties on peltries.
Under this article G Britain may import into any part of the U States European East & W India goods upon which we can impose no other or higher duties than are paid by our Citizens.10
1 establishes a British Colony within our limits & gives privileges of citizens to our bitterest enemy9
3d Article
1 This gives to G B what with her Capital will be a monopoly & opens a door for smuggling11 } S Carolina
2 admits G B to share in our interior traffic on equal terms with our own citizens through our whole territorial dominions while the advantages ostibly reciprocated to our citizens are limited both in their nature and extent12
3 gives access to our ports on Mississippi? What ports has G Britain13
4 we are excluded from B sea Ports & limits of Hudsons bay Company14
5 GB is admitted to all the advantages of which our Atlantic Rivers are susceptible15
Cato No. 516
I Superiority of Capital
II better knowlege of Trade
II established Customers

“As our communication from the sea was much easier than by the St Laurance we could furnish English goods cheaper & of course would have continued the Indian Trade in its usual channel, even from the British side of the lakes, nor could they have prevented it without giving such disgust to the Indians as would have made them dangerous neighbours.”

gives a right to navigate up to our ports of Entry—& thence by inland N— 12 years in possession of Indian Trade

I They permitted to reside here houses ware house &c by British Navigation A[ct] kept in full force by the 14 article of the Treaty
II We only to travel
III Our Trade interrupted by wars & bad seasons that of G B remains unchanged
IV Small population of Canda17 renders consumption of Indian Goods &c insignificant in comparison with sacrifice of Indian Trade
V But articles coming duty free from Britain why not sold cheaper than same articles subject to heavy duty & carried immense distance by land and inland Navigation
VI Stimulation of Indian Wars by Traders residing among us whom we cannot expel without cause of suspicion & that in not less than twelve months.
not reciprocal because our Traders would retire when there was war & cannot reside.
VI gives a right to import into our Sea ports upon equal terms of duties with our Citizens.18
at least goods for Indian Trade.
VI 10 per Ct. disadvantage in the competition because England may lay countervailing duties to that extent

ADf, Hamilton Papers, Library of Congress.

1H used these notes to assist him in the preparation of “The Defence Nos. VIII, IX, XI, and XII,” August 15, 21, 28, and September 2–3, 1795. As H’s headings in this document indicate, he was replying to essays written by “Decius” (Brockholst Livingston) and “Cato” (Robert R. Livingston). For the authorship of these essays, see the introductory note to “The Defence No. I,” July 22, 1795.

3“Decius” discusses Article 2 of the Jay Treaty in his first essay (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 10, 1795). The relevant part of this essay reads: “The second article would have been better and less liable to future difficulty and construction, if it had defined particularly from what places his Majesty was to withdraw his troops, instead of saying generally from within the boundary ‘lines assigned by the treaty of peace;’ for it appears that those very lines are a matter in dispute, and hereafter to be settled. As this boundary will certainly not be adjusted by next June, it will furnish a pretext for holding those forts a few years longer, and put us to the expence of a second embassy. Why not declare, that Mickillimackinac, Detroit, Niagara, Oswego, Oswegatche, Point-au-fer, Dutchman’s Point, &c. should be delivered up? This would have been explicit; but as we progress, we shall find, that precision and perspicuity are not very striking features in this ministerial lucubration. The time limited for their evacuation is another objection to this article; it is too remote to hope for its performance. If peace takes place this summer, none will be surprised if Great Britain continues her garrisons where they now are! Nor is it very pleasing, that the inhabitants within this territory may remain in it, and continue British subjects.

“That clause of this article which permits us to extend our settlements within the said boundary, is also by far too indefinite. The exception to it may be so explained as to defeat the permission altogether. It is in these words, ‘except within the precincts or jurisdiction of any of the said posts:’ who is to determine how far this jurisdiction may extend? Lastly, as the treaty of peace gave us these posts, what great benefit is obtained by this article? Who would regard the second promise of a man who had already, without any excuse, violated the first.”

4The first ten “notes” under the heading of “Cato” refer to arguments advanced by “Cato” in his first essay (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 15, 1795). This essay reads in part: “By the 2d article of the treaty, the British promise to evacuate the Western Posts by the 1st of June, 1796. By the treaty of Paris, in 1782, they promised to evacuate with all convenient speed, which, if we may judge by the speed with which they have found it convenient to evacuate all their posts in France, Flanders, Germany, Holland, and Brabant, one would have supposed must have meant a much shorter time than eighteen months, so that all that the treaty acquires with respect to the posts, is less than we were entitled to. By the treaty of Paris, surely we might expect better security than a mere promise from a nation which has already shewn, in their violation of the past, the little reliance that can be placed on their future engagements. By June 1796, it is not improbable that our situation or that of Britain may be changed; what security shall we then have for the performance of the treaty? If it is said, as has been already said (by those shameless apologists, who are determined to find every ministerial measure right) that every treaty is a promise, and that if we are not to rely upon a promise, there can be no treaties. I answer, that it is the practice of negociators, where the character of the nation, or other circumstances give reason to suspect a violation of their engagements, not to rely upon a naked promise, but to expect some guarantee or surety for the performance; that in the present case, as the promise was evidently extorted by the pressure of existing circumstances, we should see to the performance while those circumstances continue to exist. It is evident, before Mr. Jay left this country, that the British were so far from intending to evacuate the posts, that they had determined to extend their limits; this may not only be inferred from all the encouragement they gave to the depredations of the Indians, but undeniably proved by Lord Dorchester’s speech, which, though disavowed by Dundas, is now admitted to have been made in consequence of express instructions. The promise, then to evacuate, has been extorted by French victories, by the humiliation of the British nation, and by their apprehension that we might at last be provoked to do ourselves justice while they were embarrassed with France. Surely then the evacuation should have been insisted upon, while these circumstances operated with full force; what was there to impede an immediate evacuation of Oswego, which is only occupied by a lieutenant’s command? what was to prevent our troops being put in immediate possession of Niagara and the upper posts, under an engagement to protect, for a limited time, the British property that remained there? in one week this might have been effected, considering the situation of the posts, upon navigable waters, as well as in one year. May we not reasonably suppose, that the British still entertain a hope, that peace between them and France, dissentions between the United States and that Republic, the seeds of which are so plentifully sown by the treaty itself, may enable them to violate their second, with the same impunity that they have their first engagement. If the supposed non-performance of the treaty of Paris (which, however, has been so ably refuted by Mr. Jefferson in his correspondence with Mr. Hammond on that subject) has hitherto served as a pretext for retaining the posts; how many such pretences must the complexity and obscurity of the present treaty afford? But suppose the war with France to continue, suppose they have the magnanimity to forgive our predilection for their enemy, suppose the spirit of our own nation to get the better of that disgraceful stupor into which a venal system has lulled it—suppose the increasing imbecility of Britain shall forbid her to hope for impunity in a further breach of faith, will it still be a matter of little moment whether or not she retains garrisons in the midst of our territory for twelve months longer or not?—are we not at this moment at war with the savages? is not this war attended with much expence to the nation, much private distress; is not the blood of our citizens daily shed? these evils must continue as long as the posts are in the hands of the British, or a peace, if practicable, must be purchased by the United States at very considerable expence; were we to estimate the difference in this point of view, between an immediate evacuation, and one that is to take place in June, 1796, it would certainly not fall short of one million of dollars, independent of the destruction of our fellow-citizens, whose lives are beyond all price. If to this we add the annual profits of the Indian trade, amounting to 800,000, it will appear that the United States loose near two millions of dollars, by the retention of the posts. Supposing (which is at least problematical) that they shall be surrendered at the period proposed. Those who think with me, that decision on the part of our government, and firmness in our minister could not have failed to effect an immediate restitution of our territory, will know of what account to charge this heavy loss of blood and treasure.

“But was the evacuation of the posts all we had a right to ask on that subject; if the retention of them occasioned those expensive Indian wars which have so often drained our treasury, and thinned our ranks. If for twelve years we have lost thereby a lucrative branch of commerce, are we entitled to no compensation for these losses? If the honor of the nation has been insulted, both by Lord Dorchester and the subjects of Great-Britain under his command, are we to expect no reparation for these insults? Have we reason, from what we have seen of Mr. Jay’s correspondence with Lord Grenville to presume that any has been asked? are we not assured that none has been obtained? What then is this boasted article about, which so much has already been said, which was the only one communicated to the public as the only one that was imagined would bear the light; what is it but a declaration on the part of Britain, that though she has already stripped us of millions, though she has occasioned the death of thousands of our fellow-citizens, yet she now promises that if we will let her pocket another million, and pay as much more out of our own treasury for a peace with her Indian allies, she will consent, in case the war with France should continue, and she should be too weak to contend with us, to let us possess our own territory. And what is our submission to these terms, and the unrequited insults we have received, but the lowest political degradation? If it is said that these were the best that could be obtained, I boldly deny the assertion; the state of Europe, the state of England itself, their submission to Denmark and Sweden, even to the little state of Genoa, warrant the denial. But should it even have been otherwise, it would have been infinitely better, both in point of honor and interest, to have waited, after having spoken with dignity of our rights, till circumstances should have enabled us to enforce them, than to have relinquished our well founded claim to a compensation of at least ten millions; to have relinquished that satisfaction which our national honor demanded; can we doubt that if we were ourselves too weak, which I am far from supposing, that the magnanimity of France would have permitted her to conclude a peace with England, without procuring us the satisfaction which her guarantee of our territories entitled us to ask. I am warranted in asserting, from the best authority, that she would not.”

5H replied to these five arguments in “The Defence No. IX,” August 21, 1795.

6For the discussion of Article 3 of the Jay Treaty by “Decius,” see “The Defence No. XI,” August 28, 1795, note 1. For the text of Article 3, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 8.

7Of the preceding ten arguments by “Cato,” H replied to the first, second, fifth, sixth, and ninth in “The Defence No. VIII,” August 15, 1795. He commented on the tenth point in “The Defence No. IX,” August 21, 1795.

In the MS, H drew a line through all the points except the third, fourth, and ninth.

8This is a reference to an argument advanced in the fourth essay by “Cato.” See “The Defence No. XI,” August 28, 1795, note 1.

9This refers to the objection to Article 2 of the Jay Treaty presented to the public by a select committee of the citizens of Charleston, South Carolina, on July 22, 1795. See “The Defence No. VI,” August 8, 1795, note 8. The committee’s statement reads: “The second article sanctions the continuance of an injury, which, in violation of the treaty of peace, has already existed eleven years: it either establishes a British colony within our limits, with peculiar privileges, or, in case the inhabitants of such colony choose to become citizens of the United States, it gives the privileges of citizens of these States to a number of men, who have been their most bitter and irreconcileable enemies …” (Report of the Select Committee, Chosen by Ballot of the Citizens of the United States, in Charleston, South-Carolina, in pursuance of a Resolution of a general Meeting of the Citizens, in St. Michael’s Church, on Thursday, the sixteenth of July, 1795 [Charleston: Printed by W. P. Young, Broad-Street, n.d. (George Washington Papers, Library of Congress)]).

10H replied to most of the preceding arguments by “Decius” concerning Article 3 of the Jay Treaty in “The Defence No. XI,” August 28, 1795. In addition, he replied to the point on the “Inderdiction of duties on peltries” made by “Decius” in “The Defence No. XII,” September 2–3, 1795.

11This is a paraphrase of the argument against Article 3 of the Jay Treaty in the report of the select committee of the citizens of Charleston, July 22, 1795. See note 9. This report reads in part: “The third article gives to the British, what to them, with their capital, will be nearly equivalent to a monopoly of the trade with the Indians, and with our Western Territories, and opens a door for smuggling on an extensive scale, to the great injury of our revenue.” H replied to this and the following three points in “The Defence No. XII,” September 2–3, 1795.

12See the fourth essay by “Cato,” which is quoted in “The Defence No. XI,” August 28, 1795, note 1.

13This is a reference to an argument advanced in the tenth essay by “Cato” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 26, 1795). The relevant section of this essay reads: “The Indian trade in the southern part of our territories, is principally in peltries, which are too bulky to be transported in any other way than upon large rivers; the Mississippi will be the outlet for a very great proportion of them. This commerce must have been exclusively ours, for though, by the treaty of Paris, the British might navigate the Mississippi, yet as they did not own a foot of land upon either of its banks, it became impossible for them to avail themselves of this advantage; whereas the United States, possessing all the Indian country in the vicinity of that river, and the east bank for many hundred miles, could, when they pleased, establish factories, and monopolize that commerce; and, in addition to this, carry on a very important (though illicit) trade with the Spaniards, who own the opposite bank. This our minister extraordinary was too munificent to allow us to avail ourselves of. He, therefore, provides, in the third article, ‘that all the ports and places, on its eastern side, to whichsoever of the parties belonging, be freely restored to and used by both parties in as ample a manner as any of the Atlantic ports or places, &c:’ then comes a clause declaring, ‘that all goods and merchandizes, whose importation into the United States is not wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by his Majesty’s subjects; and such goods and merchandizes shall be subject to, no other or higher duties than would be payable by the citizens of the United States on the importation of the same in American vessels in the Atlantic ports of the said States.’ I have already shewn, that the effect of this last provision is to give British ships a bounty proportioned to the amount of the equalizing duty on the out and home voyage, taken together, to the prejudice of American vessels; which, with the perfect equality of rights, that they hold in common with our own citizens, and an addition of 46 cents extra tonnage, and light money, with which, as I have before shewn, our vessels will be charged, must put this important commerce into the hands of the British. This, I presume, must have been the intention of our minister, when he speaks of the ports on the eastern bank of the Mississippi, to which soever of the parties belonging; for, as the British have no ports on the eastern side, Mr. Jay must have looked forward to a time when these extraordinary bounties to their commerce and perfect security for their establishment, should have enabled them to possess themselves of that country: And that, though the article is not reciprocal at present, by the prudence and good management of our envoy, it may, in time, be rendered so.…”

14This is a reference to an argument advanced in the fourth essay by “Cato.” For the text of this essay, see “The Defence No. XI,” August 28, 1795, note 1.

16This is a mistake, for H is referring to the fourth essay by “Cato.” See “The Defence No. XI,” August 28, 1795, note 1.

17In the margin H wrote: “census 1784 123082 souls.” See “The Defence No. XII,” September 2–3, 1795, note 7.

18This and the following point have been taken from the fifth essay by “Cato” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 31, 1795). The relevant part of this essay reads: “I am at some loss to understand what is intended by the following words in the 3d article—‘And in like manner, all goods and merchandize, whose importation into the United States shall not be wholly prohibited; may freely, for the purposes of commerce, be carried into the same, in manner aforesaid, by his majesty’s subjects; and the same shall be subject to no higher, or other duties than would be payable by the citizens of the United States on the importation of the same in American vessels into the atlantic ports of the said states.’ The manner aforesaid, alludes to the former part of the article, which gives the British a right to navigate our rivers from the sea to the highest ports of entry for foreigners, and from thence by land into the Indian country, the only natural construction of these words, is, that the British shall have a right to import into the United States upon the same terms as Americans, and yet I can hardly conceive that Mr. Jay could intend, in the face of a law of the United States (act making further provision for the payment of the debts of the United States, chap. 39, sec. 2.) which imposes an additional duty of ten per cent on articles imported in vessels not of the United States; I say I should hardly conceive that he should presume to enter into such stipulation directly in the face of a law of the United States, and that too in favour of a nation whose navigation act is at war with our commerce; did it not breathe the same spirit with the 12th, 14th, and 15th articles, all of which strike directly at the navigation of these states. Nor do I know any other construction that can possibly be put on the words which I have stated at large, that every reader may judge for himself. It is however, possible, that Mr. Jay may have intended (for never was a public instrument drawn with less precision than the one before us) that this provision should only extend to goods brought in for the purposes of the Indian trade, yet how the words can be made to bear this construction I am at a loss to conceive. But should even this be admitted to be the true meaning, it will again prove the extreme solicitude of the framers of the treaty to secure to the British the whole benefit of the Indian trade; without this article, goods, might be purchased of our merchants for the purpose of this commerce, which would, on account of the ten per cent difference, have been imported in American vessels; but this slight advantage it seems was deemed too much for the sacrifice of the whole profits of the Indian trade. It is therefore stipulated, that the British shall navigate our rivers to the highest port of entry for foreign vessels, and that upon this construction they shall pay no foreign duty for the articles they import, so that all that the British merchants will have to do, will be to establish factories at the ports of entry, and under pretence of the Indian trade (if it should be thought that the words should be confined to that) import in British bottoms upon the same terms as we do in our own ships: and as by the 15th article our vessels are to pay a duty, which is to countervail the duty paid here by the British, that is, ten per cent every article imported this way, as Indian goods, will yield ten per cent more profit to the British merchant, taking the outward and homeward voyage into consideration, than it will to the American, and the navigation and revenue law be eluded—But supposing it possible to prevent these goods so imported into New-York for instance, and there put on board river vessels, & from thence carried by land and by inland navigation for a considerable distance, from being sold before they get into the western territory; yet even then this provision must operate as a bounty on British vessels, in preference to all other foreigners, and as an encouragement of ten per cent in favour of the British merchant who carries on the Indian trade, to the prejudice of our own commerce and our own revenue. Thus, to make myself more fully understood, a British merchant sends in his own ship articles intended for the Indian trade, or indeed any other under that pretence, he has a right to enter them without paying any other duty than the American does, his return cargo pays no duties in England. The American merchant ships in his own vessel the same articles, on the same terms, but by the general operation of the 15th article, Britain has a right to lay on the return cargo, a duty of ten per cent. The words of the article are, ‘but the British government reserves to herself the right of imposing on American vessels entering into the British ports in Europe, a tonnage duty equal to that which shall be payable by British vessels in the ports of America, and also such duty as may be adequate to countervail the difference of duty now payable on the importation of European and Asiatic goods when imported into the United States in British or in American vessels.’ If, then, against all obstacles, the American merchant should carry on the Indian trade, will he not by this circumstance, be compelled to import and export in British vessels? By the 12th article, British vessels may import into the United States from their islands, without paying greater duties than the Americans; this again is direct opposition to a law of the United States above recited.…”

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