Thomas Jefferson Papers
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Observations on Monroe Treaty with Jay Treaty, 21 March 1807

21 Mch 1807

Art. 1  Observations Observations.
peace, frdshp Etc.
 Art. 2.
The articles of the treaty of Nov. 19. 94. not expired nor yet having had full operation, are confirmed.
 Art. 3.
allows a direct trade between the US. & Brit. possns in East Indies. Amerin. vessels to pay in those possns the same duties pd by Brit. vessels in America.
allows only direct commerce from those possns to the US. not allowed the coasting trade of the Brit. territories there, nor to reside there.
 Art. 4.
free commerce between Brit. domns in Europe & US. subject to the laws
 Art. 5.
no higher duties on the ships or goods of either party than on those of other nations.
no importn or exportn to be prohibitd to either party which is allowed to any other nation. the same duties of exportn or importation, the same drawbacks & bounties to Brit. & American vessels
 Art. 6.
Each party to regulate their W. India trade as they please
 Art. 7.
each may have Consuls with the other: each may send away the Consul of the other giving reasons. each may except particular places.
 Art. 8.
vessels detained as having enemy’s property or contraband or for other lawful cause, shall be carried to the most convenient port, & only enemy’s property or contraband be prize, unless the vessel also be subject to condemnation by law. delays of adjudication & indemnifcn shall be prevented: and costs allowed in cases of unfounded detention.
Art III. secures our commerce with British India by treaty, subjects us there to British duties only, whereas other nations pay alien duties.
Art. IV. V. the right of countervailing tonnage is made reciprocal, and the right of countervailing the differ of duties paiable on Asiatic goods imported in British & American vessels, had in fact been so countervailed by duties on American productions, that our navigation could not have borne it in time of peace. this right and difference is now done away. the discrimination in export duties is paid by their own colonies in America as well as by us.
   Art. VI.
this article as taking the case of the W.I. trade out of all the stipulations of the treaty leaves us free to make counter-provisions against theirs.
   Art. VIII.
the stipulation expressly to allow damages & charges on unfounded detention of their vessels, will, it is believed, strengthen the right to them, now admitted in deed but abused in practice, & will quicken the attention of the courts to it.
   Art. IX.
this article is an improvemt of the treaty of 94. inasmuch as it excepts from being contraband tar & pitch, not bound to a port of naval equipment, & when so bound, substitutes preemption for forfeiture. it renounces too the principles of the Brit. order of Aug. 03. for seising vessels on their return from places to which they had carried contraband.
   Art. X.
recognises that our distance rendering it difficult to know previously of a blockade or it’s state, we are to recieve the decisive notice from the blockading squadron only. it secures too certain descriptions of persons under our flag.
Art. III. puts an end to our indirect voiages to the E. India, as Jay’s treaty had done to those from thence. all other nations enjoy in practice the indirect, both to & from the Brit. E. Indies. so did we before the treaty. our cargoes & even the capital for an E. I. voyage are made up by a kind of coasting voiage in Europe. better omit the article & leave us on footing of most friendly nation. we should by an amendmt of this article be allowed to touch for refreshment at all ports in possn of G.B. in the African or Asiatic seas.
Art. IV. V. the discriminating duty on exports from G.B. still remains. 4. p.c. on exports to the US. is paid & only 1½ to Europe. if G.B. cannot spare this duty, let her equalize it by lowering ours & raising others equivalently. they call it a convoy duty, but it is permanent in peace as well as war. besides we have no enemies & need no convoys.
do the 2d. 4th. & 5th. articles bar us from reciprocating regulations, such as a navigation act? the same Art. in the treaty of 1794. have not been so construed, but an explanation would be better.—the case of prohibitions, where the US. are as free as G.B. to impose them, both parties are restrained. but in that of duties on exports, which the US. are restrained from by their constitution both are left free. no reciprocity here. the 4. p.c. export duty of Gr. Br. levies 1. million D. on us. by increasing this export duty G.B. may effectually prevent our reexportation of her manufactures to other markets in competition with her merchants & ships, & secure that monopoly.
    Art. VIII.
this express recognition that a neutral flag does not protect enemy’s property had better be avoided by a general stipulation that where a vessel is seised ‘for any lawful cause’ without specifying the causes. the specification too, by naming enemy goods, & contraband, or other lawful cause, may by a side blow be intended to support the British doctrine as to colonial trade. blockade, the only remaining lawful cause, being expressly provided for in another article, it may be speciously pretended that the ‘other lawful cause’ here meant could only be the colony trade.
    Art. IX.
Why are resin & turpentine not excepted also? and why not all naval stores not destined to a port of equipment?
    Art. X.
the blockade is not defined, but certainly ought to have been. the necessity of actual notice from the blockading squadron, which is always a right, is here abandoned, & placed on the false ground of distance. that ground too separates our cause from the common one of neutrals, & may be turned against us in the W.I. we had better expunge the article & trust to the law of blockades, as defined by writers & treaties, & the British communication to us through to mr Maury in 1804 & to the chance of what shall be settled by the nations of Europe at the ensuing peace.
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                            Art. XII.
the extension of the limits of our Maritime jurisdiction to 5. mi. may, it is hoped, form an example for still further extension & by other nations.

   Art. 11.
this article restricts to the markets of Europe the re-exportn of colonial produce, and to European articles the supplies to the Colonial markets. this is inadmissible. it shuts to our commerce channels left open by the British courts, by that govmt itself in their communication to this thro’ mr King in 1801. and admitted in the treaty with Russia. by these the indirect commerce from enemy colonies was as free to every other part of the world as to Europe, & as free to such colonies, in the articles of all other countries as of Europe. productions of American colonies are by this no longer to be sent to Asia, Africa, or America. nor the productions of Asia or Africa to the W.I. or Spanish Maine. the difficulty too of distinguishing European from Asiatic or African manufactures would give an oppty to greedy cruisers to oppress us grievously. this is extending the British principle to a trade habitually open. even this admission too is restrained to the continuance of the present hostilities, so that they ceasing this year & recommencing the next this admission is at an end, while all the concessions on our part deemed as the consideration, and the obligation to make no retaliating requiations continue the whole duration of the treaty. even if they were co-durable as they should be, still the British have the advantage of uninterrupted benefit from our concessions, while theirs are of no value but during a war. if the article cannot be freed from these objections, then it ought to be expunged, so as to leave us on the footing gentis amicissimae.
   Art. XII.
it is of moderate value as to other nations, because it does not extend to their armed vessels, & they have few unarmed ones coming here. if the same immunity from search were allowed in the addnal 2. miles, as in the 3. mi. it would be of value. this could only be by extending to all vessels & all nations.
   Art. 9
defines contraband, including naval stores (except unwrought iron, fir-planks, tar & pitch not going to a port of naval agreement, in which case entitled to preemption) the vessel not to be detained unless the contraband is on board at the time of search.
   Art. 10.
in case of blockade, the vessel to be turned away, & only confiscated on a 2d. attempt. goods or vessels entered before blockade shall not be confiscated. the Art. protects subjects of the other belligerent except in actual employment.
   Art. 11.
direct commerce to Enemy colonies in European goods ordered during present hostilities having paid 1. p. Ct. duty & the vessel American property, and so from the colonies, & to be re-exported to Europe on paying 2. p. Ct, the Vessel being Amercn property [. . . .]ing of right of implicn of the [. . . .].
    Art. 12.
the jurisdn of the US. admiralty be 5. miles from shore as to property of the nations agreeing to the extension, i.e. their unarmed vessels, & the vessels of the US.
   Art. 13.
in searching merchant ships the officer to conduct himself as friendly as the course of the war permits. officers to give bond, & be p[. . . .] if commit outrage. copy of sentence & proceedings to be furnished by the judge.
   Art. 14.
pirates not to be restored, but punishd. their plunder restored.
    Art. 15.
citizens engaging in hostilities punished as pirates.
   Art. 16.
no reprisal without previous satisfaction demanded & refused.
   Art. 17.
ships of war to be recieved respectably, officers treated respectfully, vessels in distress recieved in places where not allowed in other case.
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   Art. 18.
enemy privateers not to arm in the ports of the neutral party nor sell prizes, nor stay.
Art. 19.
the ships of war & privateers of either may carry their prizes into the ports of the other, & go away when they please. no shelter to be given to the captors of prizes from the other contract party & if forced in by stress, shall retire as soon as possible; saving existing treaties. neither will make any treaty in future inconsistent with this or the preceding article neither to suffer captures on the other within cannon shot of their coast or the 5. miles of 12th. art. and shll. use utmost endeavors to obtain satisfaction for the vessel whether of war, or merchant, so taken.
Art. 20.
in case of rupture, merchants & others may remain & continue their trade committg no offence. if their conduct renders them suspected, may be removd in 12. mo. but those actg agt establd. laws not to have this favour. but no rupture to be deemed to have taken place while negocians continue, & ambassadors remain. each party may send away an Ambassador, without prejudice to mutual good undstdg.
Art. 21.
All persons charged with murder or forgery, to be given up on such evidence as, by the laws of the place where found, would justify his commitment for trial, if the offence had been commd. there.
Art. 22.
provisions for shipwrecks
Art. 23.
each to participate in any future advges given to any other nation.
Art. 24.
shall be an intercommunication of all laws and measures respecting aboln of slave trade.
Art. 25
this not to affect existing treaties
   Art. 26.
to continue 10. y. from exchange of ratifications.
London Dec. 31. 1806.

    Art. XXII.
contains a new & useful provision in cases of Shipwreck.
this article is supposed peculiarly important in it’s application to the British E. Indies.
   Art. XIII.
the new expressions introduced to wit, ‘as the course of the war may possibly permit,’ or ‘observing as much as possible the rules of the law of nations’ narrow the benefit of those rules: and the article would be better omitted so as to leave us in possn of the full right of the law of nations.
Art. 17.
 The effect of this is to give British ships of war an unlimited right to be in our ports; and of course the same right must be extended to other nations: whereas it is very desirable that we should be free to limit the number admissible at one time, and to regulate their conduct. and there is little reciprocity, because we have few armed ships. the stipulation to treat officers with respect carries a most ignominious implication as if we were barbarians. it would be much more agreeable to facts, to require a stipulation that their officers should behave with decency. better give them the privileges of the most favored nations, leaving us free to modify these.
Article XVIII. XIX.
 These secure to G.B. a more favorable treatment than to any other nation except France with whom, alone we have a treaty which would secure them: and they prohibit us from giving in future equal privileges to other nations. this would place the other belligerent nations on a much more unequal footing than G.B. and this inequality is proposed to be created in the midst of a war. this is inadmissible.
 responsibility to a certain degree, is admitted, for violations of territory to the extent of 3. mi. from the coast. but the 19th. art. extends it to the addnal 2. miles also, & that for armed as well as unarmed vessels, & against nations not agreeing to the extension. whereas G.B. in the 12th. art. has admitted our protection only of unarmed vessels, & of nations agreeing to the extension. so she requires redress for acts committed by her enemies which she has reserved to herself a right to commit against them. this would be paying too dear for the additional two miles.
Art. XX.
G.B. has a great number of merchants residing in America, & of great influence; we few residing there & of no influence. we should submit to all the inconveniences of their right to remain without any equivalent.
 the privileges of gentis amicissimae, to be continued to each. the word continue implies that we now enjoy them. but the discriminating export duties of 4. & 1½ p.c. shew we do not. this art. may bar us from retaliating a navigation act, because we ought not to pass such an one against nations not having one.
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moreover, where privileges are granted for privileges recieved, as to France & Spain were they to open their colonies to us, ought G.B. to enjoy them, not opening hers?

Alterations Essential. 1. a substantial provision against impressmt. of our seamen.

  2. expunge from the 11th. art. the restrictions to European ports, & European articles in our trade with the colonies.

 3. expunge from the 3d. art. the restraining us to a direct trade from as well as to the US.

  4. a saving of right to indemnification for sufferers from wrongful captures.

  5. withdraw or essentially vary the declaratory note on the French decree of Nov. 21.

DLC: Papers of Thomas Jefferson.

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