Report on Instructions to John Jay
MS (NA: PCC, No. 25, I, 411–16). According to the endorsement and the printed journal, this report was delivered on 2 May 1781 and approved by Congress on 28 May 1781 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 472, 551–55). As adopted by Congress, the letter is identical with JM’s report, except for the writing-out of abbreviations, the improved spelling of some words, and the placing of dates in the blank spaces near the end of the report.
[2 May 1781]
The Committee to whom was referred the letter from Mr. Jay dated the 6th. of Novr. last with sundry other papers report the following answer thereto. (Instructions to the honl Mr. Jay Minister plenipotentiary of these united States at the Court of Madrid.)1
Your letter of the 6th. of November last detailing your proceedings from the 26th. of May down to that period has been received by the United States in Congress Assembled. At the same time was received your letter of the 30th. of November with the several papers therein referred to.2
It is with pleasure Sir I obey the direction of Congress to inform you that throughout the whole course of your negociations & transactions in which the utmost address & discernment were often necessary to reconcile the respect due to the dignity of the United States with the urgency of their wants, and the complaisance expected by the Spanish Court, Your Conduct is entirely approved by them. It is their instruction that you continue to acknowledge on all suitable occasions the grateful impression made on these States by the friendly disposition manifested towards them by his C. M. and particularly by the proofs given of it in the measures which he has taken & which it is hoped he will further take for preserving their credit, and for aiding them with a supply of Cloathing for their army.3 You are also authorized & instructed to disavow in the most positive & explicit terms any secret understanding or negociations between the U. States & G. Britain, to assure his C. M. that such insinuations have no other source than the insidious designs of the common Enemy, and that as the U. S. have the highest confidence in the honor & good faith both of his M. C. and of his C. Majestys, so it is their inviolable determination to take no step which shall depart in the smallest degree from their engagements with either.4
Should the Court of Spain persist in the refusal intimated by its Minister, to accede to the Treaty between the U. States & his M. C. Majesty, or to make it the basis of its negociations with you, the difficulty, it is conceived may easily be avoided, by omitting all express reference to that treaty, and at the same time conforming to the principles and tenor of it; and you are accordingly authorized so far to vary the plan of your original instructions.5 As his M. C. M. however may justly expect, in a matter which so nearly concerns him and which was brought into contemplation in the Treaty he so magnanimously entered into with these States, the strongest marks of attention and confidence, you will not fail to maintain in the several steps of your negociation a due communication with his Minister at the Court of Spain, and to include his interests as far as circumstances will warrant.
You are authorized to acquaint his C. M. that not only entire liberty will be granted, during the war at least, to export naval stores for the royal marine, but that every facility will be afforded for that purpose.6
Congress are willing to deliver over to his C. Majesty’s service the 74 gun ship now on the Stocks at Portsmouth in New Hamshire, on his replacing all the expences as nearly as they can be liquidated which shall have been incurred at the time of her actual transfer. The first cost as she now stands is upwards of 60,000 Spanish Milled dollars. The further cost of completing her Hull and launching her will it is computed amount to upwards of 40,000 more. All the materials necessary for rigging and arming her must be imported. No engagement can7 be made for American Seamen to navigate her.8
As Congress have no controul over the Captains of private Vessels, however proper your hints may be of obliging them to give a passage to American Seamen returning home from foreign ports, and to send an Officer with the dispatches entrusted to them for foreign Ministers, it is impracticable to carry them into execution. You will therefore continue to provide for these objects for the present in the best manner you can. As soon as the U. States are in condition to establish Consuls in the principal ports of the States with which they have intercourse, the difficulty will be removed, or if any other practicable remedy be suggested in the mean time, it will be applied.9
The Letter of which you enclose a copy from Stephen Audibert Caille stiling himself Consul for unrepresented nations at the Court of Morocco, had before been received through the hands of Docr. Franklin. If you shall see no objection to the contrary you will correspond with him and assure him in terms the most respectful to the Emperor that the United States in Congress assembled entertain a sincere disposition to cultivate the most perfect friendship with him and that they will embrace a favorable occasion to announce their wishes in form.10
The generous & critical services rendered these U. States by Messrs. Neufville & son have recommended them to the esteem & confidence of Congress.11 You will signify as much to them and that their services will not be forgotten whenever a proper occasion offers of promoting their interests.
Your intimation with respect to complimenting his C. Majesty with a handsome fast sailing packet boat, claims attention, but the variety of publick embarrassments will render the execution of it very uncertain.12
Congress agree to an extension of Col. Livingston’s furlough till the further order of Congress which you will make known to him.13
Your letter of the of September last was rec’d. on the of . No bills have been drawn on you since. That of the was received on the of and in consequence of it the sale of the bills already drawn but then remaining on hand was countermanded.14
By a letter from Mr. Carmichael dated the 22d of February and rec’d. on the 27th of April last, Congress are informed that you had received dispatches from them dated in October. These must have contained their instructions to you to adhere to the claim of the United States to the navigation of the Mississippi. A reconsideration of that subject determined Congress on the of to15 recede from that instruction so far as it insisted on their claim to the navigation of that river below the 31st degree of Latitude, and to a free port or ports below the same. On the receipt of this latter instruction, Congress have little doubt that the great obstacle to your negociations will be removed, and that you will not only be able without further delay to conclude the proposed alliance with his C. Majesty; but that the liberality & friendly disposition manifested on the part of the United States by such a cession will induce him to afford them some substantial & effectual aid in the article of money. The Loss attending the negociation of bills of exchange has been severely felt.16 A supply of specie through the Havannah would be much more convenient and acceptable.17
1. The parenthesis is in the MS. For the “sundry other papers,” see nn. 10 and 11, below.
2. The letters of 6 and 30 November 1780 from John Jay, the minister of the United States to Spain, to the president of Congress were read in Congress on 24 and 25 April 1781, respectively. On the latter date they were referred to a committee with James Duane as chairman and Samuel Adams and JM as the other members. The report of this committee, in the form of a letter of instructions to Jay, is in JM’s hand. Preliminary to writing the draft, JM took thirty-five pages of notes entitled, “Contents of a letter from Mr. Jay dated Madrid 6 Novr. 1780” (LC: Madison Papers). These notes will not be reproduced here because a comparison of them with Jay’s letter (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 112–50) makes clear that they are merely a skilful condensation of the lengthy dispatch, without any commentary by JM. He left page thirty of his précis almost wholly blank, evidently expecting to fill it later with notes on a portion of the dispatch in cipher. Whether he and the other members of the committee managed to have this decoded before submitting their report is unknown. At the point in Wharton’s edition of the dispatch where the coded portion of the original begins, he bracketed the comment, “Here follows a page of cipher of which there is no key” (ibid., IV, 145).
3. Jay’s letter told in chronological detail the wavering course followed by the Spanish government toward accepting the bills of exchange drawn by the United States against Jay. Premier José Moñino y Redondo, Conde de Floridablanca, listened to or ignored Jay’s pleas in regard to these bills, depending upon the news received of the successes or failures of American arms. When Jay wrote, although he had not yet been informed that Congress no longer insisted that Spain in the hoped-for treaty of alliance guarantee the United States freedom to navigate the Mississippi River (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 302–3), he was optimistic that the Spanish court would extend a $150,000 credit to America (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 139, 144). Early in the summer of 1780 Floridablanca also promised to supply clothing for the American troops, but when Jay pressed him about the matter in the autumn, the premier replied only that he would send the articles “as soon as possible.” Although on 1 November Jay complained that “I have applied and reapplied and have been promised and repromised,” at the end of the month he was still impatiently awaiting an order to send the clothing. “These delays may seem singular,” he commented, “but they are not uncommon” (ibid., IV, 125, 144, 149, 169). About “three thousand Suits of cloathing” from the King of Spain arrived in Boston, probably while JM was drafting this report (Virginia Delegates to Jefferson, 8 May 1781). “C. M.” means “Catholic Majesty,” a form of address bestowed on the sovereigns of Spain since the mid-sixteenth century.
4. Jay had already countered “hints of some understanding between the Colonies and England” with “great indignation.” When he asked for evidence, Floridablanca replied that he “had nothing specific or particular as yet to communicate” but that he was “pursuing measures for further discoveries” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 139, 145). “M. C.” means “Most Christian” Majesty, a title assumed by the kings of France.
5. Floridablanca had protested that “the interests of France and Spain with respect to America were so distinct as necessarily to render different treaties necessary.” Admitting the general truth of this, Jay suggested that the treaty of alliance of 1778 between France and the United States might still be “made the basis and then go on mutatis mutandis [necessary changes having been made]” (ibid., IV, 145). Immediately following this quotation, Jay wrote the page in cipher, mentioned above in n. 2. He possibly mentioned in code certain specific provisions in the proposed treaty which would have to be unlike those in the treaty with France.
6. Jay had already assured Floridablanca of his confident hope that Congress “would permit his majesty to export … during the war ship timber and masts for the royal navy, and would readily consent to such measures as might be proper and necessary for facilitating it” (ibid., IV, 146).
7. Although the word “can,” used by Congress, is written above “must,” neither is crossed out. Perhaps JM intended for Congress to decide which word should be used. In a false start on this sentence, JM crossed out what appears to have been “America Seamen can not must not.”
8. Charles Thomson bracketed the left side of this paragraph with lines and wrote “postpond” in the margin. During the debate of 11 May on the report, Congress referred this paragraph to the Board of Admiralty. Five days later the Board’s recommendation was embodied by Congress in a resolution authorizing Jay “to dispose of the hull … together with such timber and other materials as are prepared for building her, to his Catholic Majesty, on such terms as he [Jay] may judge best for the honor and interest of the United States.” Congress soon reconsidered its decision and deleted the paragraph from the letter of instructions to Jay. Late in June Congress ordered the speedy completion of the frigate “America” and elected “John P. Jones esq.” to be her commander. But Jones never took the ship to sea. On 3 September 1782 the “America” was given to France to make up for her loss of the “Magnifique” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 692, 698; XXIII, 543; Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 9, n. 2; 35). Floridablanca had indicated to Jay in June 1780 that Spain eagerly wished to buy from the United States “some handsome frigates and other smaller vessels of war,” to sail under Spanish colors but with American crews. Three months later Floridablanca “appeared pleased” when Jay promised to ask Congress to transfer the “America” to the king of Spain “at prime cost.” Jay had already made clear to Floridablanca that he should not count upon an American crew, because United States “frigates often find difficulties in completing their complements, principally because the seamen prefer going in privateers, which are numerous, and too useful to be discouraged” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 115, 118, 146–47).
9. On 7 May, as a member of the committee on Jay’s instructions, JM nominated Richard Harrison to be the U.S. consul in Spain (NA: PCC, No. 185, II, 2), but Congress took no action. Le Couteulx & Cia. of Cadiz, commissioned to help American seamen stranded in Spain, complained to Jay that American ship captains demanded unreasonable fees for taking these marooned sailors back to the United States. Jay agreed that the shipmasters were certainly “unfeeling” toward “their unfortunate countrymen.” He promised to ask Congress once again to take “proper measures” for their relief and, in the meantime, to request Harrison to assist “the unhappy captives in a strange country” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 149–50). To protect his correspondence with the United States government from being always opened and sometimes suppressed by the Spanish authorities, Jay advised the president of Congress that “Congress might have letters from me every month if orders were given to the captains of the vessels bringing despatches for me to send a trusty officer with them to me … [otherwise] my remaining here will become a useless expense to my country” (ibid., IV, 150).
10. In his dispatch of 30 November Jay enclosed a letter of 21 April 1780 to him, accompanied by supporting documents, from a French merchant, Étienne D’Audibert Caillé of Salé, whom Sidi Mahomet (ca. 1710–1790), sultan of Morocco since 1757, had appointed “consul for all those nations who have no consuls in our dominion.” Caillé repeated what he had written to Benjamin Franklin on 6 September 1779, the substance of which reached Congress nearly a year later, that he and the sultan were eager to establish trade relations with the United States (ibid., IV, 169–74; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVII, 798; XVIII, 1104).
11. After “Congress,” JM wrote and then crossed out eleven or twelve words which appear to have been “and you will signify to them that their conduct is regarded.” In his letter of 30 November, Jay forwarded to Congress copies of his correspondence between June and October 1780 with Jean de Neufville and Son of Amsterdam. The firm offered to honor bills of exchange drawn upon Henry Laurens, who was then expected in the Netherlands as a special envoy from Congress to seek financial aid (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 226, n. 5). In exchange for this service the Neufvilles asked merely that they be allowed to draw in turn against the American ministers already in Europe. Impressed by this “friendly and disinterested” attitude, Jay suggested in his dispatch that, “by taking proper notice of it,” Congress might “induce others to follow the example” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , III, 752, 774, 803, 817–18, 855–57; IV, 34, 79–80, 169–70).
12. Jay wrote that “from what I can learn of the king’s character, I am persuaded that a present from Congress of a handsome fast-sailing packet boat would be very acceptable and consequently very useful” (ibid., IV, 148).
13. Lieutenant Colonel Henry Brockholst Livingston (1757–1823), a fellow student of JM’s at the College of New Jersey and later a justice of the United States Supreme Court, was acting as the private secretary of Jay, his brother-in-law. He remained in Spain until 1782. While returning to America in that year he was captured and briefly imprisoned at New York City. Jay wrote on 30 November that he had persuaded Livingston to overstay his leave from the army because “he is employed and industrious in obtaining knowledge which may enable him to be useful in future to his country” (ibid., IV, 170).
14. This passage, as adopted by Congress, reads: “Your letter of the 16th day of September last was received on the 4th day of December.… That of the 28th January was received on the 27th day of April” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 554). Jay’s letter of 16 September insisted that “it is necessary immediately to cease drawing bills upon me for the present” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 59). In his dispatch of 28 January, written in cipher, Jay apparently complained that Congress had ignored the above request (NA: PCC, No. 89, fol. 110; No. 110, fol. 395). Upon receiving the January letter on 27 April, Congress ordered “That no more of the bills drawn on the honble John Jay or the honble Henry Laurens be sold until the farther order of Congress, and that the Board of Treasury take immediate steps for stopping the sale” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 451).
15. The letter as finally approved reads, “on the 15th day of February last” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 554). See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 302–3.
In LC: Papers of Madison, is a letter written by Captain Philip Barbour on 22 December 1780 from Fort Jefferson, five miles below the junction of the Ohio and Mississippi rivers, to his brother Colonel James Barbour of Culpeper County, Va. Probably soon after receiving the letter, the colonel wrote on the original cover, “in a letter from my Brother to my mother he writes he will be in Virginia with us about July or August next JB.” James Barbour clearly had added this note for JM’s information. Since JM docketed this same cover “Barbour Phil: Decr. 22. 1780,” he very likely received the letter from someone to whom Colonel Barbour had entrusted it for delivery in Philadelphia rather than from a post rider. When the letter reached JM is unknown, but it probably was not later than April and well before “July or August” 1781.
In telling of a recent trip south along the Mississippi, Captain Barbour warned his brother that the Spaniards “look upon themselves to be Masters of all the River to the Mouth of the Ohio,” instead of merely to the Yazoo River, “the upper boundary of West Florida.” To counteract the Spanish advance, the writer recommended that “a Government” be established on the north bank of the Yazoo, both because of the “large open plains,” where “the Inhabitants might immediately put in there plows,” and because “the greatest part of the Natchez Inhabitants beg’d earnestly of me to go to Congress & represent there situation and how much they wished to become American Subjects.”
16. See n. 14, above.
17. On 11 July 1781 these instructions, bearing “evident marks of inspection,” were handed to Jay by Floridablanca. Commenting on the letter in his dispatch of 3 October 1781 to the president of Congress, Jay said: “I do not recollect to have ever received a letter that gave me more real pleasure.… It appearing to me that the communication I was directed to make to this court could not be better made than in the very words of this letter, which seemed exceedingly well calculated for the purpose, I recited them in a letter which I wrote two days afterwards to the minister” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , IV, 748–49).