Negotiating a Trade Agreement Editorial Note
Negotiating a Trade Agreement
Jay had included an article calling for commercial reciprocity as described in the model treaty plan of 1776 in his first draft of the preliminary peace treaty between Britain and the United States. The British cabinet, however, had rejected it immediately on grounds that Parliament would have to modify the navigation acts before the article could be accepted. Nevertheless, the cabinet offered assurances that Britain was interested in a commercial treaty. The preamble to the Anglo-American Preliminaries, signed on 30 November 1782, pledged the two nations to establish a relationship based on “Principles of liberal Equity, and Reciprocity,” that would insure a “beneficial and satisfactory Intercourse between the two Countries,” and “promise and secure to both perpetual Peace and Harmony.”1 Shelburne’s openness to liberalized trade relations led interested parties in both Britain and America to anticipate that a trade agreement based on reciprocity would soon be negotiated.2
Almost immediately after the European preliminary treaties were signed on 20 January the American peace commissioners, working with Alleyne Fitzherbert, took measures to insure that trade between the two nations could safely be resumed. In early February, they had arranged to issue passports, and by the end of the month they issued a declaration of cessation of arms detailing when and where captures at sea would have to be restored.3
The terms of the Anglo-American preliminary treaty had been known in Britain since early December, and opponents had sharply criticized Britain’s concessions on the fisheries and its failure to win better terms for the Loyalists. It was, thus, less likely that a reciprocal trade agreement would be approved, especially since the concessions required from Britain, with its long-established navigation policies, would be far greater than any the United States could offer.4 These circumstances did not prevent Franklin from pressing the British negotiators to conclude an agreement that would require repeal of prohibitory trade laws then in force in either country.
Once the Anglo-American preliminaries were made operative by the signing of the European preliminaries, Shelburne asked John Pownall, who had served on the Board of Trade, to prepare a reciprocal trade agreement.5 Pownall reported back promptly and, on 7 February, gave Shelburne the first draft of the American Intercourse Act, a bill that would have exempted American trade from many of the restrictions imposed on foreign nations: American goods in American bottoms would be admitted to the ports of Great Britain and her possessions in the New World, including the West Indies, on the same terms as British goods in British bottoms would be admitted to American ports.6 A week later Parliament repealed two prohibitory acts passed in the early years of the war.7 Immediately thereafter, however, opposition to the Shelburne ministry halted any further movement toward substantive modifications of the navigation acts that had shaped British trade policy for more than a century.8
Twice censured for concessions made to the Americans in the provisional treaty, Shelburne resigned on 23 February,9 leaving William Pitt (1759–1806), chancellor of the exchequer, to introduce the American Intercourse Act in Parliament on 3 March 1783. In the course of the next month, while a new government was being formed, Parliament debated the bill vigorously.10 William Eden, inspired by Lord Sheffield’s influential pamphlet, Observations on the Commerce of the United States, led a well-organized campaign against any proposal that would return American commerce to pre-independence status. Sheffield was a staunch advocate of continuing the navigation acts and was convinced that Britain could do so without losing her American markets. He argued that the Americans should be treated as foreigners and excluded from the carrying trade they had enjoyed as colonials so that British shipping could gain at American expense and the United States could be made to pay for the war. “Rather than give up the carrying trade of our islands,” he asserted, “it will be much better to give up the islands themselves.” Debate on the bill revealed that a majority in Parliament believed Congress too impotent to retaliate against British restrictions on American trade and that Britain had nothing to lose by imposing them.11
On 2 April the Fox-North coalition came to power. A week later Charles James Fox, secretary of state for foreign affairs, tabled the American Intercourse Bill and introduced a new measure described below. On 10 April he named David Hartley (c. 1730–1813), a pro-American member of Parliament who had been actively involved in the commerce debate, to negotiate both the definitive peace treaty and a trade agreement. In a letter of that date he informed Hartley that, with some exceptions, he hoped to see trade between the United States and Britain generally reestablished on a prewar, reciprocal footing. The exceptions were significant. Fox expected that the United States would admit British manufactures even though Britain would not admit American manufactures. Trade between the United States and the British West Indies would be allowed, but American vessels could carry only American produce there and to Britain. No new duties were to be levied by either party.
These provisions were included in the new trade bill to which Eden attached an amendment that gave the King in Council authority to regulate trade until negotiations for the definitive treaty were complete. Parliament approved the amended bill on 25 April. An Order in Council implementing its provisions followed on 14 May.12 The amendment’s significance was not apparent until, in early July, trade negotiations were abruptly brought to an end by an Order in Council that established a restrictive British trade policy that remained in place for the next decade.
Hartley arrived in Paris on 24 April with instructions issued under the king’s privy seal, dated 18 April 1783. He met individually with the American commissioners on 25 April. Two days later he met with them as a group and stated the positions laid out in his instructions. The Americans immediately objected to the fact that he had not been provided with a commission under the Great Seal and did not have powers equal to theirs, which enabled them not only to “treat but conclude, together with an engagement to ratify and confirm.”13
Although they suspended formal negotiations the Americans allowed Hartley to present his personal proposal for a supplemental treaty designed to regulate commercial and diplomatic relations between the two powers during the period before the definitive treaty was negotiated—a proposal identical to one he had made in a speech to Parliament on 11 March and sent to Franklin on 12 and 31 March. Its commercial clauses were designed to restore commerce to its prewar status. Hartley also gave the Americans a memorandum that commented extensively on the various issues raised by the provisional treaty and by the need for a commercial agreement.14
Hartley described the Americans as “well disposed” to any fair, equitable, and reciprocal propositions,” and expected that a trade agreement would be soon reached. He soon realized, however, that they had propositions, too, “together with one simple & invariable principle for the basis of their negotiations, viz reciprocity.”15 Adams and Jay were quick to respond to his initial overtures. The next day they drafted three articles covering the resumption of trade, troop withdrawals, and “quieting the Tories,” and presented them to Hartley on 29 April.16 Article 1, the trade proposal, put back on the table the commerce clause that the British had dropped from the first draft of the preliminary treaty. It provided for strict commercial reciprocity: trade between the two countries should be “open and free” to the merchants and subjects of both, who should be “treated and protected, like the Merchants and trading Vessels of the State in which they may be.”17
Hartley immediately forwarded these articles to Fox. In a letter of 30 April he acknowledged receipt of the British trade bill of 25 April amended to empower the king to regulate commerce between Britain and the United States for “a limited time.” The Americans, he reported, were willing to be flexible about the amount of time granted. He detected “no Sentiments of hostility, nor any desire to injure, or to affront any part of the British nation.” He also described the “three articles” as having been “proposed between the American Ministers and myself.” This phrase led Fox to believe that Hartley had suggested that Britain would allow American ships to carry non-American produce to ports within the British Empire on the same terms as British ships, a concession that went far beyond anything he was willing to contemplate.
Fox’s letter to Hartley of 15 May made it clear that there was no flexibility with regard to Britain’s position on the carrying trade. “It appears to me by the First Article which you have sent over,” he remarked, “that you have either not attended to or misunderstood my Instructions; in which it is particularly expressed that the Admission of American Ships as British should be confined to such Ships only as are laden with American Produce” and only in the ports of Great Britain. He enclosed Hartley’s powers covering both trade negotiations and the definitive treaty18 and a copy of the Order in Council of 14 May. As had the king’s instructions of 18 April, however, the powers explicitly stated that Hartley could not conclude or sign a definitive treaty until it had obtained the king’s approval.19
In his lengthy reply of 20 May Hartley explained that the trade article was a purely American proposal that he had forwarded to illustrate the American position to which Britain had not yet offered a counterproposal.20 The American commissioners, he asserted, had been pleased with Shelburne’s trade proposal, but distressed to see “all good prospects” stripped from it by the current administration. Reciprocity, Hartley stated emphatically, was the “one simple & invariable principle for the basis of their negotiations . . . upon any terms whatsoever, from the narrowest limits, to the utmost extent of mutual intercourse.” They were, he said, as informed as he was about the opposition to reciprocity in Parliament, “much dissatisfied” to find it missing from Britain’s offer, and “extremely jealous upon that head, over & above their instructions from their constituents.” The conflict between American insistence on reciprocity and the restrictive British navigation acts, he insisted, must be resolved. Had he not transmitted the American proposal, he said, he would not have been able to persuade them to suspend their demand for strict reciprocity even in a temporary trade agreement.
Hartley then addressed Sheffield’s argument that Britain must preserve her navigation acts to insure the continued strength of her navy. A rupture with Americans on the matter of reciprocity, he suggested, might cost Britain a significant advantage it had previously enjoyed, the “woodden Coin of America,” the ships and naval stores it had supplied to Britain’s national marine as payment for British manufactures. Had Americans not contributed, he asked, “in a greater degree to the national marine of G Britain, than all the restrictive principles of its acts of navigation?” His “great object” he asserted, had been to “rescue this question from a precipitate decision” that was inevitable if Britain could not compromise on reciprocity, “at least for a time.”21
When Hartley and the Americans met on 19 May he informed them that the King in Council had rejected their proposal for strict reciprocity, expressed his regrets at the outcome, and pledged to work to reverse the decision. Two days later the negotiators formally exchanged their commissions. Although their instructions were incompatible, Hartley nevertheless hoped to persuade the Americans to “dispense with the strict line of reciprocity” in a temporary trade convention if commerce between the two nations could be revived “as nearly as can be” to prewar status, in hopes that that the reciprocity principle “entire” might be recognized in a permanent treaty. His strategy was expressed in a pair of documents whose principles were in substantial conflict.22
The first, described by Adams as Hartley’s “Proposition”, espoused the principles the Americans had articulated in article 4 of the first draft of the preliminary treaty and in article 1 of their proposal of 29 April. American and British vessels would be allowed to import into or export to any part of their mutual territories any goods they were allowed to carry before the war. The arrangement would be temporary, and could not be used as the basis for a claim to include such privileges in a future commercial treaty. In its preamble Hartley acknowledged that it was “highly expedient” to establish Anglo-American trade “on the most enlarged Principles of reciprocal Benefit to both Countries.” He also commented that it would be a “considerable Time” before a permanent trade agreement could be concluded.
In the second, styled a “memorial”, he articulated Fox’s rejection of the reciprocal commerce proposal of 29 April “very literally”. He argued that the American proposal for commercial reciprocity sought “more ample participation” in British commerce than they had enjoyed as members of the British empire, and amounted to “entire abolition” of Britain’s navigation act. Britain, Hartley said, could not be asked in the name of reciprocity to give up her entire navigation act by a nation that had no navigation act. The United States, he said, was a new nation unencumbered by previously adopted policies or commercial engagements with other states, while Britain had long-established policies, was bound by previous commitments to other nations, and could not immediately embark on a new system of commerce. These substantial difficulties made a temporary agreement necessary.
Hartley asked the Americans to compromise on commerce in manufactured goods and American trade with the British West Indies: British manufactures would be admitted to the United States, and Britain would be allowed to carry foreign manufactures there although American manufactures were excluded from Britain; and Americans would not be allowed to carry non-American produce to British dominions, as this might occasion fraudulent introduction of European goods under the American flag. These conditions, he believed, the Americans would accept, although they refused formally to declare an opinion unless assured that Hartley was authorized to arrange “subordinate points”. The memorial was silent on whether or not American vessels might carry goods from the British West Indies to Britain.
The Americans, Hartley noted, remarked that the principle of reciprocity was present in the article, “but very dubious” in his memorial. They inquired whether he could sign the article without further instructions or approval from his court. Hartley admitted he could not, and sent for orders from the ministry. Adams considered the exceptions listed in Hartley’s memorial as “Instances of Partiality, and Inequality.” Concerned that the temporary agreement might serve as a pretext for delay, he further specified that both nations should nominate ministers with full powers to negotiate a permanent treaty of commerce “forthwith”.23
Hartley forwarded his “memorial” to Fox under cover of a letter of 22 May in which he conjectured that the Americans might accept its terms since they were less bound to strict reciprocity in a temporary agreement than in a permanent commercial treaty. He reported that, while they were not entirely pleased by the provisions regarding trade in manufactured goods, there seemed to be no insuperable obstacle to agreement on that topic. The “rub”, he reported, came with regard to the West Indies trade, which they believed was not “sufficiently established in their favor” because it denied American traders the right to complete the customary circular pattern of commerce on which their profits depended by carrying island produce to Great Britain. He stated emphatically that, without conceding “direct communication” from the West Indies to Great Britain, “nothing can be done.”24
In a private letter to Fox written on 23 May Hartley painted a vivid picture of the Americans’ mood. “Every conciliatory disposition,” he wrote, had been suppressed, because their “favorite article” in the preliminary treaty had been rejected and its preamble “left for ridicule, their independence treated as conditional & dubious. . . . The trade bill thwarted &c &c &c.” They had, he said, hoped to be again “incorporated” with Britain “upon magnificent & magnanious principles.” He urged Fox to “throw out a loose & liberal line”, and ended his letter with the hope that Fox would have it in his power to send him an “accommodating letter”.25
While waiting for Fox to respond to his May dispatches, Hartley, in his capacity as negotiator of both commerce and of peace, prepared a memorial to the American commissioners that discussed the commercial and political characteristics of the various European nations and evaluated them as trading partners and allies of the United States. The matters under current discussion, he argued, were of “deepest importance”, not just in the commercial realm, but “most principally as a political basis and guarantee for their newly established constitutions”. Only Britain, he argued, could be a useful friend and ally to the United States. France had taken up the American cause to advance her political objectives in Europe. Spain would be a jealous neighbor; the Dutch a potential commercial rival. British and American interests, he said, were inseparable: if not a friend to the United States, Britain would be her foe.26
The only leverage the American commissioners could hope to gain in the negotiations depended on exclusion of British ships from American ports until a trade agreement between the two nations had been reached. This was soon taken from them. On 17 June they told Hartley that they had what they thought to be reliable but unofficial news that American ports had been opened to British commerce by an order of Congress of 24 April. If the ports were indeed open, Hartley wrote to Fox, “all this matter clears up of itself without even a temporary convention.” He would, he said, forward authentic notice of Congress’s act to Britain as soon as he received it. The king could then open British ports, “and the exports from the West Indies may be regulated as the case may require.” Although certain states had indeed opened their ports, there had been no congressional order to this effect. Had there been it would have been irrelevant. As the British well knew, Congress had no power to regulate trade.27
Negotiations had been again suspended until Hartley received Fox’s reply, dated 10 June. In it Fox enclosed the Order in Council of 6 June, which allowed importation of some American products previously considered manufactures, and provided drawbacks on tobacco and rice meant for reexportation. He approved the idea of a temporary trade agreement based on the principle of reciprocity, but not as defined by the Americans. Britain, he said emphatically, was putting the United States on a more favorable trade footing than it accorded to any other nation, and was asking only most favored nation status in return. The Americans, he insisted, should recognize that strict reciprocity was impossible. If Hartley could negotiate an agreement based on his memorial of 19 May (not the ulterior article), it would be accepted. Commerce between the United States and the West Indies would be free, but the Americans should understand that Britain would not allow the importation of West Indian commodities into Britain on American vessels. If the Americans would agree to these terms, Fox expressed the hope that a temporary agreement could be negotiated as quickly as possible, before the end of the current session of Parliament. Hartley conveyed the content of Fox’s letter to the Americans almost verbatim. They were not favorably impressed. In a letter to Fox of 27 June Hartley reported that he had “accidentally” walked in on one of their meetings and found them with “all their jealousies & alarms raised.” Britain, they said, was not dealing fairly with them. “Would they not only keep their own carrying trade, but seize ours”, they asked. “Is that reciprocity?”28
Fox gave Hartley yet another cause for consternation. On 14 June he communicated a brief afterthought on the West Indies trade: the agreement should contain nothing that explicitly bound Britain to allow produce from the British West Indies to go “even” to the United States in American bottoms. “Make no mention,” he advised, “of rules either side made about the export of their own produce.” Hartley was astounded at this last communication and was quick to inform Fox that it contradicted previous assurances to the Americans that trade between the United States and the British West Indies “should be free in the regard to their respective production”, even though Britain would not allow Americans to carry West Indian produce to Britain. If true, he noted, it would bring an “end of commerce”, would deprive the West Indies of “their supply of necessaries from North America”, and might lead to British loss of the islands. Hartley admitted that Britain had to secure her carrying trade as far as possible, but this, he suggested, had to be accomplished without sacrificing the sale of American bottoms to Britain.29
Hartley must have been relieved, if only temporarily, to learn that Fox intended only to prevent American ships from carrying West Indies produce to Europe under the pretense of bringing it to North America. On the very day Fox clarified this matter, however, it was rendered moot by the Order in Council of 2 July 1783, which barred entry of all American goods into the British West Indies except for an enumerated list that did not include such significant items as fish, cured meats, and dairy products. It also reserved all trade with the islands to British subjects and British-built vessels manned by British crews. American hopes for trade reciprocity were dealt a further blow when, at the same time, France began to reimpose restrictions on American trade with its West Indies.30
News of the order reached Paris on 14 July. Two days later the Americans presented Hartley with a copy of it that they had obtained from “the Gazette of 5th July.” If anything astonished the Americans more than the order itself, it was to discover that Hartley had not been notified of it. Although he admitted they had made no threats, Hartley speculated that they would advise retaliation by excluding British ships from carrying much needed American produce to the islands. On 18 July Adams left on a trip to Holland, the purpose of which, he suspected, was to negotiate a reciprocal trade treaty with the Dutch, to whom, he thought, Americans might market American-built commercial vessels formerly sold in Britain. This, he feared, might transfer two-thirds of Britain’s “former Capital of commercial bottoms to foreign nations, . . . giving them the means to underwork us & to undersell us in the remaining third.” Hartley later raised the possibility that a commercial war with the United States might enhance the prospects of a “combination & league against our American Dominions . . . fomented & supported by France & other rival Nations” that might cost Britain her remaining possessions in North America and the West Indies.31
Fox viewed the matter differently. He claimed that the Order in Council was an “enlargement” of rights Americans had before the war, and that further enlargements would be given “by Degrees”. Greater generosity, he said, would forfeit Britain’s ability to negotiate. He insisted that the “Point” was “still in negociation, and may still be granted if we agree upon the other Parts of the proposed Convention.” He denied that the order had been issued in consequence of the opening of American ports to British trade and insisted that it could not have been related to a “Report” that had still not been officially confirmed.32
In fact the Order and American inability to retaliate effectively ended any possibility of a trade agreement between the two nations.33 In their letter of 27 July, below, Jay, Franklin, and Adams advised the secretary for foreign affairs that they had decided to leave all commercial matters to a future treaty, perhaps to be negotiated in London by an American minister there. A decade of intense controversy over trade, conducted in public rather than through diplomatic channels, followed.34 Although none of Hartley’s fears were realized, the Order in Council remained a significant irritant between the two nations until Jay negotiated the Treaty of 1794, which, however unpopular with many Americans, finally resolved the issues still outstanding from the war of independence.
1. See the following editorial notes and their respective documents: “Preliminary Articles: First Draft,” 5–8 Oct. 1782, Article 4, and notes, “Preliminary Articles: Second Draft,” 4 Nov. 1782 [1st, 2nd]; and “The Preliminary Articles Are Signed,” 30 Nov. 1782 [1st, 2nd] on pp. 177–78, 200–205, 264–67; and , 1: 448–49. For Vaughan’s report to Shelburne that JJ and BF hoped for inclusion of a commerce clause in the definitive treaty, see Vaughan to Shelburne, 26 Dec. 1782, C, MiU-C: Vaughan.
2. American and British merchants and British West Indies planters were eager to resume trade and hoped the restrictions imposed by Britain’s navigation acts on alien vessels would largely be removed in return for similar concessions by the United States. See the notes to the American Peace Commissioners to Alleyne Fitzherbert, 20 Feb. 1783, above; and Edmund C. Burnett, ed., “Observations of London Merchants on American Trade, 1783, , 18 (1912–13), 769–80; , 69–72; , 1: 455–56; and , 429.
3. See JJ to JA, 1 Feb., and the Declaration of the Cessation of Arms, 20 Feb. 1783, above.
4. On parliamentary opposition to the preliminary treaty that led Shelburne to resign on 24 Feb. 1783, see the editorial note “Signing the Definitive Treaty” on pp. 462–63. On Pownall’s analysis of the situation, see , 1: 448–51. On the Loyalist campaign for compensation, led by BF’s son William, that contributed to Shelburne’s fall, see , 39: 197, 230–34.
5. On the ratification of the preliminaries, which opened formal debate on them in Parliament, see the editorial note “Signing the Definitive Treaty” on pp. 462–64.
6. The bill did not specifically address whether the American ships would be allowed to carry West Indian produce to Britain. See Hartley to BF, 12 Mar. 1783, , 39: 319–25; , 1: 448–51; , 14: 330–34, 345–49, 350, 356–57, 393–97; and , 71–72. For the suggestion that not considering Americans as foreigners implied “something . . . that marked them as Colonists,” see Edmund Jenings to JA, 11 Apr. 1783, , 14: 396.
7. For the British repeal of the prohibitory acts and the arrangement for passports, see the editorial note “Passports and the Cessation of Hostilities” on pp. 313–16; and American Peace Commissioners to Fitzherbert, 20 Feb. 1783, note 2.
8. See Pownall to Shelburne, 30 Jan., 2 and 7 Feb. 1783, ALSs, MiU-C: Shelburne, 27: 471–86, 487–501, 503–13; and , 14: 330–34.
9. On Shelburne’s resignation, see JJ to Benjamin Vaughan, 28 Mar. 1783, above.
10. Grantham forwarded a copy of the bill to Paris and urged that it be shown to the Americans to reassure them of British interest. See Grantham to Fitzherbert, 5 Mar. 1783, Dft, UkLPR: FO 27/ 6, 25–28; , 1: ch. 9; A. L. Burt, The United States, Great Britain, and British North America (New York, 1940), 55–59. Laurens was in London at the time and was consulted about it. For his report on the bill and the change in ministry, see , 16: 174–75. For BF’s attempt to persuade the French to model their trade relations with the United States on this bill, see , 39: 344.
11. Sheffield’s arguments were specifically designed to address the issues raised in the current debate. On his views, and on retaliatory measures adopted by American states, see , 81, 83–87. On the similarity between Sheffield’s and JJ’s beliefs about Britain’s ability to retain control of American markets, see the editorial note “The Separate Article” on pp. 162–64; and, on the possibility that Silas Deane had been an important source for Sheffield’s arguments, see JJ to Deane, 23 Feb. 1784, note 2, below; and , 8: 610–11. For a December 1783 response to Sheffield’s pamphlet by “Common Sense,” in which Thomas Paine urged the states to adopt a “National System of Commerce”, see the Massachusetts Spy, and the Vermont Gazette, 1 Jan., the Massachusetts Gazette, 13 Jan., the Salem Gazette, 15 Jan., and the South Carolina Gazette, 5 Feb., 1784.
12. On Fox’s position, see , 45–51; and 433–37. The bill, entitled “An Act for preventing certain Instruments from being required from Ships belonging to the United States of America, and to give His Majesty, for a limited Time, certain Powers for the better carrying on Trade and Commerce, between the Subjects of His Majesty’s Dominions and the Inhabitants of the said United States,” was followed by an Order in Council of 14 May 1783 that was delivered to the American commissioners on 21 May. While the American commissioners considered the Order as evidence of Britain’s liberal disposition, they were understandably perturbed that there was no mention of items manufactured in the United States.
Although the act of 25 April and its amendment were scheduled to expire on 20 Dec. 1783, they were renewed until 1797. Crowley described the amendment as “lethal”. See Acts of the Privy Council of England, Colonial Series, ed. by W. L. Grant and James Munro (6 vols.; Hereford, 1908–12), 5: 527–32; , 2: 91–92, 117–18; , 14: 330–34, 344–45, 365–67, 394–97, 421, 425, 440–41; , 3: 112; , 16: 162–63, 167, 174–79, 182; , 6: 274, 342–43,359; , 1: 458–62; and , 72, 183.
13. The exchange of commissions finally occurred on 19 May. While Hartley’s commission authorized him to “treat and conclude”, subsequent negotiations showed that he could do little without prior approval from Fox. On Hartley’s meetings and the Americans’ rejection of his commission, see Hartley to Fox, 27 Apr. and 10 May, and to the Duke of Portland, 1 May 1783, , 1: 836–37, 845; 2: 93–94, 121–24; , 3: 112–13, 130–31; and , 14, 443–44. For the Americans’ peace commission, see the text published at 15 June 1781, : 467–69. The initial commission given to Richard Oswald to negotiate the preliminary peace treaty had also not been issued under the Great Seal. For JJ’s insistence that it must be, and that it recognize the independence of the United States, see the editorial note “John Jay Proposes Altering Richard Oswald’s Commission” on pp. 108–11.
14. BF described Hartley as an old friend and a “strong Lover of Peace”. His proposal was designed to remove obstacles to the reopening of trade by repeal of prohibitory acts passed by either side and by reinstatement of prewar trade regulations. See , 39: 319–25, 412–16, 469, 510–16.
15. See Fox to Hartley, 10 Apr., the king’s instructions to Hartley of 18 Apr., and Hartley to Fox, 20 May 1783, all MiU-C: Hartley Papers; UkLPRO: FO 4/ 2; , 2: 86–87, 91–92, 121–24. Hartley’s instructions specified he should keep Fox informed on all important matters and conclude nothing without his approval. For the American commissioners’ account of negotiations for the definitive treaty from this point forward, see the editorial note “Signing the Definitive Treaty” on pp. 462–67; and the American Commissioners to the President of Congress, 10 Sept. 1783, below. For Hartley’s introduction of the bill to repeal the Prohibitory Acts, his involvement in the debate on the American Intercourse Bill, his ideas about an Anglo-American commercial treaty, and his optimism that one could quickly be concluded, see , 14: 333–34n2, 367n5, and 491.
16. For the text of these articles, see “Propositions made to Mr. Hartley by the American Ministers the 29. Apl. 1783,” enclosure No. 1 to American Peace Commissioners to the Secretary for Foreign Affairs, 10 Sept. 1783, C, DNA: PCC, item 85, 386–87 (EJ: 9943); , 39: 524–26; and , 14: 448–50, 453–54. BF forwarded a copy to Vergennes on 5 May and commented that he doubted the ministry would approve them. Vergennes replied on the same day that he would need time to assess how they might affect the Franco-American commercial treaty. He pointedly thanked BF for this “communication confederal”. , 39: 555. For Hartley’s letter of 29 Apr. to Fox, the propositions, and Fox’s reply, see , 2: 99–102, 118–19.
17. See article 4 of the Preliminary Articles: First Draft of 5–8 Oct. 1782, above. On the negotiations with Hartley, see , 3: 112–15, 121; , 14: 443–44, 448–50, 452–57; , 2: 93–101, 118–24; and , 1: 466ff. For JJ’s reaction to the appointment of Hartley, see his letter to the Secretary for Foreign Affairs, 22 Apr. 1783, above.
18. For the text of the commission, see , 39: 605–7.
19. Fox had specified in his letter to Hartley of 10 Apr. that American ships were to be limited to carrying American products and he insisted that Hartley clarify this with the American commissioners. See , 2: 101–2, 106–7, 118–20; and , 16: 209–12.
20. Pownall believed the preamble to the American preliminary treaty committed the signatories to negotiate a commercial treaty based on substantial reciprocity. See , 1: 449.
21. See , 2: 121–24, 209–10, 213–15. , 1: 475, comments that Hartley’s argument about British dependence on American shipping, which he repeated in his letters to Fox of 29 and 31 July 1783, was counterproductive since the thrust of British policy was to be self-sufficient in this regard.
22. These documents are variously titled and dated. They appear in , 2: 128–30, under the date on which they were written (19 May), and are captioned “Memorial” and “Ulterior Article”. In , 6: 442–44, they appear in inverse order as “Mr. Hartley’s Proposed Article of Agreement . . .,” and “Observations and Propositions of Mr. Hartley . . .,” under the date of 21 May, when they were delivered. The “Ulterior Article” appears without title and with modifications made by JA as part of his diary entry for 21 May (, 123–27). For Hartley’s report on his strategy, see his letter to Fox of 22 May 1783 (, 2: 124–28), in which he enclosed both documents. For JA’s comments on these discussions with Hartley, and on the need for the appointment of ministers to negotiate a permanent treaty of commerce, see , 14: 490–92.
23. In a resolution of 1 May 1783, adopted in response to a letter of JA of 5 Feb. 1783, Congress specified that any temporary treaty should last for no more than one year and instructed the American ministers that it should be subject to Congress’s observations and revisions before it could be finally concluded. See , 24: 321.
24. , 2: 124–30.
25. Ibid., 131–32. In this same letter Hartley emphasized American suspicions of Great Britain’s intentions toward them and commented: “Had I begun then to treat of dispensing with reciprocities I shd have made nothing of the matter but ill humour. I gave their favorite proposition the lead, & in the interim we lived sociably together. . . . In short they wish to be again incorporated with G Bn & that it shd be accomplished upon magnificent & magnanimous principles. . . . I adopted a liberal principle without wch nothing wd have had any chance of going well.”
26. For Hartley’s proposal of 1 June 1783, which stressed the harmony of interests between Britain and the United States and the incompatibility of the economies of other European powers with the American economy and described the Dutch as potential rivals, see , 6: 465–69. Hartley sent a copy of it to Fox under cover of a letter of 2 June (, 2: 141–43), in which he explained that he hoped it would persuade the American commissioners to “dispense liberally for a time with their present principle of strict reciprocity”, a concept that, he noted, was “not to be confined to the narrow view of a mere commercial compact”, but one that “implies more than tacitly an universal guarantee.” Hartley sent the memorial to the American commissioners under cover of his letter to them of 14 June 1783, below.
27. On 18 Apr. John Dickinson, president of Pennsylvania, had asked Congress for its sense as to whether its ports, closed to trade with Britain by Pennsylvania law, should be opened. His letter was assigned to a committee composed of Oliver Ellsworth, Alexander Hamilton, and James Wilson, who offered their opinion that it was “inexpedient for Congress to come to any formal decision” on the matter. The report was read and ordered to be filed. North Carolina delegates reported that Philadelphia merchants had urged Congress “with indecent importunity” to “countenance the opening of our Ports”. When Congress refused to agree, the merchants applied to the Pennsylvania court, which allowed ships to enter from or clear for British ports. Notice of the decision was carried in Philadelphia newspapers on 29 and 30 Apr. 1783. Other states followed, the delegates reported, and “the disease soon became general”. In his letter to Fox of 20 June 1783, Hartley reported that the information had come through London merchant William Vaughan, a brother of Benjamin Vaughan, and Captain Nathaniel “Fawkener” (Falconer), captain of the Olive Branch, on a commercial voyage from the United States to Britain. See , 24: 267; , 3: 337; , 20: 176; , 49–50; , 2: 159–60, 166, 207; and , 7: 695. For JJ’s comments on the opening of American ports, see his letter to Gouverneur Morris of 17 July 1783, below.
28. See Fox to Hartley, 10 June, Hartley to the American Peace Commissioners, 14 June, and to Fox, 27 June 1783, in , 2: 146–49, 152–54, 173; and , 15: 28–34.
29. See Fox to Hartley, 14 June and 2 July, and Hartley to Fox, 18, 20 (two letters), and 27 June 1783, in , 2: 154–55, 159–60, 162–68, 173–75; , I, 472–74; , 37–38; and , 72–73. For Fox’s attitude, see Loren Dudley Reid, Charles James Fox: A Man for the People (London, 1969), 174–76.
30. JA suggested that the Order was the result of “Refugee Politicks, . . . intended to support Canada and Nova Scotia & their Fisheries” and of Britain’s awareness that Americans had no “common Legislature for the Government of Commerce.” See , 15: 111–14, 123–26. On the imposition of trade restrictions by France, see , 7: 681–99.
31. Hartley had told JA that he believed the Dutch would get great advantage from the order. The primary purpose of JA’s trip was to raise funds on the Dutch loan of 1782 that were desperately needed to cover army pay and other public obligations in the United States, but he also intended to promote Dutch trade with America. See JA to RRL, 17, and 18 July, , 15: 131–34, 137–40; and Hartley to Fox, 17, 24, 29, and 31 July 1783, in , 2: 196–97, 202–5, 208–10, 213–15; and JJ to Robert Morris, 20 July 1783, below.
32. See Acts of the Privy Council, Colonial Series (6 vols.; London, 1908–12), 6: 530; Fox to Hartley, 29 July 1783, , 2: 206–7; , 1: 473–78; and 429–41. In his letter to JJ of 12 Aug. 1783, below, Edward Bancroft noted that he had observed a “Considerable Change” in the ministry’s attitude toward the Americans and believed that the ministry intended to close the British West Indies trade to American shipping permanently.
33. For a discussion of British inability to enforce the order, see , 218–24. For Gouverneur Morris’s view that the trade restrictions did the United States “more of political Good, than it can possibly do of commercial Evil,” see his letter to JJ of 10 Jan. 1784, below.
34. After signing the Definitive Treaty Hartley drew up a schedule of articles on trade that remained to be considered. See 1 Nov. 1783, MiU-C: Hartley; UkLPR: FO 4/ 2. JJ had already anticipated the difficulties ahead, which he attributed to “the partial politics” prevailing in the British Cabinet. JJ to Vaughan, 13 Sept. 1783, Dft, NNC (EJ: 8131). For a summary of the futile trade discussions with Hartley prior to the completion of the definitive treaty, see the American Peace Commissioners to the President of Congress, 10 Sept. 1783, below. For Gouverneur Morris’s opinion that it was best to make no treaty for some time to come, see his letter to JJ of 25 Sept. 1783, below. For Matthew Ridley’s comments that the British had “the least good disposition . . . for a treaty of Commerce with us”, see his letter to JJ of 2 Nov. 1784, below.