The Jay Treaty: Appointment and Instructions: Editorial Note
The Jay Treaty: Appointment and Instructions
Jay was selected as envoy extraordinary to Great Britain after two previous missions to London had failed and after Washington decided against the three other men he had considered as possible appointees.1 Of all the candidates, Jay was the most experienced in diplomacy. As his confirmation process would reveal, however, he was as controversial as any of the others, particularly in the South and West.
American relations with Britain, never satisfactory after the peace of 1783, deteriorated significantly after France declared war against Britain on 7 February 1793, and followed it on 24 February with a decree enlarging the quota of troops from each department that resulted in a significant increase in the size of the French army and decrease in the number of men available for agriculture.
France’s need to import foodstuffs to her homeland and her West Indies colonies led her to request payment in advance of the remaining portion of the American debt to France, which it intended to apply to purchase arms and provisions in the United States. It also sought to broaden opportunities for the United States to transport to France commodities that neutral shippers argued were not contraband.2 Britain, with an army significantly smaller than the French but supreme on the seas, countered these moves by proclaiming a definition of contraband that included provisions3 and by reasserting her Rule of 1756, under which she claimed the right to confiscate cargoes of foodstuffs bound for enemy ports and to seize neutral vessels engaging in any trade not allowed in peacetime.4 Since negotiations for an Anglo-American treaty of commerce had failed in 1784, there was no mutual understanding between Britain and the United States on the rights of neutral commerce.5 Continued warfare on the western frontier with Indians supplied and armed by the British from posts conceded to the United States in 1783 but never evacuated further stoked American anxiety and resentment against Britain.
The official policy of Washington’s administration was strict neutrality, a policy advocated by Hamilton and Jay but opposed by Jefferson and other southerners, who supported a neutrality more favorable to France.6 Washington’s address of 5 December 1793 began informing Congress of the state of American relations with both France and Britain. Appended to his report was extensive documentation justifying Genet’s recall for engaging in activities that called American neutrality into question.7 Also included was a report on measures Britain had taken to prevent neutral commerce from feeding the French war effort. The Order in Council of 8 June 1793, it announced, instructed British captains to detain neutral ships bound for enemy ports and send them to ports where their cargoes of grain could be purchased on the King’s account with due allowance made for freight. The order further declared all ships (except those of Sweden and Denmark) that knowingly attempted to enter a blockaded port subject to capture and condemnation. It authorized the King’s ships to intercept at sea any vessel knowingly pursuing a course to a port declared to be blockaded. Under cover of a subsequent message of 22 January 1794, Washington forwarded to Congress extracts of documents subsequently received from Thomas Pinckney, including the Order of Admiralty of 3 September 1793, specifying that Britain would pay freight and reasonable expenses to neutral shippers carrying bona fide neutral property seized under the Order of 8 June.8
On 16 December, in one of his last acts as secretary of state, Jefferson sent Congress his report on American commerce in which he portrayed British commercial policy as more restrictive toward the United States than that of any other nation.9 Republicans came within a single vote of passing discriminatory commercial legislation that, if enacted, would have brought the United States to the brink of war and put an effective halt to Anglo-American commerce, the source of the revenue needed to defend the Northwest Territory, the Atlantic coast, and maritime interests.10
Even more troubling news from London reached America in February 1794 in Thomas Pinckney’s report of 25 November 1793 on a meeting he had held earlier that month with British Foreign Secretary William Grenville. Among the issues Pinckney had raised were the deleterious effects of ship seizures on American commerce, the violation of neutral rights under the Order of 8 June, the Indian attacks on the frontier, and Britain’s refusal to hand over the western posts. Well aware that Britain would soon intensify its attacks on neutral shipping and hoping that an Indian victory would give Britain more room to negotiate in the northwest, Grenville gave no ground.11 Pressed to indicate whether, if the United States were to fulfill all its obligations under the Treaty of 1783, Britain would evacuate the posts, Grenville replied that, since the United States had failed for nine years to do so, neither reason nor the law of nations “would exact a strict compliance from the other party.”12 Secretary of State Randolph received Pinckney’s report on 18 February 1794; he informed Washington the next day. Washington submitted the report to Congress on 24 February.13
At the end of November 1793, a combined British military and naval expedition operating under the far more extreme Order in Council of 6 November sailed for the Caribbean where many American vessels were then trading. Its mission was to prevent shipments of desperately needed grain and other supplies from reaching France or its island holdings. The order was kept secret until the expedition reached its destination so as not to alert neutral shipping there.14 Once on the scene, British commanders and privateers began to seize all ships carrying either the produce of French colonies or provisions or other supplies for their use. Despite their efforts, numerous ships carrying grain from the French colonies made it to the Chesapeake, where, in the spring of 1794, they were subsequently successfully convoyed to France by the French Atlantic fleet.15
Since the captured vessels were considered prizes, the proceeds of their sale benefited not only British commanders, officers, and crews, but also the judges who handled the cases, thereby creating great incentives to bring in as many ships as possible and to condemn them without regard for judicial niceties. Before the November order was revoked more than two hundred and fifty American vessels had been captured and condemned, their crews subjected to miserable treatment, and many seamen impressed into British service. It was replaced by the Order in Council of 8 January 1794, which ordered the British navy to bring in for adjudication all ships carrying produce of the French West Indies or the property of French Subjects. It reinstated the provision on blockaded ports from the Order of 8 June 1793, and, finally, it specified that all ships carrying military stores to the French West Indies should be seized, brought to a British port, proceeded proceeded against according to the laws of nations.16
On 5 March 1794, Washington submitted to Congress Randolph’s report of 2 March detailing merchants’ complaints about threats to American commerce coming not only from the British, but also from the French, Spanish, and Dutch, although those perpetrated by the British were by far the most numerous and severe.17 With the public demand for a response growing steadily, on 10 March, Federalist senators Rufus King, Oliver Ellsworth, George Cabot, and Caleb Strong met to consider how best to prevent Congress from adopting retaliatory measures that might lead to war with Britain and destabilize the American government. They concluded that circumstances called for sending a special envoy to Britain, one who had talents of the first order, had the confidence of the government, and would be acceptable to Britain. They deputized Ellsworth to propose their plan to Washington.18 Ellsworth carried out his mission on 12 March, the very day on which a Republican-minded “Civis” sent Washington a list of suggested retaliatory responses to address the current crisis: placing a six-month embargo on all shipping and exportation from the United States;19 sequestering debts Americans owed to any belligerent until American claims for damages were paid; and sending envoys to all belligerents to demand retraction of orders against neutral shipping, and to neutral nations to confer about vindicating neutral rights.20 Support for sending an envoy to Britain also came from Randolph, who wrote Washington on 14 March to suggest appointing “some temperate, and sensible man, without a particle of the diplomatic character,” who could serve as a solicitor for American claimants under Pinckney’s direction.21
At month’s end, Monroe informed Jefferson that Washington was considering appointing an envoy, and added that Hamilton, Jay, and King were being “urged by that party.” Any of them, Monroe declared, would “answer to bind the aristocracy of this country stronger and closer to that of the other.”22 On 7 April, King informed Hammond that a special envoy might be sent. After criticizing American merchants for fraudulently declaring French property to be their own, Hammond announced the replacement of the Order of 6 November by the Order of 8 January that allowed Americans to appeal confiscations in British courts. Hammond also indicated his approval of the idea of a special envoy.23
Washington did not immediately agree to appoint an envoy. He consulted Senator Robert Morris, who had already promised King’s group he would support the measure, and mentioned the four men he was considering: Hamilton, Adams, Jefferson, and Jay. Morris favored Hamilton but Washington knew that he would be a very controversial candidate.24 King suspected that Randolph, urged on by the new French minister, Fauchet, was making every effort to block Hamilton’s nomination—Randolph had unwisely mentioned to Hamilton that he had told Fauchet that an envoy would be sent to Britain.25
Jay had recently arrived in Philadelphia for a circuit court session.26 Washington invited him to dinner on 8 April, but apparently left it to King to inform Jay that an envoy would be sent to Britain and that he and Hamilton were being considered for the position. When he met with King on 12 April, Jay recommended Hamilton, but in a lengthy and passionate letter to Washington of 14 April, Hamilton withdrew himself from consideration and recommended Jay as the only man to whom the mission should be entrusted.27
Whatever his residual emotions about Jay’s confrontation with him over the Genet affair,28 and with Hamilton unavailable, Washington decided to appoint Jay and asked him to come early on the morning of 15 April to discuss an “interesting subject.”29 Jay was well aware that there was danger of the United States responding “intemperately,”30 even at risk of war, but he was reluctant to accept the appointment. Hamilton, Strong, Cabot, Ellsworth, and King then met with Jay and told him that he was the only man who could be trusted in a situation daily becoming more critical. Jay knew from experience that whether the mission succeeded or failed, controversy would be the inevitable result. Furthermore, he was weary of travel and eager to spend time with his family. His friends and colleagues nevertheless persuaded Jay not to decline.31 On 16 April 1794, Washington sent the nomination to the Senate. Writing to his wife that evening, Jay stated only that the nomination was made, and insisted that he had agreed to it only out of a sense of duty.32
News of the nomination reached Hammond the very day it was made. Eager to inform Grenville about it, he sought out Hamilton to trade a “confidential communication” about the Order of 8 January in return for information about the instructions to be given to the special envoy. He found Hamilton sharply critical of the Order of 6 November and reported that an agent would be sent to the West Indies to appeal every prize case except those on which portions of the cargo were French property.33 Hamilton indicated, however, that the American government wished to end the crisis by negotiation before it proceeded to “extremities.” Pressed to say whether the United States would make indemnification of losses a requirement for an amicable settlement, he affirmed that, in certain cases, it would. A heated discussion followed, in the course of which Hammond asserted that, in wartime, neutral states should expect to experience some “inconveniences” to their commerce. Britain, he added, could not allow neutrals to impede her prosecution of the present unprecedented war between “government and disorder, virtue and vice, and religion and impiety,”34 a war in which Britain’s army was vastly outnumbered by the French.
The Senate debated Jay’s nomination in executive session from 17 to 19 April. Republican senators immediately attacked it. They demanded to be informed about “the whole business” with which Jay was to be charged, business which came to include not only compensation for American vessels captured by the British, and resolution of the outstanding issues from the Treaty of 1783, but a commercial treaty as well. King reported that Jay’s nomination was especially unpopular with Virginia’s senators. Monroe called for the Senate to review Jay’s report of 13 October 1786 on treaty violations, and declared Jay “unsuitable” for the position because he had held that “inexecution” of the treaty by the United States justified British creditors’ claims for interest on debts owed by Americans and Britain’s retention of the western posts. Monroe also complained that Jay had been willing to refer American boundary claims to commissioners.35 Southerners who had earlier charged Jay with attempting to cede American navigation rights on the Mississippi in exchange for a commercial treaty with Spain still feared that Jay’s support for northern commercial interests would lead him to sacrifice the west and claims for return of slaves “to obtain satisfaction for commercial spoliation.”36
John Taylor, the other Virginia senator, contended that appointing the chief justice as envoy would destroy the independence of the judiciary by inclining judges to seek lucrative appointments from the executive. The concerns raised by Taylor persuaded ten southern and western senators to vote for a motion declaring it to be unconstitutional for a Supreme Court judge to hold a second appointment from the executive. The motion failed. Madison reported that it might have passed if some of the senators had not presumed that Jay would resign as chief justice once the appointment was made. He noted, however, that since it seemed that “resignation was no part of the arrangement,” the matter was “beginning to be pressed in the Newspapers.”
Finally, on 19 April, after a motion to assign the negotiations to Thomas Pinckney failed, the Senate approved Jay’s nomination by a vote of 18 to 8, two votes more than the two-thirds required. The eight negative votes came from the six senators from Virginia (Monroe and Taylor), Kentucky (Brown and Edwards), and North Carolina (Hawkins and Martin), one from South Carolina (Butler), and one from New York (Burr).37 Although they had voted in favor of Taylor’s motion against dual offices, Senator Gunn of Georgia voted for Jay’s appointment, and Moses Robinson of Vermont abstained. Gunn reported to King that “great pains” had been taken to persuade Senator James Jackson (Georgia) and himself to cooperate in defeating the mission and that when it became clear that an envoy would be sent, Republicans tried to insure that the appointment would go to someone who would, from lack of talent or inclination, frustrate its object.38 Madison later reported to Jefferson that debate over the appointment was impeding other measures pending in Congress for “extorting redress” from Britain39 and was the most powerful blow ever suffered by the popularity of the President.40 Immediately after the vote, Randolph notified Jay that the Senate had approved his appointment, prepared a commission,41 presented it to Washington for his signature, and discussed arrangements for Jay’s salary.42
On 21 April, Hamilton, Ellsworth, Cabot, and King met with Jay. Together they concluded that, since the president could give instructions without consulting the Senate, that was the course to follow,43 and that if a treaty were concluded, it should be signed subject to the Senate’s approval. Randolph incorporated this provision into Jay’s instructions. If Britain would not agree to a treaty, the group decided that Jay should make “strenuous efforts” to obtain compensation for spoliations of American commerce and to establish rules “which should prevail and be observed in the future.” Jay was to press Britain to comply with its outstanding obligations under the Treaty of 1783. If Britain did so and compensated American shippers for their losses, in return he could offer compensation to British creditors to an amount not greater than half a million pounds sterling. An unidentified member of the group reported a conversation with Randolph who appeared, he said, “disposed to leave the negotiation open and the powers of the Envoy very discretionary.”44
Washington evidently concurred, for no instructions were presented to the Senate for its prior approval. At the president’s request, Hamilton presented to Washington on 23 April an outline of points to be considered in formulating instructions for Jay’s mission. In light of Britain’s overwhelming sea power and mindful of his conversation with Hammond, Hamilton stated that it might be “impracticable” to expect Britain to agree that only “instruments of War” should be considered contraband and to agree to the broad protection of neutral traders provided in the United States’s commercial treaties with France, the United Provinces, Sweden, and Prussia, none of whom were sea powers. Instead, he suggested, it might have to agree that Britain had the right to prevent neutral vessels from carrying provisions to its enemies if it compensated neutral traders for confiscated neutral cargo and expenses.45 With regard to a possible commercial treaty with Britain, Hamilton suggested that the United States should accept an 80-ton limit on the size of American vessels if they were allowed to engage in the carrying trade between the United States and the British West Indies.46
By May 4, Randolph had conferred on the instructions with Jay and Hamilton and submitted a draft to Washington.47 The finished instructions, below, show clearly his willingness to leave Jay great discretion48 except with regard to preservation of the treaties with France. In a subsequent letter to Washington of 6 May, Randolph also asserted that the American people wanted a proper treaty of commerce with Britain, and would not accept one limited to the “one or two articles only” that Hamilton had mentioned to Washington on 23 April: admission of American vessels to the carrying trade with the British West Indies and to trade with Britain and Ireland on a most favored nation basis, and establishment of tonnage duties on a more reciprocal basis.49
Jay received letters from Hamilton and Randolph and four sets of “powers,” all dated 6 May. The powers, designed to be presented to Grenville, were general, covering all matters of difference between the two nations; and specific, to deal with matters related to the armistice and peace treaty and with British spoliations of American commerce, and to conclude a commercial treaty between the two nations.50 Other decisions and arrangements also had to be made before Jay’s departure: who would serve as Jay’s secretary—Jay selected John Trumbull over Samuel Bayard, who had been recommended by Hamilton,51 and whether or not his son Peter Augustus and Rufus King would accompany him.52
Since no neutral vessel could be found because of the embargo imposed by Congress, Hamilton made arrangements with William Seton to hire a ship to transport Jay to England. Jay departed New York with his son and his secretary on 12 May aboard the Ohio, Captain Kemp.53 The American Mercury reported that the district judge and the supreme court judges then in the city, many other officers, and an “immense concourse of respectable Citizens” walked with Jay from his house to the ship and saluted him with three cheers. Jay responded with a short address expressing his gratitude for the attentions shown him and assured them that he was determined to do everything in his power to fulfill his mission and secure for Americans the blessings of peace. As the Ohio passed the battery, a federal salute was fired. Seldom had there been seen, the American Mercury commented, “such demonstrations of a sincere desire that the embassy may be successful.”54
1. On JA’s failure, as minister to Great Britain, to negotiate British evacuation of the posts and compensation for slaves, see the editorial note “Anglo-American Relations,” , 4: 33–41. On Gouverneur Morris’s unofficial and unsuccessful mission to persuade Britain to evacuate the posts, see , 65–85; and William Howard Adams, Gouverneur Morris: an Independent Life (New Haven and London: 2003), 209–21.
2. See , 14: 182, 193–95; and , 208–9.
3. For Britain’s definition of contraband, see Grenville to JJ, 7 Sept. 1794, ALS, with enclosed observations, DNA: Jay Despatches, 1794–95 (EJ: 04318); C, UkLPR: PRO (EJ: 05004); C, UkLPR: PRO (EJ: 03986); C, NNC (EJ: 8527); C, NHi: King (EJ: 04450); LbkC, in JJ to ER, 13 Sept. 1794, NNC: JJ Lbk. 8.
4. For Britain’s determination to prevent neutral carriers from bringing provisions to France and her colonies, see , 276–87; and , 210–11.
5. On the failed negotiations for an Anglo-American commercial treaty in 1783, see the editorial note “Negotiating a Trade Agreement,” , 3: 373–88.
6. See the editorial note “John Jay and the Issue of Neutrality,” above.
7. See , 14: 474–77; and , 1: 141–246.
8. See , 1: 240, 315. For the argument that the Order of 8 June was a response to a French decree of 9 May 1793, which proclaimed that since neutral flags were not respected by the British, the French would not respect them either, see Gordon E. Sherman, “Orders in Council and the Law of the Sea,” American Journal of International Law 16, No. 3 (July 1922): 402–6. Admonished by Gouverneur Morris that the French decree conflicted with the Franco-American Treaty of Amity and Commerce, the French temporarily exempted American shipping.
9. See , 27: 532–79; and , 378–81.
10. Republicans subsequently proposed sequestering debts owed by Americans to British citizens until Americans were indemnified for losses suffered from British seizure of American vessels carrying provisions to France. See , 28: 45; , 381–90; and , 1: 515, 519. For the suggestion that the treaty include a provision against sequestration of debts, see Grenville to JJ, Enclosing Draft Treaties of Amity and of Commerce, 30 Aug., ALS, with enclosures, NNC (EJ: 08525; 08531); C, with enclosures, DNA: Jay Despatches, 1794–95 (EJ: 04314); C, NHi: King (EJ: 04446); C, UK-KeNA: FO 95/512 (EJ: 04997); LbkC, enclosed in JJ to ER, 13 Sept., NNC: JJ Lbk. 8.
11. On the soon to be adopted Order in Council of 6 Nov. 1793, see below. On the intensifying frontier crisis, the British plan to create an Indian barrier state on territory ceded to the United States along its northern border, and for the suggestion that Grenville was deliberately postponing evacuation of the posts in hopes that defeats suffered at the hands of the Indians would compel the United States to agree to it, see , 147–82, 218–52, 302–3; and , 252–70, 290–92. Although Grenville claimed the United States had refused to negotiate with Hammond on the western posts, Hammond had told both TJ and ER that he was not instructed to negotiate. See , 15: 264.
12. See , 1: 327–28. For TJ’s instructions to Pinckney to protest the Order of 8 June, see , 27: 55–59.
13. See , 15: 251–53, 264, 278.
14. Pinckney was not notified about the Order of 6 Nov. until 25 Dec. 1793, shortly before it was superseded by the Order of 8 Jan., about which Grenville informed Pinckney the next day. See Pinckney to the Secretary of State, 9 Jan. 1794, , 1: 430.
15. The French fleet had brought the new French minister, Fauchet, to the United States in early February, cleared from Baltimore by 25 Mar., and sailed for France on 15 Apr. with numerous merchant ships in convoy. In June, when the French fleet engaged the British fleet, more than three hundred American merchant ships slipped by the British fleet and made port. See “Late News from France,” American Minerva (New York), 27 Feb. 1794; “By This Day’s Mail,” Philadelphia Gazette, 22 Apr. 1794; , 15: 229, 462; and, on the battle known as “Glorious First of June,” see PAJ to PJM, 22 June 1794, ALS, NNMus (EJ: 00424). For Hammond’s complaints that the convoy was allowed to sail in violation of the embargo imposed by Congress, see , 15: 410.
16. For the text of the two orders, see , 1: 430, 431. On the background and effect, see 426–52; and , 278–81, 283, 286–89, 299–305, 307–9; and Gordon E. Sherman, “Orders in Council and the Law of the Sea,” American Journal of International Law 16 (July 1922): 400–419.
17. See , 15: 310–16, 331.
18. The growing pressure for retaliation culminated in the passage on 26 Mar. of an embargo preventing all American vessels from sailing for foreign ports for 30 days to keep American produce from being used to supply British forces. Although it learned at the end of March that Britain had revoked the November order, on 18 Apr. Congress renewed the embargo until 25 May. See , 15: 274–75, 284–85, 287–88, 294–95, 313, 337; , 1: 400, 401; , 1: 515, 517–18, 519; and , 392–93.
19. JJ preferred a trade embargo to measures Congress was considering for fortifying New York City, which he described as “inadequate and improper.” Since all military operations in the West Indies depended on supplies from the United States, he thought, all the belligerents would become more cautious about interfering with American commerce. See JJ to RK, 21 Mar. 1794, ALS, NHi: King (EJ: 00761). Once GW decided to send an envoy to Britain, however, JJ believed that retaliatory measures would remove all chance that the mission could succeed. See , 1: 519.
20. “Civis,” 12 Mar., is found as an ALS in , 15: 365–67. It does not appear to have been published. Several days earlier, another “Civis” had criticized retaliatory measures New York City Republicans recommended: suspension of payments to British creditors and taking possession of the western posts by force. None of those present, “Civis” noted, were merchants or shipowners. The meeting’s real purpose, he charged, was to drag the United States into war with Britain to free a few men from obligations that every honest man and nation held sacred while ignoring an “unjustified” French embargo that was then holding hundreds of American ships in French ports. See New-York Daily Gazette, 4 Mar. 1794. On 27 Feb. the New York Democratic Republican Society held an open meeting to discuss British “vexations and embarrassments” on American commerce. Reports claimed that it was attended by 1,500 people. This and a second meeting on 6 Mar. were reported in the American Minerva (New York), 27 Feb.; the New-York Daily Gazette, 28 Feb. and 6 Mar.; and New-York Journal, 1 Mar. 1794. After long debate, the second meeting agreed to leave the matter to Congress. “For the Daily Advertiser” reported that the meeting was organized by the same men who arranged to welcome Genet, including several Livingstons, and alleged that half of the attendees were boys or foreigners led by curiosity or opposed to the measures proposed. See “A. B.”, Daily Advertiser (New York), 1 Mar. 1794.
21. ER later advised GW, who was concerned about offending Pinckney, that Pinckney would understand that the circumstances required a special appointment and that the diplomatic world would not consider it to be a “disparagement” of the resident minister. In nominating JJ for the position, GW was careful to specify that his confidence in Pinckney was undiminished. See , 15: 379–80; 525–27.
22. On opposition from the Virginians to AH as special envoy, see , 16: 261–65; and , 28: 46.
23. News of the Order of 8 Jan. 1794 had already reached the United States from Haiti on 27 Mar. See , 1: 518, 523–25.
24. Ibid., 1: 519–20. TJ, James Monroe and his brother-in-law, John Nicholas, also opposed AH’s appointment. See , 26: 261–79.
25. Fauchet considered ER an “entirely devoted” friend of France and indicated that they conferred with one another in advance on every step to be taken. Questions about the propriety of ER’s relations with Fauchet later caused ER to resign from the cabinet in 1795. See Albert Hall Bowman, The Struggle for Neutrality: Franco-American Diplomacy During the Federalist Era (Knoxville, Tenn., 1974), 164, 170; and Mary K. Bonsteel Tachau, “George Washington and the Reputation of Edmund Randolph,” Journal of American History 73, no. 1 (June 1986): 15–34.
26. JJ held court with Richard Peters until approximately 18 Apr. ER immediately notified Justices James Wilson and William Paterson of JJ’s impending departure for England. Wilson replaced JJ until the end of the court’s session on 26 Apr. See , 2: 445; and , 15: 619–20.
27. JM, however, described AH as mortified that he had been “laid aside.” See , 15: 315–16.
28. On JJ’s difficulties with GW over the libel suit initiated by Genet, see the editorial note “John Jay and the Genet Affair,” above.
29. On the appointment, see GW to JJ, 15 Apr., above.
30. See JJ to SLJ, 9[–]10 Apr., above.
31. , 1: 520.
32. For his discussion about the nomination and his reluctance to accept it, see JJ to SLJ, 15 and 16 Apr., above, 19 and 20 Apr., below.
33. On the appointment of Nathaniel Cabot Higginson, see ER to JJ, 6 May, below.
34. See the extract of Hammond’s dispatch to Grenville, 17 Apr., , 16: 281–86.
35. For JJ’s previous involvement in commissions to settle state boundary issues and his willingness to have commissioners determine the boundary between the Floridas and the United States, see , 1: 77–80, 3: 631–34, and 4: 384. For the Virginia senators’ failed attempt to pass a bill stating that Article 4 of the treaty barring interference in the collection of debts by either side should be suspended under certain circumstances, see , 1: 520–22, 525–27.
Republicans were not necessarily opposed to negotiation with Britain, provided that it was preceded by retaliatory legislation, which they considered necessary to enhance prospects for success and to preserve American dignity. They opposed the Federalist proposal because they interpreted it as means of defeating retaliatory legislation and of putting the issue in the hands of the Federalist-controlled executive and Senate. See , 126–29.
36. Next to the prevention of war between the two nations, compensation for commercial losses was prioritized in JJ’s instructions, which made no specific mention about procuring return of or compensation for the slaves taken by the British. JJ nevertheless raised the issue with Grenville. See ER to JJ, 6 May, below; and JJ to ER, 13 Sept. 1794, , 1: 485.
37. Burr had defeated Philip Schuyler in the race for the New York seat in the United States Senate in 1791. On the decline of Federalist influence in New York and the alignment of Clinton’s supporters with the Virginia Republicans, see , 187–92.
38. RK declared the conduct of the “French or anti-English party” with regard to the selection of an appointee as “somewhat extraordinary” since, although they agreed that something must be done to preserve the peace and obtain compensation for commercial losses, they advanced candidates—JM, TJ, and Pierce Butler of South Carolina, unsuited for the position. See , 1: 521.
39. See ibid., 1: 522; , 322–23; , 15: 316, 327; and , 3rd. Cong., 1st. sess., 17–19 Apr. 1793, 151–52. Gunn sent a copy of it to an unidentified correspondent in Augusta, Georgia, under cover of a letter in which he explained that he had voted for JJ because the Senate had determined that it was necessary for America to send her Chief Justice as envoy extraordinary to the “Court of British thieves,” and because he “objected to the measure and not the man.” See the Augusta Chronicle, 17 May 1794. The text of the journal of the Senate’s proceedings for 18 Apr. was published in the Columbian Gazetteer (New York), on 5 May, and repeated elsewhere thereafter; that for 19 Apr. was published in the Gazette of the United States (Philadelphia), 29 Apr.; the American Mercury (Hartford) and the Connecticut Gazette, both 1 May; the Diary, and the Daily Advertiser, both New York, 2 May; and New-York Journal, 3 May.
40. GW’s decision to appoint JJ evidently aroused the Democratic Society of Philadelphia, which was described as “Demoncratic” because it had criticized the president for acting contrary to the meaning of the constitution, for destroying the “check by impeachment” on the executive and for trying to control the proceedings of the legislature. See “A FARMER,” in The Mirrour (Concord, N.H.), 23 June 1794. JJ’s appointment was also labeled “unconstitutional and tyrannical” by a “Robert Simons,” who declared he did not consider himself bound by any treaty, whether for peace or war, that JJ negotiated. See Dunlap and Claypoole’s American Daily Advertiser (Philadelphia), 1 July 1794. This piece was reprinted in the American Minerva, 1 July; the Independent Gazetteer (Philadelphia), 2 July; and the Baltimore Daily Intelligencer and the Columbian Gazetteer (New York) on 3 July. The Baltimore Daily Intelligencer, 27 June 1794, reported under a dateline “Lexington, May 24,” that the people had not forgotten JJ’s “former act of treason against them.” A number of respectable citizens, it reported, had ordered a well-executed effigy of him made, guillotined it, and set it afire, exploding a quantity of powder that had been placed inside. This piece was republished in the Mercury (Boston), on 4 July. More positive reactions to JJ’s mission were reported in toasts given on Independence Day celebrations in New York by the General Society of Mechanics and Tradesmen in the American Minerva, 5 July; by the proprietors and friends of the New Utrecht Baths in the Daily Advertiser (New York), 8 July; and by a troop of “Volunteer Greens” in the Philadelphia Gazette, 8 July.
42. Although JJ was compensated for expenses, he accepted no additional salary for his services as treaty negotiator. For the advance to JJ, see , 16: 558. For an account of his expenses, see JJ to ER, 5 Mar. 1795, ALS, DNA: Jay Despatches, 1794–95 (EJ: 04293), , 1: 518–19; and Joseph Nourse’s account published in the Gazette of the United States (Philadelphia), 25 Apr. 1797.
43. On the earlier struggle JJ had had with Monroe over instructions governing his negotiations with Gardoqui in 1786, see the editorial note “Negotiations with Gardoqui Reach an Impasse,” , 4: 364–78.
44. See ER to JJ, 6 May, below; , 16: 29; and , 1: 523. For GW’s refusal, in the spring of 1796, to provide the House of Representatives with a copy of JJ’s instructions on grounds that the treaty power rested with the president and the senate, to which the instructions had been provided when the treaty was submitted to it, see , 5: 760–62.
45. In Articles 17 and 18 of the final treaty, the United States conceded Britain’s right to enlarge the definition of contraband to include iron, and other metals, and naval stores not yet worked into instruments of war, to remove enemy property from American vessels, and to allow confiscation of provisions carried by American vessels under certain circumstances, provided Britain provided compensation. For a complaint that in so doing, the United States adopted a definition of contraband that negated its previous treaties with France, Sweden, Prussia, and Spain, see James Cheetham, “On Contraband Goods, No. I,” in the Diary (New York), 17 Feb. 1797. AH had previously argued that, until the war of independence, there was general agreement that the law of nations provided that enemy goods on neutral vessels were fair prize, that certain parties had reversed this rule in the course of the war, that Britain had not agreed to alter the principle, and that an established rule of the Law of Nations could only be altered by all parties, and that therefore the United States could not assert the new principle against powers with which it had no treaties. He considered therefore, that the United States was bound to observe the provisions of its treaties with France, Sweden, Prussia, and Spain, but was not held to those principles with other nations. See , 15: 203–7. On the principles governing adjudication of prizes in British admiralty courts since 1753, see JJ to ER, 6 July 1794, LS, DNA: Jay Despatches, 1794–95 (EJ: 04274); C, NHi: King (EJ: 04416).
46. See , 16: 319–27.
47. See , 16: 15, in which ER also remarked on 4 May that he had comments on the commercial treaty that he would present to GW in the near future.
48. In his letter of 6 May, below, the only injunctions ER issued to JJ were: to “make the following” his mission’s “general objects;” to press strenuously for compensation; and “to mention, with due stress,” American irritation at Britain’s spoliations of American commerce. JJ’s “general powers” specified that he was to “agree, treat, consult, and negotiate, of and concerning all matters and causes of difference subsisting between the United States and his said Majesty.”
49. See , 16: 28–30.
50. See the instructions in ER to JJ, 6 May 1794, below.
51. See JJ to SLJ, 20 Apr., and Trumbull to JJ, 21 Apr., both below.
52. After a family discussion it was decided that Peter Augustus Jay would accompany his father. Rufus King declined JJ’s invitation. See SLJ to JJ, 18 and 22 Apr.; and PJM to JJ, 22 Apr., all below; JJ to King, 29 Apr. 1794, ALS, NHi: King (EJ: 00759), and 3 May, and King to JJ, 2 May 1794, both below.
53. AH questioned whether, given the current threat to American vessels from the Algerines, it would be preferable to send JJ on a foreign ship, but, because of Congress’s embargo, no suitable neutral vessel could be found. He also asked whether the French minister would grant JJ a French passport to safeguard him if he sailed on an American vessel that was captured by French cruisers. JJ’s passage was finally arranged on the Ohio, which sailed in ballast. It departed New York on 12 May, several weeks before the embargo expired, and arrived in Falmouth, England, on 8 June. See ER to JJ, 19 Apr., below; , 15: 619–20; , 26: 312, 350–51, 371, 438–39, 510. The cost of hiring a ship and other expenses of the trip were later made an issue by opponents of the treaty, who charged that they were double the amount actually expended. See JJ to Timothy Pickering, 19 Apr. 1797, ALS, MHi (EJ: 04777), and JJ to the Public, 25 Apr. 1797, with the accompanying certificate from Joseph Nourse of 24 Apr., Gazette of the United States, 25 Apr. 1797; Dft, NNC (EJ: 09222).
54. See the Diary, and the American Minerva, both New York, 12 May 1794.