Points to be considered in the Instructions to Mr. Jay, Envoy Extraordinary to G B2
I Indemnification for the depredations upon our Commerce according to a rule to be settled.
The desireable rule is—that which theoretical Writers lay down as the rule of the law of Nations (to wit) that none but articles by general usage deemed contraband shall be liable to confiscation and that the carrying of such articles shall not infect other parts of a cargo, nor even a vessel carrying them where there are no appearances of a design to conceal.
Our Treaties contain a good guide as to contraband articles Which fall under the general denomination of instrumenta belli instruments of War.3
But if it should be found impracticable to establish this rule, the following qualifications of it occur to consideration.
I Whether Provisions (defining what shall be deemed such) may not be excepted so far as to render them liable, when going to an enemy’s port not blockaded, to be carried into the port of the other enemy and converted to his use paying the full value. A good rule for estimating this value would be the cost & charges at the place of exportation with the addition of 4 per Cent?
2dly. Whether Colony produce going directly from the colony to the mother Country may not be added to the list of contraband articles?
Or in the last resort whether the rule in this ⟨particular,⟩5 resulting from the instructions of the Eighth ⟨of⟩ January last6 may not be admitted? to wit—that colony produce goin⟨g⟩ from the colony to any port in Europe may be ⟨confiscated. ⟩ This is a principle which it is understood has been long adher⟨ed to⟩ by Great Britain and finds a sanction in prece⟨dents under⟩ the antient Governm⟨ent of⟩ France and other maritime powers.
The indemnification for prizes made by proscribed Vessels7 of which an expectation has been given by the President may be confirmed by convention.
II Arrangement with regard to the future.
The basis to be the rule already quoted of the general law of Nations.
But it is probable that the same exceptions which may be insisted upon as to indemnification for the past will also be insis⟨ted⟩ upon as to the future.
The idea of a ⟨place⟩ blockaded or besieged by construction which ⟨is⟩ not actually so ought to be excluded ⟨in either⟩ case.
A stipulation against th⟨e sale⟩ of prizes in our ports will probably be ins⟨isted⟩ upon and it is just that it should be ⟨made.⟩
A stipulation that in case of war with any Indian Tribe, the ⟨other⟩ party shall furnish no supplies whatever to such Tribe except such and in such quanti⟨ty only,⟩ as it was accustommed to furnish previ⟨ous to the⟩ war8 and the party at war to have a right to keep an agent or agents at the posts or settlements of the other party nearest to such Indians to ascertain the faithful execution of this stipulation.
Grounds of adjustment with regard
to the late Treaty of Peace
on the part of the British
I Indemnification for our negroes carr[i]ed away9
II Surrender of our Posts10
On the part of the UStates
I Indemnification for the obstructions to the recovery of debts not exceeding Sterling.11
It may be desired and would it not be our interest to agree that neither party shall in time of peace keep up any armed force upon the lakes nor any fortified places nearer than miles to the lakes except small posts for small guards (the number to be defined) stationed for the security of trading houses?
Would it not also be our interest to agree to an arrangement by which each party shall permit to the other, under due precautions and regulations a free trade with the Indian tribes inhabiting within the limits of the other?
Treaty of Commerce
The statu quo may be taken with the following exceptions—
A privilege to carry to the West India Islands in our vessels of certain burthens (say not less than 60 Tons nor more than Eighty Tons) all such articles as may now be carried thither from the Ustates in British Bottoms and to bring from thence directly to the UStates all such articles as may now be brought from thence to the UStates in British bottoms.
The privilege of carrying to G Britain & Ireland manufactures of the UStates similar to those which now are or here after may be allowed to be carried thither by other nations who stand on the footing of the most favoured nation and upon terms of admission equally good.
The extra Tonnage and duties on British Vessels and goods imported in British vessels to be done away & if desired a stipulation to be entered into that the commodities and manufactures of Great Britain & Ireland may be imported into the Ustates upon terms equally good with the like commodities & manufactures of any other nation and that the duties upon such of them as now pay ten per Cent ad valorem & upwards shall not be increased and that the duties upon such of them as now pay under 10 Cent ad valorem shall not be increased beyond 10 Cent.12
A Treaty on these Terms to be made for any term not exceeding years.
But if such a Treaty cannot be made it deserves consideration whether a Treaty on the basis of the statu quo for a short term (say five years) may not be adviseable as an expedient for preserving peace between the two Countries.13
2. ADf, Hamilton Papers, Library of Congress.
3. Most treaties negotiated by the United States confined contraband to war matériel and exempted provisions, sea stores, and other nonmilitary products (see, for example, Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 21–22, 79–80, 129–30, 171–80).
4. This and the following spaces were left blank in MS.
7. For information on the “proscribed Vessels,” see “Cabinet Meeting. Proposed Rules Concerning Arming and Equipping of Vessels by Belligerents in the Ports of the United States,” July 29–30, 1793; “Cabinet Meeting. Opinion on the Fitting Out of Privateers in the Ports of the United States,” August 3, 1793; “Treasury Department Circular to the Collectors of the Customs,” August 4, 1793; “Cabinet Meeting. Opinion Respecting Certain French Vessels and Their Prizes,” August 5, 1793.
8. For British policy concerning the Indians before the American Revolution, see Albert T. Volwiler, George Croghan and the Westward Movement, 1741–1782 (Cleveland, 1926), 143–232.
9. Article 7 of the 1783 treaty with Great Britain had stipulated that the British army should withdraw “with all convenient speed, and without causing any Destruction, or carrying away any Negroes or other Property of the American Inhabitants …” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 99). Slaveowners construed this clause to mean the restitution of, or compensation for, slaves who had fled to British lines during the war (Bemis, Jay’s Treaty description begins Samuel Flagg Bemis, Jay’s Treaty: A Study in Commerce and Diplomacy (Reprinted: New Haven, 1962). description ends , 68).
10. This is a reference to the seven fortified posts, still held by British forces, on the American side of the boundary prescribed by the 1783 peace treaty with Great Britain. For a description of the role played by these forts in Anglo-American relations, see Bemis, Jay’s Treaty description begins Samuel Flagg Bemis, Jay’s Treaty: A Study in Commerce and Diplomacy (Reprinted: New Haven, 1962). description ends , 2–21, 135–38.
11. For the treaty stipulations concerning recovery of debts, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 98–99. See also H to Thomas Jefferson, May 20–27, 1792.
12. For H’s views on Anglo-American commerce, see the introductory note to “View of the Commercial Regulations of France and Great Britain in Reference to the United States,” 1792–1793.
13. On May 4, 1794, Edmund Randolph wrote to Washington: “I do myself the honor of sending to you a copy of the instructions as they were first drawn and submitted to Mr Jay and Colo. Hamilton. My conversations and reflections will probably make several changes in them: but the outlines being there, I think it best to bring the subject before you, as early as possible. In particular, I have notes concerning the commercial treaty; which I shall draw off by the time of my waiting on you tomorrow” (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives).
Randolph’s draft of his instructions to Jay, which he mentions in his letter to Washington on May 4, has not been found. Jay’s official instructions, which are dated May 6, 1794, and signed by Randolph, read as follows:
“The mission upon which you are about to enter as Envoy Extraordinary to the Court of London, has been dictated by considerations of an interesting and pressing nature.
“You will doubtless avail yourself of these to convince Mr. [Thomas] Pinckney, our Minister in ordinary there, of the necessity of this measure, and will thus prevent any wound to his sensibility. He may be assured that it is the impression, which will naturally accompany this demonstration of the public sentiment, and not the smallest abatement of confidence in him, which has recommended a special appointment. Nor will any of his usual functions be suspended, except so far as they may be embraced in the present commission. It would be unnecessary to add, but for the sake of manifesting this fact, and removing difficulties, which may arise in your own breast, that you will communicate with him, without reserve.
“A full persuasion is entertained, that throughout the whole negotiation, you will make the following its general objects—to keep alive in the mind of the british minister that opinion, which the solemnity of a special mission must inspire, of the strong agitations excited in the people of the United States, by the disturbed condition of things between them and Great Britain—to repel war, for which we are not disposed, and into which the necessity of vindicating our honor and our property may, but can alone drive us—to prevent the British Ministry, should they be resolved on war, from carrying with them the British Nation, and at the same time to assert with dignity and firmness our rights, and our title to reparation for past injuries.
“One of the causes of your mission being the vexations and spoliations, committed on our commerce by the authority of instructions from the British Government, you will receive from the Secretary of State the following documents, viz, the instructions of the 8th. of June 1793, 6th. of November 1793, and 8th. of January 1794, the Secretary of State’s letter to Mr. Pinckney on the 7th. of September 1793, Mr. [George] Hammond’s letter to the Secretary of State on the 12th. of September 1793; Mr. Pinckney’s note and memorial to Lord Grenville; Mr. Hammond’s second letter to the Secretary of State on the 11th: of April 1794; the Secretary of State’s answer on the first Instant; a list and sketch of the cases, upon which complaints have been made to our Government; and the instructions, given to N. C. Higginson, who has been lately sent, as agent to the British Islands in the West Indies.
“These several papers develope the source of our discontent on this head; the representations, which have been offered, the answers, which have been rendered, and the situation of the business at this moment.
“You will perceive, that one of the principles, upon which compensation is demanded for the injuries under the instructions of the 8th. of June 1793, is, that provisions, except in the instance of a siege, blockade or investment, are not to be ranked among contraband. To a country remote as the United States are from Europe and its troubles, it will be of infinite advantage to obtain the establishment of this doctrine.
“Upon the instructions of the 6th. of November 1793, Mr. Pinckney has made a representation, and perhaps a memorial to Lord Grenville; both of which you will procure from Mr. Pinckney. The matter of these instructions fills up the measure of depredation. They were unknown publicly in England until the 26th. of December 1793—there is good reason to suppose, that they were communicated to the ships of War, before they were published, and that in consequence of a private notification of them, a considerable number of new privateers were fitted out—the terms ‘legal adjudication,’ in spite of the explanation on the 8th. of January 1794 were most probably intended to be construed away or not, according to events—and many vessels have been condemned under them.
“Compensations for all the injuries sustained, and captures, will be strenuously pressed by you. The documents, which the Agent in the West Indies is directed to transmit to London, will place these matters in the proper legal train, to be heard on appeal. It cannot be doubted, that the British Ministry will insist, that, before we complain to them, their tribunals in the last resort must have refused justice. This is true in general. But peculiarities distinguish the present from past cases. Where the error complained of consists solely in the misapplication of the law, it may be corrected by a Superior Court. But where the error consists in the law itself, it can be corrected only by the law maker who in this instance was the King, or it must be compensated by the Government. The principle therefore may be discussed and settled without delay; and even if you should be told to wait, until the result of the appeals shall appear, it may be safely said to be almost certain, that some one judgment in the West Indies will be confirmed; and this will be sufficient to bring the principle in question with the British Ministry.
“Should the principle be adjusted as we wish and have a right to expect, it may be adviseable to employ some person to examine the proper offices in London for such vessels, as may have been originally tried or appealed upon, and finally condemned. You will also reserve an opportunity for new claims, of which we may all be ignorant for some time to come, and if you should be compelled to leave the business in its legal course, you are at liberty to procure professional aid, at the expense of the United States.
“Whenever matters shall be brought to such a point, as that nothing remains for settlement but the items of compensation, this may be entrusted to any skilful and confidential person whom you may appoint.
“You will mention, with due stress, the general irritation of the United States at the vexations, spoliations, captures &c. And being on the field of negotiation you will be more able to judge, than can be prescribed now, how far you may state the difficulty, which may occur in restraining the violence of some of our exasperated Citizens.
“If the British ministry should hint at any supposed prediliction in the United States for the French Nation, as warranting the whole or any part of these instructions; you will stop the progress of this subject, as being irrelative to the question in hand. It is a circumstance, which the British Nation have no right to object to us; because we are free in our affections and independent in our Government. But it may be safely answered upon the authority of the correspondence between the Secretary of State and Mr. Hammond that our neutrality has been scrupulously observed.
“2. A Second cause of your mission, but not inferior in dignity to the preceding, though subsequent in order, is to draw to a conclusion all points of difference between the United States and Great Britain, concerning the treaty of peace.
“You will therefore be furnished with copies of the negociation upon the inexecution and infractions of that treaty and will resume that business. Except in this negotiation, you have been personally conversant with the whole of the transactions, connected with the treaty of peace. You were a Minister at its formation, the Secretary of foreign affairs, when the sentiments of the Congress under the confederation, were announced through your Office; and as Chief Justice you have been witness to what has passed in our Courts, and know the real state of our laws with respect to British debts. It will be superfluous therefore to add more to you, than to express a wish, that these debts, and the interest claimed upon them, and all things relating to them be put out right in a diplomatic discussion, as being certainly of a judicial nature; to be decided by our Courts; and if this cannot be accomplished, that you support the doctrines of Government with arguments, proper for the occasion, and with that attention to your former public opinions, which self respect will justify without relaxing the pretentions, which have been hitherto maintained.
“In this negotiation as to the treaty of peace, we have been amused by transferring the discussions concerning its inexecution and infractions from one side of the Atlantic to the other. In the mean time, one of the consequences of holding the posts has been much bloodshed on our frontiers by the Indians, and much expense. The British Government having denied their abetting of the Indians, we must of course acquit them. But we have satisfactory proofs (some of which however cannot, as you will discover, be well used in public) that british agents are guilty of stirring up, and assisting with arms ammunition and warlike implements, the different tribes of Indians against us. It is incumbent upon that Government to restrain those agents; or the forbearance to restrain them cannot be interpreted otherwise, than as a determination to countenance them. It is a principle from which the United States will not easily depart, either in their conduct towards other nations, or what they expect from them, that the Indians dwelling within the territories of one shall not be interfered with by the other.
“It may be observed here, as comprehending both of the foregoing points, that the United States testify their sincere love of peace, by being nearly in a state of War, and yet anxious to obviate absolute war by friendly advances; and if the desire of Great Britain to be in harmony with the United States be equally sincere, she will readily discover, what kind of sensations will at length arise, when their trade is plundered; their resources wasted in an Indian war; many of their citizens exposed to the cruelties of the savages; their rights by treaty denied, and those of Great Britain enforced in our Courts. But you will consider the inexecution and infraction of the treaty as standing on distinct grounds from the vexations and spoliations, so that no adjustment of the former is to be influenced by the latter.
“3. It is referred to your discretion, whether in case the two preceding points should be so accommodated, as to promise the continuance of tranquility between the United States and Great Britain, the subject of a commercial treaty may not be listened to by you, or even broken to the British Ministry. If it should, let these be the general objects.
“1. Reciprocity in navigation, particularly to the West Indies and even to the East Indies.
“2. The admission of wheat, fish, salt meat, and other great staples, upon the same footing with the admission of the great british staples in our ports.
“3. Free ships to make free goods.
“4. Proper security for the safety of neutral commerce in other respects; and particularly,
“By declaring provisions never to be contraband, except in the strongest possible case, as the blockade of a port, or if attainable, by abolishing contraband altogether.
“By defining a blockade, if contraband must continue in some degree, as it is defined in the armed neutrality.
“By restricting the opportunities of vexation in visiting vessels: and
“By bringing under stricter management privateers; and expediting recoveries against them for misconduct.
“5. Exemption of emigrants, and particularly manufacturers, from restraint.
“6. Free exports of arms and military stores.
“7. The exclusion of the terms ‘the most favored nation,’ as being productive of embarrassment
“8. The convoy of merchant-ships by the public ships of war, where it shall be necessary, and they be holding the same course.
“9. It is anxiously to be desired, that the fishing grounds now engrossed by the British, should be opened to the citizens of the United States.
“10. The intercourse with England makes it necessary that the disabilities, arising from alienage in cases of inheritance, should be put upon a liberal footing, or rather abolished.
“11. You may discuss the sale of prizes in our ports while we are neutral, and this perhaps may be added to the considerations, which we have to give, besides those of reciprocity.
“12. Proper shelter, defence, and succour against pirates, shipwreck &c.
“13. Full security for the retiring of the citizens of the United States from the British dominions, in case a war should break out.
“14. No privateering commissions to be taken out by the subjects of the one, or citizens of the other party, against each other.
“15. Consuls &c. to be admitted in Europe, the West and East Indies.
“16. In case of an Indian war, none but the usual supplies in peace shall be furnished.
“17. In peace no troops to be kept within a limited distance from the lakes.
“18. No stipulation whatsoever is to interfere with our obligations to France.
“19. A treaty is not to continue beyond fifteen years.
“4. This enumeration presents generally the objects, which it is desirable to comprize in a commercial treaty; not that it is expected, that one can be effected with so great a latitude of advantages.
“If to the actual footing of our commerce and navigation in the British European dominions could be added the privilege of carrying directly from the United States to the British West Indies, in our own bottoms generally, or of certain defined burthens, the articles, which by the Act of Parliament 28. Geo. 3. C. 6. may be carried thither in British bottoms, and of bringing from thence directly to the United States in our bottoms, of like description, the articles, which by the same act may be brought from thence to the United States in british bottoms, this would afford an acceptable basis of treaty, for a term not exceeding fifteen years; and it would be adviseable to conclude a treaty upon that basis. But such a treaty, instead of the usual clause concerning ratification must contain the following. ‘This treaty shall be obligatory and conclusive, when the same shall be ratified by His Britannic Majesty of the one part, and by the President of the United States, by and with the advice and consent of the Senate of the other.’
“But if a treaty of commerce cannot be formed upon a basis as advantageous as this, you are not to conclude or sign any such; it being conceived, that it would not be expedient to do any thing more, than to digest with the british Ministry, the articles of such a treaty, as they appear willing to accede to; referring them here for consideration and further instruction previous, to a formal conclusion.
“Some of the other points, which it would be interesting to comprehend in a treaty, may not be attended with difficulty. Among these is the admission of our commodities and manufactures generally into the british european dominions upon a footing equally good with those of other foreign countries. At present, certain enumerated articles only are admitted; and though the enumeration embraces all the articles, which it is of present consequence to us, to be able to export to those dominions; yet in process of time an extension of the objects may become of moment. The fixing of the privileges, which we now enjoy in the British East Indies by toleration of the Company’s Government, if any arrangement can be made with the consent of the Company for that purpose, would be also a valuable ingredient.
“5. You will have no difficulty in gaining access to the Ministers of Russia, Denmark and Sweden at the Court of London. The principles of the armed neutrality would abundantly cover our neutral rights. If therefore the situation of things with respect to Great Britain should dictate the necessity of taking the precaution of foreign cooperation upon this head; if no prospect of accommodation should be thwarted by the danger of such a measure being known to the British Court; and if an intire view of all our political relations shall, in your judgment permit the step; you will sound those ministers upon the probability of an alliance with their nations to support those principles.
“However there can be no risque in examining, what can be concerted with Denmark and Sweden or any other power, against the Algerines. It may be represented to the British Ministry, how productive of perfect conciliation it might be to the people of the United States, if Great Britain would use her influence with the Dey of Algiers for the liberation of the american citizens in captivity, and for a peace upon reasonable terms. It has been communicated from abroad, to be the fixed policy of Great Britain to check our trade in grain to the Mediterranean. This is too doubtful to be assumed, but fit for inquiry.
“6: Such are the outlines of the conduct which the President wishes you to pursue. He is aware, that at this distance, and during the present instability of public events, he cannot undertake to prescribe rules, which shall be irrevocable. You will therefore consider the ideas, herein expressed, as amounting to recommendations only, which in your discretion you may modify, as seems most beneficial to the United States, except in the two following cases, which are immutable.
“1. That as the British Ministry will doubtless be solicitous to detach us from France, and may probably make some overture of this kind, you will inform them, that the Government of the United States will not derogate from our treaties and engagements with France, and that experience has shewn, that we can be honest in our duties to the british Nation, without laying ourselves under any particular restraints as to other nations.
“And 2. That no treaty of commerce be concluded, or signed, contrary to the foregoing prohibition.
“Besides the papers and documents, mentioned in the former parts of these instructions, you have received your commission, as Envoy Extraordinary; letters of credence to the King and Queen of England, the latter of which, being without superscription, you will address, as may appear proper, and deliver or not as you find to be right on such occasions; four setts of powers; one general, comprehending all the points to be negotiated with Great Britain; the other three special for each separate point, in order that you may be prepared to exhibit your authority altogether or by detachment, as may be most convenient. Copies of Lord Dorchester’s speech to the Indians, the authenticity of which, though not absolutely ascertained, is believed; and of certain affidavits respecting the british interference with our Indians, and a cypher.
“You are too well acquainted with the nature of the great functions, which you are called to exercise, to render it necessary for me to add the earnest wish of the President of the United States, that your communications to the Secretary of State should be frequent and full; and that you should correspond with our Ministers abroad, upon any interesting occasion, which may demand it. For the latter of these purposes, you will avail yourself of Mr. Pinckney’s cyphers.
“Your expenses will be paid, together with the allowance of thirteen hundred and fifty dollars per annum for a Secretary.
“On your return, you will be pleased to deliver into the Secretary of State’s Office such papers, as you may possess, of importance sufficient to be filed there, and will prepare a general report of all your transactions.
“Not doubting, that you will execute this trust in a manner, honorable to yourself and salutary to the United States, I beg leave to offer to you my sincere wishes for your health and safe return.” (Copy, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 1, April 19, 1794–June 1, 1795, National Archives.) Jay’s instructions are printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 472–74.