John Jay’s Draft for a Convention and Treaty of Commerce, 6 August 1794
John Jay’s Draft for a Convention and Treaty of Commerce
[London, 6 August 1794]
Whereas between His Majesty the King of G. Britain and the united States of America, there do exist mutual Complaints and consequent Claims, originating as well in certain articles of their Treaty of Peace, as in the Laws of Nations relative to the respective Rights of belligerent and neutral nations.
And whereas both the said Parties being sincerely desirous to establish permanent Peace & Harmony & Friendship, by a Convention that may be so satisfactory and reciprocally advantageous, have respectively empowered their undersigned Ministers to treat of and conclude the same
And whereas the said Ministers find it impossible, to admit the said mutual complaints and Claims of the first Description, to be well founded, in their existing Extent— and to the End that the obstacles to concord and agreement which thence arise, may be done away.
They have agreed that all the said complaints and Claims, shall be forever merged and sunk in the following articles vizt.1
The Boundaries of the united States as delineated in the said Treaty of Peace, and every Article in the said Treaty contained, are hereby recognized ratified and forever confirmed. But inasmuch as the Parties differ as to which is the River intended by the Treaty, and therein called the River St. Croix It is agreed that the said Question shall be referred to the final Decision of Commissioners to be appointed and empowered as follows vizt.2
Whereas it is doubtful whether the River Missisippi extends so far to the Northward, as to be intersected by the west Line, from the Lake of the Woods, which is mentioned in the said Treaty— It is agreed that [if on Examin?] the actual Extent of the said River to the northward shall be explored & ascertained by Commissioners for that purpose to be appointed and authorized as follows vizt.3
It is agreed that if from the Report of the said commissioners it shall appear that the said River does not extend so far to the Northward as to be intersected by the West Line aforesaid, that by Reason whereof the Boundary Lines of the united States in that Quarter would not close, that then and forthwith thereupon such a closing Line shall be established as shall be adjudged and determined to be most consistant with the true Intent and meaning of the said Treaty by Commissioners to be appointed and authorized in the manner prescribed in the article relative to those who are to decide which is the River St. Croix intended by the said Treaty—with these Differences only vizt.
It is agreed that his Majesty shall withdraw all his Troops and Garrisons from every Post and Place within the Limits of the united States,4 by the first Day of June next;5 And that all settlers & Traders within the Precincts or Commands of the said Posts and Garrisons, shall continue to have and enjoy unmolested all their Property of every kind and Shall be protected therein— and may either remain and become Citizens of the united States, or may sell their Land and ^or^ other property, and remove with their Effects, at any Time within two Years from the first Day of June next.6
It is agreed that his Majesty will cause full and compleat Satisfaction and Compensation for all Vessels and Property of American Citizens which have been illegally or during the Course of the present War shall be illegally captured and condemned under Colour of Authority and Commissions derived from him,7 and that, in all Cases where it shall be apparent full Justice and Compensation cannot be obtained and actually had in the ordinary Course of judicial proceedings— and for this purpose Commissioners Shall be appointed and empowered in manner following vizt.8
And whereas Debts bona fide contracted before the peace, and remaining unpaid by american Debtors to British Creditors, have probably in some Instances been prejudiced and rendered more precarious by the lawful Impediments which after the peace did for some Time exist to their being prosecuted and recovered.
It is agreed that in all Cases where it shall be apparent that the said Creditors by the operation of the said Impediments on the Security & Value of their Debts, have sustained Damage the united States will render full and compleat Satisfaction and Compensation to the said Creditors for the for which adequate Reparation cannot now be had in the ordin obtained and actually had in the ordinary course of judicial proceedings, (it being understood that in these Damages Interest shall be encluded only in Cases where according to Equity & good Conscience all things being considered, it ought to be allowed and paid) the united States will make full and compleat satisfaction and Compensation to the said Creditors for the same. And for this purpose Commissioners shall be appointed and authorized in the manner prescribed in the preceeding Article with these Differences only vizt.9
It is agreed that further it shall and may be lawful for the ^said^ united States and their Citizens, to carry in their own Vessels of the Burden of 100 Tons or under, from the said united States any Goods Wares and Merchandizes, which [illegible] ^British^ Vessels to ^now^ carry from the united States, ^[in margin] and also^ to any of his Majestys Islands and Ports in the West Indies, and shall pay in the said Islands and ports only such Rate of
Tonnage as british Vessels do or shall be liable to ^pay^ in the united States, and only such other charges Imposts and Duties as British Vessels and Cargoes ^laden in &^ arriving from the united States, now are or hereafter shall be lawfully liable to in the said Islands and ports. And that it shall and may be lawful for the said american Vessels to lade purchase lade and carry away from the said Islands and ports all such of the Productions and manufactures of the said Islands as they may think proper, & paying only such Duties and charges as british ^on Exportation^ as such vessels and cargoes if british would be liable to Provided always that they carry and land the same in the united States only, and at no place whatever out of the same It being expressly agreed and declared that West India Productions or Manufactures shall not be transported in american Vessels, either from his Majestys said Islands, or from the united States, to any part of the world except the united States— reasonable Sea Stores excepted and excepting also Rum made in the united States from West India Molasses.10
It is agreed, that all the ^other^ Ports of ^&^ Territories of his Majesty ^whatsoever & wheresoever^ (not comprehended within ^[the west In?]^ the Limits of his chartered trading Companies) shall be free and open to the citizens ^and vess^ of the united States, and that they and their Vessels and cargoes shall therein enjoy all the commercial Rights and pay only the same Duties & charges either on Importation or Exportation as if they were British Subjects ^Merchants^ vessels and Cargoes, except that they shall pay the same Rate of Tonnage ^as may be^ charged on British Vessels in the united States— [illegible] and on the other Hand It is agreed that all the Ports and Territories of the united States without Exception shall be free and open to British Merchants and Subjects, and that they and their Vessels and Cargoes shall therein enjoy all the commercial Rights and pay only the same Duties and Charges (Tonnage excepted) as if they were american Merchants ^Vessels &^ Cargoes— It being the Intention of this article that in his Majestys Territories (except as before excepted) american Merchants and and Merchant Vessels shall be exactly on the same footing with British merchants and merchant Vessels, and that British Merchts and mercht Vessels shall in all the [form?] Territories of the U.S. be exactly on the same Footing with American Merchts. & mercht Vessels11 (Tonnage only excepted)
With Respect to
The Trade between the united States and the british west Indies shall be considered as regulated and explained by the preceeding Article, and therefore as being excluded from the operation of the following articles—
It is agreed that all the Productions and Manufactures of his Majestys Dominions in any part of the world [illegible] may freely be imported in British or american Vessels into the united States, subject equally ^and alike^ to the Duties on Importation which may there be established and that all the Productions & Manufactures of the united States may be freely imported in American or british Vessels into any of the said Dominions of his majesty subject equally to the [same?] Duties on Importation which may there be established—
And to the End that these Duties may be made reciprocal It is agreed that additional Articles for that purpose shall be negociated and added to this Convention as soon as may be conveniently done—
1st It is agreed that when Great Britain is at war and the united States neutral, no Prizes taken from or by Great Britain shall be sold in the united States and that when the united States are at War and the united States12 neutral, no Prizes Taken from or by the united ^States^ shall be sold in his majestys Dominions.13
It is agreed that if it should unfortunately happen that Great Britain and the United States ^should be at war^, there shall be no Privateers commissioned by them against each other,14 and that the merchants and others residing in each other Countries shall be allowed nine months to retire with the Effects, and the vessels in which shall not be liable to capture in there way Home to their respective Countries
It is agreed that British Subjects who now hold Lands in America the United States, and american Citizens who now hold Lands in His Majestys Dominions shall continue to hold them according to the Nature and Tenure of their Estates & Titles therein, and may grant Leas and sell and devise the same in li as, and to whom, they please, in like manner as if they were natives; and that neither they nor their Heirs or assigns shall so far as may respect the said Lands and the legal Remedies incident thereto, be regarded as aliens—
It is agreed that ^neither^ Debts due from Individuals of the one Nation to Individuals of the other, nor shares or monies which they may have in the funds or in the public or private Banks, shall ever in any Event of War or national Differences be sequestered or confiscated— except that in Case of War ^and only during its Continuance^ payment may be suspended— it being both unjust and impolitic that Debts and Engagements contracted and made by Individls having Confidence in each other and in their respective Governments, should ever be a destroyed or impaired by national Authority on account of national Differences and Discontents15—
AD, UK-KeNA: FO 95/512 (EJ: 04990). CS, DNA: Jay Despatches, 1794–95 (EJ: 04313); NHi: King (EJ: 04445); UK-BL: Liverpool Papers, xi; C, unknown repository, formerly PRO (EJ: 03991); LbkC, in JJ to ER, 13 Sept. 1794, NNC: JJ Lbk. 8.
1. On the implications of this decision, see the editorial note “Negotiating the Jay Treaty,” above.
2. As secretary for foreign affairs JJ had previously proposed settling this boundary by commission to Congress. See JJ’s Report on the Eastern Boundary of the United States, 21 Apr. 1785, , 4: 74–77. Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, below, also provided for determining which river was the intended St. Croix by commission. JJ did not here discuss how the commissioners were to be appointed and empowered. The first part of Art. 2 of Grenville’s draft of a general treaty detailed how the commissioners were to be appointed and specified that their final decision was to be made “in London.” For revisions to this decision, see Art. 3 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
3. See the second part of Art. 2 of Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, which delineated a boundary designed to ensure that the British had direct access to the Mississippi River. For his response, see JJ to Grenville, 1 and 4 Sept. 1794, both below; Grenville to JJ, 5 Sept. 1794, below; and Art. 3 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
4. For the decision to end discussion about whether British retention of the posts constituted the first violation of the Treaty of 1783, a charge rejected in Grenville to JJ (private), and note 2, and Grenville’s Notes Respecting the Posts, and note 2, both 5 Aug. 1794, both above.
5. Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794 specified that withdrawal would occur by 1 June 1796, by which time, he anticipated, the treaty would have been ratified by both parties. He specified that measures to evacuate the posts and deliver them to the Americans would be jointly agreed upon. For discussion of this issue, see Art. 1 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
6. See Art. 1 of Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, and Art. 2 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, both below; neither of which set a limit on the amount of time to be allowed for selling property or removing effects. Grenville’s draft did not discuss the issue of citizenship.
7. On the unauthorized establishment of admiralty courts in the West Indies by the commander of the British expedition, see ER to JJ, 6 May 1794, , 5: 636–47; and 431–32.
8. See Art. 4 of Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, and Art. 5 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, both below.
9. See Art. 3 of Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, and Art. 6 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, both below.
10. For Britain’s rejection of the possibility of reciprocal trade and admission of American vessels to trade with the West Indies during negotiations for a commercial treaty in 1783, in which JJ was involved, see , 3: 373–88. For development of an article on admitting the United States to trade with the British West Indies, see Art. 10 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
11. JJ’s instructions supposed a treaty to deal with compensation for British depredations on American trade and issues still outstanding from the peace treaty of 1783 and a separate treaty of commerce if the above issues could be satisfactorily resolved. Grenville’s Draft Treaties of 30 Aug. 1794 also presented commercial issues as in a separate treaty. On the decision to merge the two treaties, see JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
12. In margin, in another hand: “Great Britain”.
13. On the sale of prizes, see Art. 23 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.
14. For objections to this provision, see ER to JJ, 12 Nov. 1794, ASP: FR, 1: 502; and 15 Dec. 1794, C, NHi: Jay (EJ: 00620); ASP: FR, 1: 510.
15. For AH’s suggestion that banning sequestration of debts might be an incentive for Britain to conclude a treaty, see AH to JJ, 6 May 1794, , 5: 632. For inclusion of this provision in subsequent drafts of the treaty, see Art. 10 of Grenville’s draft of a general treaty in his Draft Treaties of 30 Aug. 1794, below; and Art. 8 of JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below.