From John Jay to Edmund Randolph, 13 September 1794
To Edmund Randolph
London 13th. Septr. 1794.—
Sir.
Hitherto my Letters have communicated to you but little information of much importance, except on one point;—Altho all the general objects of my Mission were opened at once, & were received with every indication of the same Candor & Disposition to Agreement with which they were stated, yet the Nature of the Business turned the imediate & more particular Attention of both parties to the Affairs of the Captures,— the result has been communicated to you.1
A number of informal conversations on the other Points then took place, & every Difficulty which attended them, came into View, & was discussed with great fairness & Temper,— the Inquiry naturally led to the Fact, which constituted the first violation of the Treaty of Peace;—2 The carrying away of the Negroes contrary to the 7th: Article of the Treaty of Peace,3 was insisted upon as being the first aggression;— To this it was answered in substance,— That Great Britain understood the Stipulation contained in that Article in the obvious sense of the Words which expressed it, vist; as an engagement not to cause any Destruction, nor to carry away any Negroes or other Property of the American Inhabitants, or in other words, that the Evacuation should be made without Depredation: That no alteration in the actual State of Property was operated or intended by that Article:— That every Slave like every Horse which escap’d or stray’d from within the American lines, & came into the Possession of the British Army, became by the Laws & Rights of War British Property;—and therefore ceasing to be American Property, the exportation thereof was not inhibited by the Stipulation in question;— That to extend it to the Negroes who under the Faith of Proclamations, had come in to them, of whom they thereby acquir’d the Property. and to whom, according to promise, Liberty had been given; was to give to the Article a greater Latitude than the Terms of it would warrant, & was also unnecessarily to give it a construction which being Odious, could not be supported by the known & established rules for construing Treaties;— To this was replied the several remarks and considerations which are mentioned at large in a Report which I once made to Congress on this Subject, & which for that reason, it would be useless here to repeat;—4 On this point we could not agree.5
I then brought into View another circumstance as affording us just cause of Complaint, antecedent to any of those urged against us, Vizt: that from the Documents recited & stated in Mr. Jefferson’s letter to Mr. Hammond, it appears that the Posts were not only not evacuated within the reasonable time stipulated by Treaty, but also, that no order for the purpose had at least within that time, if ever, been given.
To this it was answered, That the Provisional Articles were sign’d at Paris on the 30th: Novr. 1782, That those Articles were to constitute the Treaty of Peace proposed to be concluded between Great Britain & the United States, but which Treaty was not to be concluded till the Terms of Peace should be
agreed upon between Great Britain & France;— That the Treaty of Peace was not concluded untill the 3d: September 1783;— That it was not ratified in America untill the 14th: January 1784, and that the Ratification was not receiv’d in London untill the 28th: May 1784; nor exchangd untill the End of that Month: That, according to the Laws of Nations, Treaties do not oblige the Parties to begin to execute the Engagements contained in them, untill they have receiv’d their whole Form, that is, untill after they shall [have] been ratified by the respective Sovereigns that are Parties to them, & untill after those Ratifications shall have been exchanged;— That therefore it was not untill the end of May 1784 that Great Britain was bound to give any Orders to evacuate the Posts;— That such orders could not arrive at Quebec, untill in July 1784, and consequently that the allegations of a Breach of the Treaty by the non execution of the Article respecting the Posts, grounded on circumstances prior to the 13th: July 1784 are evidently unfounded:— That in the interval between the arrival & publication in America of the provisional Articles and the month of July 1784, by which time, at soonest, orders (issued after the Exchange of the ratifications of the Treaty of Peace, the last of May) could reach Quebec; incontestable Violations of the Treaty had taken place in the United States.
That Reason and the Practise of Nations warrant during a suspension of Hostilities only such measures as result from a continuance of the Status quo, untill the final Exchange of Ratifications.— That in opposition to this, new legislative acts had, in the interval before mentioned, been passed; which were evidently calculated to be beforehand with the Treaty, and to prevent its having its full and fair operation on certain points and objects, when it should be ratified and take Effect:— That these acts were the first Violations of the Treaty, and justified Great Britain in detaining the Posts untill the Injuries caused by their Operation, should be compensated.—
That Britain was not bound to evacuate the Posts, nor to give any Orders for the purpose, untill after the Exchange of the Ratifications, does appear to me to be a proposition that cannot be reasonably disputed;6
That certain legislative acts did pass in the United States, in the interval aforesaid, which were inconsistant with the Treaty of Peace is equally certain; But it does not thence ^necessarily^ follow, that those Acts were without Justice even as relative to the Treaty, for precedent Violations on the part of Great Britain, would justify subsequent retaliation on the part of the United States:— Here again the affair of the Affair of the Negroes emerg’d;—and was insisted upon;—and was answered as before:— I confess however that his Construction of that Article has made an impression upon my Mind, &
induc^e^d me to suspect that my former opinion on that Head may not be well founded.
Thus it became evident that admissions of Infractions of the Treaty of Peace, and that this or that Party committed the first aggression were not to be expected, & that such Discussions would never produce a Settlement:—7
It then became adviseable to quit those Topics, and to try to agree on such a sett of reciprocal concessions as (ballancing each other) might afford Articles for a Treaty, as beneficial to both parties, as to induce them to bury in it all former Questions and Disputes;— This Idea gave occasion to a variety of propositions of different kinds, which it would be tedious and useless to enumerate, and of which you will readily conceive there were some that could not meet with mutual approbation;— Among those ^which^ were mentioned was one for altering essentially our Boundaries in the Northwestern corner of the United States;—8 This I regarded as inadmissable, & hoped would not be persisted in;— One for doing us complete justice respecting the Captures;— One for partially opening to us a Trade with the West India Islands; One for our paying the Damages sustained by British Creditors by lawfull impediments;— this was strongly insisted on;— I did not think it utterly inadmissable, in case we receiv’d proper justice and priviledges under other Articles, for then, in my judgement, it would not be adviseable to part and separate on that point, & various reasons convinced me it would be adhered to;— One for putting the Ships & Merchants of both parties on an equal footing:— In short, in order to bring the whole subject comprehensively into view, nothing that occurr’d was omitted to be mentioned;— These were free conversations, neither of us considering the other as being committed by any thing that was said or propos’d.9
It was necessary then to select points for mutual consideration, and quitting desultory Discussions, to fix our attention on certain propositions, each being at Liberty to propose what he pleas’d, and again to retract his proposition, if on mature reflection He should be so inclin’d: with this view, after returning home, I selected the following, and having reduc’d them to writing, sent them to Lord Grenville for his consideration; in the mean time employing myself in reflecting & endeavoring to decide in my own mind how far, & with what modifications or omissions it would be proper to adopt them.
[Here Jay embedded a copy of his letter to Grenville of 6 Aug. 1794, above.]
The paper that was enclosed, is in these words. vizt:
[Here Jay embedded a copy of the enclosed Draft for a Convention and Treaty of Commerce, 6 Aug. 1794, above.]
From the 6th: to the 30th: of August nothing of importance occurred;— On the 30th: day of August Lord Grenville wrote me a Letter and enclosed Two Drafts or Projects of Treaties; The Letter is in these words. Vizt.
[Here Jay embedded a copy of Grenville’s letter of 30 Aug. 1794, above.]
The Drafts or Projets are as follows. Vizt—10
[Here Jay embedded a copy of Grenville’s Draft Treaties of 30 Aug. 1794, above.]
To the beforementioned Letter, I return’d the following Answer, Vizt.11
[Here Jay embedded a copy of his letter to Grenville of 1 Sept. 1794, above.]
The proposed alterations in our North Western boundary and the consequential Cession and Dereliction of Territory, appeard to me to be a point, which I ought without delay to state to his Lordship, in the Light in which it appeared to me;— I therefore prepared and sent him inclosed in a Note the following Remarks, Vizt.
[Here Jay embedded a copy of his letter to Grenville of 4 Sept. 1794, above.]
In order that you may have an accurate idea of the Lines proposed by Lord Grenville, I here insert copies of the Diagrams mentioned in the foregoing Remarks—12
On the 5th: Septr. Lord Grenville wrote me the following Note, Vizt.
[Here Jay embedded a copy of Grenville’s letter of 5 Sept. 1794, above.]
The Observations enclos’d with this Note, were as follows, Vizt.
[Here Jay embedded a copy of Grenville’s Observations respecting the North Western Boundary of the United States of America, above.]
Expecting that, when we met, the first of the above Projects, would, as first in the Order of things, be first considered, my attention was more immediately confin’d to it;— But the Time consum’d in preparing the remarks beforementioned, left me very little leisure to employ in forming satisfactory opinions on the different parts of this Projet;— several however occurred to me, of which I made short notes;— They are as follows;— You will find the numbers mark’d in the margin of the project.
[Here Jay embedded a copy of his Objections to Grenville’s Draft Treaty Proposals of 30 Aug., [6 Sept. 1794], above.]13
On the 6th: of September agreeable to Lord Grenville’s appointment, I waited upon Him;— We spent several hours in discussing the several topics which arose from these Notes, and some others which in the course of the conversation occurred— He promised to take what I had offered into consideration, and manifested throughout the Conversation every Disposition to accommodate, that could be wish’d:— We may not finally be able to agree;— If we should not, it would in my opinion occasion mutual regret, for I do believe that the greater part of the Cabinet,14 & particularly Lord Grenville, are really disposed and desirous not only to settle all Diferences amicably, but also to establish permanent Peace, Good Humour, and Friendship between the Two Countries.
On the 8th: of September I receiv’d from Lord Grenville the following letter enclosing the Papers mention’d in it.—Vizt.—
[Here Jay embedded a copy of Grenville’s letter of 7 Sept. 1794, with his enclosed observations, above.]
Thus Sir!15 I have given you a very particular and correct account of the negociation. Many observations & explanatory Remarks might be added. I might also inform you, that I had strenuously urged the Justice of Compensation for the Detention of the Posts; and that ^I consider^ the Priviledge of trading to the west Indies as providing for ^claims of that kind.^16 On this Priviledge, and the Probability of its being revived after the Expiration of the Term assigned for its Duration,17 I could enlarge,— but it does not strike me as necessary to go into further Details; nor indeed could I at present find Time for the Purpose.
It will not escape you, that the Articles now under Consideration will doubtless undergo many Alterations, before they assume that final Form, in which they will either be accepted or rejected; and therefore that it would not be proper to publish them at present. I think that in the Course of a few Weeks, the Questions now under Discussion will be decided. No Time shall be lost in communicating to you the Result.
Another Subject remains to be mentioned. It appeared to me adviseable that our People should have precise and plain Instructions relative to the Prosecution of appeals and Claims in Cases of Capture. For that purpose I applied to Sir William Scott, and requested him, in concert with Doctr. Nicholl, to prepare them. We conversed on the Subject, and I explained to him my views and Objects—.
On the 10th: of Septr. I received them, enclosed with the following Letter from Sir William, which I insert on Account of the friendly Disposition towards our Country which it manifests, and which appears to me to be less uncommon here than we generally suppose—vizt.
[Here Jay embedded a copy of William Scott’s letter to JJ of 10 Sept. 1794, with an enclosed paper of that date signed by Scott and John Nicholl, above.]18
I take the Liberty of advising that these Instructions with a proper Title prefix’d, be printed in a Pamphlet and published for general Information.19
You will find herewith enclosed a Copy of the Instructions of the King and Council revoking the order to Capture neutral vessels, laden with Corn &ca. bound to France— A Gazette of the 6th. September, containing an order restraining Impressments &c.— and a Gazette of the 9th September20 containing a Copy of the order of the 6th of August relative to Appeals and Claims, of which Copies have already been sent to you.21 I have the Honor to be with great Respect, Sir, Your most obedt. & humble Servant,
John Jay
“The Honble Edm: Randolph Esqr. / Secretary of State &c. &c. &c.”
LS, DNA, with several paragraphs in JJ’s hand including the closing pages, DNA: Jay Despatches, 1794–95 (EJ: 04312); C, NHi: King (EJ: 04444); LbkC, NNC:JJ Lbk. 8; , 4: 60–114.
1. See JJ to ER, 2 Aug. 1794, above.
2. See Grenville’s Notes Respecting the Posts, 5 Aug. 1794, above, where TJ’s letter to Hammond, 29 May 1792 (, 23: 551–613), is discussed.
3. For Art. 7, see , 23: 568–69.
4. JJ’s Report on Violations of the Treaty of Peace, 13 Oct. 1786, , 4: 417–33.
5. The Treaty of Amity, Commerce, and Navigation of 19 Nov. 1794 contained no provision on the return of enslaved persons or compensation for them.
6. See Grenville to JJ (private), and Grenville’s Notes on Posts, both 5 Aug. 1794, both above.
7. See the opening statement to this effect in the preamble to JJ’s Project for a Treaty with Great Britain, 30 Sept. 1794, below, replicated in the Treaty of Amity, Commerce, and Navigation of 19 Nov. 1794. In his initial reply to this letter, ER remarked that Grenville’s reasoning on the “negroes” and the “first aggression” was so new to him that it should not be assented to without the “fullest reflection.” ER also questioned whether JJ had incorrectly reported the date proposed for the evacuation of the posts in the forthcoming treaty (1796 instead of 1795), an interval ER considered “unnecessarily long” and designed to give the British opportunities for more injurious trade relations with the Indians than they could arrange if Americans were their neighbors at Detroit. See ER to JJ, 12 Nov. 1794, ASP: FR, 1: 501–2.
8. For JJ’s rejection of Grenville’s attempt to alter this boundary, see JJ to Grenville, 1 and 4 Sept. 1794, above.
9. ER considered JJ’s acceptance of Grenville’s reasoning about enslaved persons unsatisfactory. Art. 7 of the peace treaty specified that British forces should withdraw without carrying away “any Negroes, or other Property” of Americans. ER argued that since the treaty used the word “negroes” rather than “slaves,” the intent was that they should be returned whether or not they had become property of the British by capture or freed by them. While he admitted that enemies could justly claim property that they had captured, rights so acquired could and had been renounced by the treaty. He so argued that loss of their enslaved persons had made it impossible for planters to pay their debts to British creditors. He particularly objected to Grenville’s suggestion that returning the enslaved persons would be “odious,” given that Britain had established slavery in the United States and continued importing enslaved persons against the will of most of them. In a later letter, he criticized JJ for removing the issue of “first violation” because it gave the United States no claim to retaliate by impeding British creditors from collecting their debts. See ER to JJ, 15 Dec. 1794, LS, NHi: Jay (EJ: 00620); ASP: FR, 1: 509–12. In his reply, JJ tartly observed that it took two to make a bargain, stated that he and Grenville could not agree, and asked whether this item would have been a good reason for breaking off negotiations. See JJ to ER, 6 Feb. 1795, below.
During peace negotiations enslaved persons were treated as property, losses of which were to be documented so they could be used to offset claims for restitution of confiscated Loyalist property. Britain subsequently assumed the obligation of compensating many Loyalists. Congress and the American commissioners assumed, however, that Art. 7 expressly stipulated that no enslaved persons should be carried off. The British, however, claimed from the onset that the stipulation did not apply to enslaved persons who had accepted freedom in return for service to the British. See , 3: 215n7, 266–67n8, 286n14, 343, 413, 414–15n2, 426.
ER also stated that GW believed that allowing the British to retain the posts until 1796 would be injurious to the United States. For opposition to JJ’s appointment on grounds he would be willing to sacrifice western lands and compensation for enslaved persons in return for commercial privileges, see the editorial note “The Jay Treaty: Appointment and Instructions,” , 5: 614. ER then remarked that, in making these observations and others on Grenville’s draft of a commercial treaty, he had guided himself by two ideas, the first that JJ’s preliminary discussions with Grenville might have resulted in an understanding from which, even if not formalized, it might be difficult to retreat. Secondly, he said, JJ’s instructions had left him “at such full liberty as to render it improper to seem to get rid of some share of responsibility, by passing too minute strictures on what has been done.” See ER to JJ, 3 Dec. 1794, LS, marked “Duplicate”, NHi: Jay (EJ: 00619); and 15 Dec., LS, NHi: Jay (EJ: 00620); ASP: FR, 1: 509–12. For ER’s observations on Grenville’s draft of a commercial treaty, see ER to JJ, 15 Dec. 1794, LS, NHi: Jay (EJ: 00620).
10. This line is from the LbkC version; it does not appear in either the DNA or NHi versions.
11. This line appears out of sequence in the DNA version. It is located as it appears in the LbkC version.
12. This line is supplied from the LbkC version.
13. The objections appear in the DNA and the LbkC versions.
14. For the dinner invitation from a key member of the cabinet, see Dundas to JJ, 9 Sept. 1794, above.
15. The following four paragraphs appear in JJ’s hand.
16. Since Britain considered itself justified in holding the posts because of American violations of the peace treaty, and since it had stood firmly against opening the West Indies to many American products and to American vessels in the failed negotiations for a commercial treaty in 1783, JJ was certainly aware of the weakness of his position. On these negotiations, in which JJ participated, see , 3: 380–81, 445. On the support of Hawkesbury, current President of the Board of Trade, for Sheffield’s policy of closing the West Indies trade to American vessels, see JJ to GW, 21 July 1794, and note 4, above.
17. Art. 12 of the Treaty of Amity, Commerce, and Navigation of 19 Nov. 1794 was to have been in force for the duration of Britain’s war against France until two years after the signing of preliminaries to end it.
18. See Scott to JJ, and Scott and Nicholl to JJ, 10 Sept. 1794, both above; and JJ to Scott, 12 Sept. 1794, Dft, NNC (EJ: 08902; EJ: 90056), acknowledging receipt of the instructions. ER subsequently informed JJ that these documents had been presented to the Philadelphia committee of merchants and that efforts would be made to give the instructions their full effect. See also William Scott to JJ, 10 Sept. 1794, note 1, above.
19. The following two paragraphs are not found in the DNA version, but are located in the NHi and LbkC versions.
20. Neither of these gazettes has been found.
21. The next day JJ informed ER that Robert Morris Jr. would deliver the above letter to him. He added that he now had reason to hope that Grenville would agree to postpone the northwest boundary issue until accurate surveys of the area were made at joint expense, so that it would no longer be an obstacle to agreement. Several days later, JJ informed ER that he expected to hear soon whether Grenville would accept JJ’s proposal to have the northwestern boundary issue decided by a commission and whether or not he would give American ships facilities in the East Indies. Grenville, he said, was also considering other “interesting matters.” Payment on the debts, he thought, would be postponed until after the posts were evacuated, and it seemed increasingly possible that they could agree on a treaty, since the cabinet and public opinion seemed to hold a favorable opinion of the United States. One of two things, he concluded, would “result from it, either peace, or, if war, union.” Prepare for war, he advised, but avoid indications of ill will. See JJ to ER, 14 Sept. 1794, below; and 18 Sept. 1794, ALS, DNA: Jay Despatches, 1794–1795 (EJ: 04322); and C, NHi: King (EJ: 04454); ASP: FR, 1: 496–97. For his acknowledgement of the dispatches and his expression of concern that commissioners meeting after a peace might “sow the seeds of war,” see ER to JJ, 12 Nov. 1794, ASP: FR, 1: 502.