James Madison Papers

Draft of the Petition to the General Assembly of the Commonwealth of Virginia, [ca. September] 1795

Draft of the Petition to the General Assembly
of the Commonwealth of Virginia

Editorial Note

The following is the first of two drafts of a document that was later to appear in several newspapers as part of a petition to the General Assembly of Virginia protesting against the ratification of Jay’s treaty. That JM had ever composed such a petition, either wholly or in part, was probably unknown to most of his contemporaries, and JM himself, later in life, seems to have arranged his papers in ways that have misled or confused editors and scholars ever since. In sorting his papers sometime after 1818, JM, probably with the assistance of John C. Payne, seems to have attached the 23 August 1795 draft of a letter to an unidentified correspondent to the first draft of the main body of a petition to the Virginia legislature. The assembled papers were then docketed as “probably to A. J. Dallas or Tench Coxe.” Subsequent generations of scholars have generally accepted the attribution.

At first sight, it is not altogether surprising that either JM or John C. Payne should have assembled the draft of a letter and the draft of a petition under a single docket. Both documents were written on large sheets of folio paper of a type that JM had been using in August 1795, and in the draft letter of 23 August JM was responding to an unidentified correspondent who had asked him to set down something of his thinking about the Jay treaty that had just received the advice and consent of the United States Senate. Yet it is also fairly evident that what has previously been regarded merely as the draft of a very lengthy letter to either Dallas or Coxe was, in fact, a composite of two quite different documents. The first is unmistakably the beginnings of a letter, while the second and longer of the two drafts consists of an essay in five parts outlining various objections to the Jay treaty. The draft letter is unsigned and is clearly unfinished, but the draft of the essay does not follow on either logically or smoothly from the last sections of the uncompleted letter. The handwriting of the two drafts is also slightly different, which reinforces the impression that JM neither originally conceived nor wrote the draft of his objections to the Jay treaty as a continuation of the letter he had begun on 23 August.

It is probably now impossible to reconstruct completely the story of JM’s correspondence and movements in the fall of 1795 in ways that can elucidate the full extent and nature of his opposition to the Jay treaty. That story is clearly more complex than historians have previously believed, and it may also prove to be a highly significant episode in understanding JM’s development as a politician and a constitutional thinker. Unfortunately, though, it is unlikely that any further documents will come to light to answer satisfactorily all the questions raised by the knowledge that JM did draft what came to be an antitreaty petition for the General Assembly of Virginia. All that can be done here is to lay out as clearly as possible what is now known with reasonable certainty about JM’s activities and then to offer some suggestions and speculations to help fill the gaps in the evidentiary record.

It seems likely that when JM began drafting his letter of 23 August he did not know that Washington had just signed the instrument of ratification for the Jay treaty. Before 23 August, all of JM’s correspondence reflected the hope that the public outcry against the Senate’s decision to give its advice and consent to the treaty would be sufficient to restrain the president from immediately proceeding to its ratification. In this context, it should be recalled that the Senate had given its advice and consent subject to the addition of another article suspending those parts of article 12 relating to the West Indian trade and the suggestion that this issue be renegotiated with Great Britain. Opponents of the treaty expected that Washington, at the very least, would follow the Senate’s advice, and as late as 19 August Joseph Jones (who had himself just participated in an antitreaty meeting) informed JM from Fredericksburg that the president was “taking measures for further discussion” on article 12 of the treaty (Jones to JM, 19 Aug. 1795).

Shortly after 23 August, however, JM would have learned—either from his receipt of the 15 August issue of the Philadelphia Aurora General Advertiser or from Pierce Butler’s letter to him of 21 August—that Washington had unexpectedly decided to ratify the Jay treaty. JM would also have then read copies of Washington’s responses to the resolutions passed by antitreaty meetings around the country, and particularly the presidential letters of 28 July and 12 August addressed respectively to the selectmen of Boston and the mayor of Richmond. JM had anticipated that the Richmond protest—chaired by the highly esteemed George Wythe—would “not be without its weight” in the political scale, but he was to be disappointed. In all of his statements Washington declared that he would not be moved by public opinion in exercising his constitutional duties in ratifying treaties, and he abruptly reminded the protesters that neither he nor the Senate should “substitute for their own convictions the opinions of others” (JM to Jefferson, 6 Aug. 1795; Washington to the Boston selectmen, 28 July 1795, Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Manuscript Sources, 1745–1799 (39 vols.; Washington, 1931–44). description ends , 34:253).

Washington’s conduct created new and seemingly insurmountable difficulties for opponents of the Jay treaty. The supporters of the agreement might now argue that, to all intents and purposes, it had been ratified according to the forms prescribed in the Constitution and that it thus became “the supreme law of the land.” Moreover, by signing the instrument of ratification for the treaty, Washington had thrown the immense weight of his personal prestige behind the agreement, and JM had no desire to assume a stance of open opposition to the president. Nor did he wish any public debate on the merits of the treaty to become clouded by the issue of Washington’s reputation and popularity. Opponents of the treaty were only too well aware that they were losing ground, and one of JM’s close political associates, Wilson Cary Nicholas, was soon to learn that the news of the president’s actions had influenced some would-be protesters at a meeting in Goochland County on 24 August “to decline for the present any further proceedings” on the treaty. Jefferson, too, became greatly alarmed at the apparent shift “in the public sentiment.” This, he declared after observing events for a few weeks, was the “effect of the desertion of the merchants, of the President’s chiding answer to Boston & Richmond, of the writings of Curtius & Camillus, and of the quietism into which the people naturally fall, after first sensations are over” (JM to Robert R. Livingston, 10 Aug. 1795; John Guerrant, Jr., to Wilson Cary Nicholas, 1 Sept. 1795 [DLC: Wilson Cary Nicholas Papers]; Jefferson to JM, 21 Sept. 1795).

Even in his “sequestred situation” at Montpelier, JM would have perceived these difficulties, and he would have been provoked to further reflections on them after receiving a letter, dated 30 August, from Virginia senator Henry Tazewell. Tazewell was a staunch opponent of the treaty, and he was by no means convinced that the cause was lost. The basis for his optimism was twofold: that the president either could not ratify the treaty as advised by the Senate until George III had also considered the Senate’s terms of consent; or that at best he could only ratify its first ten articles. And Tazewell doubted that George III would give his assent to the suspension of article 12, apparently because he believed that the effect of the suspension would be to jeopardize the constitutional status of the remaining articles—13 through 28. The “objects to be attained” by these latter articles, he declared, were “too important” to Great Britain “to allow a seperation from those involved in the 10 first Articles.” Tazewell’s conclusion therefore was that the matter “must again come before the Senate previous to the final ratification of the Treaty, or any part of it” (Tazewell to JM, 30 Aug. 1795).

JM’s response to this letter hinted at some misgivings about whether Tazewell’s colleagues in the Senate would follow this reasoning in its entirety. JM also feared that Great Britain might simply abide by the suspension of article 12, a decision that could allow the president then to proclaim the treaty, already ratified with the advice and consent of the Senate, to be the law. Nevertheless, JM was prepared to be persuaded by Tazewell’s arguments on the possible consequences of the suspension of article 12. “It seems clear,” he wrote, “that the 12 & the rest were mutual conditions, and that the latter ought to follow the fate of the former.” And should Great Britain not wish the suspension of article 12 to result in complete rejection of the article, that “different effect” could be “defined in the new article to be added.” In that case, JM continued, “it would seem of course that the Treaty ought to return to the Senate before it can be put in force.” But whatever the outcome, JM finally agreed with Tazewell that the treaty “must return to the Senate.” If it did not, he observed, “the effect of the suspending article on the latter part of the Treaty [must] be left open to fair construction” (JM to Tazewell, 25 Sept. 1795).

The hope that articles 13 through 28 of the Jay treaty might yet be delayed or perhaps even prevented from going into effect could have been enough to inspire JM to action. With such a goal in mind, JM may have begun drafting his lengthy five-part critique of Jay’s negotiations with Great Britain, shaping its structure to help persuade its readers to focus their opposition to the treaty on the arguments and possibilities suggested in Tazewell’s letter. The draft begins with a relatively short first section directed to the first ten articles of the treaty, the provisions of which had been intended to settle a decade of Anglo-American disputes resulting from violations of the 1783 Peace of Paris. Justifications for these violations in the form of arguments over which nation had been guilty of the first or the most frequent infringements of the 1783 treaty featured prominently in the polemical exchanges appearing in the nation’s newspapers throughout the fall of 1795. JM’s treatment of the issue, however, suggests that he was less troubled with the substance of these disputes than he was with the fact that Jay had agreed to settle them in ways consistently favorable to Great Britain. His main concern therefore was simply to demonstrate that the treaty was an unequal one and lacked the “reciprocity” that, ever since 1791, he had been arguing the United States was entitled to expect from Great Britain.

Having established the premise that Great Britain was unwilling to treat the United States in fair and reciprocal ways, JM then extended the point into the main body of his draft, consisting of sections two through four. Here he exposed the omissions and disadvantages of the commercial arrangements and the definitions of maritime rights embodied in the treaty, dwelling particularly on their implications for American power and prosperity as well as on their baneful influence on the development of the law of nations. Among other matters, he mentioned the dangers to the United States should Great Britain decide to ratify the treaty on the terms stipulated by the Senate with the suspension of article 12. That outcome, he wrote, would leave Great Britain as free as ever to exclude Americans from the West Indian trade while at the same time depriving the United States of the right to adopt commercial restrictions in retaliation. This point led JM to demonstrate that alterations in article 12 necessarily entailed revisions to article 15, which had granted Great Britain the status of most-favored nation as well as sparing it from the consequences of future increases in American tonnage and import duties. These were concessions to which JM was bitterly opposed, both because they complicated trading relations with other nations and because they protected Great Britain from JM’s own dearly held schemes of commercial discrimination. Finally, in a short fifth section, JM concluded the draft by stressing how the treaty wounded the nation’s honor and suggesting that no harm could come to the United States should the agreement not go into effect.

This first draft (DLC) underwent at least three revisions. In the second draft (NN), the changes were not major ones, being confined largely to matters of style and the inclusion of some factual details apparently not immediately available to JM as he composed his first draft. Exactly when JM wrote out the second draft cannot be ascertained, but before the petition was printed it too was revised, principally by the addition of two sections—a fourth paragraph in section IV and a second sentence in section V—that had not been part of JM’s drafts (cf. with the first printed copy under the date of 12 October). Possibly all these changes and additions were made sometime in early October 1795, perhaps during the time when JM and Dolley Madison made a visit to Jefferson at Monticello. Jefferson himself may even have taken some interest in these additions since he later seems to have marked in pencil the sections added to the petition in his copy of the version printed in Mathew Carey’s collection of public documents on the Jay treaty, The American Remembrancer; or, An Impartial Collection of Essays, Resolves, Speeches, &c. Relative, or Having Affinity, to the Treaty with Great Britain (3 vols.; Philadelphia, 1795–96; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 28389) (copy from Jefferson’s library [DLC: Rare Book Division]).

Certainly Jefferson would have encouraged JM in this enterprise, the more so as he had become increasingly disturbed by the extensive polemical campaign being waged by the supporters of the treaty. In particular, Jefferson was concerned about the essays written by Alexander Hamilton under the pseudonym of “Camillus.” It might be noted, too, that the former secretary of state would have been outraged by the aspersions that Hamilton and other protreaty pamphleteers had cast on his conduct of Anglo-American relations between 1790 and 1793, and as he reminded JM of his promise “to bring mrs. Madison to see us,” he also urged him to “take up [his] pen, and give a fundamental reply to Curtius & Camillus.” The tone of the exhortation was strikingly similar to that Jefferson employed in 1793 when he had persuaded JM to write the letters of “Helvidius” in response to Hamilton’s “Pacificus” essays (Jefferson to JM, 21 Sept. 1795; Jefferson to JM, 7 July 1793, PJM description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (1 vol. to date; Charlottesville, Va., 1984—). description ends , 15:43).

The uses JM might have intended for these drafts is open to conjecture. Although the drafts came to be embodied in a petition to the General Assembly of Virginia, it is possible that JM did not have that purpose originally in mind. In this context, one of the most striking features about the drafts is JM’s almost total neglect of those defects in the Jay treaty that so disturbed his fellow Virginians, principally the failure to obtain compensation from Great Britain for slaves carried off after the Revolution and the terms of article 6 facilitating the collection of debts owed by Virginians to their British creditors. In fact, the rhetoric of JM’s petition was singularly free of any appeal to narrowly sectional interests, and he was frequently to remark that if any region or group in the United States had been harmed by the treaty, it was the merchants involved in the carrying trades from New England. As he wrote to his unidentified correspondent on 23 August, “the whole Treaty appears to me to assassinate the interest of that part of the Union.” Possibly, therefore, JM may have originally seen his arguments as some sort of contribution to a larger national or congressional debate over the implementation of the Jay treaty.

Be that as it may, it should also be remembered that a legislative petition was the most common and effective method for Virginians to influence public policy in the eighteenth century, and it was probably for this reason that as JM’s draft received its second revision, it was appended to a preamble submitting it to the consideration of the General Assembly of Virginia and furnished with the date of 12 October. No draft of the preamble has yet been located, but its contents certainly addressed the major tactical and constitutional problems confronting opponents of the Jay treaty as JM had come to understand them in the fall of 1795. The preamble noted with disapproval Washington’s disregard of public opinion in ratifying the treaty and then urged the Virginia assembly, by virtue of its authority to elect United States senators, to make “a declaration of the public sentiment, to prevent the final ratification and ultimate energy of an instrument, which is deemed fatal to the interests … of the United States.” The argument that the treaty would still require a “final ratification” was the one Tazewell and JM had discussed earlier—that the suspension of article 12 affected the status of the remaining provisions of the treaty in ways which would require “a change … in the form and substance of the instrument, that will be equivalent to a new compact.” The petition concluded with the request that the assembly might contribute to this outcome in ways “most comformable to the nature of the case, and most consistent with constitutional principles.”

The completed petition was first printed—with many minor errors—in William Prentis’s Virginia Gazette, and Petersburg Intelligencer in one of the Tuesday or Friday issues between 13 and 27 October, and Prentis may have printed it in handbill form as well (William Branch Giles to Jefferson, 29 Oct. 1795 [DLC: Jefferson Papers]). No copies of these printings have survived, but they probably provided the text for the first extant printed copy that appeared in the Virginia Herald, and Fredericksburg and Falmouth Advertiser on 30 October. Before the petition was published again—in the Richmond Virginia Gazette, and General Advertiser on 11 November as the state legislature commenced its annual session—it underwent a third revision. On this occasion, the fourth paragraph added to section IV in the first printing was shifted to immediately after the paragraph that had followed it and renumbered as section V; while the first sentence in section V of the first printing was deleted and the remaining sentences printed as section VI. If JM himself made these changes, he probably did so about the time he met Joseph Jones in Fredericksburg between 6 and 8 November, and Jones could have then taken the revised version to Richmond for publication there (see Jones to JM, 29 Oct. 1795). Subsequent reprintings can be found in the Philadelphia Aurora General Advertiser, the New York Argus; or, Greenleaf’s New Daily Advertiser, and Mathew Carey’s American Remembrancer. The Aurora General Advertiser and the American Remembrancer versions incorporated the changes that had appeared in the Richmond printing of 11 November, though every editor who reprinted the petition simply designated William Prentis’s Petersburg newspaper as their source.

Within a month of the appearance of the petition in Richmond, parts of it were vigorously criticized by Alexander Hamilton in numbers 32 and 33 of his “Camillus” essays as “labored,” “false,” “erroneous,” and in various ways trivial, uninformed, and generally lacking in “candour.” Whether Hamilton ever suspected that he was attacking the work of JM will probably never be known. Equally problematical is the influence of the petition itself and the precise objectives JM might have had for it. Early in November JM left Montpelier to travel to Philadelphia for the first session of the Fourth Congress. En route, he paused at Fredericksburg between 6 and 8 November where he met with Joseph Jones to discuss what contribution the Virginia General Assembly might make to the antitreaty cause. Jones, like Jefferson, had been urging JM to participate in the polemical debate on the treaty, and it seems more than likely that when they met JM would have then shown him the petition (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 19:488, 510–11; JM to James Madison, Sr., 8 Nov. 1795; Jones to JM, 29 Oct. 1795).

The precise details of what the two Virginians discussed at Fredericksburg and how far they influenced the General Assembly’s proceedings in November and December cannot be ascertained. No evidence has been found that JM’s petition was formally submitted to the assembly, though its members certainly discussed both the constitutionality and the merits of the Jay treaty at some length. They refrained, however, from making any direct attack on the contents of the agreement, and they did not openly advocate that it be revised and resubmitted for “final ratification.” Instead, the legislators early in the session adopted the course of commending Virginia’s United States senators for their votes in June against advising and consenting to the treaty, and then, on 15 December, they proposed four amendments to the Constitution, one of which would have required future treaties containing “any stipulation upon the subject of the powers vested in Congress by the eighth section of the first article of the Constitution” to be sent to the House of Representatives for approval before ratification. It is unclear whether JM either expected or desired the adoption of the constitutional amendments, but he does seem to have anticipated that their discussion in state legislatures during the winter of 1795–96 would help solidify antitreaty sentiment and thus assist congressional opponents of the administration as they considered their tactics in Philadelphia (Edward Carrington to Washington, 20 Nov. 1795 [DLC: Washington Papers]; JM to Jefferson, 31 Jan. 1796).

Again, however, JM was to be disappointed. The Virginian initiative was not well received, and state legislatures throughout the nation generally dismissed the amendments with little discussion. Unfortunate too, from JM’s perspective, was George III’s willingness to ratify the Jay treaty without article 12 and without offering any further negotiations on the problems of West Indian trade. Great Britain’s approval of the modified agreement, once it was known in the United States, thus deprived opponents of the Jay treaty of whatever opportunities they might have had to argue that it should be revised and resubmitted for a “final ratification.” Thereafter JM and his fellow Republicans in Congress were left with no alternative but to argue that the House of Representatives, by virtue of its authority to make appropriations, could still frustrate the operation of a treaty that already had been ratified according to the provisions of the Constitution. On that basis they were to make a last-ditch stand against the diplomacy of John Jay, and they were to fail.

(Secondary source used for this note: Thomas J. Farnham, “The Virginia Amendments of 1795: An Episode in the Opposition to Jay’s Treaty,” VMHB description begins Virginia Magazine of History and Biography. description ends , 75 [1967]: 75–88.)

[ca. September 1795]

I  Even waiving the merits of the respective complaints & pretensions of the two parties, as to the inexecution of the Treaty of peace, the waiver implies that the two parties were to be viewed either as equally culpable or equally blameless; and that the execution of the Treaty of peace equally by both, ought now to be provided for. Yet, whilst the U. S. are to comply in the most ample manner with the article unfulfilled by them, and to make compensation for whatever losses may have accrued from the delay; G. B. is released altogether from one of the articles unfulfilled by her and is not to make the smallest compensation for the damages which have accrued from her delay to execute the other.1

The inequality of these terms is still further increased by concessions on the part of the U. S. which, besides adding to the constitutional difficulties unnecessarily scattered thro’ the Treaty, may in great measure defeat the good consequences of a surrender of the Western posts.

The British Settlers and Traders, within an undefined Tract of Country, are allowed to retain, both their lands and their allegiance at the same time; and consequently to keep up a foreign and unfriendly influence over the Indians within the limits of the U. States.

The Indians within those limits are encouraged to continue their trade with the British by the permission to bring their goods duty-free from Canada; where the goods being charged with no such impost as is payable on the goods of the U. S. will be offered for sale with that tempting preference; a regulation but too likely also to cloak the frauds of smuggling traders in a country favorable to them. The reciprocity in this case is ostensible only and fallacious.

Under another ostensible & fallacious reciprocity, the advantage secured to the U. S. in the fur trade, by their possession of the carrying places, is abandoned to the superiority of British Capital, and the inferiority of the Canada duties on imports.

A part only of the ports harbors & bays of a single British Province is made free to the U. S. in consideration of a freedom of all the ports harbors and bays of the whole U. S: The goods and merchandize of the U. S. not entirely prohibited by Canada (but which, in fact, are always entirely prohibited, when partial & temporary admissions are not dictated by necessity) may be carried there, in consideration of a free admission of all goods and merchandize from Canada not entirely prohibited by the U. S (where, in fact there never is this entire prohibition). A like stipulation, liable to the like observations, is extended to the exports of the U. S. and the Province of Canada. These are further instances of a nominal & delusive reciprocity.

In the case of the Mississippi there is not even an ostensible or nominal reciprocity. The ports and places on its Eastern side, are to be equally free to both the parties; altho’ the Treaty itself supposes that the course of the Northern Boundary of the U. S. will throw the British beyond the very source of that river. This item of the Treaty is the more to be noticed, as a repetition and extension of the stipulated privileges of G. B. on the Mississippi, will probably be construed into a partiality in the U. S. to the interests and views of that nation on the American Continent, not likely to conciliate those from whom an amicable adjustment of the navigation of the Mississippi is to be expected; and were no doubt intended by G. B. as a snare to our good understanding with the nations most jealous of her encroachments & her aggrandizement.

II  Without remarking on the inexplicit provision for redressing past spoliations & vexations, no sufficient precautions are taken against them in future. On the contrary,

By omitting to provide for the respect due to sea letters passports and certificates and for other customary safeguards to neutral vessels “a general search warrant (in the strong but just language of our fellow Citizens of Charlestown)2 is granted against the American navigation.” Examples of such provisions were to be found in our other Treaties, as well as in the Treaties of other nations. And it is matter of just surprise that they should have no place in a Treaty with G. B. whose conduct on the seas so particularly suggested and enforced every guard to our rights that could reasonably be insisted on.

By omitting to provide against the arbitrary seizure & impressment of American seamen, that valuable class of citizens remains exposed to all the outrages, and our commerce to all the interruptions hitherto suffered from that cause.

By expressly admitting that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admitting that such cases exist at present: not only a retrospective sanction may be given to proceedings agst. which indemnification is claimed; but an apparent licence is granted to fresh and more rapacious depredations on our lawful commerce. And facts seem to shew that such is to be the fruit of the impolitic concession. It is conceived that the pretext set up by G. B. of besieging and starving whole nations, and the doctrine grounded thereon, of a right to intercept the customary trade of neutral nations, in articles not contraband, ought never to have been admitted into a Treaty of the U. S.; because 1. it is a general outrage on humanity, and an attack on the useful intercourse of nations. 2. It appears that the doctrine was denied by the Executive in the discussions with Mr. Hammond the British Minister, and demands of compensation founded on that denial, are now depending. 3. As provisions constitute not less than  3 of our exports, and as G. B is nearly half her time at war, an admission of the doctrine sacrifices a correspondent proportion of the value of our commerce. 4. After a public denial of the doctrine, to admit it, in the midst of the present war, by a formal Treaty, would have but too much of the effect as well as the appearance of voluntarily concurring in the scheme of distressing a nation in friendship with this Country, and whose relations to it, as well as the struggles for freedom, in which they are engaged, give them a title to every good office not strictly forbidden by the duties of neutrality. 5. It is no plea for the measure to hold it up as an alternative to the disgrace of being involuntarily treated in the same manner, without a faculty to redress ourselves; the disgrace of being plundered with impunity agst. our consent, being under no circumstances, greater than the disgrace of consenting to be plundered with impunity; more especially as the calamity in the former case might not happen in another war, whereas in the latter case it is bound upon us for as much of twelve years, as there may be of war within that period.

By annexing to the implements of war, enumerated as contraband, the articles of ship-timber, tar or rozin, copper in Sheets, sails, hemp & Cordage,4 our neutral rights and national interests are still further narrowed. These articles were excluded by the U. S. from the contraband list, when they were themselves in a state of war.* Their other Treaties expressly declare them not to be contraband. British Treaties have done the same. Nor, as is believed, do the Treaties of any nation in Europe producing these articles for exportation, allow them to be subjects of confiscation. The stipulation5 was the less to be admitted as the reciprocity assumed by it is a mere cover for the violation of that principle, most of the articles in question, being among the exports of the U. S. whilst all of them are amg the imports of G. B.

By expressly stipulating with G. B. against the freedom of enemy’s property in neutral bottoms, the progress towards a compleat & formal establishment of a principle in the law of nations so favorable to the general interest and security of Commerce, receives all the check the U. S. could give to it. Reason & experience have long taught the propriety of considering free ships, as giving freedom to their cargoes. The several great maritime nations of Europe have not only established it at different times by their Treaties with each other; but on a solemn occasion6 jointly declared it to be the law of Nations by a specific compact, of which the U. S entered their entire approbation. G. B. alone dissented: But she herself, in a variety of prior Treaties, & in a Treaty with France since,7 has acceded to the principle. Under these circumstances, the U. S., of all nations, ought to be the last to unite in a retrograde effort on this subject, as being more than any other interested in extending & establishing the commercial rights of neutral Nations. Their situation, particularly fits them to be carriers for the great nations of Europe during their wars. And both their situation & the genius of their Government & people, promise them a greater share of peace and neutrality than can be expected by any other nation. The relation of the U. S. by Treaty on this point to the enemies of G. B. was another reason for avoiding the stipulation. Whilst British goods in American vessels are protected agst. French & Du[t]ch capture, it was eno’ to leave French & Dutch goods in American Vessels, to the ordinary course of Judicial determinations, without a voluntary, a positive, and an invidious provision for condemning them. It has not been overlooked that a clause in the Treaty proposes to renew, at some future period, the discussion of the principle it now settles:8 but the question is then to be not only in what, but whether in any cases, neutral vessels shall protect enemy’s property; and it is to be discussed at the same time, not whether in any, but in what cases provisions & other articles, not bound to invested places, may be treated as contraband. So that when the principle is in favor of the U. S. the principle itself is to be the subject of discussion: When the principle is in favor of G. B the application of it only is to be the subject of discussion.

III  Wherever the law of nations comes into question the result of the Treaty accomodates G. B. in relation to one or both of the Republics at war with her, as well as in diminution of the rights and interests of the U. S.

Thus American vessels, bound to G. B. are protected by sea papers agst. French or Dutch searches; bound to France or Holland are left exposed to British searches, without regard to such papers.

British property in American Vessels is not subject to French or Dutch confiscation: French or Dutch property in American vessels is subjected to British confiscation.

American provisions in American vessels, bound to the Enemies of G. B. are left by Treaty to the seizure & use of G. B: provisions whether American or not, in American vessels, cannot be touched by the Enemies of G. B.

Timber for ship-building, tar or rosin, copper in sheets, sails, hemp & cordage, bound to the enemies of G. B. for the equipment of vessels of trade, only, are contraband; bound to G. B. for the equipment of vessels of war, are not contraband.

American Citizens entering as volunteers the service of F. or Holland agst. G. B. are to be punished; American volunteers joining the arms of G. B. agst. F. or H. are not punishable.

British Ships of war and privateers, with their prizes made on Citizens of Holland may freely enter & depart the ports of the U. S. Dutch Ships of war and privateers with their prizes made on subjects of G. B. are to receive no shelter or refuge in the ports of the U. S. And this advantage in war is given to G. B., not by a Treaty prior & having no relation, to an existing war; but by a Treaty made in the midst of war, and prohibiting a like article of Treaty with Holland for equalizing the advantag⟨e.⟩10

The Article prohibiting confiscations & sequestrations, is unequal between the U. S. & G. B. American Citizens have little if any interest in public or bank Stock or in private debts within G. B. British subjects have a great interest in all within the U. S. Vessels & merchandize belonging to individuals, governed by the same “confidence in each other & in the regard of their respective Govts. for their municipal laws, and for the law of Nations allowed to be part thereof as consecrates private debts,” are not exempted from such proceedings. So that where much would be in the power of the U. S. and little in the power of G. B. the power is interdicted. Where more is in the power of G. B. than of the U. S. the power is left unconfined. Another remark is applicable. When the modern usage of nations, is in favor of G. B. the modern usage is the rule of the Treaty. When the modern usage was in favor of the U. S. the modern usage was rejected as a rule for the Treaty.

IV The footing on which the Treaty places the subject of Commerce, is liable to insuperable objections.

1. The nature of our exports & imports, compared with those of other Countries, and particularly of G. B. has been thought by the Legislature of the U. S. to justify certain differences in the tonnage & other duties, in favor of American bottoms; and the advantage possessed by G. B. in her superior capital was thought at the same time to require such countervailing encouragements. Experience has shewn the solidity of both these considerations. The American navigation, has in a degree been protected against the advantage on the side of the British Capital, and has increased in proportion. Whilst the nature of our exports, generally necessaries or raw materials, and of our imports consisting mostly of British manufactures, has restrained G. B. from any attempt to counteract the protecting duties afforded to our navigation. Should the Treaty go into effect, this protection is relinquished; Congress are prohibited from substituting any other; and the British Capital, having no longer the present inducement to make use of American Bottoms may be expected, thro’ whatever hands operating, to give the preference to British Bottoms.

2. The provisions of the Treaty which relate to the W. Indies, where the nature of our exports and imports gives a commanding energy to our just pretensions, instead of alleviating the general evil, are a detail of peculiar humiliations and sacrifices. Nor is a remedy, by any means to be found in the proposed suspension of that part of the Treaty. On the contrary;

If G. B. should accede to the proposition, and the Treaty be finally established without the twelfth article, she will, in that event, be able to exclude American bottoms altogether from that channel of intercourse and to regulate the whole trade with the W. Indies in the manner hitherto complained of; whilst by another article of the Treaty, the U. S. are compleatly dispossessed of the right & the means hitherto enjoyed of counteracting the monopoly; unless they submit to a universal infraction of their trade, not excepting with nations whose regulations may be reciprocal and satisfactory.

3. The treaty, not content with these injuries to the U. S. in their commerce with G. B. provides in the XV article against the improvement or preservation of their commerce with other nations by any beneficial Treaties that may be attainable. The general rule of the U. S. in their Treaties, founded on the example of other nations, has been that where a nation is to have the privileges that may be granted to the most favored nations, it should be admitted gratuitously to such privileges only as are gratuitously granted; but should pay for privileges not gratuitously granted the compensations paid for them by others. This prudent & equitable qualification of the footing of the most favored nation was particularly requisite in a Treaty with G. B. whose commercial system, being matured & settled, is not likely to be materially varied by grants of new privileges that might result to the U. S. It was particularly requisite at the present juncture also when an advantageous revision of the Treaty with France is said to be favored by that Republic; when a Treaty with Spain is actually on foot,11 and Treaties with other nations whose commerce is important to the U. S. cannot be out of contemplation. The proposed Treaty, nevertheless, puts G. B. in all respects, gratuitously, on the footing of the most favored nation; even as to future privileges for which the most valuable considerations may be given. So that it is not only out of the power of the U. S. to grant any peculiar privilege to any other nation, as an equivalent for peculiar advantages in commerce or navigation to be granted to the U. S; but every nation, desiring to treat on this subject with the U. S. is reduced to the alternative either of declining the treaty altogether, or of including G. B. gratuitously, in all the privileges, it purchases for itself. An article of this import, is the greatest obstacle, next to an absolute prohibition, that could have been thrown in the way, of other Treaties; and that it was insidiously meant by G. B. to be such, is rendered the less doubtful, by the other kindred features visible in the Treaty.

It can be no apology for these commercial disadvantages, that better terms could not be obtained at the crisis when the Treaty was settled. If proper terms could not be obtained at that time, commercial stipulations, which were no wise essentially connected with the objects of the Envoy-ship ought to have waited for a more favorable season. Nor is a better apology to be drawn from our other Treaties. The cheif of These, were the auxiliaries or the guaranties of our independence: and would have been an equivalent for greater commercial concessions, than were insisted on. (Under other circumstances, there is no ground to suppose, that the same treaties, tho’ more favorable in several material articles than the Treaty in question, would have been embraced by the U. S.)12

V  A Treaty thus unequal in its conditions, thus derogatory to our national rights, thus insidious in some of its objects, and thus alarming in its operation to the dearest interests of the U. S. in their commerce and navigation, is in its present form unworthy the voluntary acceptance of an Independent people, and is not dictated to them by the circumstances in which providence has kindly placed them. It is sincerely believed, that such a Treaty would not have been listened to at any former period, when G. B. was most at her ease, and the U. S. without the respectability they now enjoy. To pretend that however injurious the Treaty may be, it ought to be submitted to in order to avoid the hostile resentment of G. B. which wd. evidently be as impolitic as it would be unjust on her part, is an artifice too contemptible to answer its purpose. It will not easily be supposed, that a refusal to part with our rights without an equivalent; will be made the pretext of a war on us: much less that such a pretext will be founded on our refusal to mingle a sacrifice of our commerce & navigation, with an adjustment of political differences: Nor is any evidence to be found either in History or Human Nature, that nations, are to be bribed out of a spirit of encroacht. & aggression, by humiliations which nourish their pride, or by concessions which extend their resources & power.

To do justice to all nations; to seek it from them by peaceable means in preference to war; and to confide in this policy for avoiding that extremity; or securing the blessing of Heaven, when forced upon us, is the only course of which the U. States can never have reason to repent.13

First draft (DLC); second draft (NN). Minor variations between the drafts have not been noted.

1In the first draft, JM crossed through the remainder of this sentence: “not to mention that she is indulged with a time for executing this other, which leaves her free to be governed by events.” This clause does not appear in the second draft, where there is an additional sentence: “These equitable and reciprocal claims of the U. S. are not even allowed the chance of arbitration.”

2On 19 July a committee reported resolutions denouncing the Jay treaty to a public meeting at Charleston, South Carolina (Treaty of Amity,… to Which Is Annexed, a Copious Appendix, pp. 175–80).

3Left blank in the first draft. In the second draft JM supplied “two thirds.”

4The Jay treaty’s article 18 declared these commodities to be contraband (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:259).

5In the first draft, JM crossed through the following, which does not appear in the second draft: “in the present case is obviously unequal & unwise; unequal, as being considerable objects of the export trade of the U. S., whereas they are objects of importation with G. B; unwise, inasmuch as our Treaties with the two nations at war with her, expressly declare the articles not to be contraband, so that they may now be exported to G. B. but cannot be exported to her enemies, and this in pursuance of a voluntary compact made with G. B. during the war.”

6At a later time, JM interlined in the first draft “(the armed Neutrality).” In 1780 Russia proposed a League of Armed Neutrality, which Denmark and Sweden joined, and to which Prussia, Austria, and Portugal eventually adhered, in order to defend the principle that free ships make free goods. In response to the Russian initiative, the Continental Congress, on 5 Oct. 1780, approved resolutions directing its Board of Admiralty to prepare instructions for U.S. vessels in accordance with the Russian proposal and permitting U.S. ministers abroad, if invited, to adhere to any regulations that Russia and other powers might make (see JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , 18:905).

7At a later time, JM interlined in the first draft “(1786).” The 1786 Eden treaty between Great Britain and France accepted the principle that free ships make free goods.

8The Jay treaty’s article 12 declared in part that, two years after the conclusion of the present war, Great Britain and the U.S. “will then also renew their discussions, and endeavour to agree, whether in any and what cases Neutral Vessels shall protect Enemy’s property; and in what cases provisions and other articles not generally Contraband may become such” (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:255).

9Left blank in first draft. In the second draft JM supplied the date, 4 Dec. 1781. For the ordinance, see JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , 21:1153–58.

10The following paragraph, crossed out in the first draft, does not appear in the second draft: “It is to be apprehended also that under this article, danger may lurk of embarrassment with F. notwithstanding the proviso that nothing in the Treaty shall operate agst. former Treaties. The Treaty with F. does not expressly provide for the sale of prizes. The practice under the Treaty has admitted the sale of prizes. To continue the practice may now give a new handle to G. B. To discontinue it cannot fail to make impressions on the French Republic little friendly to the true interests of the U. S.”

The Jay treaty’s article 24 prohibited the arming of enemy privateers and the sale of prizes captured from one of the signatory powers in the ports of the other. Article 25 admitted warships, privateers, and prizes of Great Britain and the U.S. to each other’s ports and denied refuge to those of their enemies, with a proviso that “Nothing in this Treaty contained shall however be construed or operate contrary to former and existing Public Treaties with other Sovereigns or States. But the Two parties agree, that while they continue in amity neither of them will in future make any Treaty that shall be inconsistent with this or the preceding article” (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:262–63).

11JM here interlined “in negociation” in the first draft but did not cross through “on foot”; the second draft reads “in negociation.”

12JM omitted this sentence in the second draft.

13In the first draft, JM placed an asterisk at the beginning of this heavily revised paragraph and recopied it in the margin.

Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* See Ordinance regulating captures in 178 .9

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