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Relations with Britain, still smarting from the loss of her colonies, worsened in the early 1790s. From the American perspective, issues included seizure from American ships of cargoes unrelated to war, Impressment of American seamen and continuing British occupation of western posts within U.S. borders.In 1794, Chief Justice of the Supreme Court John Jay was dispatched to England to seek solutions. The resulting agreement stirred up heated passions within the cabinet with Hamilton supporting the agreement and Jefferson opposing it. Key provisions included:
- The withdrawal of British soldiers from posts in the American West
- A commission to be established to settle outstanding border issues between the U.S. and Canada
- A commission to be established to resolve American losses in British ship seizures and Loyalist losses during the War of Independence.
Missing from the treaty was a provision for the British to refrain from the arrest of American ships and impressment of American seamen.Jay's Treaty was signed on November 19, 1794. Alexander Hamilton defended the treaty, writing under the pen name Camillus. In his first article, Hamilton began:
It was to have been foreseen, that the treaty which Mr. Jay was charged to negotiate with Great Britain, whenever it should appear, would have to contend with many perverse dispositions and some honest prejudices; that there was no measure in which the government could engage, so little likely to be viewed according to its intrinsic merits—so very likely to encounter misconception, jealousy, and unreasonable dislike.
Robert Livingston, another prominent New Yorker, did not hold back in his criticism of the treaty.
Were we to estimate the difference in this point of view, between an immediate evacuation and one that is to take place in June 1796, it would certainly not fall short of $1,000,000, independent of the destruction of our fellow citizens, whose lives are beyond all price.
Feeling against the treaty ran high, and Hamilton was stoned by an angry crowd in New York. Nevertheless, the Senate ratified the agreement with a reservation inserted regarding a provision that limited American trade in the British West Indies. Washington, after much agonizing, approved the treaty.Jay's Treaty is significant in part because of the tremendous uproar it caused; Washington was still a widely admired man, but he came under sharp attack during this time. Jay resigned from the Supreme Court and later remarked that he could have traveled the length of the country by the light of bonfires burning his effigy. Most historians acknowledge the Treaty's shortcomings, but believe that it was the best that could be hoped for given America's lack of international clout at the time.
What Was Jay’s Treaty?
Jay’s Treaty was an agreement between the United States and Great Britain signed on November 19, 1794 intended to avert war and resolve issues between the two countries that had lingered since the end of the American Revolutionary War. While it was unpopular with the American public, the treaty succeeded in ensuring a decade of peaceful and mutually profitable trade between the United States and Britain during the French Revolutionary Wars. The treaty was signed by President George Washington on November 19, 1794 and approved by the U.S. Senate on June 24, 1795. It was then ratified by the British Parliament and took effect on February 29, 1796. Officially titled, “Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America,” and also called “Jay Treaty,” the pact draws its name from John Jay, its chief U.S. negotiator.
Key Takeaways: Jay's Treaty
- Jay’s Treaty was a diplomatic agreement reached in 1794 between the United States and Great Britain.
- Jay’s Treaty was intended to resolve disputes between the two nations that remained after the 1783 Treaty of Paris had ended the American Revolutionary War.
- The treaty was signed on November 19, 1794, approved by the U.S. Senate on June 24, 1795, and approved by the British Parliament, thus placing it into full effect on February 29, 1796.
- The treaty draws its name from its chief U.S. negotiator, first Chief Justice of the Supreme Court, John Jay.
Bitter objections to the treaty by the French government led to the XYZ Affair of 1797 and the 1798 Quasi-War with France. In the United States, political conflict over ratification of the treaty contributed to the creation of America’s first two political parties: the pro-treaty Federalist Party, led by Alexander Hamilton, and the anti-treaty Democratic-Republican Party led by Anti-federalists Thomas Jefferson and James Madison.
Jay`s Treaty - History
Grain was the most valuable cash crop for many American farmers. In the West, selling grain to a local distillery for alcohol production was typically more profitable than shipping it over the Appalachians to eastern markets. Hamilton’s whiskey tax thus placed a special burden on western farmers. It seemed to divide the young republic in half—geographically between the East and West, economically between merchants and farmers, and culturally between cities and the countryside.
In western Pennsylvania in the fall of 1791, sixteen men, disguised in women’s clothes, assaulted a tax collector named Robert Johnson. They tarred and feathered him, and the local deputy marshals seeking justice met similar fates. They were robbed and beaten, whipped and flogged, tarred and feathered, and tied up and left for dead. The rebel farmers also adopted other protest methods from the Revolution and Shays’ Rebellion, writing local petitions and erecting liberty poles. For the next two years, tax collections in the region dwindled.
Then, in July 1794, groups of armed farmers attacked federal marshals and tax collectors, burning down at least two tax collectors’ homes. At the end of the month, an armed force of about 7,000, led by the radical attorney David Bradford, robbed the U.S. mail and gathered about eight miles east of Pittsburgh. President Washington responded quickly.
First, Washington dispatched a committee of three distinguished Pennsylvanians to meet with the rebels and try to bring about a peaceful resolution. Meanwhile, he gathered an army of thirteen thousand militiamen in Carlisle, Pennsylvania. On September 19, Washington became the only sitting president to lead troops in the field, though he quickly turned over the army to the command of Henry Lee, a Revolutionary hero and the current governor of Virginia.
As the federal army moved westward, the farmers scattered. Hoping to make a dramatic display of federal authority, Alexander Hamilton oversaw the arrest and trial of a number of rebels. Many were released due to lack of evidence, and most of those who remained, including two men sentenced to death for treason, were soon pardoned by the president. The Whiskey Rebellion had shown that the federal government was capable of quelling internal unrest. But it also had demonstrated that some citizens, especially poor westerners, viewed it as their enemy.
Around the same time, another national issue also aroused fierce protest. Along with his vision of a strong national financial system, Hamilton also had a vision of an America busily engaged in foreign trade. In his mind, that meant pursuing a friendly relationship with one nation in particular: Great Britain.
America’s relationship with Britain since the end of the Revolution had been tense, partly because of warfare between the British and French. Their naval war threatened American shipping. Most obvious and galling to American citizens was the “impressment” of seized American sailors into Britain’s powerful navy, which made American trade risky and expensive—not to mention humiliating. Nevertheless, President Washington was conscious of American weakness and was determined not to take sides. In April 1793, he officially declared that the United States would remain neutral. With his blessing, Hamilton’s political ally John Jay, who was currently serving as chief justice of the Supreme Court, sailed to London to negotiate a treaty that would satisfy both Britain and the United States.
Jefferson and Madison strongly opposed these negotiations. They mistrusted Britain and wanted America to favor France instead. The French had recently overthrown their own monarchy, and Republicans thought the United States should be glad to have the friendship of a new revolutionary state. They also suspected that a treaty with Britain would favor northern merchants and manufacturers over the agricultural South.
In November 1794, despite their misgivings, John Jay signed a “treaty of amity, commerce, and navigation” with the British. Jay’s Treaty, as it was commonly called, required Britain to abandon its military positions in the Northwest Territory (especially Fort Detroit, Fort Mackinac, and Fort Niagara) by 1796. Britain also agreed to compensate American merchants for their losses. The United States, in return, agreed to treat Britain as its most prized trade partner, which meant tacitly supporting Britain in its current conflict with France. Unfortunately, Jay had failed to secure an end to impressment.
For Federalists, this treaty was a significant accomplishment. Jay’s Treaty gave the United States, a relatively weak power, the ability to stay officially neutral in European wars, and it preserved American prosperity by protecting trade. For Jefferson’s Republicans, however, the treaty was proof of Federalist treachery. The Federalists had sided with a monarchy against a republic, and they had submitted to British influence in American affairs without even ending impressment. In Congress, debate over the treaty transformed the Federalists and Republicans from temporary factions into two distinct (though still loosely organized) political parties.
Jay`s Treaty - History
There shall be a firm, inviolable and universal peace, and a true and sincere friendship between his Britannic Majesty, his heirs and successors, and the United States of America and between their respective countries, territories, cities, towns and people of every degree, without exception of persons or places.
His Majesty will withdraw all his troops and garrisons from all posts and places within the boundary lines assigned by the treaty of peace to the United States. This evacuation shall take place on or before . . . [June I, 1796,] . . .: The United States in the mean time at their discretion, extending their settlements to any part within the said boundary line, except within the precincts or jurisdiction of any of the said posts. All settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their effects and it shall also be free to them to sell their lands, houses, or effects, or to retain the property thereof, at their discretion such of them as shall continue to reside within the said boundary lines, shall not be compelled to become citizens of the United States, or to take any oath of allegiance to the government thereof but they shall be at full liberty so to do if they think proper, and they shall make and declare their election within one year after the evacuation aforesaid. And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining subjects of his Britannic Majesty, shall be considered as having elected to become citizens of the United States.
It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson's bay Company only excepted) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this article does not extend to the admission of vessels of the United States into the sea-ports, harbours, bays, or creeks of his Majesty's said territories nor into such parts of the rivers in his Majesty's said territories as are between the mouth thereof, and the highest port of entry from the sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any frauds in this respect. Nor to the admission of British vessels from the sea into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the sea. The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties and it is further agreed, that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his Majesty in Great Britain.
All goods and merchandise whose importation into his Majesty's said territories in America, shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same in the manner aforesaid, by the citizens of the United States, and such goods and merchandise shall be subject to no higher or other duties, than would be payable by his Majesty's subjects on the importation of the same from Europe into the said territories. And in like manner, all goods and merchandize whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by his Majesty's subjects, and such goods and merchandise shall be subject to no higher or other duties, than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the said states. And all goods not prohibited to be exported from the said territories respectively, may in like manner be carried out of the same by the two parties respectively, paying duty as aforesaid.
No duty of entry shall ever be levied by either party on peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.
No higher or other tolls or rates of ferriage than what are or shall be payable by natives, shall be demanded on either side and no duties shall be payable on any goods which shall merely be carried over any of the portages or carrying-places on either side, for the purpose of being immediately reembarked and carried to some other place or places. But as by this stipulation it is only meant to secure to each party a free passage across the portages on both sides: it is agreed, that this exemption from duty shall extend only to such goods as are carried in the usual and direct road across the portage, and are not attempted to be in any manner sold or exchanged during their passage across the same. . . .
Whereas it is uncertain whether the river Mississippi extends so far to the northward, as to be intersected by a line to be drawn due west from the Lake of the Woods, in the manner mentioned in the treaty of peace between his Majesty and the United States: it is agreed, that measures shall be taken in concert between his Majesty's government in America and the government of the United States, for making a joint survey of the said river from one degree of latitude below the falls of St. Anthony, to the principal source or sources of the said river, and also of the parts adjacent thereto and that if on the result of such survey, it should appear that the said river, would not be intersected by such a line as is above mentioned, the two parties will thereupon proceed by amicable negociation, to regulate the boundary line in that quarter, as well as all other points to be adjusted between the said parties, according to justice and mutual convenience, and in conformity to the intent of the said treaty.
Whereas doubts have arisen what river was truly intended under the name of the river St. Croix, mentioned in the said treaty of peace, and forming a part of the boundary therein described that question shall be referred to the final decision of commissioners to be appointed in the following manner, viz. [Each party to choose one commissioner, and these two to choose a third. The commissioners to "decide what river is the river St. Croix, intended by the treaty," and the decision to be final.]
Whereas it is alledged by divers British merchants and others his Majesty's subjects, that debts, to a considerable amount, which were bona fide contracted before the peace, still remain owing to them by citizens or inhabitants of the United States, and that by the operation of various lawful impediments since the peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been, in several instances, impaired and lessened, so that by the ordinary course of judicial proceedings, the British creditors cannot now obtain, and actually have and receive full and adequate compensation for the losses and damages which they have thereby sustained. It is agreed, that in all such cases, where full compensation for such losses and damages cannot, for whatever reason, be actually obtained, had and received by the said creditors in the ordinary course of justice, the United States will make full and complete compensation for the same to the said creditors: But it is distinctly understood, that this provision is to extend to such losses only as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such insolvency of the debtors, or other causes as would equally have operated to produce such loss, if the said impediments had not existed nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.
[Claims to be adjudicated by five commissioners, with powers and duties as herein prescribed. The awards of the commissioners to be final, "both as to the justice of the claim, and to the amount of-the sum to be paid to the creditor or claimant."]
Whereas complaints have been made by divers merchants and others, citizens of the United States, that during the course of the war in which his Majesty is now engaged, they have sustained considerable losses and damage, by reason of irregular or illegal captures or condemnations of their vessels and other property, under colour of authority or commissions from his Majesty, and that from various circumstances belonging to the said cases, adequate compensation for the losses and damages so sustained cannot now be actually obtained, had and received by the ordinary course of judicial proceedings it is agreed, that in all such cases, where adequate compensation cannot, for whatever reason, be now actually obtained, had and received by the said merchants and others, in the ordinary course of justice, full and complete compensation for the same will be made by the British government to the said complainants. But it is distinctly understood, that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.
[Claims to be adjudicated by five commissioners, under like conditions to those stated in Art. VI.]
And whereas certain merchants and others his Majesty's subjects, complain, that in the course of the war they have sustained loss and damage, by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the states, and brought into the ports of the same, or taken by vessels originally armed in ports of the said states.
It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, Sept. 5, I793, a copy of which is annexed to this treaty the complaints of the parties shall be and hereby are referred to the commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as lo the other cases committed to them.
Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor monies which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated. . .
It is agreed between his Majesty and the United States of America, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people, in the manner, under the limitations and on the conditions specified in the following articles:
[Art. XII., relating to trade with the West Indies, was suspended by the resolution of the Senate advising ratification, and the suspension was agreed to by Great Britain.]
His Majesty consents that the vessels belonging to the citizens of the United States of America, shall be admitted and hospitably received, in all the sea-ports and harbours of the British territories in the EastIndies. And that the citizens of the said United States, may freely carry on a trade between the said territories and the said United States, in all articles of which the importation or exportation respectively, to or from the said territories, shall not be entirely prohibited. Provided only, that it shall not be lawful for them in any time of war between the British government and any other power or state whatever, to export from the said territories, without the special permission of the British government there, any military stores, or naval stores, or rice. The citizens of the United States shall pay for their vessels when admitted into the said ports no other or higher tonnageduty than shall be payable on British vessels when admitted into the ports of the United States. And they shall pay no other or higher duties or charges, on the importation or exportation of the cargoes of the said vessels, than shall be payable on the same articles when imported or exported in British vessels. But it is expressly agreed, that the vessels of the United States shall not carry any of the articles exported by them from the said British territories, to any port or place, except to some port or place in America, where the same shall be unladen, and such regulations shall be adopted by both parties, as shall from time to time be found necessary to enforce the due and faithful observance of this stipulation. It is also understood that the permission granted by this article, is not to extend to allow the vessels of the United States to carry on any part of the coasting-trade of the said British territories but vessels going with their original cargoes, or part thereof, from one port of discharge to another, are not to be considered as carrying on the coasting-trade. Neither is this article to be construed to allow the citizens of the said states to settle or reside within the said territories, or to go into the interior parts thereof, without the permission of the British government established there. And the citizens of the United States, whenever they arrive in any port or harbour in the said territories, or if they should be permitted in manner aforesaid, to go to any other place therein, shall always be subject to the laws, government, and jurisdiction of what nature established in such harbor, port or place, according as the same may be. The citizens of the United States may also touch for refreshment at the island of St. Helena, but subject in all respects to such regulations as the British government may from time to time establish there.
There shall be between all the dominions of his Majesty in Europe and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation. The people and inhabitants of the two countries respectively, shall have liberty freely and securely, and without hindrance and molestation, to come with their ships and cargoes to the lands, countries, cities, ports, places and rivers, within the dominions and territories aforesaid, to enter into the same, to resort there, and to remain and reside there, without any limitation of time. Also to hire and possess houses and ware-houses for the purposes of their commerce, and generally the merchants and traders on each side, shall enjoy the most complete protection and security for their commerce but subject always as to what respects this article to the laws and statutes of the two countries respectively.
It is agreed that no other or higher duties shall be paid by the ships or merchandise of the one party in the ports of the other, than such as are paid by the like vessels or merchandise of all other nations. Nor shall any other or higher duty be imposed in one country on the importation of any articles the growth, produce or manufacture of the other, than are or shall be payable on the importation of the like articles being of the growth, produce, or manufacture of any other foreign country Nor shall any prohibition be imposed on the exportation or importation of any articles to or from the territories of the two parties respectively, which shall not equally extend to all other nations. But the British government reserves to itself the right of imposing on American vessels entering into the British ports in Europe, a tonnage duty equal to that which shall be payable by British vessels in the ports of America: And also such duty as may be adequate to countervail the difference of duty now payable on the importation of European and Asiatic goods, when imported into the United States in British or in American vessels.
The two parties agree to treat for the more exact equalization of the duties on the respective navigation of their subjects and people, in such manner as may be most beneficial to the two countries. In the interval it is agreed, that the United States will not impose any new or additional tonnage duties ore British vessels, nor increase the now subsisting difference between the duties payable on the importation of any articles in British or in American vessels.
[Provides for the appointment of consuls.]
It is agreed, that in all cases where vessels shall be captured or detained on just suspicion of having on board enemy's property, or of carrying to the enemy any of the articles which are contraband of war the said vessel shall be brought to the nearest or most convenient port and if any property of an enemy should be found on board such vessel, that part only which belongs to the enemy shall be made prize, and the vessel shall be at liberty to proceed with the remainder without any impediment.
In order to regulate what is in future to be esteemed contraband of war, it is agreed, that under the said denomination shall
be comprised all arms and implements sewing for the purposes of war, by land or sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gun-powder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, halberts, lances, javelins, horsefurniture, holsters, belts, and generally all other implements of war as also timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted and all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.
And whereas the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed, that whenever any such articles so becoming contraband, according to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified and the captors, or in their default, the government under whose authority they act, shall pay to the masters or owners of such vessels, the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention.
And whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested it is agreed, that every vessel so circumstanced, may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter but she shall be permitted to go to any other port or place she may think proper Nor shall any vessel or goods of either party, that may have entered into such port or place, before the same was besieged, blockaded, or invested by the other, and be found therein after the reduction or surrender of such place, be liable to confiscation, but shall be restored to the owners or proprietors thereof.
And that more abundant care may be taken for the security of the respective subjects and citizens of the contracting parties, and to prevent their suffering injuries by the men of war, or privateers of either party, all commanders of ships of war and privateers, and all others the said subjects and citizens, shall forbear doing any damage to those of the other party, or committing any outrage against them, and if they act to the contrary, they shall be punished, and shall also be bound in their persons and estates to make satisfaction and reparation for all damages, and the interest thereof, of whatever nature the said damages may be.
It is likewise agreed, that the subjects and citizens of the two nations, shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign prince or state, enemies to the other party nor shall the enemies of one of the parties be permitted to invite, or endeavor to enlist in their military service, any of the subjects or citizens of the other party and the laws against all such offenses and aggressions shall be punctually executed. And if any subject or citizen of the said parties respectively, shall accept any foreign commission, or letters of marque, for arming any vessel to act as a privateer against the other party, and be taken by the other party, it is hereby declared to be lawful for the said party, to treat and punish the said subject or citizen, having such commission or letters of marque, as a pirate.
It is expressly stipulated, that neither of the said contracting parties will order or authorize any acts of reprisal against the other, on complaints of injuries or damages, until the said party shall first have presented to the other a statement thereof, verified by competent proof and evidence, and demanded justice and satisfaction, and the same shall either have been refused or un reasonably delayed.
The ships of war of each of the contracting parties shall, at all times, be hospitably received in the ports of the other, their officers and crews paying due respect to the laws and government of the country. And his Majesty consents, that in case an American vessel should, by stress of weather, danger from enemies or other misfortune, be reduced to the necessity of seeking shelter in any of his Majesty's ports, into which such vessel could not in ordinary cases claim to be admitted, she shall, on manifesting that necessity to the satisfaction of the government of the place, be hospitably received and be permitted to refit, and to purchase at the market price, such necessaries as she may stand in need of, conformably to such orders and regulations as the government of the place, having respect to the circumstances of each case, shall prescribe. She shall not be allowed to break bulk or unload her cargo, unless the same should be bona fide necessary to her being refitted. Nor shall be permitted to sell any part of her cargo, unless so much only as may be necessary to defray her expences, and then not without the express permission of the government of the place. Nor shall she be obliged to pay any duties whatever, except only on such articles as she may be permitted to sell for the purpose aforesaid.
It shall not be lawful for any foreign privateers (not being subjects or citizens of either of the said parties) who have commissions from any other prince or state in enmity with either nation, to arm their ships in the ports of either of the said parties, nor to sell what they have taken, nor in any other manner to exchange the same nor shall they be allowed to purchase more provisions, than shall be necessary for their going to the nearest port of that prince or state from whom they obtained their commissions.
It shall be lawful for the ships of war and privateers belonging to the said parties respectively, to carry whithersoever they please,
the ships and goods taken from their enemies, without being obliged to pay any fee to the officers of the admiralty, or to any judges whatever nor shall the said prizes when they arrive at, and enter the ports of the said parties, be detained or seized, neither shall the searchers or other officers of those places visit such prizes, (except for the purpose of preventing the carrying of any part of the cargo thereof on shore in any manner contrary to the established laws of revenue, navigation or commerce) nor shall such officers take cognizance of the validity of such prizes but they shall be at liberty to hoist sail, and depart as speedily as may be, and carry their said prizes to the place mentioned in their commissions or patents, which the commanders of the said ships of war or privateers shall be obliged to show. No shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of either of the said parties but if forced by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. 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.
Neither of the said parties shall permit the ships or goods belonging to the subjects or citizens of the other, to be taken within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories, by ships of war, or others having commission from any prince, republic, or state whatever.
If at any time a rupture should take place, (which God forbid) between his Majesty and the United States, the merchants and others of each of the two nations, residing in the dominions of the other, shall have the privilege of remaining and continuing their trade, so long as they behave peaceably, and commit no offense against the laws and in case their conduct should render them suspected, and the respective governments should think proper to order them to remove, the term of twelve months front the publication of the order shall be allowed them for that purpose, to remove with their families, effects and property but this favour shall not be extended to those who shall act contrary to the established laws . . . such rupture shall not be deemed to exist, while negotiations for accommodating differences shall be depending, nor until the respective ambassadors or ministers, if such there shall be, shall be recalled, or sent home on account of such differences.
[Provides for the extradition of persons charged with murder or forgery.]
It is agreed, that the first ten articles of this treaty shall be permanent, and that the subsequent articles, except the twelfth, shall be limited in their duration to twelve years, to be computed from the day on which the ratifications of this treaty shall be exchanged. .
Jay’s Treaty: History & Significance
“If this country is preserved in tranquility twenty years longer, it may bid defiance in a just cause to any power whatever such in that time will be its popularity, wealth and resources,” stated by George Washington in response to demonstrators over the Jay Treaty. 1 Washington’s remark was regarding the public’s uproar following the release of information on the status of the discord with Great Britain.
The people had just been informed of the contents of the Jay Treaty which were: 1) Britain agreed to give up the fur posts in American territory, 2) Britain also agreed to submit to arbitration the questions of disputed boundaries, the damage done to American shipping, and the debts due to British merchants. Although the people did not like these terms, Washington supported them to prevent us from going to war. Washington made his first move by sending a delegate to England, and furthermore by standing up to congress to get this treaty ratified. He demonstrates again his great moral courage for the welfare of his country.
Although Washington himself did not write the treaty he deserves all the credit for initiating it in the first place. The times had become rough with the British, and according to Hamilton the British were a vital part of our economy. He said ” …the tax on imports furnished much of the money for paying off our foreign, domestic, and state debts.” 2 Along with the British’s impressments of American seamen and their role in our economy Washington knew something had to be done. Washington knew that the tension between America and England had to be thinned out so he decided to send over a special envoy. The individual chosen for the job was Chief Justice of the Supreme Court, John Jay. John Jay had much experience in this department because he was the former Secretary for Foreign Affairs under the old Confederation. His objective was to make peace between the two countries. He was under instructions to make no commitment in violation of the treaties with France. Fortunately, Washington came to terms to do this, otherwise our infant country may never have grown into what it is today. This indubitably turned out to be one of Washington’s bolder moves towards assisting his country.
Another powerful move was demonstrated by Washington as he persuaded the Senate to ratify the treaty. The Jay Treaty was signed on November 19th , 1794, but was not ratified by the Senate until seven months later. “President George Washington’s signing of the Jay Treaty provoked unimaginable criticism of his character and policies and changed the focus of the debate over the treaty.” 3 Some of the Americans wanted to go to war, so essentially George Washington was putting his name on the line to get this treaty ratified. The Republicans in the House attempted to block the treaty by denying the appropriation for enforcing its provisions. The House request for the papers relating to Jay’s Treaty was refused by Washington because the concurrence of the two Houses was not required to give validity to a treaty and “because of the necessity of maintaining the boundaries fixed by the Constitution.” 4 Again, the people are lucky to have a persistent leader who deserves credit for saving our country.
The prominent individual who deserves all the credit in nurturing our country from its young and early days is unquestionably George Washington. The passage of the Jay Treaty was instrumental in allowing the young country to develop economically and ultimately prevent war with Britain. The second influential move he made was to have this treaty ratified. He argued that the country did not need to draw itself into a war with a country that held ninety percent of its imports. Washington had to fight for this with his reputation and even his life. These were the visions of George Washington. As the years went by because of George Washington, the United States and Great Britain were able to settle their differences peacefully. In doing so they followed the precedent of arbitration established in Jay’s Treaty and they demonstrated to the world one way of avoiding wars. 5
An important Federalist figure during the early days of the American republic, John Jay was also a close political ally of George Washington.
Formally titled the "Treaty of Amity Commerce and Navigation between His Britannic Majesty and the United States of America," but more popularly known as the Jay Treaty, the document was officially ratified by President George Washington in August 1795. Debates about the treaty caused Washington to establish a firm protocol concerning the constitutional treaty-making process. His response to the public uproar over the treaty also helped define the executive's role in shaping public sentiment.
By spring of 1794, America appeared to be on the brink of war with England. Citizens claimed that the British government resisted opening its ports to American ships, interfered with neutral shipping rights to fight its war with France, and violated sections of the 1783 Treaty of Peace that ended the American Revolution. Amid clamors from Federalists and Republicans that ranged from negotiations, defense measures, and commercial non-intercourse, President Washington chose to nominate Supreme Court Chief Justice John Jay as a special envoy to negotiate disputes between the two nations. Jay's "mission," announced Washington, demonstrated to the world America's "reluctance to hostility." 1
The treaty Jay negotiated with British Foreign Secretary William Wyndham Grenville, favored England's economic and military power. Jay realized that America had few bargaining options and signed an agreement on November 19, 1794. A delay of nearly four months occurred before Washington received a copy. When the treaty arrived on March 7, 1795, Congress had adjourned, and speculative newspapers' essays began to agitate the public.
However, terms of the treaty remained secret while the Senate convened in a special session on June 8, 1795. Few members liked the contents of the treaty, but most objected particularly to Article XII, which limited commercial access to the British West Indies solely to ships of seventy tons or less. The Senate narrowly approved the treaty, subject to a suspension of Article XII and a renegotiation of that section. According to Edmund Randolph, Washington's Secretary of State, a "qualified ratification" was a new development in diplomatic history. 2 However, Washington concluded that partial approval implied final consent.
An unauthorized copy of the treaty appeared in the Aurora General Advertiser, a Republican newspaper, on June 29. A swirl of largely negative public reaction to the treaty followed. Riots and public bonfires of the British flag, the treaty, and effigies of Jay took place. Essayists fired their opinions in the public newspapers. City and county residents sent their opinions to Washington.
The President described reactions to the treaty as being similar to "that against a mad-dog . . . every one. . .seems engaged in running it down." Washington urged Alexander Hamilton and Federalist supporters of the treaty to spread their views nationwide and counteract the "poison" of its opponents. 3 Washington preferred solicited advice from knowledgeable men, rather than dictates from groups with no constitutional authority. His response to the petition of the Boston Selectmen and similar letters repeatedly stressed the executive's constitutional prerogative in the treaty-making process.
Another complication arose in July 1795, when reports surfaced that the British government approved a new Order in Council concerning neutral vessels that carried provisions bound for French-controlled ports. In mid-August, Washington ratified the Jay Treaty unconditionally amid concern about the impact of protest efforts, how the French might take advantage of such negative reaction, and news of Randolph's possible intrigue with the French government. Washington did not consider the treaty "favorable," but believed ratification far better than "unsettled" conditions. 4
Anti-treaty protests continued into 1796, including an effort by the House of Representatives to force Washington to submit documents that related to the treaty. Washington refused and insisted that the House possessed no constitutional authority to determine treaties. Public sentiment gradually began to praise Washington for his leadership during the crisis. In May 1796, Washington expressed the hope that his ratification of the Jay Treaty would provide America with peace and the time to become a prosperous and powerful nation. 5
Carol Ebel, Ph.D.
Assistant Editor, The Papers of George Washington
Jeanne and David Heidler, authors of Washington's Circle, discuss the historical significance of the Jay Treaty.
1. The Papers of George Washington, Presidential Series, ed. Theodore J. Crackel (Charlottesville: University of Virginia Press, 2009), 15:608.
2. Notes of Edmund Randolph, c. June 25, 1795, George Washington Papers, Library of Congress.
3. "George Washington to Alexander Hamilton, 29 July 1795," Alexander Hamilton Papers, Library of Congress.
4. "George Washington to Edmund Randolph, 22 July 1795," Letter book #30, George Washington Papers, Library of Congress.
5. "George Washington to Charles Carroll, 1 May 1796," The Writings of George Washington (Washington, DC: Government Printing Office, 1931).
Combs, Jerald A. The Jay Treaty: Political Battleground of the Founding Fathers. Berkeley: University of California Press, 1970.
The Papers of George Washington, Presidential Series, Vols. 15 and 16, ed. Theodore J. Crackel. Charlottesville, Va: University of Virginia Press, 2009, 2011.
Elkins, Stanley and Eric McKitrick. The Age of Federalism: The Early American Republic, 1788-1800. New York: Oxford University Press, 1993.
Estes, Todd, "The Art of Presidential Leadership: George Washington and the Jay Treaty." The Virginia Magazine of History and Biography 109 (2001):127-158.
Estes, Todd, The Jay Treaty Debate, Public Opinion, and the Evaluation of Early American Political Culture. Amherst: University of Massachusetts Press, 2006.
Treaty of San Lorenzo/ Pinckney’s Treaty, 1795
Spanish and U.S. negotiators concluded the Treaty of San Lorenzo, also known as Pinckney’s Treaty, on October 27, 1795. The treaty was an important diplomatic success for the United States. It resolved territorial disputes between the two countries and granted American ships the right to free navigation of the Mississippi River as well as duty-free transport through the port of New Orleans, then under Spanish control.
Prior to the treaty, the western and southern borders of the United States had been a source of tension between Spain and the United States. The U.S. border extended to the Mississippi River, but its southern stretch remained in Spanish territory, and Spanish officials, reluctant to encourage U.S. trade and settlement in a strategic frontier area, kept the Mississippi River closed to American shipping. Moreover, both Spain and the United States claimed portions of the present-day states of Alabama and Mississippi, and earlier negotiations to resolve the territorial disputes had broken off inconclusively. The Spanish government maintained several forts in the disputed territories, and could also count on indigenous resistance to U.S. attempts to survey or encroach upon Native American lands. U.S. citizens from the southern states and frontier areas found Spanish policies restrictive, and wanted the U.S. Government to renegotiate its positions.
Prior to 1789, Spanish policy had focused on keeping American trade and settlement in frontier areas to a minimum, and so neither Spanish colonial officials nor policymakers in Madrid were interested in granting the concessions that U.S. negotiators had attempted to obtain earlier. However, Spanish interests changed during the wars of the French Revolution. Spain joined the other European monarchies in war against France in 1793, but by 1794 Spanish forces experienced defeats in the Caribbean and Europe. Spanish King Charles IV, uninterested in managing political affairs, had earlier handed political and diplomatic responsibilities to his prime minister, Manuel de Godoy. Godoy sought to extract Spain from its alliance with its traditional enemy Great Britain, and to restore peace with France. Godoy’s policy was not without risks, as antagonizing the British would put Spanish colonies in the Americas at risk.
While Spanish diplomats sought to shift Spanish alliances, U.S. diplomat John Jay arrived in London to negotiate a treaty with Great Britain. Spanish officials feared that Jay’s negotiations would result in an Anglo-American alliance and an invasion of Spanish possessions in North America. Sensing the need for rapprochement, Godoy sent a request to the U.S. Government for a representative empowered to negotiate a new treaty. President George Washington selected South Carolinian Thomas Pinckney, who had been serving as United States minister to Great Britain.
Pinckney arrived in Spain in June of 1795, and negotiations proceeded swiftly. Spain’s political and military position had weakened under its defeats and war expenses, while population growth in Kentucky and Tennessee, combined with a shortage of European ships to sustain trade with Louisiana, made Spanish officials amenable to a change in restrictive Spanish trade policies. Godoy offered to accept the 31st parallel as the U.S.-Florida border as well as the right to free navigation of the Mississippi, which Americans west of the Appalachians supported enthusiastically. In return, Godoy requested that the United States commit to an alliance with Spain.
Pinckney rejected the alliance, and after further consultation Godoy provided the same offer without the necessity of the alliance. Nevertheless, negotiations came to an impasse as the Spanish continued to insist on their right to require duties for goods passing through Spanish-held New Orleans. Pinckney threatened to leave without signing a treaty unless the Spanish dropped duties on American trade passing through New Orleans. The next day, Godoy agreed to Pinckney’s demands, and the two negotiators signed the treaty on October 27, 1795. The final treaty also voided Spanish guarantees of military support that colonial officials had made to Native Americans in the disputed regions, greatly weakening those communities’ ability to resist encroachment upon their lands.
Combs, Jerald. The Jay Treaty: Political Background of the Founding Fathers. Berkeley and Los Angeles: University of California Press, 1970.
Flexner, James. George Washington: Anguish and Farewell, 1793 – 1799. Boston: Little, Brown, 1972.
Freeman, Douglas Southall. George Washington, A Biography, completed by J.A. Carroll and M.W. Ashworth. 7 vols. New York: Augustus M. Kelley, 1948 – 1957. Abridgement by Richard Harwell, New York: Scribner's Sons, 1968.
Reuter, Frank. Trials and Triumphs: George Washington's Foreign Policy. Fort Worth: Texas Christian University Press, 1983.
Early Republic U.S. Foreign Policy Unit
Too bad the treaty did not do much to help us. The British ignored it and they kept doing things that not only stopped American trading, but made us lose money. Impressment is when someone catches someone else and makes them work as sailors. Not only did the British block trade for the U.S., they also took our ships and kept our sailors. America was a new independent country, but Britain would not treat it as such.
After the treaty was signed, the U.S. believed they'd be able to set out into the world and make money through trade, building up their economy. Free trade is when someone is allowed to trade with other countries without any restrictions like taxes or tariffs. Even though they had agreed to give America this right, the British changed their minds because it wasn't to their benefit. They wanted to make as much money as they could by selling all of their goods to America. They also wanted to tax American goods they were buying. They also wanted to steal our soldiers and our ships. It's no wonder the U.S. became fed up.
Lucky for us, a chance to put all of this to an end came along. Great Britain got into a war with France, and they both needed money. Seeing a chance to change everything, Thomas Jefferson signed the Embargo Act of 1807. An embargo is when selling goods from one country becomes against the law. By not sending any more goods to Britain, they would have to stop taking our ships and to lift all blocks. Or so we hoped. Something much different happened.
After JM’s amendment to Livingston’s motion was lost, the House resumed its discussion of the same, with Giles (Virginia) referring it to a Committee of the Whole for more extended debate. This continued on 9 and 10 March ( Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols. Washington, 1834–56). description ends , 4th Cong., 1st sess., 438, 441–87).
Mr. Madison said that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.
On some points there could be no difference of opinion and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people: that the Constitution, as the expression of their will, is the guide & the rule, to the Government that the distribution of powers made by the Constitution, ought to be sacredly observed by the respective Departments: that the House of Representatives ought to be equally careful to avoid encroachments on the authority given to other departments, and to guard their own authority against encroachments from the other departments: These principles are as evident as they are vital & essential to our political system.
The true question, therefore, before the Committee, was not, whether the will of the people expressed in the Constitution was to be obeyed but how that will was to be understood in what manner it had actually divided the powers delegated to the Government and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit & object.
On comparing the several passages in the Constitution, which had been already cited to the Committee, it appeared, that if taken literally and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money &c &c, are first specifically vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution, and the laws of the U. States made in pursuance thereof, and Treaties made or to be made under the authority of the U. States shall be the supreme law of the land: and the judges, in every State, shall be bound thereby, any thing in the Constitution or laws of any State, to the contrary notwithstanding.
The term supreme , as applied to Treaties evidently meant a supremacy over the State Constitutions and laws, and not over the Constitution & laws of the U. States. And it was observable that the Judicial authority & the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States or to laws requisite to be passed by the States, for giving effect to Treaties and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the States.
It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the Constitution, that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy & fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.
He stated the five following, as all the constructions worthy of notice, that had either been contended for, or were likely to occur.
I. The Treaty-power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.
II. As concurrent powers relating to the same objects and operating like the power of Congress, & the power of the State Legislatures, in relation to taxes on the same articles.
III As each of them supreme over the other, as it may be the last exercised like the different assemblies of the people, under the Roman Government, in the form of Centuries, & in the form of Tribes.
IV The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the Committee, as both unlimited in its objects, and compleatly paramount in its authority.
V. The Congressional power may be viewed as co-operative with the Treaty-power, on the Legislative subjects submitted to Congress by the Constitution in the manner explained by the member from Pennsylvania (Mr. Galatin)1 and exemplified in the British Government.
The objection to the First construction is, that it would narrow too much the Treaty-power, to exclude from Treaties altogether, the enumerated subjects submitted to the power of Congress some or other of this class of regulations being generally comprized in the important compacts which take place between nations.
The objection to the Second is, that a concurrent exercise of the Treaty, & Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the Constitution presumed that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power & the power of Congress. A Treaty of commerce for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.
To the Third , the objection was equally fatal that it involved the absurdity of an Imperium in imperio of two powers both of them supreme, yet each of them liable to be superseded by the other. There was indeed an instance of this kind found in the Government of Ancient Rome, where the two Authorities of the Comitia Curiata, or meetings by Centuries and the Comitia tributa or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other: For altho the people composed the body of the meetings in both cases, yet as they voted in one according to wealth, and in the other according to numbers, the organizations were so distinct as to create in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other Country.
The Fourth construction is that which is contended for by the opponents of the proposition depending and which gives to the Treaty-power all the latitude which is not necessarily prohibited by a regard to the general form & fundamental principles of the Constitution.
In order to smooth the way for this doctrine, it had been Said,2 that the power to make treaties was laid down in the most indefinite terms & that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have: for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration that a foreign nation agrees to pass a like act, or on any other consideration.
It must be objected to this construction therefore that it extends the Power of the President & Senate too far, and cramps the powers of Congress too much.
He did not admit, that the term “Treaty” had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a Technical term, and its meaning was to be sought for in the use of it, particularly in Governments which bore most analogy to our own. In absolute Governments, where the whole power of the Nation is usurped by the Government, and all the Departments of power are united in the same person, the Treaty power has no bounds, because the power of the Sovereign to execute it has none. In limited Governments, the case is different. The Treaty power, if undefined is not understood to be unlimited. In Great Britain it is positively restrained on the subjects of money, and dismembering the Empire. Nor could the Executive there, if his recollection was right, make an Alien a subject by means of a Treaty.
But the question immediately under consideration, and which the context & spirit of the Constitution must decide, turned on the extent of the Treaty-power in relation to the objects specifically & expressly submitted to the Legislative power of Congress .
It was an important, & appeared to him to be a decisive view of the subject, that if the Treaty-power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, borrow, and appropriate money, &c. If by Treaty therefore, as paramount to the Legislative power, the President & Senate can regulate Trade they can also declare war they can raise armies to carry on war and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution, and must share the same fate. A member from Connecticut (Mr. Griswold)3 had admitted that the power of war, was exclusively vested in Congress but he had not attempted, nor did it seem possible, to draw any line between that, & the other enumerated powers. If any line could be drawn, it ought to be presented to the Committee and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed: and therefore should submit to the serious consideration of the Committee, that although the Constitution had carefully & jealously lodged the power of war, of armies, of the purse &c. in Congress, of which the immediate representatives of the people, formed an integral part yet, according to the construction maintained on the other side, The President & Senate by means of a Treaty of alliance with a nation at war, might make the United States parties in the war: they might stipulate subsidies, and even borrow money to pay them: they might furnish Troops, to be carried to Europe, Asia or Africa: they might even undertake to keep up a standing army in time of peace, for the purpose of co-operating, on given contingences, with an Ally, for mutual safety or other common objects. Under this aspect, the Treaty power would be tremendous indeed.
The force of this reasoning is not obviated by saying that the P. & Senate would only pledge the public faith & that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be as is alledged, a constitutional one if Congress have no will but to obey, & if to disobey be Treason & rebellion against the Constituted Authorities. Under a constitutional Obligation, with such sanctions to it, Congress, in case the P. & S. should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact it had been said that they must obey the injunctions of a Treaty as implicitly as a subordinate officer in the Executive line was bound to obey the chief Magistrate or as the Judges are bound, to decide according to the laws.
As a further objection to the doctrine contended for, he called the attention of the Committee to another very serious consequence from it. The specific powers, as vested in Congress by the Constitution, are qualified by sundry exceptions deemed of great importance to the safe exercise of them. These restrictions are contained in §IX of the Constitution, and in the articles of amendment which have been added to it. Thus “the migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress .” He referred to several of the other restrictive paragraphs which followed, particularly the 5th. which says that no tax shall be laid on exports, & no preference given to ports of one State over those of another &c. It was Congress also he observed which was to make no law respecting an establishment of Religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, &c &c. Now if the legislative powers specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers, could be no limitation or check to the Treaty power.
Returning to the powers particularly lodged in Congress, he took notice of those relating to war & money, or the sword & the purse as requiring a few additional observations, in order to shew that the Treaty power could not be paramount over them.
It was well known that with respect to the regulation of Commerce, it had long remained under the jurisdiction of the States and that in the establishment of the present Government the question was, whether & how far it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged & exercised as a branch of the General Authority, essential to the public safety. The only question therefore that could arise, was whether the power should be lodged in this or in that Department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive Department with a view, no doubt, to guard it against the abuses which might be apprehended from placing the power of declaring war, in those hands which would conduct it when declared, and which therefore in the ordinary course of things would be most tempted to go into war. But according to the doctrine now maintained, the United States, by means of an Alliance with a foreign power, might be driven into a State of war, by the President & Senate, contrary both to the sense of the Legislature, & to the letter & spirit of the Constitution.
On the subject also of appropriating money, particularly to a military establishment, the provision of the Constitution demanded the most severe attention. To prevent the continuance of a Military force for a longer term than might be indispensable, it is expressly declared that no appropriation for the support of armies shall be made for more than two years: so that at the end of every two years, the question whether a military force ought to be continued or not, must be open for consideration, and can be decided in the negative by either the House of Representatives, or the Senate’s refusing to concur in the requisite appropriations. This is a most important check & security agst. the danger of standing armies, & against the prosecution of a war beyond its rational objects and the efficacy of the precaution is the greater, as at the end of every two years, a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Represents. have no right to deliberate on appropriations pledged by the President & Senate, and cannot refuse them, without a breach of the Constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if at the expiration of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, & two appropriations for two years each, the second of which the two Houses would be constitutionally obliged to make.
It had been said that in all cases a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general he denied that it could be applicable to the case in question. By the provision of the Constitution limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it, must be necessarily repealed, before an appropriation could be witheld, it would be in the power of either Branch to keep up an establishment by refusing to concur in a repeal. The construction and reasoning therefore opposed to the rights of the House, would evidently defeat an essential provision of the Constitution.
The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these, formed the State Governments, the other the Federal Government. The powers of the Government had been further divided into three great Departments and the Legislative department again subdivided into two independent branches. Around each of these portions of power, were seen also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit & controul the Treaty-making power, rather than towards one that would make it omnipotent.
He came next to the Fifth Construction which left with the President & Senate the power of making Treaties, but required at the same time the Legislative sanction & co-operation, in those cases where the Constitution had given express & specific powers to the Legislature. It was to be presumed that in all such cases, the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstance of the existence of the Treaty. Still, however, this House in its Legislative capacity, must exercise its reason it must deliberate for deliberation is implied in Legislation. If it must , carry all Treaties into effect, it would no longer exercise a legislative power: it would be the mere instrument of the will of another Department, and would have no will of its own. Where the Constitution contains a specific & peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the Departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one Department of Government interferes with a power expressly vested in another and no where expressly taken away. Here the latter power must be exercised according to its nature and if it be a Legislative power, it must be exercised with that deliberation & discretion which is essential to the nature of Legislative power.
It was said yesterday that a Treaty was paramount to all other Acts of Government, because all power resided in the people, and the President & Senate, in making a Treaty, being the Constitutional organs of the people for that purpose, a Treaty when made was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the President & Senate can be in making Treaties and laws, when made are as much the acts of the people, as any acts whatever can be.
It had been objected, that the Treaty-power would be in fact frustrated, if Treaties were to depend in any degree on the Legislature. He thought there was no such danger. The several powers vested in the several Departments form but one Government and the will of the nation may be expressed thro’ one Government, operating under certain checks, on the subject of Treaties, as well as under other checks on other subjects. The objection would have weight if the voluntary cooperation of the different States was to be obtained.
Another objection was that no Treaty could be made at all, if the agency of Congress were to concur, because Congress could not Treat, and their Agency would not be of a Treaty nature. He would not stop to enquire how far a loan of money from a foreign Government, under a law of Congress, was or was not of the nature of a public Contract or Treaty. It was more proper to observe, that the practice in G. Britain was an evidence that a Legislative Agency did not viciate a Treaty. Nay, if the Objection were solid, it was evident that the Treaty lately entered into with that Nation, could never be binding on this because, it had been laid before the Parliament for its Legislative agency as necessary to effectuate the Treaty and if that agency was to viciate & destroy the nature of the Treaty on that side, the obligation, on the principle of all contracts, would be dissolved on both sides.
He did not see the utility in this case of urging, as had been done, a particular distrust of the House of Representatives. He thought the President & Senate would be as likely to make a bad Treaty, as this Branch of the Government would be to throw obstructions in the way of a good one, after it was made.
No construction he said might be perfectly free from difficulties. That which he had espoused, was subject to the least as it gave signification to every part of the Constitution, was most consistent with its general spirit, and was most likely in practice to promote the great object of it, the public good. The construction which made the Treaty power in a manner omnipotent he thought utterly inadmissible, in a Constitution marked throughout with limitations & checks.
He should not at present he said, enter any further into the subject. It had been brought before the House rather earlier than he had expected or than was perhaps necessary and his observations therefore might not have been as full or as well digested, as they ought to have [been] such as they were he submitted them to the candid attention of the Committee.4
Ms (PHi ). Undated. In JM’s hand and headed by him: “Substance of Mr. M’s observations.” At a later time the Ms was bound and a title page, written on the verso of an 1851 deed, was added: “Report of a Speech delivered in the U.S. House of Representatives on Jay’s Treaty by James Madison.” In two places, someone has crossed through words written by JM in the left margin and added the same words at the right margin. The Ms was probably written out for publication in the manner of JM’s speeches of 14, 30, and 31 Jan. 1794 (see 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 , 15:155–56) and appeared in Benjamin Franklin Bache’s Debates in the House of Representatives , 1:69–77. Earlier versions of JM’s speech were reported in Claypoole’s Am. Daily Advertiser , 12 Mar. 1796, Philadelphia Gazette , 12 Mar. 1796, Aurora General Advertiser , 15 and 16 Mar. 1796, and Gazette of the U.S. , 17 Mar. 1796. Variations between JM’s Ms and the reported versions have not been noted.
1 . For Gallatin’s speech of 9 Mar., see Jefferson to JM, 27 Mar. 1796, and n. 1.
2 . JM here interlined and then crossed through: “by a gentleman from Connecticut (Mr. Smith) who had made his observations with great [ illegible ] & force.”
3 . See Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols. Washington, 1834–56). description ends , 4th Cong., 1st sess., 475–82.
4 . After JM had spoken, discussion of Livingston’s motion continued on 11, 14, 15, 16, 17, 18, 21, 22, and 23 Mar. By 24 Mar. the debate seemed to have been exhausted and the Committee of the Whole was ready to rise. JM spoke briefly on behalf of taking the question, and Livingston’s motion finally passed the Committee of the Whole by 61 to 38. The motion then passed the full House by 62 to 37, with JM voting in the majority (ibid., 495–500, 500–530, 530–56, 556–84, 584–609, 609–26, 626–42, 642–54, 654–76, 676–703, 703–60 Gazette of the U.S. , 25 Mar. 1796).
Jay`s Treaty - History
The Jay Treaty. Treaty of Amity, Commerce, and Navigation, signed at London November 19, 1794, with additional article Original in English. Submitted to the Senate June 8, Resolution of advice and consent, on condition, June 24, 1795. Ratified by the United States August 14, 1795. Ratified by Great Britain October 28, 1795. Ratifications exchanged at London October 28, 1795. Proclaimed February 29, 1796.
Treaty of Amity Commerce and Navigation, between His Britannick Majesty and The United States of America, by Their President, with the advice and consent of Their Senate.
His Britannick Majesty and the United States of America, being desirous by a Treaty of Amity, Commerce and Navigation to terminate their Differences in such a manner, as without reference to the Merits of Their respective Complaints and Pretensions, may be the best calculated to produce mutual satisfaction and good understanding: And also to regulate the Commerce and Navigation between Their respective Countries, Territories and People, in such a manner as to render the same reciprocally beneficial and satisfactory They have respectively named their Plenipotentiaries, and given them Full powers to treat of, and conclude, the said Treaty, that is to say His Brittanick Majesty has named for His Plenipotentiary, The Right Honourable William Wyndham Baron Grenville of Wotton, One of His Majesty's Privy Council, and His Majesty's Principal Secretary of State for Foreign Affairs and The President of the said United States, by and with the advice and Consent of the Senate thereof, hath appointed for Their Plenipotentiary The Honourable John Jay, Chief Justice of the said United States and Their Envoy Extraordinary to His Majesty, who have agreed on, and concluded the following Articles
There shall be a firm inviolable and universal Peace, and a true and sincere Friendship between His Britannick Majesty, His Heirs and Successors, and the United States of America and between their respective Countries, Territories, Cities, Towns and People of every Degree, without Exception of Persons or Places.
His Majesty will withdraw all His Troops and Garrisons from all Posts and Places within the Boundary Lines assigned by the Treaty of Peace to the United States. This Evacuation shall take place on or before the first Day of June One thousand seven hundred and ninety six, and all the proper Measures shall in the interval be taken by concert between the Government of the United States, and His Majesty's Governor General in America, for settling the previous arrangements which may be necessary respecting the delivery of the said Posts: The United States in the mean Time at Their discretion extending their settlements to any part within the said boundary line, except within the precincts or Jurisdiction of any of the said Posts. All Settlers and Traders, within the Precincts or Jurisdiction of the said Posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their Effects and it shall also be free to them to sell their Lands, Houses, or Effects, or to retain the property thereof, at their discretion such of them as shall continue to reside within the said Boundary Lines shall not be compelled to become Citizens of the United States, or to take any Oath of allegiance to the Government thereof, but they shall be at full liberty so to do, if they think proper, and they shall make and declare their Election within one year after the Evacuation aforesaid. And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining Subjects of His Britannick Majesty, shall be considered as having elected to become Citizens of the United States.
It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this Article does not extend to the admission of Vessels of the United States into the Sea Ports, Harbours, Bays, or Creeks of His Majesty's said Territories nor into such parts of the Rivers in His Majesty's said Territories as are between the mouth thereof, and the highest Port of Entry from the Sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any Frauds in this respect. Nor to the admission of British vessels from the Sea into the Rivers of the United States, beyond the highest Ports of Entry for Foreign Vessels from the Sea. The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.
All Goods and Merchandize whose Importation into His Majesty's said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty's Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty's Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid
No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians. No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.
As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein.
Whereas it is uncertain whether the River Mississippi extends so far to the Northward as to be intersected by a Line to be drawn due West from the Lake of the woods in the manner mentioned in the Treaty of Peace between His Majesty and the United States, it is agreed, that measures shall be taken in Concert between His Majesty's Government in America, and the Government of the United States, for making a joint Survey of the said River, from one Degree of Latitude below the falls of St Anthony to the principal Source or Sources of the said River, and also of the parts adjacent thereto, And that if on the result of such Survey it should appear that the said River would not be intersected by such a Line as is above mentioned The two Parties will thereupon proceed by amicable negotiation to regulate the Boundary Line in that quarter as well as all other Points to be adjusted between the said Parties, according to Justice and mutual Convenience, and in Conformity, to the Intent of the said Treaty.
Whereas doubts have arisen what River was truly intended under the name of the River st Croix mentioned in the said Treaty of Peace and forming a part of the boundary therein described, that question shall be referred to the final Decision of Commissioners to be appointed in the following Manner-Viz-
One Commissioner shall be named by His Majesty, and one by the President of the United States, by and with the advice and Consent of the Senate thereof, and the said two Commissioners shall agree on the choice of a third, or, if they cannot so agree, They shall each propose one Person, and of the two names so proposed one shall be drawn by Lot, in the presence of the two original Commissioners. And the three Commissioners so appointed shall be Sworn impartially to examine and decide the said question according to such Evidence as shall respectively be laid before Them on the part of the British Government and of the United States. The said Commissioners shall meet at Halifax and shall have power to adjourn to such other place or places as they shall think fit. They shall have power to appoint a Secretary, and to employ such Surveyors or other Persons as they shall judge necessary. The said Commissioners shall by a Declaration under their Hands and Seals, decide what River is the River St Croix intended by the Treaty.
The said Declaration shall contain a description of the said River, and shall particularize the Latitude and Longitude of its mouth and of its Source. Duplicates of this Declaration ant of the State meets of their Accounts, and of the Journal of their proceedings, shall be delivered by them to the Agent of His Majesty, and to the Agent of the United States, who may be respectively appointed and authorized to manage the business on behalf of the respective Governments. And both parties agree to consider such decision as final and conclusive, so as that the same shall never thereafter be called into question, or made the subject of dispute or difference between them.
Whereas it is alledged by divers British Merchants and others His Majesty's Subjects, that Debts to a considerable amount which were bona fide contracted before the Peace, still remain owing to them by Citizens or Inhabitants of the United States, and that by the operation of various lawful Impediments since the Peace, not only the full recovery of the said Debts has been delayed, but also the Value and Security thereof, have been in several instances impaired and lessened, so that by the ordinary course of Judicial proceedings the British Creditors, cannot now obtain and actually have and receive full and adequate Compensation for the losses and damages which they have thereby sustained: It is agreed that in all such Cases where full Compensation for such losses and damages cannot, for whatever reason, be actually obtained had and received by the said Creditors in the ordinary course of Justice, The United States will make full and complete Compensation for the same to the said Creditors But it is distinctly understood, that this provision is to extend to such losses only, as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such Insolvency of the Debtors or other Causes as would equally have operated to produce such loss, if the said impediments had not existed, nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the Claimant.
For the purpose of ascertaining the amount of any such losses and damages, Five Commissioners shall be appointed and authorized to meet and act in manner following-viz- Two of them shall be appointed by His Majesty, Two of them by the President of the United States by and with the advice and consent of the Senate thereof, and the fifth, by the unanimous voice of the other Four and if they should not agree in such Choice, then the Commissioners named by the two parties shall respectively propose one person, and of the two names so proposed, one shall be drawn by Lot in the presence of the Four Original Commissioners. When the Five Commissioners thus appointed shall first meet, they shall before they proceed to act respectively, take the following Oath or Affirmation in the presence of each other, which Oath or Affirmation, being so taken, and duly attested, shall be entered on the Record of their Proceedings, -viz.- I. A: B: One of the Commissioners appointed in pursuance of the 6th Article of the Treaty of Amity, Commerce and Navigation between His Britannick Majesty and The United States of America, do solemnly swear (or affirm) that I will honestly, diligently, impartially, and carefully examine, and to the best of my Judgement, according to Justice and Equity decide all such Complaints, as under the said Article shall be preferred to the said Commissioners: and that I will forbear to act as a Commissioner in any Case in which I may be personally interested.
Three of the said Commissioners shall constitute a Board, and shall have power to do any act appertaining to the said Commission, provided that one of the Commissioners named on each side, and the Fifth Commissioner shall be present, and all decisions shall be made by the Majority of the Voices of the Commissioners then present. Eighteen Months from the Day on which the said Commissioners shall form a Board, and be ready to proceed to Business are assigned for receiving Complaints and applications, but they are nevertheless authorized in any particular Cases in which it shall appear to them to be reasonable and just to extend the said Term of Eighteen Months, for any term not exceeding Six Months after the expiration thereof. The said Commissioners shall first meet at Philadelphia, but they shall have power to adjourn from Place to Place as they shall see Cause.
The said Commissioners in examining the Complaints and applications so preferred to them, are impowered and required in pursuance of the true intent and meaning of this article to take into their Consideration all claims whether of principal or interest, or balances of principal and interest, and to determine the same respectively according to the merits of the several Cases, due regard being had to all the Circumstances thereof, and as Equity and Justice shall appear to them to require. And the said Commissioners shall have power to examine all such Persons as shall come before them on Oath or Affirmation touching the premises and also to receive in Evidence according as they may think most consistent with Equity and Justice all written positions, or Books or Papers, or Copies or Extracts thereof. Every such Deposition, Book or Paper or Copy or Extract being duly authenticated either according to the legal Forms now respectively existing in the two Countries, or in such other manner as the said Commissioners shall see cause to require or allow.
The award of the said Commissioners or of any three of them as aforesaid shall in all Cases be final and conclusive both as to the Justice of the Claim, and to the amount of the Sum to be paid to the Creditor or Claimant. And the United States undertake to cause the Sum so awarded to be paid in Specie to such Creditor or Claimant without deduction and at such Time or Times, and at such Place or Places, as shall be awarded by the said Commissioners, and on Condition of such Releases or assignments to be given by the Creditor or Claimant as by the said Commissioners may be directed Provided always that no such payment shall be fixed by the said Commissioners to take place sooner then twelve months from the Day of the Exchange of the Ratifications of this Treaty.
Whereas Complaints have been made by divers Merchants and others, Citizens of the United States, that during the course of the War in which His Majesty is now engaged they have sustained considerable losses and damage by reason of irregular or illegal Captures or Condemnations of their vessels and other property under Colour of authority or Commissions from His Majesty, and that from various Circumstances belonging to the said Cases adequate Compensation for the losses and damages so sustained cannot now be actually obtained, had and received by the ordinary Course of Judicial proceedings It is agreed that in all such Cases where adequate Compensation cannot for whatever reason be now actually obtained, had and received by the said Merchants and others in the ordinary course of Justice, full and Complete Compensation for the same will be made by the British Government to the said Complainants. But it is distinctly understood, that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the Claimant. That for the purpose of ascertaining the amount of any such losses and damages Five Commissioners shall be appointed and authorized to act in London exactly in the manner directed with respect to those mentioned in the preceding Article, and after having taken the same Oath or Affirmation (mutatis mutandis). The same term of Eighteen Months is also assigned for the reception of Claims, and they are in like manner authorised to extend the same in particular Cases. They shall receive Testimony, Books, Papers and Evidence in the same latitude, and exercise the like discretion, and powers respecting that subject, and shall decide the Claims in question, according to the merits of the several Cases, and to Justice Equity and the Laws of Nations. The award of the said Commissioners or any such three of them as aforesaid, shall in all Cases be final and conclusive both as to the Justice of the Claim and the amount of the Sum to be paid to the Claimant and His Britannick Majesty undertakes to cause the same to be paid to such Claimant in Specie, without any Deduction, at such place or places, and at such Time or Times as shall be awarded by the said Commissioners and on Condition of such releases or assignments to be given by the Claimant, as by the said Commissioners may be directed. And whereas certain merchants and others, His Majesty's Subjects, complain that in the course of the war they have sustained Loss and Damage by reason of the Capture of their Vessels and Merchandize taken within the Limits and Jurisdiction of the States, and brought into the Ports of the same, or taken by Vessels originally armed in Ports of the said States:
It is agreed that in all such cases where Restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond dated at Philadelphia September 5th 1793. A Copy of which is annexed to this Treaty, the Complaints of the parties shall be, and hereby are referred to the Commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other Cases committed to them, and the United States undertake to pay to the Complainants or Claimants in specie without deduction the amount of such Sums as shall be awarded to them respectively by the said Commissioners and at the times and places which in such awards shall be specified, and on Condition of such Releases or assignments to be given by the Claimants as in the said awards may be directed: And it is further agreed that not only to be now existing Cases of both descriptions, but also all such as shall exist at the Time, of exchanging the Ratifications of this Treaty shall be considered as being within the provisions intent and meaning of this article.
It is further agreed that the Commissioners mentioned in this and in the two preceding articles shall be respectively paid in such manner, as shall be agreed between the two parties, such agreement being to be settled at the Time of the exchange of the Ratifications of this Treaty. And all other Expences attending the said Commissions shall be defrayed jointly by the Two Parties, the same being previously ascertained and allowed by the Majority of the Commissioners. And in the case of Death, Sickness or necessary absence, the place of every such Commissioner respectively, shall be supplied in the same manner as such Commissioner was first appointed, and the new Commissioners shall take the same Oath, or Affirmation, and do the same Duties.
It is agreed, that British Subjects who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty, shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein, and may grant Sell or Devise the same 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, be and the legal remedies incident thereto, be regarded as Aliens.
Neither the Debts due from Individuals of the one Nation, to Individuals of the other, nor shares nor monies, which they may have in the public Funds, or in the public or private Banks shall ever, in any Event of war, or national differences, be sequestered, or confiscated, it being unjust and impolitick that Debts and Engagements contracted and made by Individuals having confidence in each other, and in their respective Governments, should ever be destroyed or impaired by national authority, on account of national Differences and Discontents.
It is agreed between His Majesty and the United States of America, that there shall be a reciprocal and entirely perfect Liberty of Navigation and Commerce, between their respective People, in the manner, under the Limitations, and on the Conditions specified in the following Articles.
His Majesty Consents that it shall and may be lawful, during the time hereinafter Limited, for the Citizens of the United States, to carry to any of His Majesty's Islands and Ports in the West Indies from the United States in their own Vessels, not being above the burthen of Seventy Tons, any Goods or Merchandizes, being of the Growth, Manufacture, or Produce of the said States, which it is, or may be lawful to carry to the said Islands or Ports from the said States in British Vessels, and that the said American Vessels shall be subject there to no other or higher Tonnage Duties or Charges, than shall be payable by British Vessels, in the Ports of the United States and that the Cargoes of the said American Vessels, shall be subject there to no other or higher Duties or Charges, than shall be payable on the like Articles, if imported there from the said States in British vessels. And His Majesty also consents that it shall be lawful for the said American Citizens to purchase, load and carry away, in their said vessels to the United States from the said Islands and Ports, all such articles being of the Growth, Manufacture or Produce of the said Islands, as may now by Law be carried from thence to the said States in British Vessels, and subject only to the same Duties and Charges on Exportation to which British Vessels and their Cargoes are or shall be subject in similar circumstances.
Provided always that the said American vessels do carry and land their Cargoes in the United States only, it being expressly agreed and declared that during the Continuance of this article, the United States will prohibit and restrain the carrying any Melasses, Sugar, Coffee, Cocoa or Cotton in American vessels, either from His Majesty's Islands or from the United States, to any part of the World, except the United States, reasonable Sea Stores excepted. Provided also, that it shall and may be lawful during the same period for British vessels to import from the said Islands into the United States, and to export from the United States to the said Islands, all Articles whatever being of the Growth, Produce or Manufacture of the said Islands, or of the United States respectively, which now may, by the Laws of the said States, be so imported and exported. And that the Cargoes of the said British vessels, shall be subject to no other or higher Duties or Charges, than shall be payable on the same articles if so imported or exported in American Vessels.
It is agreed that this Article, and every Matter and Thing therein contained, shall continue to be in Force, during the Continuance of the war in which His Majesty is now engaged and also for Two years from and after the Day of the signature of the Preliminary or other Articles of Peace by which the same may be terminated
And it is further agreed that at the expiration of the said Term, the Two Contracting Parties will endeavour further to regulate their Commerce in this respect, according to the situation in which His Majesty may then find Himself with respect to the West Indies, and with a view to such Arrangements, as may best conduce to the mutual advantage and extension of Commerce. And the said Parties 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. But in the mean time their Conduct towards each other in these respects, shall be regulated by the articles hereinafter inserted on those subjects.
His Majesty consents that the Vessels belonging to the Citizens of the United States of America, shall be admitted and Hospitably received in all the Sea Ports and Harbours of the British Territories in the East Indies: and that the Citizens of the said United States, may freely carry on a Trade between the said Territories and the said United States, in all articles of which the Importation or Exportation respectively to or from the said Territories, shall not be entirely prohibited Provided only, that it shall not be lawful for them in any time of War between the British Government, and any other Power or State whatever, to export from the said Territories without the special Permission of the British Government there, any Military Stores, or Naval Stores, or Rice. The Citizens of the United States shall pay for their Vessels when admitted into the said Ports, no other or higher Tonnage Duty than shall be payable on British Vessels when admitted into the Ports of the United States. And they shall pay no other or higher Duties or Charges on the importation or exportation of the Cargoes of the said Vessels, than shall be payable on the same articles when imported or exported in British Vessels. But it is expressly agreed, that the Vessels of the United States shall not carry any of the articles exported by them from the said British Territories to any Port or Place, except to some Port or Place in America, where the same shall be unladen, and such Regulations shall be adopted by both Parties, as shall from time to time be found necessary to enforce the due and faithful! observance of this Stipulation: It is also understood that the permission granted by this article is not to extend to allow the Vessels of the United States to carry on any part of the Coasting Trade of the said British Territories, but Vessels going with their original Cargoes, or part thereof, from one port of discharge to another, are not to be considered as carrying on the Coasting Trade. Neither is this Article to be construed to allow the Citizens of the said States to settle or reside within the said Territories, or to go into the interior parts thereof, without the permission of the British Government established there and if any transgression should be attempted against the Regulations of the British Government in this respect, the observance of the same shall and may be enforced against the Citizens of America in the same manner as against British Subjects, or others transgressing the same rule. And the Citizens of the United States, whenever they arrive in any Port or Harbour in the said Territories, or if they should be permitted in manner aforesaid, to go to any other place therein, shall always be subject to the Laws, Government and Jurisdiction, of what nature, established in such Harbour, Port or Place according as the same may be: The Citizens of the United States, may also touch for refreshment, at the Island of st Helena, but subject in all respects to such regulations, as the British Government may from time to time establish there.
There shall be between all the Dominions of His Majesty in Europe, and the Territories of the United States, a reciprocal and perfect liberty of Commerce and Navigation. The people and Inhabitants of the Two Countries respectively, shall have liberty, freely and securely, and without hindrance and molestation, to come with their Ships and Cargoes to the Lands, Countries, Cities, Ports Places and Rivers within the Dominions and Territories aforesaid, to enter into the same, to resort there, and to remain and reside there, without any limitation of Time: also to hire and possess, Houses and ware houses for the purposes of their Commerce and generally the Merchants and Traders on each side, shall enjoy the most complete protection and Security for their Commerce but subject always, as to what respects this article, to the Laws and Statutes of the Two Countries respectively.
It is agreed, that no other or higher Duties shall be paid by the Ships or Merchandize of the one Party in the Ports of the other, than such as are paid by the like vessels or Merchandize of all other Nations. Nor shall any other or higher Duty be imposed in one Country on the importation of any articles, the growth, produce, or manufacture of the other, than are or shall be payable on the importation of the like articles being of the growth, produce or manufacture of any other Foreign Country. Nor shall any prohibition be imposed, on the exportation or importation of any articles to or from the Territories of the Two Parties respectively which shall not equally extend to all other Nations.
But the British Government reserves to itself the right of imposing on American Vessels entering into the British Ports in Europe a Tonnage Duty, equal to that which shall be payable by British Vessels in the Ports of America: And also such Duty as may be adequate to countervail the difference of Duty now payable on the importation of European and Asiatic Goods when imported into the United States in British or in American Vessels.
The Two Parties agree to treat for the more exact equalization of the Duties on the respective Navigation of their Subjects and People in such manner as may be most beneficial to the two Countries. The arrangements for this purpose shall be made at the same time with those mentioned at the Conclusion of the 12th Article of this Treaty, and are to be considered as a part thereof. In the interval it is agreed, that the United States will not impose any new or additional Tonnage Duties on British Vessels, nor increase the now subsisting difference between the Duties payable on the importation of any articles in British or in American Vessels.
It shall be free for the Two Contracting Parties respectively, to appoint Consuls for the protection of Trade, to reside in the Dominions and Territories aforesaid and the said Consuls shall enjoy those Liberties and Rights which belong to them by reason of their Function. But before any Consul shall act as such, he shall be in the usual forms approved and admitted by the party to whom he is sent, and it is hereby declared to be lawful and proper, that in case of illegal or improper Conduct towards the Laws or Government, a Consul may either be punished according to Law, if the Laws will reach the Case, or be dismissed or even sent back, the offended Government assigning to the other, Their reasons for the same.
Either of the Parties may except from the residence of Consuls such particular Places, as such party shall judge proper to be so excepted.
It is agreed that, in all Cases where Vessels shall be captured or detained on just suspicion of having on board Enemy's property or of carrying to the Enemy, any of the articles which are Contraband of war The said Vessel shall be brought to the nearest or most convenient Port, and if any property of an Enemy, should be found on board such Vessel, that part only which belongs to the Enemy shall be made prize, and the Vessel shall be at liberty to proceed with the remainder without any Impediment. And it is agreed that all proper measures shall be taken to prevent delay, in deciding the Cases of Ships or Cargoes so brought in for adjudication, and in the payment or recovery of any Indemnification adjudged or agreed to be paid to the masters or owners of such Ships.
In order to regulate what is in future to be esteemed Contraband of war, it is agreed that under the said Denomination shall be comprized all Arms and Implements serving for the purposes of war by Land or Sea such as Cannon, Muskets, Mortars, Petards, Bombs, Grenades Carcasses, Saucisses, Carriages for Cannon, Musket rests, Bandoliers, Gunpowder, Match, Saltpetre, Ball, Pikes, Swords, Headpieces Cuirasses Halberts Lances Javelins, Horsefurniture, Holsters, Belts and, generally all other Implements of war, as also Timber for Ship building, Tar or Rosin, Copper in Sheets, Sails, Hemp, and Cordage, and generally whatever may serve directly to the equipment of Vessels, unwrought Iron and Fir planks only excepted, and all the above articles are hereby declared to be just objects of Confiscation, whenever they are attempted to be carried to an Enemy.
And Whereas the difficulty of agreeing on the precise Cases in which alone Provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed that whenever any such articles so becoming Contraband according to the existing Laws of Nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified and the Captors, or in their default the Government under whose authority they act, shall pay to the Masters or Owners of such Vessels the full value of all such Articles, with a reasonable mercantile Profit thereon, together with the Freight, and also the Demurrage incident to such Detension.
And Whereas it frequently happens that vessels sail for a Port or Place belonging to an Enemy, without knowing that the same is either besieged, blockaded or invested It is agreed, that every Vessel so circumstanced may be turned away from such Port or Place, but she shall not be detained, nor her Cargo, if not Contraband, be confiscated unless after notice she shall again attempt to enter but She shall be permitted to go to any other Port or Place She may think proper: Nor shall any vessel or Goods of either party, that may have entered into such Port or Place before the same was besieged, block aced or invested by the other, and be found therein after the reduction or surrender of such place, be liable to confiscation, but shall be restored to the Owners or proprietors thereof.
And that more abundant Care may be taken for the security of the respective Subjects and Citizens of the Contracting Parties, and to prevent their suffering Injuries by the Men of war, or Privateers of either Party, all Commanders of Ships of war and Privateers and all others the said Subjects and Citizens shall forbear doing any Damage to those of the other party, or committing any Outrage against them, and if they act to the contrary, they shall be punished, and shall also be bound in their Persons and Estates to make satisfaction and reparation for all Damages, and the interest thereof, of whatever nature the said Damages may be.
For this cause all Commanders of Privateers before they receive their Commissions shall hereafter be obliged to give before a Competent Judge, sufficient security by at least Two responsible Sureties, who have no interest in the said Privateer, each of whom, together with the said Commander, shall be jointly and severally bound in the Sum of Fifteen hundred pounds Sterling, or if such Ships be provided with above One hundred and fifty Seamen or Soldiers, in the Sum of Three thousand pounds sterling, to satisfy all Damages and Injuries, which the said Privateer or her Officers or Men, or any of them may do or commit during their Cruize contrary to the tenor of this Treaty, or to the Laws and Instructions for regulating their Conduct and further that in all Cases of Aggressions the said Commissions shall be revoked and annulled.
It is also agreed that whenever a Judge of a Court of Admiralty of either of the Parties, shall pronounce sentence against any Vessel or Goods or Property belonging to the Subjects or Citizens of the other Party a formal and duly authenticated Copy of all the proceedings in the Cause, and of the said Sentence, shall if required be delivered to the Commander of the said Vessel, without the smallest delay, he paying all legal Fees and Demands for the same.
It is further agreed that both the said Contracting Parties, shall not only refuse to receive any Pirates into any of their Ports, Havens, or Towns, or permit any of their Inhabitants to receive, protect, harbour conceal or assist them in any manner, but will bring to condign punishment all such Inhabitants as shall be guilty of such Acts or offences.
And all their Ships with the Goods or Merchandizes taken by them and brought into the port of either of the said Parties, shall be seized, as far as they can be discovered and shall be restored to the owners or their Factors or Agents duly deputed and authorized in writing by them (proper Evidence being first given in the Court of Admiralty for proving the property,) even in case such effects should have passed into other hands by Sale, if it be proved that the Buyers knew or had good reason to believe, or suspect that they had been piratically taken.
It is likewise agreed that the Subjects and Citizens of the Two Nations, shall not do any acts of Hostility or Violence against each other, nor accept Commissions or Instructions so to act from any Foreign Prince or State, Enemies to the other party, nor shall the Enemies of one of the parties be permitted to invite or endeavour to enlist in their military service any of the Subjects or Citizens of the other party and the Laws against all such Offences and Aggressions shall be punctually executed. And if any Subject or Citizen of the said Parties respectively shall accept any Foreign Commission or Letters of Marque for Arming any Vessel to act as a Privateer against the other party, and be taken by the other party, it is hereby declared to be lawful for the said party to treat and punish the said Subject or Citizen, having such Commission or Letters of Marque as a Pirate.
It is expressly stipulated that neither of the said Contracting Parties will order or Authorize any Acts of Reprisal against the other on Complaints of Injuries or Damages until the said party shall first have presented to the other a Statement thereof, verified by competent proof and Evidence, and demanded Justice and Satisfaction, and the same shall either have been refused or unreasonably delayed.
The Ships of war of each of the Contracting Parties, shall at all times be hospitably received in the Ports of the other, their Officers and Crews paying due respect to the Laws and Government of the Country. The officers shall be treated with that respect, which is due to the Commissions which they bear. And if any Insult should be offered to them by any of the Inhabitants, all offenders in this respect shall be punished as Disturbers of the Peace and Amity between the Two Countries.
And His Majesty consents, that in case an American Vessel should by stress of weather, Danger from Enemies, or other misfortune be reduced to the necessity of seeking Shelter in any of His Majesty's Ports, into which such Vessel could not in ordinary cases claim to be admitted She shall on manifesting that necessity to the satisfaction of the Government of the place, be hospitably received, and be permitted to refit, and to purchase at the market price, such necessaries as she may stand in need of, conformably to such Orders and regulations as the Government of the place, having respect to the circumstances of each case shall prescribe. She shall not be allowed to break bulk or unload her Cargo, unless the same shall be bona fide necessary to her being refitted. Nor shall be permitted to sell any part of her Cargo, unless so much only as may be necessary to defray her expences, and then not without the express permission of the Government of the place. Nor shall she be obliged to pay any Duties whatever, except only on such Articles, as she may be permitted to sell for the purpose aforesaid.
It shall not be lawful for any Foreign Privateers (not being Subjects or Citizens of either of the said Parties) who have Commissions from any other Prince or State in Enmity with either Nation, to arm their Ships in the Ports of either of the said Parties, nor to sell what they have taken, nor in any other manner to exchange the same, nor shall they be allowed to purchase more provisions than shall be necessary for their going to the nearest Port of that Prince or State from whom they obtained their Commissions.
It shall be lawful for the Ships of war and Privateers belonging to the said Parties respectively to carry whithersoever they please the Ships and Goods taken from their Enemies without being obliged to pay any Fee to the Officers of the Admiralty, or to any Judges what ever nor shall the said Prizes when they arrive at, and enter the Ports of the said Parties be detained or seized, neither shall the Searchers or other Officers of those Places visit such Prizes (except for the purpose of preventing the Carrying of any part of the Cargo thereof on Shore in any manner contrary to the established Laws of Revenue, Navigation or Commerce) nor shall such Officers take Cognizance of the Validity of such Prizes but they shall be at liberty to hoist Sail, and depart as speedily as may be, and carry their said Prizes to the place mentioned in their Commissions or Patents, which the Commanders of the said Ships of war or Privateers shall be obliged to shew. No Shelter or Refuge shall be given in their Ports to such as have made a Prize upon the Subjects or Citizens of either of the said Parties but if forced by stress of weather or the Dangers of the Sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. 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.
Neither of the said parties shall permit the Ships or Goods belonging to the Subjects or Citizens of the other to be taken within Cannon Shot of the Coast, nor in any of the Bays, Ports or Rivers of their Territories by Ships of war, or others having Commission from any Prince, Republic or State whatever. But in case it should so happen, the party whose Territorial Rights shall thus have been violated, shall use his utmost endeavours to obtain from the offending Party, full and ample satisfaction for the Vessel or Vessels so taken, whether the same be Vessels of war or Merchant Vessels.
If at any Time a Rupture should take place (which God forbid) between His Majesty and the United States, the Merchants and others of each of the Two Nations, residing in the Dominions of the other, shall have the privilege of remaining and continuing their Trade so long as they behave peaceably and commit no offence against the Laws, and in case their Conduct should render them suspected, and the respective Governments should think proper to order them to remove, the term of Twelve Months from the publication of the order shall be allowed them for that purpose to remove with their Families, Effects and Property, but this Favor shall not be extended to those who shall act contrary to the established Laws, and for greater certainty it is declared that such Rupture shall not be deemed to exist while negotiations for accommodating Differences shall be depending nor until the respective Ambassadors or Ministers, if such there shall be, shall be recalled, or sent home on account of such differences, and not on account of personal misconduct according to the nature and degrees of which both parties retain their Rights, either to request the recall or immediately to send home the Ambassador or Minister of the other and that without prejudice to their mutual Friendship and good understanding.
It is further agreed that His Majesty and the United States on mutual Requisitions by them respectively or by their respective Ministers or Officers authorized to make the same will deliver up to Justice, all Persons who being charged with Murder or Forgery committed within the Jurisdiction of either, shall seek an Asylum within any of the Countries of the other, Provided that this shall only be done on such Evidence of Criminality as according to the Laws of the Place, where the Fugitive or Person so charged shall be found, would justify his apprehension and commitment for Tryal, if the offence had there been committed. The Expence of such apprehension and Delivery shall be borne and defrayed by those who make the Requisition and receive the Fugitive.
It is agreed that the first Ten Articles of this Treaty shall be permanent and that the subsequent Articles except the Twelfth shall be limited in their duration to Twelve years to be computed from the Day on which the Ratifications of this Treaty shall be exchanged, but subject to this Condition that whereas the said Twelfth Article will expire by the Limitation therein contained at the End of two years from the signing of the Preliminary or other Articles of Peace, which shall terminate the present War, in which His Majesty is engaged It is agreed that proper Measures shall by Concert be taken for bringing the subject of that article into amicable Treaty and Discussion so early before the Expiration of the said Term, as that new Arrangements on that head may by that Time be perfected and ready to take place. But if it should unfortunately happen that His Majesty and the United States should not be able to agree on such new Arrangements, in that case, all the Articles of this Treaty except the first Ten shall then cease and expire together.
Lastly. This Treaty when the same shall have been ratified by His Majesty, and by The President of the United States, by and with the advice and Consent of Their Senate, and the respective Ratifications mutually exchanged, shall be binding and obligatory on His Majesty and on the said States, and shall be by Them respectively executed and observed with punctuality, and the most sincere regard to good Faith. And Whereas it will be expedient in order the better to facilitate Intercourse and obviate Difficulties that other Articles be proposed and added to this Treaty, which Articles from want of time and other circumstances cannot now be perfected It is agreed that the said Parties will from Time to Time readily treat of and concerning such Articles, and will sincerely endeavour so to form them, as that they may conduce to mutual convenience, and tend to promote mutual Satisfaction and Friendship and that the said Articles after having been duly ratified, shall be added to, and make a part of this Treaty.
In Faith whereof We the Undersigned, Ministers Plenipotentiary of His Majesty The King of Great Britain and the United States of America, have signed this present Treaty, and have caused to be affixed thereto, the Seal of Our Arms.
Done at London, this Nineteenth Day of November, One thousand seven hundred and ninety Four.