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The Treaty of Amity, Commerce, and 
 
 Navigation between Great Britain 
 
 and the United States 
 
 THE JAMES BRYCE HISTORICAL PRIZE ESSAY 
 FOR 1906 
 
 BY 
 
 ROBERT R. RANKIN 
 
 [Reprinted from the UNIVERSITY OF CALIFORNIA CHRONICLE, Vol. IX, No. 2] 
 
 BERKELEY 
 
 THE UNIVERSITY PRESS 
 1907 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Introduction 1 
 
 Part I. The narrative history of the treaty 4 
 
 Section 1. Conditions rendering negotiations necessary 4 
 
 Section 2. Jay s appointment, departure and journey to 
 
 London 5 
 
 Section 3. London, and the arrangements with Lord Gren- 
 
 ville 9 
 
 Section 4. The negotiations in general and the return of the 
 
 treaty 9 
 
 Section 5. The treaty in America 11 
 
 Part II. The political history of the treaty 14 
 
 Section 1. Causes of the treaty 15 
 
 (a) Desires for a commercial treaty 15 
 
 (ft) Commercial spoliations 17 
 
 (c) Treaty violations 18 
 
 (d) Political agitations 20 
 
 Section 2. The negotiations 21 
 
 (a) The breaking of the treaty of 1783 22 
 
 (6) The slavery question 23 
 
 (c) The question of impressment 24 
 
 (d) Contraband of war 24 
 
 Section 3. The treaty . . 26 
 
 () Article by article 26 
 
 (&) As a whole 34 
 
 Section 4. The treaty in the United States 37 
 
 (a) Advice of the Senate 38 
 
 (6) Katffication by the President 40 
 
 (c) Appropriation by the House of Eepresentatives 41 
 
 (d) Attitude of the people 45 
 
 Opposition 45 
 
 Defense 49 
 
 Section 5. The treaty in Great Britain 51 
 
 3 J 
 
PAGE 
 
 Part III. Results of the treaty 53 
 
 Section 1. The execution of articles providing for 
 
 (a) Evacuation of forts 54 
 
 (&) Relations with Indians 54 
 
 (c) Fixing of boundaries 54 
 
 (d) Payment of debts 57 
 
 Section 2. Questions of constitutional and international law 59 
 
 Section 3. Commercial interests 61 
 
 Section 4. Foreign relations 65 
 
 (a) Spain 65 
 
 (6 ) France 65 
 
 Section 5. Influence of slavery interests 67 
 
 Conclusion 69 
 
 Appendices 70 
 
 Bibliography 88 
 
 Bibliography for the Map 96 
 
 Map 97 
 
THE TREATY OF AMITY, COMMERCE, AND 
 
 NAVIGATION BETWEEN GREAT BRITAIN 
 
 AND THE UNITED STATES. 1 
 
 EGBERT B. EANKIN. 
 
 Taken singly, the year 1794 contains the period of 
 greatest peril to the American union and its international 
 relations which the annals of this country have yet recorded. 
 Only eleven years had passed since the treaty of peace was 
 signed, closing a vital revolutionary war which had drained 
 the resources of the colonies to their utmost. During the 
 intervening period of those eleven years one government 
 had been established which had proved so inadequate in two 
 of its branches that it was laid aside, leaving only hesitancy 
 and doubt of a union for the new government to meet. The 
 constitution of this new government had been in force but 
 five years and had by no means convinced the people that 
 it was qualified to administer to their diverse interests. It 
 certainly did not embody the unqualified ideas for govern 
 ment of any one man, or of a state, or of a national party, 
 and in so far as it failed in this, so far was it carefully 
 watched by the statesmen who had formed it. 
 
 Such were the internal conditions. Abroad a bitter war 
 existed between England and France and with these two 
 countries our international relations were primarily con 
 nected. With England, the mother country, there had been 
 1 Bryce Historical Prize Essay, 1906. 
 
76 
 
 a recent war, and since independence had been granted, her 
 attitude had been haughty and overbearing. France had 
 been the staunch ally of the American colonies during the 
 period of the Revolution and now expected reciprocal aid 
 and attention. Racial pride and national interests de 
 manded an amicable relation with Great Britain ; sympathy 
 and national gratitude demanded every attention in behalf 
 of France. President Washington in his appreciation of 
 these conditions aptly described them : 2 To sum the whole 
 up in a few words : I have never, since I have been in the 
 administration of the government, seen a crisis which, in 
 my judgment, has been so pregnant with interesting events, 
 nor one from which more is to be apprehended. 
 
 Of all the policies which presented themselves to this 
 government but one met with national approval. That was : 
 The United States can not remain uninterested and obliv 
 ious to the opportunities now presented; it must take some 
 definite stand and maintain it. What this policy should be 
 was the vital question in the crisis of the administration. 
 
 As a solution of this question and as one of the interest 
 ing events from which much was apprehended the adminis 
 tration decided upon negotiations with England through its 
 envoy extraordinary, John Jay. 
 
 But for the success of this envoy at the British court in 
 London, the early history of this government would have to 
 be rewritten. As is shown in the following pages, war, in 
 all likelihood, would have resulted, and for war "the United 
 States was never more unprepared. A conservative state 
 ment maintains that the independence which the colonies 
 had so lately won would have suffered greatly. It is hardly 
 less conservative to say that independence would have suf 
 fered irredeemably. 
 
 It is with these negotiations that this essay has to deal, 
 and a word as to its sources and method of development 
 
 2 Washington, Writings, Vol. XI, p. 48. Cf. Gibbs, Memories 
 of Wolcott, > Vol. I, p. 327. 
 
3] 77 
 
 might be in keeping with a better understanding of the 
 subject. 
 
 In regard to sources, this essay has been unusually for 
 tunate in having a large field of original material. The 
 greatest contributors to this field have been the American 
 State Papers, Foreign Relations, containing all the original 
 documents relative to the negotiations, and the Annals of 
 Congress, containing all the speeches which embody the 
 views of this as well as foreign countries. Besides these, 
 there is a great amount of indispensible material which is 
 minor only in the quantity, not quality, which it contrib 
 utes. In this class are noted the diaries, letters, speeches, 
 and writings of contemporary statesmen who rank among 
 the greatest which this or any other country has had the 
 fortune to possess. George Washington, Alexander Hamil 
 ton, and James Madison might head this list. Upon such 
 primary sources is the evidence in this essay based. All 
 interests contained herein have been taken from first-hand 
 materials and the great amount of secondary works ap 
 pended have been used only in cross reference and most 
 genera] considerations. There has been much subsequent 
 periodical literature which is of such slight importance as 
 hardly to merit attention. However, one exception must be 
 made to the general condemnation of periodicals, and that 
 is in favor of the contemporary newspapers published at 
 Philadelphia, The American Daily Advertiser and the 
 Aurora. \ 
 
 In regard to the development of this subject, several 
 methods presented themselves. But upon a summary view 
 the material divided itself most naturally into three parts. 
 The first part consists of a chronological and narrative his 
 tory of the events which surround the making of the treaty. 
 The second part contains an exposition of the principles in 
 volved in the negotiations and in the treaty itself. Finally, 
 there appear the subsequent results of these negotiations 
 with an explanation of the objects effected by that docu- 
 
78 [4 
 
 ment. And there are added other interests which resulted 
 from this special mission to England but of which there is 
 absolutely no trace or even suggestion in the articles as 
 finally ratified by the two nations. 
 
 The Treaty of Amity, Commerce, and Navigation be 
 tween Great Britain and the United States, or as it was pop 
 ularly called, Jay s Treaty of 1794, affords a study of the 
 political, commercial, and international interests during the 
 first years of this government. 
 
 I. THE NAEEATIVE HISTOKY OF THE TKEATY. 
 
 History, by its definition of evolutionary processes, is 
 best illustrated in its narration, but its narration in this 
 place may serve an additional purpose that of a general 
 understanding of the most unpopular treaty which the 
 United States ever had the misfortune to contract. 
 
 1. Some of the conditions which led up to this treaty 
 were of long standing. Many of them had existed before 
 the Revolutionary War. Likewise, there were some arising 
 from later reasons. There had been an attempt to settle 
 many points of difference in the treaty of peace in 1783, and 
 the breaking of certain provisions 3 in this treaty was one of 
 the main causes demanding a settlement. The retention of 
 the forts 4 in the northern and western parts of the United 
 States acted as a thorn in the side of the young republic, 
 and another action equally painful was the ruinous com 
 mercial policy which had been adopted and enforced by the 
 British Orders in Council. These had worked special injury 
 in the Admiralty Courts of the West Indies, where hun 
 dreds of ships, particularly from New England, had been 
 seized and condemned for carrying French produce or pro 
 visions to French ports. The impressment of American 
 seamen was another source of irritation. All these direct 
 
 8 Vide Appendix E. 
 * Vide p. 18. 
 
5] 79 
 
 causes were harped upon by the spirit of war on the part of 
 the New England Democrats. The Republicans over the 
 country adopted retaliation in the form of a suspension of 
 all commercial relations with Great Britain. Both policies 
 pointed directly to war, which was a thing to be dreaded in 
 the extreme, owing to our new government and complete 
 lack of preparation for any encounter whatsoever. Against 
 this popular demand for war, which was voiced in many 
 assemblies and made them scorn British relations and re 
 joice in French victories, there was another party which 
 realized what war would mean for the United States under 
 existing conditions. This party adopted the policy of peace 
 ful negotiations. At the head of this conservative party 
 stood President Washington. To his clear insight and 
 statesman-like conduct more is due than to any one man of 
 his time. Of his conduct more will be said hereafter, but 
 at present let the words of the British chronicler suffice: 
 "Happily for that country (America) and Great Britain 
 itself, General Washington still presided over American 
 councils." 5 The policy of peace could be assured only by 
 immediate negotiations to relieve the tension upon strained 
 national relations. The United States had but recently en 
 joyed the honor of receiving an embassador from Great 
 Britain. Mr. Hammond was a man whom Fisher Ames 
 properly estimated as lacking in prudence and moderation. 6 
 Our own minister at London, Mr. Pinckney, was a man of 
 prejudices and strongly pro-Gallician, although, as Wash 
 ington declared, his confidence in him remained undimin- 
 ished. 7 
 
 2. Conditions demanded a special envoy, and Washing 
 ton reasoned that such a representative would serve more 
 properly to impress upon the minds of the British admin 
 istrators the seriousness and dignity of the occasion, and to 
 insure the British Government that the executive of the 
 
 5 Annual Eegister, 1794, p. 148. 
 
 8 Vide " Works." Letter to C. Gore, March 5, 1794. 
 
 7 Message to Senate, April 16, 1794. 
 
80 [6 
 
 United States intended if possible to maintain neutrality. 8 
 With an eye to this purpose, his choice first rested upon 
 Alexander Hamilton, whose work had shown him a man of 
 no mean ability. But Hamilton had many and some bitter 
 enemies, and Washington was warned by Monroe that a 
 treaty satisfactory in most respects would find opposition on 
 the prejudiced grounds that it was Hamilton s work. Ham 
 ilton was deeply grieved at being laid aside, but proposed 
 the name of John Jay to Washington, who immediately as 
 sented. The appointment was laid before the Senate on 
 the 19th of April, 1794, and three days of stormy debate 
 followed before the Senate confirmed the nomination. The 
 final vote stood eighteen in favor and eight against, with 
 Aaron Burr and James Monroe of Virginia at the head of 
 the opposition. Jay was holding Circuit Court at Phila 
 delphia when his nomination was confirmed, so no time was 
 lost in notifying him of his appointment. That he saw the 
 difficulties before him can not be doubted. He writes : "I 
 will go, foreseeing the consequences to my personal popu 
 larity. * * * The good of my country I believe de 
 mands the sacrifice and I am ready to make it. 9 He writes 
 to his wife upon the 15th of April, 1794, that his dilemma 
 lay between personal and public considerations. On the 19th 
 he writes in further explanation: No appointment ever 
 operated more unpleasantly upon me, but the public con 
 siderations which were urged, and the manner in which it 
 was pressed, strongly impress me with the conviction that 
 to refuse it would be to desert my duty for the sake of my 
 ease and domestic concerns and comforts." 10 His personal 
 disinclination was not without foundation, for no portion 
 of his career has been subject to more unsparing criticism 
 than that on which he was about to enter. 
 
 The spirit of the country was not so much in opposition 
 to Jay or a treaty which he might negotiate as it was to any 
 
 8 Message to Senate, April 16, 1794. 
 
 9 Johnston s Life and Correspondence of John Jay, Vol. IV. 
 
 10 Johnston s Life and Correspondence of John Jay, Vol. IV. 
 
7] 81 
 
 treaty with Great Britain. This spirit found expression in 
 many ways and some of these were in personal attacks upon 
 the envoy-elect. This popular spirit is amply illustrated in 
 a motion passed in the House of Representatives two days 
 after Jay s appointment. This motion was a prohibition 
 upon importation of produce of British growth or manufac 
 ture after date. The very apparent purpose was to render 
 Jay s mission nugatory. This motion passed the House and 
 was only stopped in the Senate by the casting vote of the 
 Vice-President. However, Washington in all probability 
 would have vetoed it. 
 
 Jay accepted his appointment to England without vacat 
 ing his office as Chief Justice of the United States, although 
 he never afterwards occupied that position. This was, how 
 ever, one of the great objections to his appointment, raised 
 by the party in opposition. It is indeed difficult to answer, 
 for only imperative necessity and a lack of occupation for 
 the Court would authorize this infringement upon the inde 
 pendence of the judiciary. A second objection was to the 
 monarchial principles which he is said to have entertained. 
 But when this country was debating on whether to receive 
 a minister from the French Republic or a regent from the 
 monarchy of France, Jay promptly decided to receive no 
 regent from a monarchy unless it was one de facto. A third 
 objection was his indifference to the navigation rights of 
 the Mississippi ; a fourth, his attachment for England ; and 
 a fifth, his aversion to France. The latter, in the light 
 of subsequent events, seems to have been more properly 
 grounded. A sixth objection was a purely political one with 
 no international interest. It is best explained in the con 
 flicting views of the north and south. Mr. Adams expressed 
 the sentiments of the north when he wrote that if Jay suc 
 ceeded in his undertaking it would be a strong recommen 
 dation for the Presidency. This was what the southern 
 states feared as being most directly in opposition to their 
 hopes of placing Thomas Jefferson in the Presidential chair. 
 
82 [8 
 
 Jay realized this sacrifice. He said : "No man could form 
 a treaty with Great Britain, however advantageous it might 
 be to the country, who would not by his agency render him 
 self so unpopular and odious as to blast all hopes of political 
 preference. 
 
 Throughout these early years of our government a con 
 stant conflict will be noticed between what the popular 
 parties desired and the policy of the administration. The 
 nomination of Jay is a point in evidence. Madison wrote 
 to Thomas Jefferson on the llth of May, 1794, stating that 
 this appointment had undergone the animadversion of the 
 press, J11 and that this action together with the measure for 
 a discriminating duty on British tonnage would be a power 
 ful blow upon the popularity of the President. 
 
 The men in power had confidence in John Jay. His 
 qualifications "included an unyielding integrity, a keen 
 sense of justice, an unusually sound judgment, if not bril 
 liant; freedom from prejudice, and a lofty spirit of pride 
 in his country s honor. 12 He also had experience to him 
 perhaps better than any other man was known the entire 
 history of our relations with Great Britain. Contrasted 
 with Hamilton, he possessed more experience, by his work 
 in the negotiations of the treaty of 1783, greater popularity, 
 moderation and freedom from partiality toward either 
 Great Britain or France. Hamilton advocated his appoint 
 ment as "the only man in whose qualifications for success 
 there would be thorough confidence and him whom alone it 
 would be advisable to send. 
 
 Jay departed for England in the ship "Ohio" on the 
 12th of May, 1794. 13 His party consisted of Colonel Trum- 
 bull, who was to act as his Secretary, and his son. Upon 
 his departure Jay addressed about a thousand of his fellow 
 citizens who had collected at the wharf to wish him success 
 in his undertaking. Cheers were given and a salute fired 
 
 11 Madison s Letters and Other Writings, Vol. II. 
 
 12 American Historical Keports, 1901, Vol. I. 
 
 13 American Daily Advertiser, May 14, 1794. 
 
9] 83 
 
 as his vessel passed out of North River. His voyage was 
 made very unpleasant by seasickness, and he was in ill- 
 health when he arrived at Falmouth on June 8, 1794. 
 
 3. The quiet journey across England rested him and 
 he arrived in London June 15; rented his apartments in 
 the Royal Hotel, Pall Mall, and asked for an early inter 
 view with Lord Grenville, the British negotiator. William 
 Wyndham, or Lord Grenville, son of the projector of the 
 Stamp Act, had been appointed by the King because he was 
 a good statesman, well educated, able in ministerial duties, 
 stately in bearing, uncompromising in principle, firm in his 
 convictions, high toned and honorable. Hardly had Jay 
 landed at Falmouth before opposition was started against 
 him in America, first in New York. This was not contrary 
 to his expectations, for he wrote to Washington on Sep 
 tember 13, 1794, "that attempts will be made in America 
 to frustrate this negotiation, I have not the most distant 
 shadow of a doubt. I brought this belief and opinion with 
 me." 14 
 
 Jay presented his letters of credence to His Majesty 
 George III, and the Queen, in politic conformity with Brit 
 ish politeness. This courtesy and good manner was later 
 made a point of special objection by the American oppo 
 sition. His reception was so courteous as to reassure the 
 administrations of both countries. His letters are filled with 
 favorable reports. 15 Without difficulty or delay he entered 
 into negotiations with Lord Grenville, which they agreed, 
 upon Jay s suggestion, were for the most part to be verbal. 
 
 4. Certain maritime and commercial controversies were 
 first taken up, followed by negotiations upon treaty viola 
 tions. From this point the negotiations became more in 
 detail. As a settlement was neared, projected treaties were 
 written up by each and submitted to the other for objections 
 and eliminations. By this process articles which could not 
 
 14 Johnston s "Correspondence and Public Papers on John Jay." 
 Vol. IV. 
 
 "Appendix A (2). 
 
84 [10 
 
 be agreed upon were thrown out and certain modifications 
 in other articles were finally settled upon. Throughout the 
 entire negotiations the utmost harmony prevailed and ex 
 pressions of great respect were exchanged even after Jay 
 had returned to America. Upon Jay s first meeting with 
 Lord Grenville he expressed sentiments very favorable to 
 his character and manner, adding that "if his disposition 
 is hostile he conceals it admirably. Jay s own conduct was 
 outlined by himself in a letter to Kandolph, to acquire "the 
 confidence and esteem of the Government, not by improper 
 compliances, but by that sincerity, candor, truth and pru 
 dence, which in my opinion will always prove to be more 
 wise and effectual than finesse and chicane. 
 
 A reading of the treaty convinces one of the dictatorial 
 attitude assumed by the British Government. This can be 
 accounted for as the result of a treaty with a more powerful 
 nation, by the necessity which Jay felt of forming a treaty 
 of some kind, and by the previous knowledge Grenville had 
 of Jay s character and how best to approach him. The 
 statesmen of that day did not live so much in the light of 
 the public press. Therefore, the little biographical sketch 16 
 of Jay s character, penned by Mr. Elliott, a former Lieu- 
 tenant-Governor of New York, and sent to Grenville by 
 Lord Auckland, was of great use. It was of much greater 
 
 18 This was sent on the 22d of June, 1794, in anticipation of Jay s 
 mission. Its accuracy and the purchase it gave Grenville in approach 
 ing Jay authorizes it in full : I have known Mr. Jay s character in 
 timately from his outset in public life. He was originally under me 
 in adjusting some boundary lines of the Provinces. He has good 
 sense and much information; has great appearance of coolness, and is 
 a patient hearer with a good memory. He argues closely, but is long- 
 winded and self-opinioned. He can bear any opposition to what he 
 advances, provided that regard is shown to his abilities. He may be 
 attacked by good treatment, but will be unforgiving if he thinks him 
 self neglected; he will expect to be looked up to, not merely as an 
 American agent, but as Mr. Jay, who was in Spain, who has been high 
 in office from the beginning. On the whole, they could not have made 
 a better choice, as he certainly has good sense and judgment, both of 
 which must have been mellowed since I saw him ; but almost every man 
 has a weak and assailable quarter, and Mr. Jay s weak side is Mr. 
 Jay." Grenville Correspondences, Vol. II, p. 578. 
 
11] 
 
 85 
 
 value when Mr. Jay had declared his attitude to be one 
 1 rather to accommodate than convict or convince. 
 
 The negotiations finally came to a satisfactory settle 
 ment upon the 19th of November, 1794. The document was 
 signed at St. James Square, where most of the negotiations 
 had been carried on. 
 
 The original and duplicate copies of the treaty were sent 
 by two different packets from London to America. 
 
 They raced across the Atlantic to place the treaty in the 
 hands of the President before Congress adjourned. The 
 first packet to reach the American shore arrived at Norfolk, 
 Virginia, where a special messenger was dispatched and 
 arrived at Philadelphia, mud-bespattered, frost-bitten, and 
 fatigued, on the 7th of March, 1795. Congress had ad 
 journed seven days before. 
 
 5. A special meeting of the Senate was called for June 
 8, 1795, and as soon as a quorum was present debate began 
 upon the treaty. Ratification was advised on June 24. At 
 the beginning of the session a motion was passed that all 
 discussion be kept secret. So the debates were never en 
 tered in the proceedings of the Senate. The fact that 
 neither the discussions nor the treaty was made public 
 aroused the suspicions of the Republicans. People all over 
 the country desired to see the treaty, and when it was with 
 held some of the most vile and violent opposition was com 
 menced before the content of the treaty was even known. 
 The country was divided by party animosities and political 
 questions. The opposition to the treaty, instigated by the 
 tyrannical madness of French influence, gave expressions to 
 feelings which the press of this country has never again 
 ventured upon. 17 It can be described as an importation of 
 that spirit which agitated France. 
 
 This spirit was first directed against that conservative 
 and cautious body, the United States Senate. Upon their 
 advocation of the President s ratification the condemnation 
 
 17 Vide Appendix C. 
 
86 [12 
 
 of that body was exceedingly severe, and all the force of 
 the opposition was turned against the President to suppli 
 cate, persuade, and threaten him into a refusal of its ratifi 
 cation. Washington carefully listened to all the arguments 
 which were brought to bear and after mature consideration 
 signed the treaty as it had been handed to him by the Senate, 
 that is, with the exception of the twelfth article, regarding 
 West India trade. The crisis was reached at the moment 
 of this decision, but minor questions which were involved 
 agitated the public until long after. 
 
 Notwithstanding the admiration and respect in which 
 Washington was held, it can not be supposed that he would 
 escape any of the severe criticism which was given so gener 
 ously by the party in opposition upon any one in favor of 
 the ratification of Jay s treaty. Among unjust criticisms 
 was the suggestion of the impeachment of the national ex 
 ecutive as a remedy for the absolute disrespect of the desires 
 of that party which called itself the people. 
 
 While these party contentions were going on Jay re 
 turned to America, May 28, 1795. He had remained in 
 England because his health would not permit a winter voy 
 age and that he might attend to any matters which should 
 arise from the consideration of the treaty in America. He 
 received a warm welcome from his fellow-citizens, more 
 warmly tendered because of his election two days before his 
 arrival to the governorship of the state of New York. He 
 thereupon resigned the Chief Justiceship in the United 
 States Supreme Court, June 29, 1795. This strange contra 
 diction on the part of the citizens of New York to Jay s 
 national condemnation serves to prove that it was not Jay, 
 personally, but the treaty itself which was so despised. 
 
 It is quite characteristic of the man that in the fierce 
 war of speeches and pamphlets which continued during the 
 period of ratification Jay took absolutely no part. He did 
 not write even an anonymous letter or by word or action 
 influence the President or Senate in a matter whose inter- 
 
13] 87 
 
 ests he had more carefully studied out than any other states 
 man in America. The opposition to the treaty reached its 
 height during the debate in the Senate. It was caused by 
 the untimely publication of the treaty. Notwithstanding 
 all the secrecy which was attempted by the Senate, some one 
 saw a copy which the Senators were given for consideration 
 and later wrote down for publication all he could recall 
 from memory. It was so advertised in the Aurora of Phila 
 delphia. Naturally there were many inaccuracies in the 
 statements, and Stephen Thompson Mason, a strong Re 
 publican from Virginia, determined that the people should 
 not be misled. Contrary to the resolution of the Senate, he 
 sent his copy to Benjamin F. Bache, and on the morning of 
 July 2, 1795, the treaty appeared in full in the American 
 Daily Advertiser. Pamphlets containing the treaty were 
 immediately struck off and packages of these were sent, wet 
 from the press, to every large town in the union. At noon 
 on July 2 they could be bought in New York City and on 
 the 6th of July they were for sale in Boston. Mason s 
 praise was sounded far and wide as a Senator with the in 
 terests of the people at heart. 
 
 The popular opposition to the treaty was strongly re 
 vived when the bill for appropriating necessary funds to 
 put the treaty into execution came before the House of 
 Representatives. The sentiments of the party were: We 
 have appealed to the Senate and President alike to refuse 
 the ratification of this treaty. They have alike ignored the 
 will of the people. Let us now appeal to these men who are 
 our direct representatives and therefore have interests in 
 common with the people; who are not afraid of war with 
 Great Britain, and who are in sympathy with the independ 
 ence seekers of France. The result was the first instance in 
 the history of this country when the discretionary power of 
 the House of Representatives in regard to treaty appropria 
 tions was strongly and enthusiastically maintained by a 
 majority of the House. The precedent here established is 
 left for discussion under constitutional law. 
 
88 [14 
 
 Congress was called for November 3, 1795, and the 
 House reported a quorum for business open the 4th instant. 
 The Senate did not have a quorum until the 19th, when they 
 were jointly addressed by the President. A few minor mat 
 ters were settled and the main topic of the session was taken 
 up an appropriation for the Treaty of Amity, Commerce, 
 and Navigation with Great Britain. Debate upon the treaty 
 began with a motion by Edward Livingston of New York, 
 calling on the President for the instructions to Jay as 
 Envoy Extraordinary. This was passed March 2, 1796. 
 President Washington refused to comply with this request 
 in a document dated March 30, 1796. The debate upon this 
 question continued from March 7 to April 7. Finally the 
 treaty was debated article by article and as a whole, and 
 the congressional records in this particular give some of 
 the best speeches in the history of its congressmen. The 
 appropriation was finally granted in an act passed May 8, 
 1796. The persistent advocates of the treaty had won. 
 Their victory was based upon sound reason and unflinching 
 toil. The last appeal of the opposition, that is, to the senti 
 ments of the House, had failed. To illustrate how bold some 
 of these appeals to sentiment were, on the 4th of January, 
 1796, when the House had met to consider the appropriation 
 for Jay s treaty, a beautiful French flag was presented to 
 the government. It was received with loud acclamation. 
 After the failure of sentiment, the cause and party retired 
 from the field, leaving only its unenviable record for history. 
 
 II. THE POLITICAL HISTOEY OF THE TREATY. 
 
 The political history of the treaty deals with the declar 
 ation and establishment of principles which had either been 
 violated or which were to govern the conduct of the two 
 nations in the future. They are here regarded as first dis 
 cussed and then embodied in an international contract as 
 adopted by the contracting governments. While treaties 
 
15] 
 
 may be formed during the most amicable relations, the 
 treaty of 1794 had, as its great cause, the settlement of 
 differences. 
 
 1. For years a treaty of commerce had been desired 
 with Great Britain. It was felt that for want of it, trade 
 was "manifestly declining" and might be "entirely 
 ruined." 18 Attempts had been constantly made to nego 
 tiate a treaty. The Peace Commission of 1783 was so em 
 powered, but was unsuccessful. Special powers were 
 granted to the American Commission, consisting of Adams, 
 Franklin, and Jay, ten days after the signing of the treaty 
 of peace. Their success was no better than that of the Peace 
 Commission. Power was then granted to John Adams when 
 he was sent as minister to London in 1785, to Governor 
 Morris when he succeeded Adams in 1789, and to Morris 
 successor, Thomas Pinckney, in 1792. An attempt to force 
 England to agree to a treaty was part of a policy of the ex 
 isting administration. This is illustrated by the arguments 
 in all legislative bodies for a more energetic government 
 which would inspire a dread reprisal and by the bills be 
 fore the House* of Representatives in the session of 1794, 
 discriminating between nations having and not having trea 
 ties with this government, by levying heavier duties on those 
 countries not protected by special regulations. 19 On March 
 26, 1794, an embargo was laid against British ships for 
 thirty days, and at the end of that period renewed for an 
 other thirty days. The day following the levying of this 
 embargo, March 27, Mr. Dayton of New Jersey moved to 
 sequester all money due British creditors and use the same 
 as an indemnity for the losses of ship owners. On April 21 
 the Republicans moved to suspend all commercial relations 
 with Great Britain. These were motions which in the par 
 lance of international law are termed "measures short of 
 actual war. 
 
 "Letter of Stephen Higginson, April, 1784. Annual Keport of 
 American Historical Association, 1896, Vol. I. 
 
 18 State Papers, Foreign Eelations, Vol. I, p. 711. Cf. Lalor s 
 Cyclopaedia of Political Science, Vol. II, p. 654. 
 
90 [16 
 
 Therefore, the determination to send a special envoy to 
 England was a bold and decided resolution, fraught with 
 severe reproach and censure, but years later culminating in 
 good. The policy was carried out in the face of strong op 
 position. It was the administration which demanded a 
 treaty with Great Britain. This aggravated the party in 
 sympathy with France, for they recognized the final prohi 
 bition of any closer alliance with that nation. The violence 
 found in the love-frenzy" for the French people and the 
 intemperate language of the Democratic press was assisted 
 by men high in office in the government. The report of 
 Thomas Jefferson, Secretary of State, is a point in evidence. 
 When popular resentment had become excited, Jefferson 
 made a report on the privileges and restrictions of the com 
 merce of the United States in foreign countries. In this 
 pamphlet American relations with Great Britain appeared 
 very unfavorable. The report was biased, the fallacies and 
 falsehoods * * * are sufficient proof that the avowed 
 tendency of the whole report is to recommend a closer con 
 nection with France, and to inculcate the expediency of a 
 direct commercial hostility with Great Britain. 20 Madison 
 in his resolution before the House of Representatives showed 
 the same hostile spirit. It is therefore quite plain that this 
 long standing desire for a treaty did not come from the 
 people. 
 
 There was no reply to the courtesy of sending ministers 
 to England until 1791, when that government was repre 
 sented by Mr. Hammond. Therefore there must have been 
 other reasons besides the desires for a treaty which induced 
 Great Britain to accept the opportunity for negotiations. 
 The instructions 21 to Jay furnish the additional reasons. 
 
 There are two great sets of questions which produced 
 this international contract. First, those questions arising 
 from the war in Europe under which the vexations and 
 
 20 Corbett, "Porcupine Works/ Vol. II, p. 526. 
 21 See Appendix A (1). 
 
17] 91 
 
 spoliations of our commerce may be placed ; second, the in 
 fractions of the Treaty of Peace in 1783. 
 
 Probably no special envoy would have been considered 
 for a commercial convention, but the differences of the two 
 countries upon the water made a special mission to Great 
 Britain possible. 22 The declaration of war by France on 
 February 1, 1793, against England and Holland seriously 
 endangered the prosperity of the United States. A large 
 part of our trade went to France and French colonies, but 
 England patrolled the ocean, boarded our vessels and seized 
 French goods at will. By such conduct Britain injured the 
 commerce of France and prevented other powers from as 
 sisting her. This wholesale search of American vessels was 
 instigated by the Orders of Council commanding British 
 ships to stop all vessels bound for France and take any 
 articles listed for that country. Its effect upon our com 
 merce was as disastrous as the rigid enforcement of the rule 
 of 1756 in regard to the West India trade. This rule for 
 bade a country to carry on in time of war a trade which was 
 interdicted to it in time of peace. After a few years of 
 application it was relaxed, but always in regard to our trade 
 with the British West Indies it was strictly enforced. 
 
 Another cause of the treaty was the impressment of 
 American seamen and their retention in service contrary to 
 their wishes. Great Britain had instituted these measures 
 in an endeavor "to deprive us as far as possible of an active 
 commerce in our own bottoms," 23 since she had grown ap 
 prehensive of the large and increasing carrying power of 
 the United States. America was properly incensed and 
 Congress waxed warm in debates over retaliatory duties, 
 preparations for war and the levying of embargoes. 
 
 But Great Britain enjoyed an immense harvest from her 
 loose relations with America, and this was recognized by all 
 the statesmen who attempted negotiations. 24 Her situation 
 
 22 State Papers, Foreign Eelations, Vol. I, p. 711. 
 
 23 Hamilton, The Federalist, Paper XI. 
 
 24 State Papers, Foreign Kelations, Vol. I, p. 712. 
 
92 [18 
 
 enabled her to abuse our commerce in another way, through 
 her declaration that provisions were contraband of war. 
 Since 1650 military and naval stores had been so recognized 
 in international law, but provisions had been left undecided. 
 Great Britain wished to establish the principle that pro 
 visions were to be so considered unless especially provided 
 for by contracting parties, 25 and her legislation was directed 
 to that end. Jay s treaty came at that unfortunate period 
 when Great Britain wished to establish the contraband char 
 acter of provisions. That nation was therefore extremely 
 hard upon our trade, but showed a proper consideration for 
 that of other countries. 28 
 
 But there were interests on the American continent 
 which also gave rise to the treaty. The New England fishing 
 interests spoke loudly for war as a remedy against the Brit 
 ish invasion of their waters. This complaint was echoed 
 among the ship owners. 
 
 Then there were the violations of the treaty of peace. 
 Matters which had run over and demanded settlement were : 
 First, the debts which were owed by Americans to British 
 creditors at the time of the Revolution, arising principally 
 from confiscated estates. The decisions of the American 
 courts in regard to these debts can not be impeached. They 
 were not paid at the time because the demands were large 
 and the distress for money was extreme. Every available 
 amount of money was put into an extensive foreign com 
 merce. Furthermore, a cloud of war overshadowed the 
 country. Second, compensation for the slaves carried away 
 upon the evacuation of this country by the British troops 
 after the war. Third, the retention of the British forts 27 
 in the northern and northwestern parts of the United States. 
 These British garrisons were a menace to the settlement of 
 
 20 British treaties which illustrate this principle are with France, 
 1667, 1668; Spain, 1713; Denmark, 1782; Kussia, 1804. 
 
 20 Orders so effecting our commerce were issued upon November 6, 
 1793; January 8 and 25, March 18, and August 18, 1794. 
 
 27 Vide Appendix E and Map. Cf. p. 4. 
 
19] 93 
 
 the country around them 28 and to the navigation of the St. 
 Lawrence River and the Great Lakes. In addition to this, 
 President Washington made strong protests to the British 
 King against the purposing of these garrisons to incite the 
 barbarous Indians of the frontiers to massacre the settlers. 29 
 
 The treaty of 1783 is of interest in this connection only 
 in so far as its violations gave rise to Jay s treaty of 1794. 
 These violations have been cited above, yet it would be 
 ignoring an important part of the negotiations, leading up 
 to and including those on the Jay treaty, if no mention was 
 made of the infraction of our first international compact. 
 
 The question as to which country made the first viola 
 tion of the treaty of peace came up when the attempt was 
 made on the part of the British to obtain compensation for 
 the sequestration of debts and on the part of the Americans 
 for the exportation of negroes. A long and complete dis 
 cussion followed between Mr. Hammond and Mr. Jefferson. 
 This is one of the finest dissertations on the principles of 
 international law and relations which have ever been given 
 in the history of foreign affairs. 30 At the end of the discus 
 sion Mr. Hammond found himself greatly outclassed. The 
 argument is of far too great length and of too much detail 
 to be given here. Only a brief summary can be allowed. 
 Jefferson maintained that the first violation consisted in the 
 
 28 Captain Williamson commenced a settlement near Great Soders, 
 N. Y., when he was visited on August 16, 1795, by Governor Simcoe, 
 who left this declaration in behalf of the British Government : "I am 
 commanded to declare that during the inexecution of the treaty of 
 peace between Great Britain and the United States, and until the ex 
 isting differences respecting it shall be mutually and finally adjusted, 
 the taking possession of any part of the Indian territory, either for 
 the purpose of war or sovereignty, is held to be a direct violence of 
 His Majesty s rights, as they unquestionably existed before the treaty, 
 and has an immediate tendency to interrupt, and in its progress to 
 destroy, that good understanding which has hitherto existed between 
 His Britannic Majesty and the United States of America. I therefore 
 require you to desist from any such aggression." Grenville Corre 
 spondence, Vol. Ill, p. 530. 
 
 "Complaint was made of Governor Simcoe and Lord Dorchester. 
 State Papers, Foreign Relations, Vol. I. 
 
 80 State Papers, Foreign Relations, Vol. I. 
 
94 [20 
 
 embarking of the negroes and the retention of the military 
 posts. Hammond argued that the first violation came in 
 regard to the fraudulent procedure against British creditors. 
 
 The solution of the whole matter lay in the fact that 
 there had been violations of the treaty upon both sides. 
 The question as to the priority of the exportation of the 
 negroes or of the confiscation of British debts is one of ex 
 treme difficulty and with which this essay has no concern. 
 However, the government of America, at that time, was 
 under the Articles of Confederation, the weakness of which 
 was perfectly understood by Great Britain. That the Con 
 federate Government did all in its power to comply with 
 the treaty can not be doubted. But there were no courts 
 to interpret that contract and no executive to enforce it. 
 All the central government could do was to recommend, 
 which it did beyond all blame. On the other hand, the 
 British government was fully capable of carrying out its 
 part of the contract, but refrained, perhaps justly, until 
 the Confederate Government would carry out its stipula 
 tions. As soon as a government was formed in America 
 capable of executing a treaty, the treaty of 1794 resulted. 
 
 The final cause of this treaty is not found in any viola 
 tion of contract. It was a protest by a part of the people 
 against a closer alliance with France. It can only be ex 
 plained by the conflict in policy of two political parties. 
 
 Putting aside those who held extreme views, there were 
 two clearly defined parties in the government. One recog 
 nized the commercial dependency of the United States upon 
 Great Britain, felt a racial sympathy with the people of 
 that nation and an admiration for the forms of the British 
 constitution. They were indifferent to the progress of the 
 French Revolution and cast indignant glances upon the 
 blase insolence of the French government. The party held 
 a firm faith that the American people, when recovered from 
 the bitterness of the revolution, would endorse a more affec- 
 
21] 95 
 
 tionate union with the English people than could be main 
 tained with France. Their policy was for a close alliance 
 with England and to deal with the French government in 
 the strictest and narrowest interpretations of the treaty 
 obligations. 
 
 The other party sympathized earnestly and naturally 
 with the French Republic. Trescot vividly describes their 
 attitude : They saw all the horrors of a terrible revolution, 
 but saw them only as the unavoidable convulsions of a dying 
 despotism, so pitied and palliated what they could not jus 
 tify. They regard the conduct of Great Britain as an in 
 solent manifestation of superior force, intended to mortify 
 national pride and injure national interests, and they would 
 gladly have severed all commercial connection with the Eng 
 lish people. So strong was this party that Mr. Pinckney 
 writes : Not only the King but most of his courtiers, and 
 (except the Pole) all the foreign ministers, seem to consider 
 the Americans as united in principle with the French. 31 
 
 The administration had attempted to follow a course be 
 tween these two interests. That policy now threatened great 
 commercial detriment, as did a closer alliance with France. 
 The administration, holding for the British party and for 
 the accomplishment of all that party stood for, desired the 
 treaty. Jay s mission was the first step toward the execu 
 tion of its policy. If it succeeded the French sympathizers 
 knew there would be no closer alliance with the allies of the 
 revolution. It succeeded. 
 
 Out of all the causes which occasioned the treaty each 
 may be placed under one of the following heads : The long 
 standing desire and the legislative measures projective of a 
 commercial treaty; commercial interests arising from the 
 European war; infractions of the treaty of 178?; and na 
 tional political relations. 
 
 2. If the negotiations should succeed in settling the 
 differences which caused the treaty, the avoidance of war 
 
 81 Pinckney s Letter Book, Vol. I, p. 74. 
 
96 [22 
 
 and the attainment of certain commercial privileges would 
 result. But the administrators of the American govern 
 ment realized that the mission could not accomplish all that 
 the instructions to Jay demanded, 32 and in the discussion 
 concerning the making of the treaty the most attention will 
 be paid to the projects which failed, leaving the terms of 
 agreement for a discussion under the treaty, article by 
 article. 
 
 The atmosphere in which the negotiations were carried 
 on was influenced by French jealousies, by the wounded 
 pride of Great Britain at American independence, and by 
 the neglect of American wrongs under the rejoicing and ex 
 citement of victories over the French, particularly to the 
 contemporary defeat of the French fleet by Lord Howe. 
 But the sincerity and candor of the two negotiators led to 
 a degree of mutual confidence which greatly facilitated 
 their labors. A more intimate acquaintance of the negotia 
 tors was permitted by the long delay in negotiations owing 
 to a change in the ministry of England and on account of 
 the foreign war. Until negotiations were finished it was 
 agreed that affairs should remain in statu quo. 
 
 Bj 7 " the last of July, 1794, such a complete understand 
 ing of the wishes of the two countries had been reached in 
 personal meetings that written communications were ex 
 changed. 33 Jay s first communication was relative to the 
 captures and condemnations of American vessels. Gren- 
 ville s reply upon August 1st insured justice, which if not 
 provided for in the courts should be obtained by govern 
 mental regulations. 34 With regard to all differences Jay 
 was constantly supplied with evidence and suggestive infor 
 mation by Secretary of State Randolph. 
 
 Matters progressed smoothly until a dispute arose as to 
 the first breaking of the treaty of 1783. The discussion for 
 the most part was carried on verbally and only the result is 
 
 81 Vide Appendix A. 
 
 M These are giren in full in State Papers, Foreign Eelations, Vol. I. 
 
 84 Article VII of the treaty. 
 
23] 97 
 
 given by Jay, on that point we could reach no agreement. 
 Randolph wrote back immediately, stating such a question 
 should not be passed without some decision, but Jay replied 
 it was impossible to come to any agreement whatever. 
 
 The infraction of the treaty naturally involved the de 
 mands of compensation for the slaves which were taken 
 from the American owners. On this question we have the 
 same brief report of a lack of agreement. Jay was severely 
 criticized upon this point as allowing his personal prejudice 
 against slavery to weaken his ardor in demanding compen 
 sation in behalf of slavery interests. This interest particu 
 larly affected the south, and their loss, which was very 
 heavy, 35 accounts for the bitter antagonism toward Jay and 
 the treaty. 36 The principle upon which they demanded 
 compensation is perfectly clear. 
 
 During the war of the Revolution many slaves took ad 
 vantage of the opportunity to escape from their masters and 
 enter the British lines. By the rules of international law in 
 times of war, they became British property. But Great 
 Britain, by an act of Parliament, had previously abolished 
 all slavery, so these fugitives became free. So far as Amer 
 ican ownership was concerned, they were British property, 
 subject to British rule, and the military officials decided 
 upon the exportation of these negroes in the vessels carrying 
 away the British troops after the war. 
 
 For this purpose a large number of certificates were 
 printed, stamped by the United States Government and 
 issued to those slaves allowed to go free. When the time 
 came for the evacuation of the towns along the coast, these 
 certificates were plentifully distributed by the British offi 
 cials among all the slaves desiring to embark and who were 
 not included under the legal captures of an enemy. When 
 the United States officials inspected the ships they found 
 every slave provided with a legal certificate, and though he 
 
 33 Vide pp. 68-69. 
 "Vide Appendix C (3). 
 
98 [24 
 
 might have been their personal property, lately escaped, 
 they were powerless. 
 
 When an attempt was made to recover from the illegal 
 action of the military officers, Great Britain maintained 
 that the slaves embarked were provided with certificates, a 
 fact to which the United States government officials could 
 testify. Therefore any objection to the exportation of slaves 
 was unjustified. 
 
 In support of this declaration they used the argument 
 that the treaty was "an engagement not to cause any de 
 struction, nor to carry away any property of the American 
 inhabitants, * * * that no alteration in the actual state 
 of property was operated or intended by that article ; that 
 every slave, like every horse, which escaped or strayed from 
 within the American lines, and came into the possession of 
 the British army, became by the laws and rights of war 
 British property ; and therefore ceased to be American 
 property, the exportation thereof was not inhibited by the 
 stipulation in question. The British government was per 
 fectly right in one particular, but this argument does not 
 apply to all the slaves in question. Jay states : We could 
 not agree concerning the negroes. Was that reason to for 
 feit the treaty? 
 
 There were two other causes of the treaty which were 
 lost in the process of negotiations. The impressment of 
 American seamen was stated by Grenville to be contrary to 
 the desire of the King. The complaint was to be looked 
 after. Upon anything further it was impossible for the two 
 countries to agree, and the matter was dropped. Likewise, 
 regarding the Orders of Council, that provisions for French 
 ports should be contraband, no agreement could be reached, 
 but an indemnity for past spoliations was provided for 
 under the seventh article. 
 
 Upon the refusal of Great Britain to satisfy the demands 
 of the American government in the above respects, the equal 
 footing which had been maintained between the two gov- 
 
25] 99 
 
 ernments was lost. At this point the spirit and word of 
 Jay s instructions seem to have been forgotten. This can 
 be entirely accounted for as a result of a treaty between a 
 powerful nation and one seeking favor. 
 
 On August 30, 1794, Grenville transmitted to Jay two 
 projects for a treaty. The first regulated various points in 
 dispute and contained eleven articles. The second estab 
 lished commercial regulations in seven articles. Jay re 
 turned the projects on September 5 with marginal notes 
 and additions. The greatest point of dispute at this time 
 was Jay s demand for a compensation arising from the re 
 tention of the forts in the north. Grenville acknowledged 
 that compensation was due for this violation of the treaty of 
 1783, but maintained that the privilege of trading with the 
 West Indies provided for any claims of that character. The 
 matter was settled by this argument. From a discussion of 
 Grenville s projects and further agreements, Jay prepared 
 a compact which with a few alterations became the docu 
 ment finally signed on the morning of November 19, 1794. 
 
 During the negotiation there was but one letter from 
 Jay which threw any considerable light upon the proceed 
 ings of the negotiations. Correspondence had been limited 
 because of lack of time, the great distance which was not so 
 easily overcome in those days, and the dangers arising from 
 the capture of important letters. The letter which gave the 
 government in America the first hint as to the trend of 
 affairs was very unsatisfactory. It was immediately an 
 swered by Randolph, and the only letter of complaint which 
 might have urged Jay to a more uncompromising policy 
 left America on the 12th of November, much too late to 
 have any influence in the making of the treaty. Randolph s 
 two main objections were that a twelve years treaty with 
 Europe and a two years treaty with the West Indies would 
 probably be very unsatisfactory to the people. Further 
 more, the commercial project of Grenville did not secure 
 the particular privileges and exemptions which this country 
 
100 [26 
 
 enjoyed by proclamation, compared with other foreign na 
 tions. 
 
 Pinckney and Jay believed all had been attained which 
 Great Britain would submit to, and this decision is un 
 doubtedly true. Whatever weaknesses are found in the 
 treaty which grew out of these negotiations must be attrib 
 uted either to the fact that a weak power always treats 
 under disadvantages, or to the over ardent desire of the 
 negotiator for peace, friendship, and good will with Great 
 Britain. 
 
 While these negotiations were going on, the British 
 people, absorbed in their continental war, paid little atten 
 tion to its advancement. In America definite information 
 was demanded to relieve the excitement of the people. Con 
 gress prolonged its session, waiting for information or re 
 sults. Results came the treaty itself. 
 
 3. Jay s instructions were divided upon three great 
 principles, and the treaty in its final form can be properly 
 divided into articles relating to these divisions. 
 
 The first ten articles are permanent and relate to condi 
 tions which were contrary to the stipulations of the treaty 
 of 1783. The remaining articles, excepting the twelfth, are 
 limited in their duration to twelve years, and are divided 
 into those which relate to the commercial difficulties 
 Articles X to XXV, and those relating to citizens and sub 
 jects of the respective countries. The whole treaty con 
 sisted of twenty-eight articles, and with the exception of a 
 very few, each was subjected to criticism and opposition on 
 the one hand and argument and support upon the other. 
 
 Article I as a peace stipulation was objected to by the 
 French and their sympathizers. The title "Treaty of 
 Amity" was severely criticized in the light of wrongs of 
 which the United States had been the subject. 37 
 
 Article II. The British were required to evacuate their 
 forts 38 by the 1st of June, 1796, and unless the settlers de- 
 
 37 For a synopsis of the treaty and subsequent articles relative 
 thereto, Vide Appendix B. 
 
 38 Appendix E. 
 
27] 101 
 
 clared special allegiance to Great Britain, they became citi 
 zens of the United States. 
 
 The objection to this article was : It provided no in 
 demnity for losses caused by the retention of the forts, but 
 established British colonies upon the weak frontier. The 
 evacuation of the posts was considered entirely too late, and 
 in return for British depredations upon American com 
 merce, this government invited them to an equal participa 
 tion in the interior traffic of the United States. The evacu 
 ation of the posts, it is true, was set at a late date, but the 
 purpose of a late evacuation was to insure against violations 
 of the treaty of 1794 such as had been committed against 
 the treaty of peace. 
 
 Some of the posts were very important not only as har 
 bors on the lakes but as trading centers for the inland 
 country. Detroit was the largest of these and had a popu 
 lation of about three thousand souls. 39 
 
 Article III allows the subjects of Great Britain, the 
 citizens of the United States, and the Indians of the terri 
 tories to pass freely from one country to the other. Vessels 
 belonging to the United States are not to be admitted into 
 the ports of His Majesty s said territories, nor British ves 
 sels into rivers of the United States, beyond the highest 
 ports of entry for foreign vessels from the sea. There shall 
 be a regular exchange of goods between inhabitants of both 
 countries. 
 
 Jay considered this one of the most important articles 
 in the treaty. 40 The advantages were not reciprocal, al 
 though very often so considered. The advantages the 
 United States expected were an influence over the Indians 
 and a participation in the fur trade. The first was impeded 
 by the presence of a British population at the military posts 
 and the second was defeated by a monopoly of the fur trade 
 because of the superiority of British capital and the low 
 duties paid on goods imported for that trade into Canada. 
 
 39 Grenville Correspondence, Vol. II, p. 611. 
 
 40 Letters of November 21, 1794. State Papers, Foreign Kelations, 
 
102 [28 
 
 Article IV and V stipulated for boundary lines in the 
 northwest and northeast, but any boundary lines were ob 
 jected to, otherwise than the sea. 
 
 Article VI was highly objectionable. It provided for 
 the payment of debts due the British creditors before the 
 peace of 1783, and was considered to be paying a debt which 
 was never contracted. There was no limit on the amount 
 due, and so was open to every chance of fraud. If there 
 were any debts, said the opposition, they should be remedied 
 by judicial procedure or a compromise between the parties. 
 These objections were not without foundation and several 
 years passed before an explanatory article brought the dis 
 pute to a conclusion. 41 But Jay informed Randolph that 
 this article was a sine qua non* 2 
 
 Article VII, providing for American claims, was ob 
 jected to as not being complete and sufficient, although the 
 results thoroughly discredit such a criticism. It must have 
 been a delicate matter to obtain such a concession from 
 Great Britain, as it practically amounted to an admission 
 that the Orders of Council were in violation of neutrality. 
 The words "irregular" and "illegal" were skillfully 
 adopted to avoid any unnecessary wounds upon British 
 pride. Subsequent events prove this one of the most im 
 portant if not the most important article in the treaty of 
 1794. 
 
 Article VIII provides for the commissions under the 
 sixth and seven articles, and is one of the few against which 
 there was no direct objection. 
 
 Article IX. It is agreed that British subjects holding 
 lands in the United States and Americans holding lands in 
 Great Britain shall continue to possess the same and all 
 rights relating thereto ; that neither subjects or citizens shall 
 be regarded as aliens. 
 
 41 Vide p. 57. 
 
 "Letter of November 19, 1794. State Papers, Foreign Eolations, 
 Vol. I. Vide Appendix A (3). 
 
29] 103 
 
 The article was passed uncensured with the exception of 
 some newspaper abuse. 
 
 Article X stipulates that there shall be no confiscation 
 of debts in case of war between the parties. This was ob 
 jected to on the one hand, because the right of confiscation 
 may contribute to preserve the peace of the country and 
 protect the rights and property of the citizens. On the 
 other hand, it was declared to be an article of extreme com 
 plexity, resembling reciprocity, but in reality containing no 
 reciprocity at all. Great Britain gained all the advantage 
 in that she had larger funds and private interests in the 
 United States than Americans had in England. However 
 that may be, the clause was obviously just, and was, in addi 
 tion, a novelty in international diplomacy and a distinct 
 advancement in civilization. Notwithstanding the advan 
 tage England may have received at the time, the principle 
 here established saved millions for the United States in the 
 war of 1812, when that government was on the creditor list 
 and England upon the debtor. 
 
 This closes the division of permanent articles, from 
 which more was gained than from the temporary stipula 
 tions. This is accounted for by the precedents of the treaty 
 of 1783, upon which the American negotiator could base 
 such claims as the evacuation of the forts, compensation for 
 spoliation of navigation, and the settlement of the boundary 
 line. But in the commercial treaty it was more a matter of 
 what one nation was willing to give and the other to receive. 
 There had been no precedent established by a commercial 
 treaty before this date. 
 
 According to many economic notions of the day, Eng 
 land had little to gain and much to lose by a commercial 
 compact with America. This part of the treaty was limited 
 in duration because of the rapid growth of our commercial 
 interests. 43 Jay wrote to Washington that the commercial 
 part of the treaty was of short duration as things more 
 auspicious to negotiate upon will probably arise. 
 43 Vide Part III, Section 3. 
 
104 [30 
 
 Although the permanent part of the treaty had been 
 subject to severe criticism, it was the commercial articles 
 which excited most hostility. 
 
 Article XI guaranteed perfect liberty of navigation and 
 commerce among people of both countries under the follow 
 ing articles. This was subject to no further criticism than 
 that it led up to the rest of the treaty. 
 
 Article XII, which was to last for two years, pretended 
 to regulate trade between the United States and the West 
 Indies. From first to last, this article met with criticism 
 and opposition. The Senate refused to ratify it, and the 
 subject of the article was left over for future negotiations. 
 As unsatisfactory as the article may have appeared to Jay, 
 his instructions precluded him from making any commercial 
 treaty which did not include the West India trade. If no 
 commercial treaty had been negotiated, then the advantages 
 of the European and East India trade would have been lost. 
 
 The British West India trade had been a source of wealth 
 and power to the colonies. For that reason the Marquis 
 of Buckingham suggested to Lord Grenville that the West 
 India trade should be made a compensation for the reten 
 tion of the posts. 44 The Revolution and English legislation 
 had deprived the colonies of its benefits, and they were 
 anxious to accept the first opportunity to regain it. Be 
 cause of the well known exclusive terms of England s 
 colonial policy, President Washington was sensible of the 
 difficulties which would confront Jay. He therefore in 
 structed Jay to ask for trade in vessels of certain definite 
 burdens. The limit of seventy tons was then imposed upon 
 ships trading with the islands, and such a limitation was 
 criticized by James Madison as a trade in canoes. Jay & 
 idea of the article was: "It breaks the ice that is, it 
 breaks in upon the navigation act." The limitations upon 
 tonnage and ports of trade seemed to the Senate to be an 
 encroachment by Great Britain upon the regulation of 
 American commerce. 
 
 44 Grenville Correspondence, Vol. II, p. 611. 
 
31] 105 
 
 Article XIII provides for the trade with the British 
 territories of the East Indies. This article was said to be 
 worth the whole treaty, but in reality, as American mer 
 chants missed all coast trade and had to come directly to 
 America with their cargoes, the benefits were decidedly lim 
 ited. Keexportation was required before full benefit could 
 be derived, thus hampering our conditions more than they 
 were at first. However, it was a great innovation in Eng 
 land s navigation laws and one she refused in subsequent 
 negotiations. 45 
 
 Articles XIV and XV guarantee reciprocal commerce 
 and navigation between the United States and Great Brit 
 ain. There was no objection to these otherwise than the 
 including of "the most favored nation" clause, which the 
 French party took as a violation of their treaty with the 
 United States. 46 
 
 Article XVI relates to the appointment of consuls for 
 the protection of trade. No objection. 
 
 Article XVII allows the seizure and detention of a vessel 
 with enemies goods. Only such goods could be taken and 
 the vessel allowed to proceed. This was another point at 
 which the French sympathizers took particular offense. The 
 United States trade was particularly strong with France, 
 and it was objected that this article legalized the right of 
 search, which was working such ruin to American commer 
 cial interests. "The treaty so sanctioned a new and inad 
 missible rule of public law. 
 
 Article XVIII enumerates the articles which are contra 
 band of war, and declares that, when provisions are so con 
 sidered, the owner shall be made speedy indemnification. 
 The French party again put in strong objections, especially 
 on the stipulations that provisions may be declared contra 
 band. At this time the principle that provisions could be 
 treated as contraband of war was uniformly denied by the 
 
 41 Vide pp. 65-67. 
 
 49 Vide Part III, Section 4. 
 
106 [32 
 
 American government. It was denied by Jefferson in his 
 letters 47 to Pinckney, and opposed by President Washing 
 ton. 48 It was objected to on the part of the merchants as 
 including more goods in the contraband list than precedent 
 had established. The reason for this obnoxious article is 
 found in the unfortunate time in which the treaty was nego 
 tiated. Great Britain was involved in a war with France 
 and naturally would not admit principles which would im 
 peach the propriety of her conduct in seizing provisions 
 bound for that country. Jay s only remedy for it was that 
 a previous article, Article VII, had secured compensation 
 for seizures, and this precedent might be continued. 
 
 Article XIX provides for the security of respective sub 
 jects and citizens from privateers and men-of-war. No 
 objections. 
 
 Article XX relates to the destruction of pirates. There 
 was no objection stated. 
 
 Article XXI stipulates that the subjects and citizens of 
 the two nations should commit no acts of hostility against 
 each other and should accept no commissions from foreign 
 states or princes to commit hostilities. This was objected to 
 by the American sympathizers with the French Republic. 
 It prohibited them from assisting that nation in its war with 
 Great Britain. The justice in the article appeared only 
 when it was ascertained that such a stipulation was con 
 tained in our treaty with Holland. 
 
 Article XXII prohibited either party from authorizing 
 an act of reprisal against the other on complaint of dam 
 ages until a statement of proof had been presented to the 
 party supposed to commit the injury. This article was op 
 posed by all the enemies of England who were favorable to 
 the policy of sequestration and confiscation. 
 
 Article XXIII relates to the treatment of ships, officers, 
 and crews in the ports of the contracting powers. 
 
 47 Wait, State Papers, Vol. I, pp. 218, 324, 372, 408. 
 
 48 Marshall s "Life of Washington," Vol. V, p. 619. 
 
33] 107 
 
 Article XXIV provides that the privateers of nations at 
 enmity with Great Britain and the United States shall not 
 arm their vessels in the ports of one for hostile purposes 
 against the other, or sell what they have captured from one 
 nation in the ports of the other. 
 
 Article XXV makes it lawful for privateers or ships of 
 war to take such vessels as they have captured into the 
 ports of either party and be there subject to certain rights 
 and privileges. No merchant vessel was to be taken within 
 cannon shot of the coast or full satisfaction was guaranteed. 
 
 Concerning the last three articles there were many ob 
 jections bearing upon the too friendly relations into which 
 they led the United States with Great Britain and upon the 
 facilitation of privateering. This, in the absence of a navy, 
 was argued to be our only defence against Great Britain. 
 After it was shown that these provisos were copies of sim 
 ilar articles in the French compact, the objections were con 
 tinued only by the radicals of the French party. 
 
 Article XXVI. In times of war merchants and citizens 
 of one country are permitted to reside in the territory of 
 the other and continue their trade. No objections. 
 
 Article XXVII provides for the return of all persons 
 fleeing from justice to either country. A great cry was set 
 up against this article as "a cruel stab at the sovereignty 
 of the people" by those fugitives from England and Ire 
 land who, like the colonists in Australia, were outlaws for 
 petty offences, such as poaching, as well as for more serious 
 crimes. This article applied more particularly to murderers 
 and forgers. 
 
 Article XXVIII. The last article provides that the first 
 ten shall be permanent, and the remaining articles, the 
 twelfth excepted, should be limited to twelve years. No 
 objections. This last article was agreed upon as an attempt 
 to overcome the weaknesses of the treaty. Jay wrote to 
 Washington 49 that when the treaty had been in effect some 
 
 49 September 3, 1795, State Papers, Foreign Eelations, Vol. I. Cf. 
 Jay s Correspondence and Public Papers of John Jay, Vol. II. 
 
108 [34 
 
 time defects would appear and further arrangements would 
 be necessary. This article would make allowances for the 
 settlement of questions on impressment and the contraband 
 character of various goods. 
 
 In order to form a just estimate of the treaty with Great 
 Britain, the political state of Europe and America must be 
 kept in mind. 50 Any treaty with England, it was obvious, 
 could be negotiated only at a great disadvantage, but it was 
 unquestionably worth the trial. 
 
 In general, those complaints which were directed against 
 the treaty were most bitter upon what the treaty did not 
 contain rather than on the articles it did. 
 
 The stipulations it did not contain were those upon 
 which the negotiators could not agree, and have been pre 
 viously discussed. 51 The omission of an article forbidding 
 impressment brought down the opposition of the merchant 
 class. The lack of a compensation for negroes raised a 
 strong party unfavorable to the treaty in the south. The 
 jealous stipulations for West India trade were opposed by 
 the commercial class and finally left unratified. The recog 
 nition of a right of search was also a point against the 
 interests of the above parties. But the rights of search and 
 the impressment of American seamen were not questions of 
 diplomacy; their answer was found in the War of 1812. 
 The War of 1812 failed to eliminate impressment entirely. 
 Mr. Webster s emphatic letter to Lord Ashburton alone 
 removed that disturbing element. It was not until October, 
 1830, that the gates of the British West India trade were 
 opened to American vessels. 
 
 The main weaknesses were summed up by the party in 
 opposition in Congress. The treaty, as a whole, did not 
 prohibit interference in our international relations, but 
 fixed a foundation for further British influence. It re 
 stricted some of the most important rights of international 
 
 00 Vide Introduction. 
 
 51 Ante Part II, Section 2. 
 
35] 109 
 
 sovereignty and hazarded the neutrality of the United 
 States- The whole treaty was unequal and unjust in rela 
 tion to the spirit of the treaty of 1783. 
 
 Popularly, it was argued that Jay was a timid negoti 
 ator, and his unfriendly feeling for France and sympathy 
 for Great Britain had led him into a betrayal of his coun 
 try & interests. 
 
 A defence of the treaty upon principle would undoubt 
 edly be very weak, whatever might be said upon the score 
 of policy. The dictatorial attitude of England is quite ap 
 parent and the commercial interests are decidedly in favor 
 of that nation. Lyman states that "as a mere trial of diplo 
 matic skill this treaty is a confessed failure, for with a soli 
 tary exception, the tardy evacuation of the posts, its ratifi 
 cation abandoned every position which the government had 
 assumed in preliminary discussions and its formal diplo 
 matic instructions." But this criticism will be found to 
 overreach a true estimation of conditions. Jay was com 
 pelled to accept or reject whatever the British negotiator 
 had to offer, and there is very probably nothing in the regu 
 lation of the national interests which will excite any pride 
 in the American people. However, there was no small 
 amount of diplomacy. The first success came in obtaining 
 any recognition whatever from Great Britain. The second 
 step was not so much concerned with reciprocal relations 
 offering valuable concessions for valuable concessions for 
 the United States had nothing of such vital importance to 
 offer Great Britain but what that country was able to take 
 for herself. The diplomacy lay in drawing from England 
 the greatest concessions which she would possibly admit. 
 Mr. Pinckney, the minister to England during this period 
 of negotiation, may be considered as a very competent judi.ce 
 of the result. "As little has been conceded by Mr. Jay and 
 as much obtained by the United States as, all the circum 
 stances considered, could be expected." 52 It was never 
 
 52 Correspondence on the Treaty, American State Papers, Foreign 
 Eelations, Vol. I. 
 
 . 
 
110 [36 
 
 maintained by the most ardent supporters of the treaty that 
 it was without faults, but rather that these weaknesses were 
 due to the inequality in the commercial power of the two 
 nations. Jay s judgment is judicially characteristic and 
 very fair in this regard. "My opinion of the treaty is ap 
 parent from my having signed it. I have no reason to be 
 lieve or conjecture that one more favorable to us is obtain 
 able. 53 He also recognized that many questions were yet 
 unsettled. * Perhaps it is not so much to be regretted that 
 all our differences are merged in this treaty without having 
 been decided." Possession is proverbially nine points of 
 the law, and what England surrendered was virtually her 
 own even to the possession of the military posts. The Amer 
 ican flag waved over the ocean by her suffrance alone. In 
 later years its right to wave there could be and was amply 
 proved. 
 
 A modern criticism holds that Jay s treaty is "as great 
 an American diplomatic victory as was the wringing from 
 the Dutch Republic the recognition of American independ 
 ence. " 54 Certainly no treaty ever negotiated by America 
 has been so heartily condemned or has obtained more bene 
 fits in comparison with its unpopularity. The benefits will 
 be more thoroughly discussed later. A summary will, how 
 ever, be proper here. The treaty prevented an inopportune 
 war; obviated the necessity of a closer allegiance with 
 France; fixed neutrality as a settled policy in a contest 
 which was to involve every nation in Europe; time was 
 allowed for the American union to become more strong and 
 the government to run smoothly; over two million dollars 
 were granted to American merchants who had suffered dur 
 ing hostilities, and Great Britain here acknowledged the in 
 justice of her proceedings and waived the attempt to inject 
 the rule of 1756 into international law ; the military posts 
 were given up at the appointed time, which was more than 
 the treaty of 1783 could secure; and for the first time in 
 
 M American State Papers, Foreign Relations, Vol. I, November 19, 
 1794. Vide Appendix A (3). 
 
 54 Annual Report of the American Historical Association, 1898. 
 
S7] 111 
 
 American history a provision was made for the extradition 
 of criminals. A comparison with later negotiations showed 
 that many stipulations of this "execrable" treaty of 1794 
 were adopted in later compacts. 
 
 But in addition to all these benefits, there is a niggardly 
 justification of the treaty in the fact that it was an alterna 
 tive for war. There was a haughty indifference on the part 
 of Great Britain to the unsettled problems which vexed the 
 United States. There was a desire to injure American in 
 terests, to neglect American remonstrances, and provoke 
 delays for settlement which raised popular feeling so 
 strongly against Great Britain that it insured hostilities. 
 In the face of French sympathies, such feeling could not 
 long be suppressed. Contemporary statesmen say that the 
 United States, in case of war, could barely have sustained 
 honor and existence. 55 At least, war would have injured 
 American commerce, excited strong sectional discontent, 
 checked the spirit of commercial and maritime enterprise 
 and strengthened rather than removed the cause of ill- 
 feeling between the two nations. 
 
 As a matter of fact, the treaty worked more good in 
 practice than was believed possible even by its advocates. 
 Washington debated its ratification long and seriously, but 
 later declared : * The treaty has secured everything desir 
 able in respect to our foreign relations, toward confirming 
 their prosperity." 56 
 
 4. A discussion of the treaty has been given at this 
 point that there might be a better understanding of the 
 problems which were presented at the time of its ratification. 
 
 The contract resulting from Jay s mission was handed 
 to the Secretary of State, Edmond Randolph, upon the 7th 
 of March, 1795, and was transmitted to the Senate in special 
 session on June 8 of the same year. Its ratification was 
 advised by that body upon June 24. Nothing concerning 
 
 55 Lyman, " Diplomacy of the United States, " p. 127. 
 50 Farewell address, September 17, 1796. Eichardson, A Compila 
 tion of the Messages and Papers of the Presidents," Vol. I. 
 
112 [38 
 
 the treaty was definitely known until its publication in the 
 American Daily Advertiser on July 2. But various conjec 
 tures were made, and these untrue conjectures were really 
 the cause of much poorly reasoned and premature oppo 
 sition. 
 
 James Madison was in a position to learn as much of the 
 treaty as easily as any one. On November 30, 1794, he 
 writes: "All that is given out from Jay s negotiations is 
 in favor of some advantageous results." 57 It was not until 
 March 22, 1795, that he was able to write with any assur 
 ance upon the contents of the treaty. From that date, 
 letters and early criticism spread a general and, for the 
 most part, an unfavorable knowledge of the treaty. Ac 
 cordingly, when it came before the Senate for discussion 
 every influence .was brought to bear upon that seclusive 
 body. 
 
 The Senate met and immediately passed a motion that 
 all work upon the treaty should be done behind closed 
 doors. Therefore, no record is left of the proceedings of the 
 Senate upon this document. This policy provoked no small 
 amount of criticism, and every effort was made by the party 
 in opposition to induce or intimidate the Senate into public 
 debates. One of the contemporary republican writers 
 states: "The conduct of the Senate respecting the treaty 
 is truly extraordinary. Upon what constitutionality or re 
 publican principle they can justify secrecy, in relation to 
 a law, which shall rival the darkness of a conclave or a 
 seraglio, is extremely difficult to conceive." All this was 
 for the very apparent purpose of publishing the inflamma 
 tory speeches of the opposition. 
 
 During the process of debate, Burr of Virginia proposed 
 that all considerations of the treaty be postponed; other 
 Senators proposed that a part should be accepted, a part 
 revised, and the rest of it expunged ; still others moved that 
 
 57 Writings of James Madison, Vol. II, Letters to Thomas Jef 
 ferson. 
 
39] 113 
 
 the President be advised to negotiate further. Senator 
 Tazewell finally moved that the treaty "be not signed." 
 The motion was voted down, and the Senate by a strict 
 party vote recommended the President to attach his signa 
 ture. The vote as it finally stood was an exact two-thirds 
 majority, which is necessary for a constitutional ratification 
 of a treaty. The vote stood twenty yeas and ten nays. The 
 ratification was conditional. It suspended that part of the 
 twelfth article 58 which related to West India trade, the 
 principal objection being that it prohibited the exportation 
 of certain products sugar, molasses, cocoa, coffee, and 
 cotton. In its place the Senate suggested another article. 
 
 The discussion of the treaty in the Senate was probably 
 very thorough. Thirty-three copies of the treaty were 
 printed under an oath of secrecy and these distributed 
 among the Senators for individual study. The Senate was 
 not satisfied with the document under debate. In the for 
 mal notice to the President, recommending his signature, it 
 was added: "And the Senate recommend to the President 
 to proceed without delay to further friendly negotiations 
 with His Majesty on the subject of said trade, and of the 
 terms and conditions in question." 
 
 This peculiar ratification of the Senate placed the Presi 
 dent in an unprecedented position. In the provisional 
 order of that body, he was asked to ratify an article which 
 had never been laid before the Senate, and in all events he 
 was advised to ratify a treaty not agreed upon by the Eng 
 lish negotiator. The President believed that the proceedings 
 of the Senate fell clearly within the meaning of the Consti 
 tution, 59 and after favorable advice from his Cabinet and a 
 
 58 By the suspension of this article and the ratification by the Brit 
 ish Parliament with this amendment, a precedent was established of 
 ratifying treaties with the exception of one or more articles. When 
 Monroe and Pinckney were negotiating in London on June 3, 1804, 
 Lord Hawkesbury censured the practice of ratifying parts of a treaty 
 as "new, unauthorized, and not to be sanctioned." The treaty of 
 1794 was brought up as a precedent. State Papers, Foreign Eelations, 
 Vol. Ill, p. 93. Cf. < Porcupine Works, Vol. II, p. 271. 
 
 59 Article II, Section 2, paragraph 2. 
 
114 [40 
 
 "full and mature deliberation," he attached his signature. 
 He hesitated in his action but once, when it was reported 
 that the British Council had given orders to seize all pro 
 vision ships. The report was unofficial and false. 
 
 The treaty was subjected to a long debate in the cabinet, 
 with the result that, excepting one member, 60 all concurred 
 in its ratification. Through all the tumult which popular 
 discussion of the treaty caused and in spite of the attempts 
 to intimidate the President into rejecting it, Washington re 
 mained calm and collected. He gave the treaty deliberate 
 and unbiased consideration, he believed a better one could 
 not at the time be obtained and signed it : " although it does 
 not rise to our wishes, yet it appears to me calculated to pro 
 cure to the United States such advantages as entitle it to 
 our acceptance." 61 
 
 As Mr. Jay had returned to America and Mr. Pinclmey 
 was absent in Madrid upon a special mission, ratifications 
 were exchanged on the 28th of October, 1795, between Lord 
 Grenville and William Allen Deas, the Secretary of the 
 United States Legation. The British government made no 
 objection to the suspension of the twelfth article. 
 
 On the 1st of March, 1796, the President communicated 
 to. Congress for their information and vote, the necessary 
 appropriation to put it into effect. Upon March 2, Edward 
 Livingston of New York made a motion requesting the 
 President to lay before the House all papers relating to 
 Jay s treaty. The Republicans favored this attitude, and 
 as they were in the majority the motion carried by a vote 
 of sixty-two against thirty-seven after a debate lasting from 
 March 7 to the 24th. The instructions to Jay had been 
 published and were generally known, but Washington, after 
 
 60 Secretary of State Eandolph. Vide Eandolph s Vindication of 
 Randolph s Resignation." He claimed the British right of search 
 and impressment was conceded by America, and therefore probably re 
 vealed enough of the treaty to cause opposition. Lyman, The Diplo 
 macy of the United States." 
 
 61 A letter of Washington. Reports of the American Historical As 
 sociation, 1901, Vol. I. 
 
41] 115 
 
 consulting his cabinet, refused 62 to grant the request of the 
 House. The grounds for his refusal were : The dangerous 
 precedent which would be established in that the disclosure 
 of foreign affairs was often impolitic, and that dangerous 
 results might be expected by allowing the House any voice 
 in the powers of treaty making. Such procedure on the part 
 of the House was not provided for in the constitution and 
 was contrary to the purpose of the Constitutional Conven 
 tion, which had upheld the principle of equal representation 
 in international relations. 
 
 The House considered Washington s reply and the right 
 to demand the papers was reaffirmed. By some it was main 
 tained that the House was vested with discretionary powers 
 to carry a treaty into effect or to refuse to do so by failure to 
 vote necessary supplies. By the other party it was claimed 
 that the treaty-making power was vested exclusively in the 
 President and the Senate, that the House must acquiesce in 
 their decision and vote the necessary funds to put the com- 
 paut into execution. 
 
 The debate was not so much upon the treaty-making 
 right of the House as their right to refuse appropriations to 
 carry the treaty into effect. This is shown by the motion 
 passed upon April 7, which declared, first, that the House 
 had no claim as an agent in making treaties, but, second, as 
 a part of Congress it had a right to deliberate on any treaty 
 carrying into effect regulations on subjects given by the 
 constitution to the control of Congress. The other argu 
 ment was that the Constitution had purposely excluded the 
 House from all participation in the making of treaties. 
 This came from the Federalists, or Strict Constructionists, 
 and many of its members had participated in the Constitu 
 tional Convention. 
 
 From this point, the debate drifted into the merits and 
 
 faults of Jay s treaty, and on April 15 the debate centered 
 
 upon a federalist resolution to put the treaty into effect. 
 
 02 March 30, 1796. State Papers, Foreign Relations, Vol. I, p. 550. 
 
116 [42 
 
 There were two great questions constantly before the House : 
 First, the constitutionality of their discretionary power in 
 voting appropriations for a treaty; second, the question of 
 voting an appropriation to put the treaty into effect. De 
 bates upon these questions occupied the entire attention of 
 Congress. 
 
 James Madison was leader of the opposition and spoke 
 very strongly against voting ninety thousand dollars of the 
 people s money, not counting the British debts which were 
 involved, to put a treaty so unfavorable into effect. This 
 same argument has been used in every acquisition of terri 
 tory by the United States : in the Louisiana treaty of 1803, 
 the Gadsden purchase of 1854, and the Alaskan purchase 
 of 1867. Twenty million dollars have since been paid for a 
 group of islands. Madison also argued that the treasury 
 was empty, and the only resource was borrowing, which was 
 extremely difficult at the time. The commercial disadvan 
 tages were dwelt upon, and in fact all the objections which 
 have been previously mentioned were urged in the most 
 emphatic manner possible. 
 
 The Connecticut representatives, Mr. Swift and more 
 especially Mr. Hillhouse, made the strongest speeches in 
 favor of voting the necessary appropriation. They dwelt 
 particularly upon the lack of foundation for the results the 
 opposition had predicted in case the treaty was adopted and 
 spoke at length on the unsettled conditions which would 
 exist and the war which would arise if the compact was not 
 adopted. 
 
 On April 29 the question of voting the appropriation 
 came before the House as a Committee of the Whole. The 
 vote cast was forty-nine to forty-nine, but the speaker, 
 though opposing, voted for the treaty to give further oppor 
 tunity to consider it. 
 
 This vote on the part of the speaker, Mr. Jonathan 
 Dayton, of New Jersey, is one of tremendous importance. 
 With perfect honor on his part he could have voted against 
 
43] 117 
 
 the treaty, caused a deadlock in Congress, refused the means 
 of executing that contract, put the United States govern 
 ment in a very embarrassing position with Great Britain 
 and wrought disastrous results on the treaty making power 
 of the President and Senate. As it was, the two main influ 
 ences which promoted the success of the treaty were allowed 
 to operate. By prolonging the discussion in Congress an 
 opportunity was given to allow the mercantile and conserv 
 ative voice of the country to be heard. Furthermore, the 
 necessary time was given for the reaction which must in 
 evitably follow such an outburst of popular feeling. The 
 second influence declaring for the treaty was the speech of 
 Fisher Ames, the Representative from Massachusetts. Mr. 
 Ames was a member of Congress during the administration 
 of Washington. He was an ardent Federalist and one of 
 the leaders of the House, where he was considered an 
 extemporaneous but finished orator of great persuasive 
 power. This speech was the culmination of his official 
 career. He had been very ill during the entire session of 
 Congress and a few days previous was thought to be on his 
 death-bed. The permission for a further discussion came at 
 a time when he was able to reach the House, and after Mr. 
 Preston had spoken, he staggered from his seat and ad 
 dressed the chair, saying he hoped his strength would permit 
 him to speak for a few moments. He spoke without pre 
 meditation, compelled by his feelings and his knowledge of 
 human motives and political action. His emaciated form 
 and the pallor of death upon his face enlisted unbounded 
 sympathy, and tradition had it for many years that Ames 
 speech on the British treaty was the most powerful ever 
 delivered in Congress. Be that as it may, the speech in 
 junction with the other factors mentioned secured a ma 
 jority in favor of the treaty. The perplexing problem 
 which was presented was deferred for a more mature gov 
 ernment and wider experience to solve. The result of the 
 conflict had shown a difficulty in the practical working of 
 the Constitution, which still remains unremedied. 
 
118 [44 
 
 The three different ballots taken upon the treaty proved 
 a very close division of opinion. The first was : For a 
 motion declaring the treaty objectionable, forty-eight; 
 against such a declaration, forty-eight, with the vote of the 
 Speaker. The second vote stood : For declaring the treaty 
 objectionable, forty-nine ; against such a declaration, forty- 
 nine. The Speaker voted with the negative. Some declared 
 for the treaty because they did not believe it objectionable, 
 others because they feared a contrary declaration was inju 
 rious, and still others supported the treaty because to object 
 to it was to object to all compromise. The final ballot came 
 upon a motion by Mr. Hillhouse of Connecticut, to carry 
 the treaty into effect. It was supported by fifty-one mem 
 bers because they believed the treaty a good one, or the best 
 under the circumstances. Forty-eight members opposed the 
 treaty as a bad one. Five members were absent. The treaty 
 was safe. The interests which passed it were : The support 
 of Washington, the insignificance of the sum for the appro 
 priation, and the work of the conservative element. The 
 defeated party was the Democratic party, jealous of the 
 powers of Congress to control the public purse. 
 
 The debates in Congress were long and followed out 
 every possible line of argument. Concerning them, Chief 
 Justice Marshall said : Never had a greater display been 
 made of argument, of eloquence, of passion." 63 Washing 
 ton notes that "it (the treaty) suspended in a manner all 
 other business of the House and agitated the public mind 
 in a higher degree than it has been at any period since the 
 Revolution." 
 
 When the House, by so frail a majority, voted to support 
 the treaty, it was taken up in public meetings, discussed in 
 the newspapers, and even condemned or approved in the 
 State Legislatures. 
 
 People all over the United States took up the debate 
 either for or against such a relation with Great Britain, and 
 
 63 Annals of Congress, Fourth Congress, first session. Editorial 
 note. 
 
45] 
 
 119 
 
 the work of the opposition is a blot upon the fair adminis 
 tration of "Washington. 
 
 Randolph, as Secretary of State, was one of the few who 
 became acquainted with the treaty upon its arrival in 
 America, and he has been accused of giving out unfavor 
 able articles of the compact to which he was so much op 
 posed. This was done in May, 1795, for the purpose of 
 forming a hostile sentiment. There is evidence supporting 
 such a statement in the fact that the condemnation of the 
 treaty spread much faster than any accurate knowledge of 
 its contents. Opposition really began with the appointment 
 of Jay, which was declared unconstitutional. Legislative 
 measures with a purpose to destroy any fruits which might 
 result from Jay s mission have already been noted. 64 
 
 But the final burst of indignation came after the mis 
 conduct of Senator Mason in the publication of the treaty 
 on July 2, 1795. Thomas Jefferson voiced the Republican 
 sentiments when he called the incident a bold act of duty 
 in one of our Senators." 65 He called the treaty an "exe 
 crable," "an infamous act" which was "nothing more than 
 a treaty of alliance between England and the Anglo-men of 
 this country against the legislature and people of the United 
 States." The publication precipitated a storm of abuse. 
 The waves of party feeling ran high, and were agitated still 
 further by demagogues and mob orators. Public meetings 
 denounced the treaty on every side. Copies of it were 
 burned before many of the homes of British officials, north 
 and south. Jay was dragged through the streets in effigy 
 and guillotined. 60 He was pictured as selling for British 
 gold the interests of his country. Language far beyond 
 what is fit for publication was used to characterize his act. 
 In banquets which were in any way concerned with interna 
 tional interests, toasts in the form of puns upon his name 
 
 Supra Part I, Section 2 ; Part II, Section 1. 
 American Historical Keports, 1901, Vol. I, p. 287. 
 Appendix C. 
 
120 [46 
 
 were strictly in order. 67 The political newspapers of Cor- 
 bett, Freneau, Fermo, and Bache reveled in malignancy and 
 abuse. Some of the most venomous articles were in the 
 Aurora, and written by John Beckley, who signed himself 
 A Calm Observer. At Boston, in June, 1795, a publica 
 tion invited all Americans who felt "the spirit of resent 
 ment and revenge" to assist in burning a Bermudan pri 
 vateer. 68 This action was taken at the instigation of the 
 French consul at that port. The vessel, properly called the 
 Speedwell, was sailing under the name of the Bettsy of 
 St. Croix" to deceive the privateers of the Bermudas. She 
 was dismantled and burned to the water s edge. The papers 
 later characterized the deed as one which could "hardly be 
 justified. 
 
 From Boston messengers riding night and day carried 
 the news to New York. For days the probable downfall of 
 the treaty had been discussed on every street corner. When 
 the news came from Boston, the citizens of New York felt 
 that such action was worthy of all imitation, and soon after 
 stoned Hamilton in his attempt to defend the treaty. The 
 proceedings in Philadelphia have already been suggested. 
 Virginia very strongly declared its intentions of withdraw 
 ing from the union. 
 
 In Charleston the hangman was chief official in burning 
 the treaty in the public square, while the British flag was 
 dragged through the streets. South Carolina was particu 
 larly strong in declaring its * abhorrence and detestation of 
 a treaty which gave the English government more power 
 over us as states than it claimed over us as colonies a 
 treaty involving in it pusillanimity, stupidity, ingratitude, 
 and treachery. It claimed that the Senators who had ad 
 vocated the treaty were unworthy any further trust, and 
 
 67 " A perpetual harvest to America ; but dipt wings, lame legs, the 
 pip, and an empty crop to all Jays. Aurora, July 7, 1795. 
 
 "The Republic of America: May she never mistake Jaybirds for 
 Eagles. Courier Frangaise, July 15, 1795. 
 
 68 Cf. McMaster s "History of the United States," Vol. II, p. 217. 
 Also, Hildreth s "History of the United States," Vols. IV, V. 
 
47] 121 
 
 their six-year term was dangerous to American liberty un 
 less the constitution should be amended. 
 
 When the treaty was ready for the President s signa 
 ture, the cry went up : This was the test * whether the 
 majesty of the people was like the children s rattle," or a 
 power in absolute and real existence. When the President 
 concurred in the Senate s action, the House of Delegates in 
 Virginia voted down a resolution declaring their undimin- 
 ished confidence in the President. He was accused of usurp 
 ing the powers of Congress. From all quarters he had 
 received personal letters with a purpose to influence him 
 against the ratification. These continued to arrive from 
 outside districts until the late spring of 1796. The Presi 
 dent s conduct was subject to severe criticism by Franklin 69 
 in that his nomination of Jay was unconstitutional. But 
 there is nothing in the Constitution to prohibit it. The 
 President was becoming "monarchial" in appointing a 
 man so opposed by the House of Representatives. But such 
 a statement is totally unauthorized by any facts. The nomi 
 nation of Jay had never been put to a vote in the House. 
 
 It is not to be wondered at, that this spirit of opposition 
 found its way into the halls of Congress and caused long 
 and eloquent discussions. With the exception of the Civil 
 War times, never has public opinion, since the founding of 
 the nation, been so decided and demonstrative. Through 
 out the summer, fall, and winter of 1795 and the spring of 
 1796, the country was flooded with pamphlets, anonymous 
 letters and circulars. Out of the vast amount of literature 
 which resulted, that of Alexander Hamilton, as "Camillus," 
 is in defense of the treaty and far superior to any other 
 writings for either side upon the subject. The work of Ed 
 ward Livingston, Secretary of the Treasury, as "Decius," is 
 the best in behalf of the opposition. 
 
 Much of the hostility to the treaty had no cause but the 
 riotous agitations of demagogues and their contagious ef- 
 
 69 " Porcupine Works," Vol. II. 
 
122 [48 
 
 fects. The objections of the more serious thinkers can be 
 classed under the supposed wrongs which the treaty would 
 inflict upon the American carrying trade, its disregard of 
 the French treaty, the lack of compensation for negroes, 
 retention of forts, and commercial depredations, and the 
 unjust principles supposed to be involved in its interna 
 tional law stipulations. Most of these reasons have been 
 considered; the rest will be left for separate explanation 
 under the effects of the treaty. 
 
 The object of all this violence was to intimidate the 
 President and bring popular feeling to bear in the House 
 against the ratification of the treaty. 
 
 The character of the factions which opposed the treaty 
 explains in itself the reason for their hostility. They were 
 composed of those southerners who had not been compen 
 sated for their slaves and who were debtors to the British 
 and hoped to escape those debts by their confiscation in war ; 
 of the French party, because American dependence on their 
 commerce as well as their political influence had been less 
 ened, also the relations of this government were upon 
 friendly terms with their enemy; of anti-federalists, be 
 cause they were disarmed of an effective complaint against 
 the government in the retention of the military posts and 
 the spoliations of commerce; of the Jacobin philosophers, 
 and especially those societies in New York whose doctrines 
 were made up of all the schemes which would conflict with 
 the existing governmental policy ; 70 of the disorganized poli 
 ticians who had inbibed the spirit of opposition upon the 
 street corners and mass meetings; of those malcontents of 
 various descriptions who loved spoils of war and who fol 
 lowed their leaders without personal reason or foresight; 
 and lastly of those English and Irish emigrants who had 
 fled from justice in their own country and fearecj punish 
 ment of a serious or petty nature if returned. 
 
 Jay knew the treaty would never become popular be 
 cause of its unsettled interests. He writes: "I knew and 
 
 70 Two of their publications were The Jacobiniad and The Guillotina. 
 
49] 123 
 
 know that no attainable settlement or treaty would give 
 universal satisfaction and expect the one I have signed will 
 administer occasion for calumny and detraction. * * * 
 Demagogues will constantly flatter the passions and preju 
 dices of the multitude and will never cease to employ im 
 proper arts against those who will not be their instru 
 ments." 71 
 
 Slowly but surely the tide of popular feeling began to 
 turn, not in favor of the treaty, for it bore the indelible 
 stamp of unpopularity. The course of popular feeling 
 turned in favor of Washington, who controlled the nation 
 with that calm dignity, moral independence, conscious recti 
 tude, beautiful consistency and simplicity of purpose which 
 idealizes him in the hearts of his countrymen. It was only 
 the rancor of political parties which libeled this man who 
 had resisted the encroachments of England on a weak and 
 dependent country. Spain had retired before his unflinch 
 ing purpose and every nation in Europe felt the influence 
 of this career marked with probity and steady devotion to 
 the interests of the United States. Jay found the confidence 
 placed in Washington of use in his negotiations. 72 Madison 
 found the name of the President working "wonderful suc 
 cess" in favor of the treaty of America. 73 "Washington s 
 personal authority more than anything else carried the 
 treaty and averted war with Great Britain." 74 By his 
 ratification of Jay s work he demonstrated to the world the 
 power of the government which had recently been estab 
 lished. The United States was no longer known abroad as 
 the weak decentralized power existing under the Articles of 
 Confederation, but for the first time it was placed de jure 
 where it had been considered de facto. Its power as a 
 treaty-making nation was established, and its position con- 
 
 71 Johnston s Life and Correspondence of John Jay, Vol. IV. 
 Letter to President Washington, February 25, 1795. 
 
 72 Ibid., Letter to Washington, November 19, 1794. 
 
 73 Writings of James Madison. Letter to Ed. Pendleton, Feb 
 ruary 7, 1796. 
 
 74 Fiske s "Essays, Historical and Literary," Vol. II, p. 135. 
 
124 [50 
 
 firmed among the family of sovereign nations. The greatest 
 benefit of Washington s administration is that in this polit 
 ical crisis it was wise enough to recognize and firm enough 
 to accept a national necessity. To him and to his assistants 
 it was given to create strength from their weakness, and to 
 develop a noble pride from a wise humility. No Presiden 
 tial policy could be more simply and truly outlined than in 
 Washington s reply to the letter of the Selectmen of Boston, 
 July 28, 1795, answering their questions regarding the 
 treaty-making power under the Constitution. This letter, 75 
 coming at the time of great political passion and contention, 
 quieted the factions among the people of the north and reas 
 oned the opposition into support. 
 
 Concerning the arguments in the Senate, only conjec 
 tures can be drawn. It is quite apparent the debates for 
 the adoption of the treaty were convincing. These two 
 branches of the government were sufficient to declare the 
 
 76 GENTLEMEN : In every act of my administration I have sought 
 the happiness of my fellow citizens. My system for the attainment of 
 this object has uniformly been to overlook all personal, local, and 
 partial considerations; to contemplate the United States as one great 
 whole; to confide that sudden impressions, when erroneous, would yield 
 to candid reflection ; and to consult only the substantial and permanent 
 interests of our country. Nor have I departed from this line of con 
 duct on the occasion which has produced the resolutions contained in 
 your letter of the 13th instant. 
 
 Without a predilection for my ow r n judgment, I have weighed with 
 attention every argument which has at any time been brought into 
 view; but the Constitution is the guide I never can abandon. It has 
 assigned to the President the power of making treaties, with the ad 
 vice and consent of the Senate. It was doubtless supposed that these 
 two branches of government would combine without passion, and with 
 the best means of information, those facts and principles upon which 
 the success of our foreign relations depend; that they ought not to 
 substitute for their own connections the opinion of others, or to seek 
 truth through any channel but that of temperate and well formed in 
 vestigation. 
 
 Under this persuasion I have resolved on the manner of executing 
 the duty before me. To the high responsibility attached to it I freely 
 submit; and you, gentlemen, are at liberty to make these sentiments 
 known, as the grounds of my procedure. While I feel the most lively 
 gratitude for the many instances of approbation from my country, I 
 cannot otherwise deserve it than by obeying the dictates of my con 
 science. With due respect, I am, gentlemen, your obedient, 
 
 GEORGE WASHINGTON. 
 
51] 125 
 
 treaty in force. But the lower house of Congress and the 
 people were to be satisfied. The work of Fisher Ames won 
 the necessary support from the former and the unequaled 
 efforts of Alexander Hamilton won conviction from the con 
 servative elements of the people. Regarding the military 
 posts, the commercial and negro questions, he argued better 
 than Jay himself. By sound reasoning in behalf of the 
 treaty and ridicule for the opposition he gained the support 
 of those who might have fallen into the popular channels. 
 Those who endeavored to reply to his essays were soon 
 silenced or found their arguments too weak to gain the 
 needed support. These essays came out under the name 
 " Camillus, " and their sole purpose was to reconcile the 
 people to the action of the administration. Hamilton had 
 done all in his power to stem the tide of popular opposition. 
 The success of his work was shown as the summer of 1795 
 went by. Jefferson spoke of him as "really a colossus to 
 the anti-republican party" and "without numbers, a host 
 within himself. 
 
 Many of the states which had previously opposed the 
 treaty so violently now suffered a reaction. In the latter 
 part of the year 1795 most of them had sent resolutions in 
 favor of the treaty to Washington. By March 15, 1796, 
 New Hampshire, Massachusetts, Rhode Island, New York, 
 Pennsylvania, Delaware, Maryland, and North Carolina 
 had declared themselves favorable to its execution. South 
 Carolina believed the treaty to be injurious, Kentucky 
 called it unconstitutional, and Virginia declared for ex 
 treme opposition. The party which had been won over 
 entertained the belief which Gouverneur Morris expressed : 
 That more noise was made about it than was proper, owing 
 to personal causes. 76 
 
 5. On the other hand, no such criticism is applicable to 
 the history of the treaty in Great Britain. The English 
 
 76 Diary and Letters of Gouverneur Morris. Entry for August 
 22, 1795. 
 
126 [52 
 
 Parliament was primarily concerned with its war against 
 France and the affairs upon the continent. It gave a small 
 amount of attention to the treaty which Grenville and the 
 American minister were negotiating. It was satisfied with 
 Grenville s meager report, and the treaty itself was allowed 
 to speak as a result of the negotiations. 
 
 Opposition to the treaty was very slight. However, the 
 faults of the treaty were readily recognized. Charles Fox, 
 in his speech before the British Parliament, made objections 
 to the same articles which the patriots of this country had 
 made. One objection was that "the article restricting the 
 trade of the United States with the British West Indies to 
 vessels not exceeding seventy tons was equivalent to an act 
 for creating a nursery of seamen for America. Small ves 
 sels required, in proportion to their tonnage, an additional 
 force of seamen, averaging between thirty-four and thirty- 
 eight more men for vessels of forty tons than vessels of four 
 hundred tons. 77 The most serious objection which appears 
 was raised in the Irish Parliament by Mr. Gratan : * This 
 very America which the British minister insulted and then 
 crouched to had, by the late Treaty of Commerce, been ad 
 mitted to all the British settlements in the East and West 
 Indies, to the latter of which Ireland was only conditionally 
 admitted, and from the former unconditionally excluded; 
 yet Ireland was a loyal, attached nation, and America, an 
 alien." 78 
 
 The attitude of the British Parliament is one of self- 
 censure. Mr. Fox, in his report for the Committee on the 
 State of the Nation, says: "With respect to America, 
 * * * after giving orders for taking her goods, we re 
 called those orders and have since entered into a treaty by 
 which we agree, properly, I believe, justly, and if justly, 
 wisely, to pay for the rashness and folly of issuing them. T9 
 
 77 Annals of Congress, Fourth Congress, third session, p. 32. 
 78 Benton s "Abridgment of the Debates of Congress, " Vol. I, 
 p. 718. 
 
 "Hansard s "Parliamentary Debates/ Vol. 31, p. 1368. 
 
53] 127 
 
 Grenville, in regard to the negotiations, states that "he 
 could hardly with propriety speak of a treaty which, though 
 signed, was not yet ratified. When that was done, he 
 undertook for himself and colleagues to show that it was 
 fraught with mutual honor and advantage to both countries, 
 and he declared that he should always consider the conduct 
 of the gentleman who carried on the negotiations on the 
 part of America as highly honorable to them, marked as it 
 was by temper, moderation, and good sense." The Mar 
 quis of Lansdown said the treatment of the sister people of 
 America was marked with more than common outrage, espe 
 cially in regard to their orders upon American commerce, 
 the subtle means they had employed in causing the Alge 
 rians to declare against America, and by inciting the Indian 
 tribes against them. "No power on earth could display 
 more true wisdom, more dignified moderation, than had Mr. 
 Washington and the government of America. 80 On July 4, 
 1797, Parliament passed an act of twenty-seven long articles 
 which put the treaty into effect. 
 
 Great Britain returned the compact on the 1st of Feb 
 ruary, 1796, and in the latter part of that month President 
 Washington issued his proclamation requiring its observ 
 ance by all persons. Jay wrote to Grenville: "The treaty 
 will go into operation and supported by a majority of the 
 people, a majority comprising the greater part of the men 
 most distinguished by talent, weight, and worth." 81 
 
 III. RESULTS OF THE TREATY. 
 
 By the proclamation of Washington, requiring the ob 
 servance of the articles in the Treaty of Amity, Commerce, 
 and Navigation, the periods of negotiation and ratification 
 of the treaty proper are finished. Yet there remains a solu 
 tion to all the problems which were viewed with deep con- 
 
 80 Hansard a Parliamentary Debates, Vol. 30, p. 1401. 
 "Johnston s "Life and Correspondence of John Jay," 
 Letter dated May 1, 1796. 
 
128 [54 
 
 cern by the opponents of the treaty and optimistically 
 interpreted by its advocates. 
 
 1. The period for the evacuation of the forts, which 
 had been so strongly condemned, was sought by Great Brit 
 ain to insure herself from any breach of the treaty by a 
 government which she did not as yet understand. These 
 $Drts 82 were evacuated and all arrangements regarding them 
 concluded by December, 1796. Some of them, Detroit and 
 Oswego in particular, became points of more than local 
 interest. Others were used as trading posts and forts from 
 which the conduct and temper of the Indians could be in 
 fluenced. The rest have crumbled into decay and oblivion. 
 
 Before appropriations to put the treaty into effect had 
 been voted by Congress, an article 83 explanatory of the 
 third article of the treaty, and regulating the passage of 
 Indians from one territory to the other, had been concluded, 
 May 4, 1796. 
 
 Articles IV and V related to the settlement of the 
 northwestern and northeastern boundary lines. The exact 
 location of both boundaries has been subject to much nego 
 tiation. A convention Avas drawn up in London, May 12, 
 1803, and attempted to settle the questions. The project 
 was submitted to the Senate upon October 24 of the same 
 year, and it was ratified with the exception of the fifth 
 article. This declared that the boundary line of the north 
 west should be the shortest line drawn from the source of 
 the Mississippi River to the northwest point of the Lake of 
 the Woods. Ratifications were never exchanged, although 
 this boundary line is taken on all maps of the United States 
 during this uncertain period. The commission under the 
 fourth article accomplished nothing. It was left for the 
 purchase of Louisiana in 1803 and the Webster- Ashburton 
 treaty of 1842 to carry the boundary line to the Rocky 
 Mountains, and to the settlement of 1846 to fix the boun 
 dary to the Pacific coast. 
 
 82 Appendix E : Consideration and Map. 
 
 83 Appendix B : Explanatory Articles. 
 
55] 129 
 
 The commission under the fifth article, to determine the 
 northeast boundary line, met at St. Andrews in Passama- 
 quoddy Bay during the early part of October, 1796. The 
 survey was started, but it required more time than had been 
 expected, and they adjourned to meet at Boston in August, 
 1797. A difficulty was experienced in locating the river 
 St. Croix, as required in the treaty, and in March, 1798, an 
 explanatory article was agreed upon, authorizing the com 
 missions to designate the source of the river in any manner 
 which they saw fit. The survey had not been completed 
 when the time for a meeting had arrived, so they met at 
 Providence, Rhode Island, in June of the following year. 
 Their decision was made on the 25th of October and given 
 to Congress in the address of President Adams. 
 
 The report, as given by the commission, was a compro 
 mise. Undoubtedly the river intended to be the St. Croix 
 by the peace commissioners of 1783 was the most easterly 
 river, or the Magadavy. This was the testimony of the 
 commissioners Adams, Jay, and Franklin. It is equally 
 certain that the river accepted as the St. Croix was the one 
 so named in the traditions and treaties of two centuries. 
 England succeeded in acquiring several square miles of 
 territory by her usual method of adhering to the letter of 
 the treaty rather than its spirit. The identity of the St. 
 Croix was fixed and its source and mouth determined. Here 
 the commissioners work was ended, leaving two sections of 
 disputed boundary at both ends of the river. 
 
 A question soon arose as to what part of the country was 
 intended by "the highlands," and upon this hinged the 
 boundary line as far as the headwaters of Lake Champlain. 
 The final settlement of this portion came in the Webster- 
 Ashburtoh treaty of 1842. 
 
 The commissioners did not feel themselves empowered to 
 settle the disputed boundary in the northeast, and the sov 
 ereignty of the islands in the Bay of Fundy was left un 
 settled. From the point which the commission had deter- 
 
130 [56 
 
 mined as the mouth of the St. Croix to the ocean was twenty 
 miles, across islands, some large and valuable, and some 
 settled. Great Britain claimed jurisdiction over all of these 
 with the exception of Moose Island, which was held by the 
 little town of Eastport. The question of this boundary 
 came up between Rufus King and Lord Hawkesbury in 
 1803, and left unsettled. At the last moment, in the War 
 of 1812, the British captured Moose Island with the hopes 
 of retaining it as "spoils of war." In the treaty the island 
 was retained and the boundary was left as unsettled as be 
 fore. For a third time this question was given to a com 
 mission for settlement and only its lack of proper juris 
 diction is recorded. The importance and desirability of 
 settling this question does not seem to have been realized. 
 While the northwestern boundary was settled in 1846, the 
 twenty miles of disputed boundary in the east remained as 
 it did when the commission of Jay s treaty left it. On 
 July 16, 1891, the Canadian cruiser "Dream" seized seven 
 fishing boats on the charge they were fishing in Canadian 
 waters. Much interest was aroused and a convention was 
 drawn up between the United States and Great Britain at 
 Washington on July 22, 1892. Article II of this convention 
 provided for a commission to settle the boundary. "The 
 phrasing of this convention furnishes in itself a most ex 
 cellent example of how a thing ought not to be done." 84 
 A meeting was held in July, 1893, and nothing resulted. 
 The last meeting was held in 1895, and the only agreement 
 reached was to report separately upon their proceedings. 
 The result was that a full and detailed account of all opera 
 tions was made by the American commissioners and sub 
 mitted to the Department of State. At Washington a ra 
 tional boundary line was laid out, and according to this 
 determination, range signals and monuments were actually 
 erected. These remain and the acceptance of them in the 
 
 84 T. C. Mendenhall, "Twenty Unsettled Miles in the Northeast 
 Boundary." Proceedings of American Antiquarian Society, Vol. XI. 
 
57] 131 
 
 immediate neighborhood will make easier the work of some 
 future commission. 
 
 Articles VI and VII provided for commissions to settle 
 the amount of the debt due British creditors before the 
 Revolution and the amount due as an indemnity by Great 
 Britain for the spoliation of American commerce. 
 
 The commission on the confiscation of debts met in Phila 
 delphia, May 29, 1797, and was suspended on July 31, 1798. 
 Some differences of opinion were to be expected, but the 
 discussions developed personal feelings. Mr. Macdonald, 
 one of the British commissioners, "who possessed a sense of 
 duty unmitigated by a sense of proportion, had made him 
 self disagreeable in many particulars. Matters reached an 
 unbearable condition when he submitted a resolution declar 
 ing that from the beginning of the Revolutionary War down 
 to the time of the Treaty of Peace, the United States, what 
 ever may have been their relations with other powers, stood 
 to Great Britain in a state of rebellion. Americans main 
 tained the principle that the Treaty of Peace was not a 
 grant of our independence, but a recognition of it. The 
 American commissioners took the resolution as an insult 
 and withdrew. Upon March 29, 1802, our minister at Lon 
 don, Rufus King, was instructed to negotiate explanations 
 for this article. His Britanic Majesty preferred, rather 
 than negotiate such an article, to avoid further expense and 
 discussion by fixing the debt, for which the United States 
 was held responsible, at a given sum. Mr. King was so in 
 structed, and the convention of January 8, 1802, resulted. 85 
 One article provided for the continuance of the commission 
 under the seventh article of Jay s treaty. In regard to the 
 sixth article of the same treaty it was provided that the 
 United States should pay six thousand pounds in three an 
 nual installments to relieve herself from the obligation 
 thereby assumed. 
 
 85 American State Papers, Foreign Eelations, Vol. II. Vide Ap 
 pendix B, Explanatory Articles. 
 
132 [58 
 
 Of all the tribunals which sat under Jay s treaty, the 
 one which was convened at London under the seventh article 
 is the most important and interesting. The purpose of the 
 commission was to dispose of the American claims against 
 Great Britain for the captures made under the orders of 
 council, and the British claims against the United States 
 failure to enforce neutrality. 
 
 The persons composing this board were worthy of the 
 question. Christopher Gore and William Pinckney were 
 appointed from America, and John Nicholl, succeeded by 
 Maurice Swabley, and John Anstey represented Great Brit 
 ain. The fifth, chosen by lot, was John Trumbull of Con 
 necticut. 
 
 The question of jurisdiction divided them for a time, 
 but was settled by Lord Chancellor Loughborough in that 
 "the doubt respecting the authority of the commission to 
 settle their own jurisdiction was absurd, and that they must 
 necessarily decide upon cases being within or without their 
 competency. 
 
 Other important questions were regarding contraband 
 goods, rights of neutrals, and the finality of the decisions of 
 the prize courts. In their solution, Pinckney s discussions 
 are pronounced by Wharton to be "finished models of judi 
 cial eloquence, uniting powerful and comprehensive argu 
 ments with a copious, pure and energetic diction." The 
 session of the board had been interrupted from July 30, 
 1799, to February 15, 1802, by the dissolution of the trib 
 unal under the sixth article. The work was closed February 
 24, 1804, all business having been completed. The recovery 
 from this commission is put at $11, 650,000. 8C Trumbull 
 said: "The whole of this sum was promptly paid to each 
 client, or his assignee ; for after a careful and accurate ex 
 amination of the merits of every case of complaint, the 
 awards of the board were made in favor of each individual, 
 
 80 This is variously estimated from $10,345,000 to $11,656,000. 
 Moore gives the above. Vide American State Papers, Foreign Eela- 
 tions, Vol. II, pp. 119-123. 
 
59] 133 
 
 in the form of an order to pay, and payable at the Treasury 
 of Great Britain ; nor do I recollect even to have heard a 
 single complaint, of the delay of an hour, in any instance of 
 an award presented for payment. 87 
 
 The total of the awards paid by the United States appear 
 to have been $143,428.14. The main point in this settle 
 ment was that a government is liable to damages for a neg 
 lect to perform its neutral duties. This was the foundation 
 of the awards made at Geneva in 1872. 
 
 2. There were other principles of constitutional and 
 international law which were brought out in this treaty of 
 1794. Since this was the first treaty entered into by the 
 United States under the present government, some questions 
 of constitutional law would naturally be raised. 
 
 The discretionary power of the House of Representa 
 tives in regard to voting appropriations for the execution 
 of a treaty has nothing to do with the treaty proper, except 
 that it was here raised for the first time. The declaration 
 made by the House has been affirmed repeatedly in later 
 years whenever treaties requiring extensive or important 
 legislation have come up for discussion. 88 The question re 
 mains as unsettled by courts or legislature as it was in the 
 year 1796. There is a parallel to this difficulty in the treaty- 
 making power of the crown of England, which requires the 
 Commons to vote appropriations to His Majesty s tracts. 
 Any discretionary power which the Commons may have 
 maintained has never been recognized by the King. 
 
 Jay s treaty has been criticized by Lyman 89 as a treaty 
 accomplishing nothing. But its material benefits have been 
 given, 90 and in addition to the principles of international 
 law which were raised or established, it confirmed the title 
 of the United States to membership in the "family of 
 nations. 
 
 87 John Basset Moore, i American Diplomacy, p. 207 et seq. 
 
 88 Vide Eeports on the Law of Civil Government in Territory 
 Subject to Military Occupation by the Forces of the United States," 
 by Charles E. Magoon, 1903, for a list of these occasions and a dis 
 cussion of the principles involved. 
 
 89 Lyman, "Diplomacy of the United States," p. 222. 
 
 90 Supra Section 1. 
 
134 [60 
 
 A spirit of international comity was here more strongly 
 developed than at any previous period of relations with 
 Great Britain. 
 
 Under commercial regulations the intention to enter a 
 blockaded port was declared no cause for condemnation. 91 
 The declaration that the ships of war of one of the con 
 tracting parties should be hospitably received and protected 
 in the ports of the other was a courtesy in the general usage 
 of nations here endorsed. 92 
 
 The treaty provides that British subjects, then owning 
 lands in the territory of the United States, may continue 
 to hold them according to their respective titles. And the 
 Supreme Court held that these provisions are parts of the 
 supreme law of the land, being a constitutional exercise of 
 the treaty-making power. 93 
 
 The ninth article provides that British subjects holding 
 lands in the United States, and their heirs, so far as their 
 lands are concerned, and the remedies incident thereto, shall 
 not, as aliens, have their estates confiscated. The parties, 
 however, must show that the title of the land in question 
 was in their ancestors when the treaty was made, 94 although 
 their actual possession was not necessary. 95 Nor was it 
 necessary that present holders should become citizens, 90 nor 
 did the article intend to include any other persons than such 
 as were British subjects or American citizens. 97 Several 
 cases were then raised in an attempt to reclaim lands upon 
 the termination of the treaty by the War of 1812. But it 
 was held that the termination of an international compact 
 does not destroy property rights already vested under it. 98 
 
 From the policy of confiscating debts, many cases arose, 
 especially in the south. The history of such acts is given in 
 
 81 4 Cranch 185. 
 
 82 Wharton, International Law Digest, Vol. II, p. 159. 
 
 93 7 Cranch 603. 
 
 94 1 Wheaton 300; 3 Peters 242. 
 
 95 7 Wheaton 534. 
 
 98 3 Wheaton 594. 
 
 97 4 Wheaton 453. 
 
 98 8 Wheaton 464. 
 
61] 135 
 
 Gushing s opinion" of November 24, 1790. The confiscation 
 of the estates of American refugees, as described in the 
 treaty, had been carried out. Part of the money had been 
 paid creditors and the rest placed in the state treasuries. 
 Such action was annulled by the treaty of peace and the 
 British subjects had their estates restored and profits ac 
 counted for. All justice in debts had been given to British 
 subjects and American citizens until paper money was sub 
 stituted. The effects of continental currency are well 
 known. The proceedings of the commission settling this 
 matter have been explained. 100 The court holds that debts 
 contracted, and interrupted by war, may be legally confis 
 cated, but such is not generally done from policy. 101 
 
 One of the serious causes of complaint against the treaty 
 was the admission of provisions as contraband of war. 102 
 This was the principle Great Britain wished to establish, 
 and which was endorsed by Wolfius and Vattel. It was 
 never completely decided one way or the other. In general, 
 the modern law holds them not contraband, but they may 
 become so under circumstances arising out of peculiar con 
 ditions. 103 
 
 Finally, an interesting question was raised during the 
 negotiations as to the legal right of Great Britain to the 
 slaves she had exported. The British negotiator not only 
 claimed that by war property in movables was acquired 
 as soon as such came within the enemy s lines, but that 
 slaves were men, not property. 104 This latter principle was 
 never established in international law, but the question in 
 volved was decided in favor of Great Britain, and no in 
 demnity was given for the seizure of slave property. 
 
 3. By depriving the south of this great factor in its 
 
 99 Opinions of Attorney Generals. Cf. American State Papers, Vol. 
 I, p. 224. 
 
 100 Supra p. 57. 
 
 101 2 Martin s North Carolina Eeports, p. 83. 
 
 102 Vide p. 24. 
 
 103 1 C. Eobinson 189, High Court of Admiralty. 
 104 American Historical Eeports, 1901, Vol. I. 
 
136 [62 
 
 agricultural production, 105 England carried out her policy 
 of injury to American commerce. To counteract this pur 
 pose, America met monopoly with monopoly, restriction 
 with restriction. There was a great danger to the United 
 States in this conduct. "To close to foreigners any of our 
 ports, as many of them were closed to us, would mean the 
 ruin of those ports and probably the immediate end of the 
 nation." 106 Our policy until 1790 had been to open our 
 ports to all foreign nations and by granting commercial 
 privileges, hoped to receive them. This policy failed, and 
 the one of retaliation and restriction resulted. But our eco 
 nomic conditions prohibited the execution of this method, 
 and Jay s treaty marks the first step to gain by negotiations 
 what could not be won by favor or retaliation. Great Brit 
 ain was under a great advantage in this treaty from the 
 fact that British commerce was established on an abundant 
 experience, while ours lacked maturity arid improvement. 
 
 It was the commercial article which excited the greatest 
 hostility. In addition to the objections that right of search 
 and impressment were not prohibited, free ships did not 
 make free goods and the lack of indemnity for commercial 
 spoliations, there was the complaint against the price paid 
 for limited privileges with the West Indies and the limita 
 tions of general carrying trade. 
 
 In behalf of commercial interests, the Senate showed 
 great wisdom and foresight in rejecting the twelfth article. 
 By it ship-timber, tar, hemp, sails, and copper in sheets were 
 declared contraband of war, although declared free in all 
 other treaties between the United States and other nations. 
 This would have limited our carrying trade with Europe in 
 the following years when it was very important. By the 
 article cotton was also prohibited from exportation. The 
 importance of this produce was as yet unappreciated in the 
 United States. Jay evidently did not know the industry 
 
 10B Vide infra, Section 5. 
 
 100 Thomas W. Page, Earlier Commercial Policy of the United 
 States, Journal of Political Economy, Vol. X, p. 177. 
 
63] 137 
 
 had been started, or that it was of any considerable inter 
 est. 107 A small quantity was exported from Georgia in 
 1783. In 1789 a member in Congress stated that the south 
 ern states were intending to cultivate cotton, and "if good 
 seed could be procured, he believed they might succeed." 
 It was not cultivated much for exportation until 1791 or 
 1792, but from that date it had a rapid growth in commer 
 cial importance. 108 
 
 The advantages which were lost by the treaty were : The 
 right of a special or general embargo, the right of seques 
 tration as far as Great Britain was concerned, the right of 
 discriminating against British goods in favor of those of 
 other nations, and the right of suspension of commercial 
 intercourse was especially stipulated against, for a limited 
 time. These restrictions were viewed with grave apprehen 
 sions by statesmen in opposition to relations with Great 
 Britain. They were considered as limitations upon the na 
 tional sovereignty of the United States. 
 
 These were the objections which seemed at the time to 
 be well founded. But the distressful picture was over 
 drawn. On both sides the treaty created a disposition to 
 try some other policy. Under Jefferson, our citizens be 
 lieved it would be best if governments would cease striving 
 for the ascendancy of the sea, and permit the cheapest 
 carrier to get the freight. Their reason was not economic, 
 but rather a belief that America could carry at less cost 
 than any other nation. 
 
 In England it was found that the advantages of their 
 treaty were failing to kill the wonderful vitality of the 
 "Yankee marine, with no right to exist." The amount of 
 
 107 Lyman, The Diplomacy of the United States, p. 220. 
 
 108 "A Statistical View of the Commerce of the United States," 
 Pitkin. 
 
 1791 189,316 Ibs. 
 
 1792 138,328 Ibs. 
 
 1793 487,600 Ibs. 
 
 1794 1,601,760 Ibs. 
 
 1795 6,276,300 Ibs. 
 
138 [64 
 
 registered tonnage, employed in foreign trade, made rapid 
 progress. 109 This growth continued, notwithstanding the 
 restrictions of Jay s treaty which had been finally assented 
 to by the merchants as a means of obtaining compensation 
 for their losses, otherwise than from the United States 
 Treasury. It was also adopted as an alternative of war, 
 which would have ruined one of the most thrifty periods in 
 American commerce. 
 
 The influence of the treaty is also apparent in our com 
 merce with France and England. The belief of Washing 
 ton s administration that British relations were of more 
 value than French is materially justified from the following- 
 figures. The year and valuation of exports with France and 
 her colonies is shown as follows : 
 
 1797 $12,449,076 
 
 1798 6,968,996 
 
 1799 2,780,504 
 
 1800 5,163,833 
 
 With Great Britain and colonies : 
 
 1797 $9,212,235 
 
 1798 17,184,347 
 
 1799 26,546,987 
 
 1800 27,310,289 
 
 The East India trade was found so satisfactory that no 
 modification was made until the expiration of the commer 
 cial part of the treaty in 1807. In December of that year 
 Pinckney and Monroe made slight changes, which lasted 
 until April 30, 1811, when Parliament made complete regu 
 lations. 110 
 
 109 Pitkin, "A Statistical View of the Commerce of the United 
 
 States, p. 389. 
 
 1793 367,734 tons 
 
 1794 438,862 tons 
 
 1795 529,470 tons 
 
 1796 576,733 tons 
 
 1797 597,777 tons 
 
 1798 603,376 tons 
 
 110 Pitkin, A Statistical View of the Commerce of the United 
 
 States," p. 174. 
 
65] 139 
 
 The war in which England was engaged with France in 
 1793, with Spain in 1796, and which continued until all the 
 nations of Europe were involved, threw into the hands of 
 the American merchant a large part of the world s com 
 merce. This was carried on under the difficulties rendered 
 by England s superior naval forces which she was allowed 
 to use in default of prohibitory articles in Jay s treaty. 
 
 4. The last matter for consideration under the effects 
 of the treaty is its political result with the foreign nations 
 interested in our relations with Great Britain. These na 
 tions were Spain and France. 
 
 The actions of Spain were only such as were dictated by 
 the French ministry and of minor consideration. At this 
 period Spain held Louisiana, and her objection to Jay s 
 treaty, especially the explanatory article of May 4, 1796, 
 was the favor England received in the navigation of the 
 Mississippi River. Spain deemed this sufficient cause for 
 retaining garrisoned towns along the river and refusing to 
 run out the boundary lines between her possessions and 
 those of the United States. Any trouble which might have 
 occurred was avoided by the Treaty of St. Ildefonso in 1800 
 between France and Spain, in which Louisiana was ceded 
 back to France. 
 
 A far more active interest in Jay s negotiations and 
 treaty was taken by the French nation. In America, the 
 action of the party in sympathy with France reflected the 
 hostility which was exhibited by that country against any 
 amicable relations with Great Britain. 111 
 
 Before war had been declared between these European 
 nations in 1793, France formed the policy of injuring Great 
 Britain through a close alliance, commercially and politi 
 cally, with the United States. Her treaty with America in 
 1787 was an early step in this direction. When peaceful 
 negotiations were decided upon between America and Eng- 
 land, France made every possible objection. The letters 
 111 Supra, p. 46. 
 
140 [66 
 
 from our minister at Paris to President Washington cau 
 tioned our government against the possible hostility of 
 France. The other method by which her influence was ex 
 ercised on the administration was by her sympathizers in 
 America. 112 The party methods were radical/ 13 and be 
 came more so when its partisans failed to hinder the admin 
 istration in its purpose. While the negotiations were going 
 on in London, Genet, in America, was stirring up all pos 
 sible opposition, not only against the conjectured treaty but 
 against the character of the men interested in the peaceful 
 results of the mission. 
 
 When the treaty was finished a copy was immediately 
 demanded by the French government through our minister, 
 Mr. Monroe. Jay very properly declined to reveal the un- 
 ratified document, and French hostility increased. During 
 the secret discussion in the Senate, the opposition grew and 
 long detailed accounts relating to the political conditions 
 were sent by the French minister to his home government. 114 
 
 Upon the publication of the treaty and the full knowl 
 edge of its contents, the red flames of opposition burst forth 
 in all their fury. The presence of Monroe at Paris and the 
 confidence the French ministry had in him as one of their 
 sympathizers probably averted an immediate rupture. As 
 it was, he was constantly employed in explanations and an 
 swering complaints of the French government. 115 Although 
 there were other accusations, Jay s treaty was the chief 
 cause of complaint. All the detailed objections can be 
 classed under two heads : the declaration of American neu 
 trality and the protection granted British interests in the 
 United States. 116 
 
 112 Appendix D (3). 
 
 113 Supra, p. 46. 
 
 114 Appendix D (5). 
 
 115 State Papers, Foreign Relations, Vol. I. French Affairs, p. 559 
 et seq. Cf. Lyman, "Diplomatic History of the United States, 7 p. 
 156 et seq. 
 
 110 John Basset Moore, Diplomacy of the United States. 
 
67] 141 
 
 The relations between the two countries became so dis 
 tant that the ministers of both were recalled. Adet was 
 instructed to inform this government that the treaty of 1787 
 was at an end. 
 
 Serious trouble might have resulted but for the fact that 
 France was so unstable in her government that it was im 
 possible to maintain a policy consistently and for any length 
 of time. 
 
 The French party in America, like Genet, carried its 
 policy too far and produced a reaction upon the people. 117 
 The treaty was ratified, 118 notwithstanding the frenzied op 
 position, and the party passed away in becoming silence. 
 
 5. But one other interest remains. There has been a 
 natural tendency to omit the influences brought to bear upon 
 the treaty of 1794, both in its making and in its ratification, 
 by the slavery interests of the United States. This is ac 
 counted for by the fact that slavery is not mentioned in the 
 treaty itself, and it is in this omission that the interest lies. 
 
 The real significance of the negotiation in this respect 
 lies not so much in the fact that by it the immediate event 
 was changed as that upon this occasion the question made 
 its earliest formal appearance in the diplomacy of the na 
 tion. A few claims 119 had been made previously in its be 
 half, but for the first time in 1794 the public sentiment was 
 brought definitely to bear upon the subject. 
 
 The policy of the British during the war had been to 
 weaken colonial power by depriving them of the services of 
 their slaves. In conformity with this attitude, General 
 Clinton and Lord Cornwallis issued a proclamation offering 
 freedom to all slaves escaping into British lines. The effect 
 was immediate and disastrous to agricultural interests. 
 Virginia alone lost thirty thousand slaves in Cornwallis 
 invasion in 1778. Jefferson estimates that Georgia lost 
 
 117 Fide supra, p. 43. 
 
 118 Appendix D (4). 
 
 119 First, discussion followed for a decade under Adams with Car 
 marthen and Pitt, then Governeur Morris with Pitt and the Duke of 
 Leads, finally Jefferson with George Hammond. American State Pa 
 pers, Foreign Relations, Vol. I, p. 188 et seq. 
 
142 [68 
 
 seven-eighths of her negroes, and Ramsay is responsible 
 for the statement that South Carolina, between 1775 and 
 1783, lost twenty-five thousand slaves valued at twelve mil 
 lion five hundred thousand dollars. 120 
 
 After the surrender at Yorktown, the exportation of the 
 negroes was a consistent finality to the British policy. A 
 commission was appointed by Washington to watch the de 
 parture of British ships, but their inspections were ignored 
 or prevented, and the theft of American slaves continued. 
 It was for a compensation of such action that Jay was in 
 structed to exact an indemnity from England. 
 
 In the negotiations, the slaves in question were divided 
 into three classes: First, those captured and disposed of 
 during the war, and concerning these both Grenville and 
 Jay agreed that the United States had no interest : second, 
 those remaining with and belonging to Americans in the 
 British lines. Jay claimed that as they belonged to and re 
 mained with Americans, even within the British lines, the 
 treaty was fully applicable. The enemy had never taken 
 them from their masters or treated them as booty, so prop 
 erty rights remained unchanged. Grenville was doubtful of 
 the validity of such a proposition. The third class included 
 those negroes who, confiding in the promise of freedom, fled 
 to the British army. The greatest difficulty arose over this 
 class. Jay maintained that their flight from American mas 
 ters and reception in the British lines did not extinguish 
 their slave character. Grenville maintained all property 
 crossing into British lines became British property, there 
 fore free. 
 
 The question then resolved itself into whether the clause 
 in the treaty of 1783 called for a restoration of all negroes 
 in the British lines at the close of the war or applied to 
 those who might fall into British hands after the treaty of 
 peace. The right of the question was undoubtedly upon the 
 British side, and they became firmer and more impressed 
 
 120 American Historical Eeport, 1901, Vol. I, p. 273 et seq. Article 
 by F. A. Ogg, Jay s Treaty and the Slavery Interests of the United 
 States. 
 
69] 143 
 
 with their argument as the negotiations proceeded. As a 
 matter of the intentions of the negotiators of the treaty of 
 peace the attitude of the United States was absolutely cor 
 rect. All negroes in the British lines were to be returned to 
 their rightful American owners. 
 
 The discussions between Jay and Grenville came to noth 
 ing. Jay was not the man to take particular delight in 
 upholding the slavery interests of his country. He had ex 
 pressed himself 121 that the United States must abolish slav 
 ery, or "their prayer to Heaven for liberty would be im 
 pious." The slavery question was reported by Jay as one 
 of the subjects of existing differences, and the treaty with 
 no compensation for the southern losses came into Congress. 
 
 It is not surprising that the document met with animated 
 resistance from the south. The debates in Congress dis 
 cussed the slave question thoroughly, 122 and the attitude of 
 some of the southern states was too rabid to be reviewed 
 with any pleasure. 123 Jay s treaty brought before the na 
 tion the differences of opinion and interest in this economic 
 institution. These differences were culminated over a half 
 century later in an internecine war. 
 
 The commercial articles of the treaty went out of effect 
 by their own stipulation on October 28, 1807. The entire 
 Treaty of Amity, Commerce, and Navigation was made null 
 and void by the War of 1812. Its detriments and benefits 
 have merged in the march of events. 
 
 And what position had the treaty of 1794 in this pro 
 gress? 
 
 Governments realize their efficiency through revolution 
 and reconstruction. The Revolution of 1776 gave independ 
 ence to a new nation. The treaty of 1794 was a factor in 
 the construction of its international relations and confirmed 
 its status as a sovereign government. 
 
 Both events have passed into history and, according to 
 their importance, are enrolled in the annals of the nation. 
 
 121 American Historical Eeports, 1901, Vol. I, p. 282. 
 
 122 Vide supra, pp. 39-40. 
 l - 3 Ibid. and Appendix C (3). 
 
144 [70 
 
 APPENDICES. 
 
 APPENDIX A. Extracts from the diplomatic correspondence relating 
 to the Treaty of 1794. 
 
 APPENDIX B. Synopsis of the Treaty of Amity, Commerce, and Navi 
 gation between Great Britain and the United States. 
 
 APPENDIX C. Extracts from the American papers published by the 
 party in opposition to the Treaty. 
 
 APPENDIX D. French diplomatic correspondence regarding Jay s 
 Treaty. 
 
 APPENDIX E. A Map, with its consideration and explanation, relat 
 ing to certain stipulations in the Treaty of 1794. 
 
 APPENDIX A. 
 
 Extracts from the diplomatic correspondence relating to the Treaty 
 of 1794. 
 
 (1) May 6, 1794. Instructions to Jay as Envoy Extraordinary. 
 
 (2) London, July 11, 1794. Jay to Alexander Hamilton. 
 
 (3) London, November 19, 1794. Jay to Edmund Randolph. 
 
 (1) INSTRUCTIONS TO JAY AS ENVOY EXTRAORDINARY. 124 
 
 "SiR: The mission upon which you are about to enter, as Envoy 
 Extraordinary to the Court of London, has been dictated by consider 
 ations of an interesting and pressing nature. 
 
 A full persuasion is entertained that, throughout the whole nego 
 tiation, you will make the following its general objects: To keep alive 
 in the mind of the British minister that opinion which the solemnity 
 of a special mission must naturally inspire, of the strong agitations 
 excited in the people of the United States, by the disturbed condition 
 of things between them and Great Britain; to repel war, for which we 
 are not disposed, and into which the necessity of vindicating our honor 
 and our property may, but can alone, drive us; to prevent the British 
 ministry, should they be resolved on war, from carrying with them the 
 British nation; and, at the same time, to assert, with dignity and 
 firmness, our rights, and our title to reparation for past injuries. 
 
 124 American State Papers, Foreign Eelations, Vol. I, p. 427. 
 
71] 145 
 
 I. One of the causes of your mission being the vexations and 
 spoliations committed on our commerce by the authority of instruc 
 tions from the British government, you will receive from the Secretary 
 of State the following documents. * 
 
 Compensation for all the injuries sustained, and captures, will be 
 strenuously pressed by you. * 
 
 If the British ministry should hint at any supposed predilection in 
 the United States for the French nation, as warranting the whole or 
 any part of these instructions, you will stop the progress of this sub 
 ject, as being irrelative to the question in hand. 
 
 II. A second cause of your mission, but not inferior in dignity to 
 the preceding, though subsequent in order, is to draw to a conclusion 
 all points of difference between the United States and Great Britain, 
 concerning the treaty of peace. 
 
 III. It is referred to your discretion whether, in case the two 
 preceding points should be so accommodated as to promise the contin 
 uance of tranquillity between the United States and Great Britain, the 
 subject of a commercial treaty may not be listened to by you, or even 
 broken to the British ministry. If it should, let these be the general 
 objects: 
 
 1st. Eeciprocity in navigation, particularly to the West Indies and 
 even to the East Indies. 
 
 2d. The admission of wheat, fish, salt meat, and other great sta 
 ples, upon the same footing with the admission of the great British 
 staples in our ports. 
 
 3d. Free ships to make free goods. 
 
 4th. Proper security for the safety of neutral commerce in other 
 respects; and particularly: 
 
 By declaring provisions never to be contraband, except in the 
 strongest possible case, as the blockade of a port; or, if attainable, by 
 abolishing contraband altogether; 
 
 By defining a blockade, if contraband must continue in some de 
 gree, as it is defined in the armed neutrality; 
 
 By restricting the opportunities of vexation in visiting vessels; and 
 
 By bringing under strictest management privateers; and expediting 
 recoveries against them for misconduct. 
 
 5th. Exemption of emigrants, and particularly manufacturers, 
 from restraint. 
 
 6th. Free exports of arms and military stores. 
 
 7th. The exclusion of the terms "the most favored nation," as 
 being productive of embarrassment. 
 
 8th. The convoy of merchant ships by the public ships of war, 
 where it shall be necessary, and they be holding the same course. 
 
146 [72 
 
 9th. It is anxiously to be desired that the fishing grounds now 
 engrossed by the British should be opened to the citizens of the United 
 States. 
 
 10th. The intercourse with England makes it necessary that the 
 liabilities arising from alienage in cases of inheritance should be put 
 upon a liberal footing, or rather abolished. 
 
 llth. You may discuss the sale of prizes in our ports while we 
 are neutral; and this perhaps may be added to the considerations 
 which we have to give, besides those of reciprocity. 
 
 12th. Proper shelter, defence, and succor against pirates, ship 
 wreck, etc. 
 
 13th. Full security for the retiring of the citizens of the United 
 States from the British dominions in case a war should break out. 
 
 14th. No privateering commissions to be taken out by the subject 
 of the one, or citizens of the other party, against each other. 
 
 15th. Consuls, etc., to be admitted in Europe, the West and East 
 Indies. 
 
 16th. In case of an Indian war, none but the usual supplies in 
 peace shall be furnished. 
 
 17th. In peace, no troops to be kept within a limited distance 
 from the lakes. 
 
 18th. No stipulation whatsoever is to interfere with our obliga 
 tions to France. 
 
 19th. A treaty is not to continue beyond fifteen years. 
 
 IV. This enumeration presents generally the objects which it is de 
 sirable to comprise in a commercial treaty ; not that it is expected that 
 one can be effected with so great a latitude of advantages. * * * 
 
 But if a treaty of commerce cannot be formed upon a basis as ad 
 vantageous as this, you are not to conclude or sign any such, it being 
 conceived that it would not be expedient to do anything more than to 
 digest with the British ministry the articles of such a treaty as they 
 appear willing to accede to, referring them here for consideration and 
 further instruction previous to a formal conclusion." 
 
 (2) JAY to ALEXANDER HAMILTON. 
 
 London, July 11, 1794. 
 
 * * * "Appearances continue to be singularly favorable, but 
 appearances merit only a certain degree of circumspect reliance. The 
 delays occasioned by the new arrangement of the ministry cannot be 
 of long continuance. Circumstances must soon constrain them to form 
 some ultimate system relative to the United States; and although I 
 have much reason to hope that it will be favorable to our wishes, yet I 
 confess I am not without apprehensions that certain points not by us 
 
73] 147 
 
 to be yielded will occasion difficulties hard to surmount. Personally I 
 have every reason to be satisfied, and officially I have as yet no reason 
 to complain. 
 
 *# **)( * 
 
 I will endeavor to accommodate rather than dispute; and if this 
 plan should fail, decent and firm representations must conclude the 
 business of my mission. As yet I do not regret any step I have taken. 
 I wish I may be able to say the same at the conclusion. 
 
 (3) JAY to EDMUND EANDOLPH. 
 London, November 19, 1794. 
 
 "Sin: The long expected treaty accompanies this letter. * * * 
 The difficulties which retarded its accomplishment frequently had the 
 appearance of being insurmountable; they have at last yielded to 
 modifications of the articles in which they existed, and to that mutual 
 disposition to agreement which reconciled Lord Grenville and myself 
 to an unusual degree of trouble and application. They who have 
 leveled uneven grounds know how little of the work afterwards ap 
 pears. * * * 
 
 My opinion of the treaty is apparent from my having signed it. I 
 have no reason to believe or conjecture that one more favorable to us 
 is attainable. 
 
 Perhaps it is not very much to be regretted that all our differences 
 are merged in this treaty, without having been decided; disagreeable 
 imputations are thereby avoided, and the door of conciliation is fairly 
 and widely opened by the essential justice done, and the conveniences 
 granted to each other by the parties. 
 
 The term limited for the evacuation .of the posts could not be re 
 stricted to a more early day; that point has been pressed. 
 
 ************ 
 
 The 6th article was sine qua new, and is intended as well as cal 
 culated to afford that justice and equity which judicial proceedings 
 may, on trial, be found incapable of affording. * * * 
 
 The credit of some of the States having, to my knowledge, suffered 
 by appearances of their being favorable to the idea of sequestrating 
 
 British debts on certain occasions, the 10th article will be useful. 
 
 * * * 
 
 The duration of this article (12) is short, but if we 
 meet the disposition of this country to good humor and cordiality, I 
 am much inclined to believe it will be renewed. The duration of the 
 treaty is connected with the renewal of that article, and an oppor 
 tunity will then offer for discussing and settling many important 
 matters. * * * 
 
148 [74 
 
 It will give you great pleasure to hear that great reserve and deli 
 cacy have been observed respecting our concerns with France." 
 
 APPENDIX B. 
 
 Synopsis of the Treaty of Amity, Commerce, and Navigation be 
 tween Great Britain and the United States. 125 
 
 The introduction designates the purpose of the treaty and names 
 the plenipotentiary from each county empowered to negotiate such. 
 
 ARTICLE I. Establishes peace and friendship between his Britan 
 nic Majesty and the United States. 
 
 ARTICLE II. His Majesty consents to 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. The evacuation is to take 
 place on or before the 1st of June, 1796. All settlers in those parts to 
 enjoy private property rights and become citizens of the United States 
 in one year unless allegiance is declared to His Britannic Majesty. 
 
 ARTICLE III. Allow r s to His Majesty s subjects and the citizens of 
 the United States, and to the Indians dwelling on either side of the 
 said boundary line, freedom to pass and repass by land or inland navi 
 gation into the respective territories of the two parties. The country 
 \vithin the limits of the Hudson s Bay Company is excepted. Vessels 
 belonging to the United States are not to be admitted into the ports 
 of His Majesty s said territories, nor British vessels from the sea into 
 rivers of the United States beyond the highest ports of entry for 
 foreign vessels from the sea. The navigation of the Mississippi, how 
 ever, is to be entirely free. Goods and merchandise shall be conveyed 
 into the territories of His Britannic Majesty by American citizens, and 
 into the territories of the United States by British subjects, subject 
 to the regulations established by both parties. The article is intended 
 i.tp render local advantages to each country. 
 
 AltfiCLE IV. Provides for a joint survey of the Mississippi River 
 to determine the northwest boundary line. 
 
 ARTICLE V. Authorizes a commission of three members to deter 
 mine which is the river St. Croix, intended by the Treaty of Peace of 
 1783 as part of the northeast boundary line. 
 
 ARTICLE VI. Gives to British subjects the power of recovering 
 debts due to them by American citizens previous to the treaty of 
 peace; which debts have not been recovered hitherto, on account of 
 some legal impediments. The United States agree to make full and 
 
 j n f u ii may be found in the Annual Register, 1795, 
 and State Papers, Foreign Relations, Vol. I. 
 
75] 149 
 
 complete compensation to the creditors who have suffered by those 
 impediments. The amount of the losses and damages is to be ascer 
 tained by five commissioners two to be appointed by Great Britain, 
 two by the President of the United States, and one by the other four. 
 * * * Three of the said commissioners shall constitute a board, ancT 
 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 I 
 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 V 
 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 I 
 exceeding six months after the expiration thereof. The said commis- i 
 sioners shall first meet at Philadelphia, but they shall have power to \ 
 adjourn from place to place as they shall see cause^ 
 
 The award of the said commissioners, or any three of them as 
 aforesaid, shall in all cases be final and conclusive. 
 
 ARTICLE VII. Allows indemnification, by the British government, 
 to such of the citizens of the United States as have suffered, during 
 the late war, by irregular and illegal captures. The United States also 
 agrees to indemnify British subjects for irregular, illegal captures 
 taken by American ships during the war. Five commissioners, acting 
 under the same directions and oath as those in the preceding article, 
 are to sit at London upon all cases which have not been agreeably 
 settled according to the letter from Mr. Jefferson to Mr. Hammond, 
 Philadelphia, September 5, 1793. 
 
 ARTICLE VIII. Provides for the expenses of the commissioners in 
 the sixth and seventh articles above and the filling of their vacancies. 
 ARTICLE IX. 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 terms 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 and the legal remedies incident thereto, be regarded as 
 aliens. 
 
 ARTICLE X. Stipulates no debt, shares of public money, or public 
 or private bank funds shall ever be confiscated or sequestered in na 
 tional differences. 
 
 ARTICLE XI. Guarantees perfect liberty of navigation and com 
 merce among people of both countries under the following articles. 
 
150 [76 
 
 ARTICLE XII. Allows the citizens of the United States to carry 
 the produce of the United States to the West Indies, in vessels of not 
 more than seventy tons burden. The citizens are also allowed to carry 
 away the produce of the islands to the territories of the United States 
 alone. This article is to continue in force for two years after the 
 present war, when further regulations are to be made. (This article 
 was suspended by the resolution of the Senate advising ratification, 
 and the suspension was agreed to by Great Britain.) 
 
 ARTICLE XIII. His Majesty consents that vessels belonging to 
 American citizens shall be admitted to all seaports of the British ter 
 ritories in the East Indies. Said citizens may freely carry on a trade 
 between said territories and the United States, in all articles of which 
 the importation or exportation is not entirely prohibited. Provided 
 only, that it shall not be lawful for them in time of war between 
 Great Britain and any other state to export from said territories, 
 without permission, any military or naval stores or rice. Coasting 
 trade is prohibited and no higher duties are to be exacted than payable 
 on British vessels. 
 
 ARTICLE XIV. Eeciprocal and perfect liberty of commerce and 
 navigation is guaranteed between the United States and the European 
 territories of Great Britain. 
 
 ARTICLE XV. No higher duties shall be paid by the ships or mer 
 chandise of the one party in the ports of the other than the duties 
 paid by other nations. No higher duties shall be paid upon impor 
 tation or exportation than the duties paid on the importation or ex 
 portation of similar articles, the product of other nations. 
 
 ARTICLE XVI. Eelates to the appointment of consuls for the pro 
 tection of trade. 
 
 ARTICLE XVII. Any vessel captured or detained on suspicion of 
 having enemy s goods is to be taken to the nearest port, and if any 
 such property is found, it alone is to be taken and the vessel allowed 
 to proceed. Delay is to be prevented or properly compensated. 
 
 ARTICLE XVIII. Decides what articles the term contraband can 
 be applied to. When provisions are regarded as such and seized, the 
 owners shall be made speedy indemnification. Any vessel sailing for 
 a port with a cargo not contraband, not knowing the port blockaded, 
 will be allowed to put to any other port unless she again try to enter, 
 when she will be held, and when such port is surrendered returned to 
 the owners. 
 
 ARTICLE XIX. Provides for the security of the respective sub 
 jects and citizens, and for the preventing of injuries by men-of-war. 
 
 ARTICLE XX. Eelates to the refusal of the respective parties to 
 receive pirates into any harbors or towns, and to the seizure of goods 
 and merchandise taken by pirates. 
 
77] 151 
 
 ARTICLE XXI. Stipulates that the subjects and citizens of two 
 nations shall not do any acts of hostility against each other, and shall 
 not accept commissions from foreign states or princes, to commit 
 hostilities. 
 
 ARTICLE XXII. Neither contracting party shall authorize any act 
 of reprisal against the other, on complaint of injuries or damages, 
 until the first party has presented a statement as proof thereof. 
 
 ARTICLE XXIII. Eelates to the treatment of ships, officers, and 
 crews, in the respective ports of the two powers. 
 
 ARTICLE XXIV. Provides that privateers of nations at enmity 
 with either of the two powers shall not arm their ships in the respec 
 tive ports of the two powers, or sell what they have taken. 
 
 ARTICLE XXV. It is lawful for ships of war and privateers to 
 take their captured ships into either party s ports and be there sub 
 ject to certain privileges and obligations and are to be assisted to an 
 early departure. No merchant vessel is to be taken within cannon- 
 shot of the coast, or full satisfaction is guaranteed. 
 
 ARTICLE XXVI. In case of war merchants and citizens or sub 
 jects of one are permitted to reside in the territory of the other nation 
 and to continue their trade. 
 
 ARTICLE XXVII. Agrees that the two powers shall respectively 
 deliver up persons charged with murder and forgery. 
 
 ARTICLE XXVIII. Alluding to the preceding articles, this states 
 that the first ten articles shall be permanent, and that the subsequent 
 articles (the twelfth excepted) shall be limited in their duration to 
 twelve years. The treaty is to be binding and obligatory as soon as it 
 is ratified. 
 
 GRENVILLE (L. S.) 
 November 19, 1794. J OHN J AY (L> s>) 
 
 HP 
 
 EXPLANATORY ARTICLES. 
 
 Article explanatory of Article III of the Treaty: 
 
 May 9, 1796. This article related to the passage of Indians into 
 the territories of both nations. 
 
 Article explanatory of Article V of the Treaty : 
 
 June 5, 1798. This article authorized the commission under Art 
 icle V to designate the source of the St. Croix Eiver in any manner 
 they saw fit otherwise than by latitude and longitude. 
 
 Convention for the payment of indemnities and settlement of 
 debts : 
 
 January 8, 1802. This convention of five articles provides for the 
 payment to Great Britain of 600,000 in full for the claims submitted 
 
152 [78 
 
 under Article VI of the Treaty of 1794, and for the continuance of the 
 commission under Article VII ; and it was agreed the awards should be 
 paid in three annual installments; furthermore, that creditors of either 
 country should meet with no impediment in the collection of their 
 debts. 
 
 APPENDIX C. 
 
 Extracts from the American papers published by the party in oppo 
 sition to the treaty. 
 
 (1) Extract from the New York Journal, August 2, 1794. 
 
 (2) Proceedings in Philadelphia according to the Democratic 
 
 Printer, July 4, 1795. 
 
 (3) The Richmond Notice, July 31, 1795. 
 
 (1) EXTRACT FROM THE New York Journal. 
 
 August 2, 1794. 
 
 The late appointment of John Jay, as Envoy Extraordinary to the 
 Court of London, brought so strongly to the recollection of the people 
 of this country his former iniquitious attempt to barter away their 
 most valuable right, that they could not refrain from openly testifying 
 their abhorrence of the man, whose appointment, at this critical period 
 of their affairs, they consider as tragically ominous. Although they 
 had not forgotten, nor even faintly remembered, his former act of 
 treason against them; yet they hoped, from the office he filled, he was 
 in as harmless a situation as he could be placed; and that no effort 
 of power or policy could drag him forward, so long as he held his 
 office, and set him once more to chaffering with our rights. With 
 these impressions, a number of respectable citizens, of this place and 
 its vicinity, on Saturday last, ordered a likeness of this evil genius 
 of western America to be made, which was soon well executed. At 
 the appointed hour, he was ushered forth from a barber s shop, 
 amidst the shouts of the people, dressed in a courtly manner, and 
 placed erect on the platform of the pillory. In his right hand he held 
 uplifted a rod of iron ; in his left, he held extended Swift s last speech 
 in Congress, on the subject of British depredation, on one side of 
 which was written: 
 
 Nemo repente fuit turpissimus. Juv. Sat. IV, 33. 
 
 No man e er reached the heights of vice at first. 
 And on the other: 
 
 non deficit alter. Virg. Aen. 6. 
 
 A second is not wanting. 
 
79] 153 
 
 About his neck was suspended by a hempen string Adam s defence 
 of the American Constitutions, on the cover of which was written: 
 Scribere jussit aurum. Ov. Ep. 
 Gold bade me write. 
 
 After exhibiting him in this condition for some time, he was or 
 dered to be guillotined, which was soon dexterously executed, and a 
 flame instantly applied to him, which finding its way to a quantity of 
 powder, which was lodged in his body, produced such an explosion 
 that after it there was scarcely to be found a particle of the disjecta 
 membra Plenipo. * * * 
 
 The Club of Charleston, South Carolina, solicited an adoption of 
 the Jacobin Club at Paris. They also addressed Consul Margourit, 
 who had actually granted commissions to privateers, in defiance of the 
 President s proclamation of neutrality." 
 
 (2) PROCEEDINGS IN PHILADELPHIA, ACCORDING TO THE DEMOCRATIC 
 
 PRINTER. 
 July 4, 1795. 
 
 "At Philadelphia, on the 4th of July (the anniversary of the glo 
 rious Independence), Mr. Jay and the Senate were burnt in effigy. 
 The mob, headed by one Abraham Coats, an old Whig, carried through 
 the streets a transparent painting, of which the Democratic printer 
 gave the following description: The figure of John Jay was upon it. 
 The figure was in full statue, holding in his right hand a pair of scales, 
 containing in one scale American Liberty and Independence, kicking 
 the beam; in the other, British Gold, in extreme preponderance. In 
 his left hand a treaty of Amity, Commerce, and Navigation, which he 
 extended to a group of Senators, who were grinning with pleasure and 
 grasping at the treaty. From the mouth of the figure issued these 
 words, Come up to my price, and I will sell you my country. The 
 figure was burned at Kensington amid the acclamations of hundreds 
 of citizens. Thus ended the procession, and thus terminated the anni 
 versary of American independence." 
 
 (3) THE EICHMOND NOTICE. 
 
 July 31, 1795. 
 
 Notice is hereby given, that in case the treaty entered into by that 
 d n d Arch Traitor, J n J y, with the British tyrant should be 
 ratified, a petition will be presented to the next General Assembly of 
 Virginia at their next session praying that the said state may recede 
 from the Union, and be left under the government and protection of 
 One Hundred Thousand Free and Independent Virginians. 
 
154 [80 
 
 P. S. As it is the wish of the people of the said state, to enter 
 into a treaty of amity, commerce, and navigation, with any other state, 
 or states of the present Union, who are averse to returning again 
 under the galling yoke of Great Britain, the printers of the (at pres 
 ent) United States are requested to publish the above notification. 
 
 APPENDIX D. 126 
 FRENCH DIPLOMATIC CORRESPONDENCE REGARDING JAY S TREATY. 
 
 (1) April 14, 1796. Le Ministre Plenipotentiaire de la Repub- 
 
 lique Franchise (Adet) pres les Etats Unis, Au Minis 
 tre des Relations Exterieures. 
 
 (2) May 3, 1796. Le Ministre Plenipotentiaire de la Repub- 
 
 lique Franchise (Adet) pres les Etats Unis, Au Minis 
 tre des Relations Exterieures. 
 
 (3) June 20, 1796. Le Ministre Plenipotentiaire de la Repub- 
 
 lique Franchise (Adet) pres les Etats Unis, Au Minis 
 tre des Relations Exterieures. 
 (1) April 14, 1796. 
 
 Citoyen Ministre: Nos amis enfin viennent d adopter uii Plan 
 pour la rejection du Traite. Dans leur dernier Comite Secret, il a ete 
 arrete que 1 on feroit adopter par la Chambre Une resolution ConQue 
 a peu pres dans les termes suivans : Attendu que le Traite conclue 
 entre la Grande Bretagne et les Etats unis paroit injurieux aux in- 
 terets des Etats; Attendu que la Chambre manque de documens neces- 
 saires pour en porter un jugement different; Attendu que tous les 
 renseignements qu elle a demande a cet egard lui ont e"te refuses, il 
 est resolu qu elle ne s occupera pas des Loix relatives a ce Traite. 
 
 Bientot, Citoyen Ministre, cette resolution sera soumise a la Cham 
 bre et aura la Majorite en sa faveur, s il faut en croire les Membres 
 les plus influans du parti republicain. Us m ont assure qu ils etoient 
 certains de cinquante sept voix et que neuf membres de la Minorite 
 etoient incertains sur le parti qu ils avoient a prendre. 
 
 Quoique nos amis ne paroissent pas douter du succes, je n ose pas 
 vous le garantir, Citoyen Ministre; Je connois trop le caractere des 
 Americains pour compter sur un acte de vigueur de la Chambre des 
 representans ; et pour vous parler avec franchise, je serois etonne, si 
 elle prend cette attitude fiere que veulent lui donner les chefs du parti 
 Republicain. 
 
 126 The French Correspondence, regarding the treaty of 1794, is 
 abundant and much in detail. Enough of it is given in this Appendix 
 to show the interest and trend of French action. 
 
81] 155 
 
 Toute incertitude cependant cessera bientot, Citoyen Ministre; la 
 decision de la question qui s agite maintenant a la Chambre, nous fera 
 presager le sort de la resolution qui doit terminer toutes les discus 
 sions relatives au Traite de Jay. Un membre de la Minorite a pro 
 pose hyer que la Chambre des representans fit les loix necessaires pour 
 1 execution des Traites Conclus avec Alger, la Grande Bretagne, 1 Es- 
 pagne et quelques Nations indiennes. Cette proposition a excite des 
 debats plus vifs que ceux qui avoient eu lieu jusqu a ce jour; plu- 
 sieurs amendemens ont ete proposes ; la division a ete demandee ; mais 
 le Comite general n a pris encore aucune determination. 
 
 Si celle qu il adoptera en conforme aux viies de nos amis, s ils ont 
 la majorite dans cette circonstance, il y a lieu de croire qu ils 1 obtien- 
 dront, lorsqu il s agira de la grand resolution; car les hommes qui se 
 seront prononces jusqu a ce Moment dans le meme sens, ne pourront 
 plus changer d opinion sans se deshonorer. 
 
 Signe P. A. ADET. 
 (2) May 3, 1796. 
 
 Citoyen Ministre: C en est fait; le parti de 1 Angleterre triomphe, 
 et la Chambre des representans a arrete avant hyer qu elle feroit la 
 loi relative a 1 execution du Traite avec 1 Angleterre. Vous trouverez 
 cyjoint 1 extrait de sa seance, et vous verrez qu il s en est peu fallu 
 que nos amis ne restassent maitres du champ de bataille; Us etoient 
 certains de la Victoire, Citoyen Ministre, si le Gouvernement franc.ois 
 s etoit explique sur le traite, si les bruits de mon rappel n etoient 
 venus appuyer les raisons des membres qui interpretoient le silence de 
 la France en faveur du Gouvernement Americain, et qui avoient grand 
 soin de dire que 1 on avoit en consequence rien a redouter de la France, 
 et tout a craindre de PAngleterre. En vain ai-je fait tous mes efforts 
 pour detruire ces fausses impressions; je n ay pu reussir: et quelques 
 moyens que j eusse pu employer de concert avec nos amis, m etoit-il 
 possible de ruiner les manoeuvres et les intrigues du Ministre d Angle- 
 terre qui pouvoit user de deux armes tou jours vietorieuses, la menace 
 et la corruption. Elles ne luy ont ete que trop utiles, s il faut que 
 j en croie les rapports qui m ont ete faits; II n est pas le seul qui 
 s en soit servi; Cent Marchands, m a-t-on assure, ont fait une sou- 
 scription de 500 Dollars chacun, pour acheter des souffranges en faveur 
 du Traite. Les ont-ils distribues, ont-ils reussi, 1 argent ou la crainte 
 de 1 Angleterre ont-ils decide" la question? je ne puis vous expliquer 
 ce mystere. Vainement ai-je cherche a le penetrer. Tout le monde se 
 tait, et ceux qui avoient parle de la souscription des marchands il y a 
 quelques jours, gardent aujourd hui le silence, ne repondent que d une 
 maniere ambigue aux Questions qu on leur fait, et laissent voir par 
 
156 [82 
 
 la qu on leur a commande une discretion a laquelle ils ne s etoient pas 
 cru d abord obliges. 
 
 Je ne saurois vous peindre, Citoyen Ministre, le chagrin de nos 
 amis dans les circonstances actuelles; ils voyent la liberte fortement 
 menacee chez eux, ils voyent le royalisme qui ne s etait avance que 
 lentement, pret a faire des progres rapides. Deja ses apotres parlent, 
 deja les Senateurs et John Adams a leur tete, disent hautement que 
 la monarchic est le seul Gouvernement convenable a tous les Peuples. 
 Un Senateur de la minorite m a rapporte confidemment qu un de ses 
 collegues lui disoit un jour. Nous vous connoissons, vous ne serez 
 jainais sujet; il faudra vous couper le cou ou vous faire roi. Nos 
 amis voyent 1 orage destructeur de 1 egalite se former peu a peu; ils 
 auroient pu aisement dans les circonstances actuelles le dissiper; ils 
 ne savent si plus tard ils en auront la puissance. Ils craignent de 
 succomber au milieu de leurs efforts ou de ne pouvoir retablir la liberte 
 qu en parcourant les diverses periodes d une revolution dont on ne peut 
 calculer les effets ni determiner la duree. Tant d elemens divers peu- 
 vent etre opposes Pun a 1 autre dans les mouvemens d une fermenta 
 tion interieure; 1 influence des interets Europeens peut agir de telle 
 sorte qu ils ne portent pas sans etre eff rayes leurs regards sur 1 avenir. 
 Ils voyent deja le Peuple Americain en armes combattant pour la 
 royaute, et la Republique arroser de son sang les campagnes qu elle 
 fertilisoit de ses sueurs; cette population d esclaves qu elle fertilisoit 
 de ses seueurs; cette population d esclaves qu elle renferme dans son 
 sein, ces tribus d Indiens qui 1 entourent, instrumens dont 1 ambi 
 tion, la fureur, la vengeance peuvent s emparer, ajoutent encore aux 
 maux qu il se fera lui-meme si des evenemens qu on n ose esperer ne 
 viennent pas inopinement a son secours. Et nous, Citoyen Ministre, 
 qui ne pouvons esperer de tirer des avantages de ce pays qu autant que 
 le parti republicain dominera, a quoi devons nous nous attendre 
 aujourd hui? Nos interets vont etre plus violemment froisses que 
 jainais. On nous a desservi constamment sous le manteau de la neu- 
 tralite. Aujourd hui on le fera ouvertement; on n usera plus de strata- 
 genie ; on n invoquera plus les ressources de la Chicane, les secours de 
 la tourbe devorante des gens de loi, la partialite des Tribunaux; on 
 n en appellera aux Traites Anglais dans tous les cas ou nous recla- 
 merons contre les favours accordees a nos ennemis; nous les verrons 
 jouir des avantages que nous etions assures exclusivement par nos 
 Traites, et nous en serons prives nous memes. Deja, je vois que 1 on 
 se dispose a empecher les corsaires de vendre leurs prises aux Etats 
 Unis. Deja le Consul Anglais a Charleston a demande qu on fit 
 arreter la vente d une prise faite par un de nos corsaires, non par- 
 cequ il avoit ete arme aux Etats Unis, mais parceque 1 article 25 du 
 
83] 157 
 
 Traite conclu avec la Grande Bretagne empeche les ennemis de cette 
 puissance d amener et de conduire leurs prises aux Etats Unis. Les 
 Officiers du Gouvernement he"sitent, ils n ont pas dissimule leur em- 
 barras a notre consul, et cependant le meme article 25 du Traite 
 Anglais leur dicte leur decision; mais ils craignent de deplaire a 
 PAngleterre, et je ne doute pas de voir realiser ce que j avois prevu 
 dans mon N l re au Comite de Salut public, sur 1 admission de nos 
 prises aux Etats Unis, a cette violation de nos traites, sans doute on 
 ajoutera de nouvelles vexations, et nous verrons la nation Franchise 
 triomphante et respectee en Europe, recevoir ici des affronts d un gou- 
 vernement timide et lache que la crainte seuls gouverne, et qui 
 s humilie tou jours devant la main qui le frappe. Mais, Citoyen Minis- 
 tre, devons nous souffrir que ce gouvernement qui a trahi notre bonne 
 foi, qui s est joue de notre moderation, joigne de nouveaux outrages 
 a ses perfidies, et pour parvenir a 1 execution de ses pro jets, force le 
 Gouvernement Francis de rompre avec lui? Non, sans doute, Pin- 
 teret de notre gloire, de notre dignite, Pinteret meme du peuple 
 Americain, que nous devons sauver de Poppression comme nous y 
 avons arrache le peuple Batave, nous impose, ce me semble, Pobliga- 
 tion de mettre un frein a Paudace du parti Anglais et de tourner 
 contre lui-meme les armes dont il s est servi centre nous. 
 
 En effet, Citoyen Ministre, Qui a engage le Gouvernement a faire 
 un Traite avec Londres? Le parti Anglois. Qui a fait ratifier le 
 Traite par Washington? Le parti Anglois. Qui s est agite pour 
 faire passer ce traite a la Chambre des representans ? Le meme parti. 
 De quels gens est-il compose? Des Anciens Torrys, des negocians 
 venus de la Grande Bretagne, des Presidens, Directeurs et Interesses 
 de la Banque, des compagnies d assurance des Marchands. Ces hom- 
 mes seuls ont des interets sur les batimens expedies en Angleterre ; ce 
 ne sera done que sur ces hommes que peseront les mesures que je vous 
 propose, et ce ne sera pas le peuple n a rien a se reprocher qui en 
 souffrira. * * * 
 
 Je ne sais pas, Citoyen Ministre, comment il seroit possible autre- 
 rnent, de parer aux inconveniens qui naissent pour nous de 1 union des 
 Etats Unis avec la Grande Bretagne; comment nous pourrons regagner 
 ce que nous avons perdu par notre faute, la preponderance a laquelle 
 nous avions tant de droits. Une rupture conduiroit-elle a ce but? Non, 
 sans doute; le gouvernement saisiroit avec empressement eette occa 
 sion pour eloigner a jamais le peuple de la France, pour le lier plus 
 etroitement avec PAngleterre. * * * 
 
 II faut, je pense, Citoyen Ministre, ne pas perdre cet objet de vue, 
 et nous rappeller que si la France est agricole, elle est aussi manu- 
 facturiere, qu elle a besoin d exporter le produit de son industrie; 
 
158 [84 
 
 que ce vaste continent presents des debouches infinis, si elle sait se 
 les assurer, et qu y menageant avec soin ses interets, elle peut s appro- 
 visionner seule tout le terns ou il n aura tas de manufacture, et le 
 terns est oncore eloigne. Ces diverses considerations viennent done a 
 1 appui de ma proposition et me la font regarder comme seule admis 
 sible dans ce moment surtout, ou nous ne devons pas chercher une 
 nouvelle guerre, et ou 1 honneur et 1 interet de la nation ne me parois- 
 sent pas permettre de garder le silence sur la conduite du gouverne- 
 ment Americain. 
 
 (3) June 20, 1796. 
 
 On vient de me procurer une copie des Instructions de Jay a lui 
 donnees par le Secretaire d Etat, lors de son depart pour 1 Angleterre. 
 Je m empresse de vous les envoyer. 
 
 Si vous vous donnez la peine de les comparer avec le Traite que CP 
 Ministre a conclu avec le Ministre Anglais, vous verrez, Citoyen Minis- 
 tre, qu il a pris une marche toute opposee a celle qui lui etait traeee; 
 et qu il a souscrit a des conditions qu il ne devait pas accepter. 
 
 Quel motif a pu determiner Jay a recevoir la loi du Ministre 
 Anglais? Usant de la latitude qui lui etait donnee par un des articles 
 de ses Instructions, a-t-il substitue sa volonte individuelle aux vo- 
 lontes bien exprimees de son Gouvernement ? L affection qu il porte 
 a 1 Angleterre a-t-elle triomphe seule de son devoir? la corruption 
 a-t-elle agi sur lui? ou etait-il porteur d instructions secretes du Presi 
 dent ignorees du Secretaire d Etat et connues seulement de Wash 
 ington et de son Conseil particulier Hamilton? Je serais tente de le 
 croire, Citoyen Ministre, autrement comment expliquer la contradiction 
 qui existe dans la conduite du President, quand on le voit signer un 
 Traite contraire aux ordres qu il avait donnees? Si, conformement a 
 la demande de la Chambre des Kepresentans, il lui avait remis les In 
 structions et autres pieces relatives a la mission de Jay, on aurait deja 
 developpe ce mystere ; mais j y parviendrai peut etre, si comme on me 
 1 a promis, on me montre la correspondance de Jay avec le Lord Gren- 
 ville et les dernieres Instructions que lui a donne le President. Alors, 
 Citoyen Ministre, je parlerai d apres des faits et non sur de simples 
 conjectures. 
 
 II est inutile, Citoyen Ministre, que j entre dans aucun detail sur 
 ces Instructions, les reflexions qu elles font naitre se presentent d elles- 
 memes. Je me bornerai a vous faire remarquer que le President par 
 1 importance qu il attache a la paix avec Alger, par les demarches 
 qu il prescrit a son Envoye pour arriver a ce but, repond aux voeux 
 des Americains qui tous desirent naviguer dans la Mediterrannee. 
 Notre interet nous permet-il, Citoyen Ministre, de leur laisser usurper 
 
85 J 159 
 
 un Commerce qui par notre position et nos aneiennes liaisons doit 
 nous appartenir exclusivement et que pour la properite" de la Repu- 
 blique nous devons conserver. Je en le crois pas, Citoyen Ministre, 
 mais je me contente de vous presenter seulement cette question dont 
 votre sagesse trouvera la solution la plus avantageuse a notre patrie. 
 
 Salut respectueux, 
 
 Signe P. A. ADET. 
 
 APPENDIX E. 
 
 A MAP, WITH ITS CONSIDERATION AND EXPLANATION RELATING TO CER 
 TAIN STIPULATIONS IN THE TREATY OF 1794. 
 
 Consideration of the Map. An exhaustive search authorizes the 
 statement that no map has ever been made which considered at once 
 the location of the British forts, the disputed boundary lines, and the 
 territory held by the British in 1794. From sources stated in the bibli 
 ography enough evidence has been gained to supply a map illustrating 
 these interests. 
 
 Ten forts were to be abandoned. Fort Recovery was mentioned by 
 Randolph, Secretary of State, in a letter 127 to John Jay, dated August 
 18, 1794. It is also mentioned in Stephens "Pictorial History " as 
 built by General Wayne in 1793 near the scene of the St. Clair 
 disaster. 
 
 Great Sodus Fort is located by a letter 127 from Randolph to the 
 same party, dated August 30, 1794. 
 
 Fort Miami, on the rapids of the Maumee River, was also men 
 tioned in the same. 
 
 Randolph, in a letter 127 addressed to Jay arid dated December 19, 
 1794, objects that Detroit is still held by the British as well as other 
 forts above mentioned. 
 
 President Washington in his address 128 to the United States Senate 
 and House of Representatives on December 7, 1796, mentions three 
 other forts which have been evacuated Oswego, Niagara, and Michili- 
 makinac, or Mackinac. 129 
 
 Fort Oswegatichie on the St. Lawrence River and Point-au-fer and 
 Dutchman s Point on Lake Champlain are mentioned in Jefferson s 
 letter 130 of objections, May 29, 1792, to Hammond, the British consul. 
 
 In his letter to the same party on December 15, 1791, Jefferson 
 mentions Fort Erie as one of those to be abandoned, but in his letter 
 
 127 State Papers, Foreign Relations, Vol. I. 
 !8 Richardson s "Message and Papers of the Presidents." 
 
 129 It was so called in the War of 1812, when it received the appel 
 lation, The American Gibraltar, as one of the strongest positions in 
 the United States. 
 
 130 State Papers, Foreign Relations, Vol. I. 
 
160 [86 
 
 of May 29, 1792, he corrects himself in that Fort Michilimaldnac was 
 the one intended. 131 A glance at the map shows the reason for this 
 mistake as well as how slight Jefferson s knowledge of the forts must 
 have* been at that time. Fort Erie was a British fort upon British 
 territory. 
 
 The boundary question is much easier to deal with. By the Treaty 
 of Peace in 1783 it was stipulated that a line due westward from the 
 Lake of the Woods to the Mississippi Eiver should constitute the 
 northwestern boundary line of the United States. In Jay s letter 130 
 to Lord Grenville on the 4th of September, 1794, he objects that the 
 northwestern boundary line does not close, as the Mississippi does not 
 extend far enough north to allow a line "due west" from the Lake 
 of the Woods to intersect it. The Mississippi River had not been ex 
 plored farther than the forty-fifth degree of latitude, or one degree 
 above the Falls of St. Anthony, so a commission was agreed upon for 
 a survey to ascertain the source of the river. Three sources 132 were 
 conjectured: Marshy Lake, near the forty-fifth degree of latitude; 
 White Bear Lake, near the forty-sixth degree; and Bed Lake, or La- 
 hontan s Mississippi, near the forty-seventh degree of latitude. 
 
 Undoubtedly there was either a mistake in regard to latitude, 
 which is very probable, or in regard to the names of the lakes, which 
 might easily have been changed. Eed Lake is on the map but nearer 
 the forty-eighth degree than the forty-seventh degree of latitude. 
 There is a White Bear Lake about the forty-fifth degree, but far too 
 small to be noted as the source of the Mississippi, and also has the 
 main stream of the Mississippi running by it. What is now known as 
 Mille Lacs was probably then called Marshy Lake and is in the forty- 
 sixth degree rather than the forty-fifth degree. Lake Winnibigoshish, 
 forty-seventh degree, is probably the one then designated as White 
 Bear Lake, forty-sixth degree. The reasons for these assumptions are 
 location, size, and the tributary in the case of Mille Lacs, and the 
 main river in the case of Lake Winnibigoshish. Eed Lake can be 
 accounted for only in size and possible tributary connection. Big 
 Stone Lake, where Marshy Lake is indicated and questioned, is the 
 only lake near the forty-fifth degree of latitude which has any large 
 connection with the Mississippi, and its consideration as a source of 
 the Mississippi by the surveyors in the last half of the eighteenth 
 century is very doubtful indeed. It must be remembered that the in 
 accuracies of the maps (Mitchell s) which Mr. Jay and Lord Gren 
 ville used were responsible for much of their trouble, and the territory 
 
 131 Lyman in his American Diplomacy evidently overlooked this 
 correction. He names Erie as a fort to be abandoned, omitting Great 
 Sodiis, Miami, and Recovery. 
 
 132 State Papers, Foreign Eelations, Vol. I. 
 
87] 161 
 
 over which they negotiated has been rendered more difficult of study 
 by the civilization and progress of a thrifty country for one hundred 
 and twelve years. 
 
 The last question for consideration in the map was the northeast 
 boundary line of the United States. This had been determined upon 
 in the Treaty of 1783 as the St. Croix Eiver, but it was impossible to 
 determine which stream was really the St. Croix. A commission was 
 provided for in Jay s treaty, and brought in its report on the 25th 
 of October, 1798. This report determined that the river previously 
 known as the Scoodiac, or Schoodiac, was the St. Croix Kiver intended 
 in the Treaty of 1783. 
 
162 [88 
 
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 133 -fr T Holcombe is one of those obliging public citizens to whose 
 knowledge, local enthusiasm, and patriotism I wish to make full ac 
 knowledgment for the only authentic information regarding Dutch 
 man s Point. An exhaustive search in the University Library and 
 City Library of San Francisco with the kind assistance given there 
 failed to reveal any information concerning the fort except that it was 
 on Lake Champlain. Mr. Holcombe writes in part : 
 
 PLATTSBURGH, N. Y., Jan. 22, 1906. 
 Mr. Robert Rankin, 
 
 DEAR SIR: In reply to yours of the 8th, would say that I am 
 unable to locate Dutchman s Point exactly, but I think it where there 
 was a blockhouse in the Eevolutionary War on the west shore of North 
 Hero (North Island). Point-au-fer is where I have marked it on the 
 map, and it is called by that name to-day. Palmer s History of Lake 
 Champlain refers to Point-au-fer and the Blockhouse as being the two 
 places held by the British after their evacuation of the country." 
 
 On the map sent to him he has located the forts as in the small 
 corner map of this essay. He writes : 
 
 Point-au-fer, four miles south of the Canadian line. 
 
 Probable location of Dutchman s Point about twelve miles south 
 of Canadian line on the west shore of North Hero (or North Island)."