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There is no signed original of the Jay Treaty in the Department of State file.
That John Jay sent two originals of this treaty to the United States is clear from his despatches. That only two originals were transmitted seems equally certain. If a third original had been transmitted, the records of the time would mention it; but they do not.
The first of the two originals which Jay did send went from Falmouth by the packet Tankerville, which had been detained a week or more for the purpose of taking the treaty. Jay wrote on November 19, 1794, the date of signature:
The long expected Treaty accompanies this letter;-a probability of soon concluding it has caused the Packet to be detained for more than a week. (D. S., l Despatches, Great Britain, No. 22, duplicate.)
And on November 21 he wrote:
On the 19th Inst. a Treaty was signed. The next Day it was, together with my Letters to you NO 21-22-& 23, dispatched to the Packet at Falmouth, which had been detained. (Ibid., No. 24.)
The example sent by the packet was lost; it is reported to have been "cast into the sea to escape French hands" (Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph, 233-34,293). Grenville wrote of the unfortunate "loss" of the packet, misspelled Tankerville (Correspondence and Public Papers of John Jay, 1794-1826, IV, 174). The press of the period recounts that the Tankerville, on account of bad weather, did not sail from Falmouth until December 14, and that she was taken by a French brig near the West Indies and burned (the Evening Mail, London, December 3--5 and 15-17, 1794, and April 20-22, 1795).
As to the second original, Jay wrote in his despatch of November 21:
I now send you duplicates of them all, by Mr [David] Blaney, a Gentleman of Virginia, recommended to me by Gov. Lee. The earliest advices from you will be expedient.
That only two originals were sent by Jay appears from his letter of December 10, 1794 (D. S., 1 Despatches, Great Britain, No. 26, duplicate), from which the following is extracted:
As the Treaty concluded on the 19th of last month, was sent by the Packet, and a Duplicate was committed to the Care of Mr Blaney who sailed in a Vessel for Virginia commanded by Captn Vickary, I flatter myself it will arrive before you receive this Letter. . . . The Treaty may possibly not arrive so soon, as that the Ratification will reach this place before my Departure;-especially, as not only the Packet but also Mr Blaney were detained a considerable Time by contrary Winds.
It appears that Captain Blaney left London on December 17, sailing by the Thomas (Captain Vickery), and reached Norfolk on February 27, going to Philadelphia by way of Baltimore (Boston Gazette, March 23, 1795).
Blaney's arrival was reported in the letter of Edmund Randolph (Secretary of State) to Jay of March 8, 1795 (D. S., 2 Instructions, U. S. Ministers, 327-28), as follows:
At 7 o'Clock yesterday evening, Mr Blaney delivered to me the very important dispatches, which you had consigned to his care. He arrived at Norfolk eight days ago, after having been beaten off from the Capes of Virginia for some weeks by strong winds. His charge was in good order, and the seals and envelope were unviolated.
It was this original, delivered by Blaney, which was sent to the Senate on June 8; for the message of Washington says that it had been received by the Secretary of State on March 7 (Executive Journal, I, 178).
There can be no doubt that that same original was used, after its return from the Senate, to form part of the original United States instrument of ratification, which was transmitted to London and was there exchanged for the British instrument of ratification on October 28, 1795; accordingly the Department of State archives do not, and seemingly since 1795 have not, contained a signed original of the Jay Treaty. There is, however, now in the file a facsimile of the United States instrument of ratification which is in the British archives; as that instrument includes as a part thereof the original signed treaty, the facsimile is in part a facsimile of that original; and the text here printed is taken therefrom. It differs from the text heretofore usually printed only in matters of spelling, punctuation, capitalization, and paragraphing. In the signed treaty, as here, the copy of Jefferson's letter of September 5, 1793, follows the signatures; the additional article was, as hereafter noted, the result of the later action of the Senate.
The procedure adopted in 1795 regarding the ratification of the Jay Treaty by the United States was a most unusual one. While two originals of the treaty had been sent to the United States by Jay, it was known that one of them had been lost. One had arrived; and that original was a document of the highest importance, belonging to the United States. Every consideration required that it be retained in the archives of the Government. To return it to London as a part of the United States instrument of ratification was not only unnecessary, but a gravely imprudent step; it was unnecessary, for international procedure requires merely the copying of the text of a treaty into an instrument of ratification which is to be delivered to the other party; it was imprudent, as it deprived this Government of possession of the best evidence of the text of one of its most essential treaties, a treaty which was constantly a matter of diplomatic discussion up to the war of 1812, which was of practical and historical importance for generations thereafter, and which, indeed, was before the Supreme Court of The United States for consideration as late as 1929.
Of course the text of the treaty has always been available here, it is written in full in D. S., 2 Despatches, Great Britain, at pages 131-68; it was printed at the time-"a printed and authentic copy of the treaty and of the advice of the Senate " was among the papers transmitted to John Quincy Adams on August 25, 1795 (D. S., 3 Instructions, U. S. Ministers, 27); and the treaty was duly proclaimed; but the primary document was sent to London.
It seems that it was expected at the Department of State that the British instrument of ratification would itself include an original signed treaty; expressions in various letters to Deas in 1796 (D. S., 3 Instructions, U. S. Ministers, 95, 99-100, 104) indicate this fact: "the treaty itself, with the ratification, has not yet arrived" (January 15); "nothing but the Treaty itself with the ratification signed by the King's own hand, and further authenticated by annexing thereto the Great Seal of the Kingdom, would be proper for such a purpose" (January 25); "the treaty itself with the King's ratification" (February 27). But even if that expectation had been a reasonable one, as it was not it was foolhardy to trust to the then risk of transportation overseas a single instrument of ratification including the only original of the treaty which the Government of the United States possessed; and that transportation risk was a serious one, as the loss of the Tankerville had just shown. If the United States ratification had not safely reached London, as it did, in October, 1795, the Jay Treaty could hardly have gone into force until the following spring at the earliest.
Furthermore, while it might properly have been thought that the British instrument of ratification, although not including a signed original of the treaty, would be a perfect evidence of the exact text, still that expectation would not, in this particular case, have been justified by the fact; for, as is noted hereafter, the British ratification is a quite imperfect paper.
The Department of State file of the Jay Treaty also contains the British instrument of ratification of October 28, 1795, and the original proclamation of the treaty, dated February 29, 1796. It does not include any protocol or other original record of the exchange of ratifications; but with the facsimile of the United States instrument of ratification is a facsimile of a certificate of the exchange of ratifications on October 28, 1795. It is signed by William Allen Deas, Charge d'Affaires of the United States, and is dated November 5, 1795. An initialed copy in the handwriting of Deas is in D. S., 3 Despatches, Great Britain, November 5, 1795.
Some historians have thought that the Jay Treaty was for some four months withheld from the Senate. Such was not the case. It was widely reported and well known in the United States in the first days of February, 1795, that a treaty with Great Britain had been signed at London on the previous November 19; but its terms were not disclosed, and the treaty was not received at the Department of State until the evening of March 7, 1795, three and one-half months after its signature. The Senate was not then in session; a call for an extra session had previously (onMarch 3) been issued; the date set by that call was June 8, 1795; and on that day the treaty was sent to the Senate by President Washington. No earlier date of submission was possible unless another and earlier extra session of the Senate had been called for the purpose.JEFFERSON'S LETTER OF SEPTEMBER 5, 1793
In this letter of Secretary of State Jefferson to George Hammond, Minister of Great Britain to the United States, reference Is made to two earlier letters, one written by Jefferson to Hammond on August 7, 1793, the text of which (from D. S., 5 Domestic Letters, 218) follows:
The MINISTER PLENIPOY OF GREAT BRITAIN
PHILADELPHIA, 7th August 1793
SIR/A constant expectation of carrying into full effect the declaration of the President, against permitting the armament of vessels within the ports of the United States, to cruise on nations with which they are at peace, has hitherto prevented my giving you a final answer on the subject of such vessels and their prizes. Measures to this effect are still taking, and particularly for excluding from all further Asylum in our ports, the vessels so armed, and for the restoration of the prizes, the Lovely Lass, the Prince William Henry and the Jane of Dublin, taken by them: and I am authorized, in the mean time to assure you, that should the measures for restoration fail in their effect, the President considers it as incumbent on the United States to make compensation for the Vessels. I have the honor to be, with great respect, Sir, &r.a
The other was the letter of Hammond to Jefferson of August 30, 1793 (original in D. S., 1 Notes from the British Legation), which reads thus:
PHILADELPHIA 30th August 1793
SIR. Several communications having at different times passed between you and myself, both in conversation and in writing, on the subject of the prizes made by the French privateers, fitted out in the ports of the United States; I have thought it expedient, for the sake of perspicuity and of avoiding future misunderstanding, to reduce the result of those communications under one point of view, and to request you, Sir, to have the goodness to inform me, whether my conception of the intentions of this government in this respect be accurate.
I understand-that all captures, made subsequently to the 7th of June and antecedently to the 7th of August, by any vessel, fitted out, armed and equipped, in the ports of the United States, are either to be restored by the captors, or a compensation for their full value, is to be paid, to their owners, by the government of the United States-and that all prizes, made by vessels of this description subsequently to the 7th Of August, are to be seized and immediately restored by the government of the United States, or, if the restitution cannot be effected, a compensation for their value is to be paid in the same manner as in the former
If this statement be correct, I wish, Sir, farther to be acquainted-whether an official communication of any capture, that has been or may hereafter be made under the circumstances abovementioned, will be necessary on my part to substantiate the fact-or whether the circular instructions, which, as I infer from the public prints, have been transmitted to the Collectors of the Customs in the different ports of the United States, will obviate that necessity
There is another point connected with the foregoing, upon which also I am extremely solicitous to obtain some early information. Being convinced that the determination of this government upon these subjects has been dictated by a sincere desire to redress, as far as was possible, the injuries that individuals might suffer from acts of rapine and plunder committed by the privateers, which have been fitted out in it's ports, in violation of it's authority-I presume that the effects of that desire, are not to be limited to the simple restitution of the prizes, but are farther to be extended to the procuring of a reparation for any loss, which the vessels captured or their cargoes may sustain, from detention, waste, or spoliation. Under the influence of this conviction therefore, I shall be infinitely obliged to you, Sir, if you will prescribe the mode, that may appear to the executive government of the United States the most satisfactory, and the best adapted to the ascertainment of the real amount of the damages, which may, in any instance, arise from the causes I have just recited.
I annex to this letter a list of privateers, which, according to the information I have received, have been all fitted out, armed and equipped in ports of the United States; and I have the honor to be, with sentiments of great respect, Sir, Your most obedient, humble Servant,
List of privateers, fitted out, armed and equipped, in Ports of the United States.
|Le Citoyen Genet||Charleston|
|Le Sans culotte||Charleston|
|Le Vainqueur de la Bastille||Charleston|
|La Caramagnde||River Delawar|
|Le petit Democrat||Philadelphia|
|Le Republicain t||Boston|
|* lost ------------------ t taken|
The additional article was added pursuant to the Senate resolution of advice and consent of June 24, 1795. No attested copy of that resolution is in the Department of State file; as printed in the Executive Journal, I, 186, it reads:
Resolved, (two-thirds of the Senate concurring therein,) That they do consent to, and advise the President of the United States, to ratify the treaty of amity, commerce, and navigation, between his Britannic Majesty and the United States of America, concluded at London, the 19th day of November, 1794, on condition that there be added to the said treaty an article, whereby it shall be agreed to suspend the operation of so much of the 12th article, as respects the trade which his said Majesty thereby consents may be carried on, between the United States and his islands in the West Indies, in the manner, and on the terms and conditions therein specified.
And the Senate recommend to the President to proceed, without delay, to further friendly negotiations with his Majesty, on the subject of the said trade, and of the terms and conditions in question.
The form of the Senate resolution, being then without precedent, caused doubt as to the procedure necessary for ratification on the part of the United States. On July 21, 1795, Randolph wrote as follows:
By a past opportunity, I did myself the honor of sending to you a printed copy of the proposed Treaty between the United States and Great-Britain. With it was bound up a copy of the act of our Senate. The want of precedent for such a mode of ratification; the doubts, whether they meant to sit in judgment again upon the article, to be added; whether the President can ratify without resubmitting the new article to them; whether he can ratify before he himself inspects the new article, after it shall have been assented to by the British King; and what effect the suspension of the 12th article will have upon all those, subsequent to the 10th; create difficulties and delays, even independent of the real merits of the Treaty. (D. S., 3 Instructions, 13. S. Ministers, 13.)
The additional article was recited textually in each instrument of ratification, but was not otherwise drawn up or signed; in 8 Statutes at Large, 130, the date thereof is given erroneously as May 4, 1796; reference thereto in the British instrument of ratification is in the following language:
Whereas a certain additional Article has on the Part of the said United States been proposed to be annexed to the said Treaty as a Part thereof, to which Addition We are willing to consent, the said Treaty and Additional Article being in the Words following.
In the United States instrument of ratification the language following the text of the letter of Jefferson is this:
And Whereas the Senate of the United States did, by their resolution on the twenty fourth day of June, in the Year of our Lord 1795 (all the Senators of the United States being then present, and two thirds thereof concurring) " consent to, "and advise the President of the United States, to ratify the treaty of amity "commerce and navigation, between his Britannick Majesty and the United "States of America, concluded at London the l0th day of November 1794, on " condition that there be added to the said Treaty, an article whereby it shall be "agreed to suspend the operation of so much of the 12th Article as respects the "trade, which his said Majesty thereby consents may be carried on between the "United States and his Islands in the West Indies, in the manner, and on the "terms and conditions therein specified."
And Whereas it will satisfy and be conformable with the said Advice and consent of the Senate, if there be added to the said Treaty an Article in the following Words, that is to say; "Additional Article-
"It is further agreed between the said contracting parties, that the operation " of so much of the twelfth Article of the said Treaty as respects the trade which "his said Majesty thereby consents may be carried on between the United " States and his Islands in the West Indies, in the manner and on the terms and "conditions therein specified, shall be suspended."
Now therefore I George Washington, President of the United States of America, having seen and considered the Treaty and additional Article aforesaid, do in pursuance of the aforesaid advice and consent of the Senate of the United States of America, by these presents, ratify accept and confirm the said Treaty and the said Additional Article, as the same are herein before set forth.
And I do moreover hereby declare, that the said Treaty, and the said additional Article form together one Instrument and are a Treaty between the United States of America and his Britannic Majesty, made by the President of the United States by and with the advice and consent of the Senate thereof.
For the greater Testimony and Validity of all which, I have caused the Great Seal of the United States of America to be affixed to these presents and have signed the same with my Hand
Given at the City of Philadelphia, the fourteenth day of August, in the Year one thousand seven hundred and ninety five, and of the Independence of the United States of America, the Twentieth.
Aside from minor matters of punctuation, etc., the language of the treaty provisions in the British instrument of ratification varies in thirty or more instances from that of the signed treaty; moreover, the former does not contain the treaty heading, and it inserts a heading to the letter of Jefferson to Hammond of September 5, 1793. Most of the variances between the two documents are not very material, but at least one is. The treaty text in the British ratification was obviously very carelessly copied, notably in the first paragraph of Article 18. There could have been no scrupulous comparison of the documents upon the exchange of ratifications, as is customary.
Elaborate instructions were drawn up at Philadelphia regarding the exchange of ratifications. It was intended that these should be carried out by John Quincy Adams, then at The Hague; but Deas, the Charge at London, was instructed to proceed if Adams did not arrive by October 20 (see D. S., 3 Instructions, U. S. Ministers, 24-32, letters to Adams of August 14 and 25, and letters to Deas of August 15 and 25; the letters of August 14 and 15 are signed by Randolph, the others by Pickering). The language of the letter of August 25 to Deas correctly describes the United States instrument of ratification as including the original treaty:
The packet to your care herewith transmitted, addressed to John Quincy Adams Esqr contains the treaty of amity, commerce and navigation between the United States and Great Britain, ratified by the President.
The various letters were not received in London until October 3 and 8 (D. S., 3 Despatches, Great Britain, letter from Deas of October 13, 1795). As Adams had not arrived in London, Deas sent (Irenville a copy of the ratification on October 23 (ibid., letter from Deas of that date). There appears to have been no discussion between Grenville and Deas regarding the additional article. As to this, Adams, who reached London on November 11, wrote:
The additional Article, suspending the clause in the twelfth article according to the ratification of the Senate, was agreed to without difficulty. (D. S., 1 Despatches, Netherlands, 258, November 14, 1795.)
The despatch of Deas of October 28, 1795 (D. S., 3 Despatches, Great Britain), reported the exchange of ratifications on that day and enclosed a copy of the British ratification. That despatch is endorsed as received on December 28,1795.
The original British instrument of ratification did not arrive, however, until April 22, 1796, when it was received from Thomas Pinckney; it is endorsed as received on that date (see D. S., 3 Instructions, U. S. Ministers, 123, letter to Pinckney of April 23, 1796). Various letters to Deas complained of the delay as preventing proclamation and communication to Congress (ibid., 95, 99-100,104-7, January 15 and 25, February 27, and March 9, 1796). The letter of February 27 says that a copy of the treaty, "with the ratifications of the King of Great Britain and of the President," had arrived a month earlier at Charleston and had all been printed in the newspapers; the letter of March 9 states that "the President at length directed the treaty with Great Britain to be promulgated, on the evidence of its ratification by his Britannic Majesty contained in your letter of October 28th."
No "such agreement" as that "to be settled" pursuant to Article 8 of the treaty was entered into upon the exchange of ratifications as therein Drovided (D. S., 3 Despatches, Great Britain, letter of Deas of October 28, 1795). Subsequently an informal understanding regarding the payment of the Commissioners was reached by the two Governments (see D. S., 1 Despatches, Netherlands, 260-78,283-89, letters of John Quincy Adams of November 27 and December 5 and 19,1795; D. S., 3 Instructions, U. S. Ministers, 131-34, Pickering to Pinckney, May 23, 1796; also act of May 6, 1796, (1 Statutes at Large, 459).
As has been stated above, the original proclamation, dated February 29, 1796, signed by Washington, attested by Timothy Pickering as Secretary of State, and with the Great Seal, is in the treaty file. Its treaty text is an accurate copy of the language of the original treaty which is embodied in the United States instrument of ratification, although it differs from that text in matters of spelling, punctuation, capitalization, and paragraphing. Following the signatures to the treaty is copied the letter of Jefferson to Hammond of September 5, 1793, and then the additional article.
It appears that the proclamation is the source of the text printed in 8 Statutes at Large and other treaty collections.
Treaties and Other International Acts of the United States of America.
Edited by Hunter Miller
Documents 1-40 : 1776-1818
Washington : Government Printing Office, 1931.