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advance the British scheme of starving the French population, provis ions sent from the United States to France and to French colonies being in this way carried to England. Article XXI, also, precluding citizens of the United States from serving under France, and provid ing that if a citizen of the United States should take a commission to act as a French privateer he could be treated by Great Britain as a pirate, was as much in conflict with the law of nations as with the treaty of alliance with France. And this, as well as the prior articles, was in conflict with the guarantee given by the United States, for a consideration unquestionably sufficient, of the West India possessions of France.

(5) Impressment was not surrendered.

(6) Although Jay's instructions required him to sign no treaty which did not in some measure open the West India trade, the treaty he signed opened that trade only to United States vessels of 70 tons, whose cargoes had been received in ports of the United States. This concession, however, was more than neutralized by the admission of British vessels of any tonnage to the United States ports for West India commerce; and then it was made useless by the condition that United States vessels should not transport to any foreign country except Great Britain, sugar, cotton, coffee, or molasses. The only excuse offered for this last extraordinary condition was that Mr. Jay was not aware (though Lord Grenville, who negotiated the treaty with him, was) that cotton was, or could be, produced in the United States.

(7) The rule that there should be no trade by the United States in war with ports with which she could not trade in peace was not surrendered.


It is true that the treaty provided for a commission to determine the indemnity due for prior British spoliations of United States commerce. But for this a price was paid vastly exceeding the value of any spoliation indemnity that could possibly have been received. Aside from the enormous concessions above stated we bound ourselves to assume in a mass British debts, many of which were incapable of proof. It is true that United States vessels were allowed under the limitation specified above, to trade with the West Indies, but they were shut out from the East India coasting trade, and United States merchants were not permitted to make East Indian settlements. The United States, "in return for so paltry a favor, opened all the ports she controlled, and surrendered her own commercial advantages in the existing war with scarce a qualification." (1 Schouler's Hist. U. S., 292.)

As to action of Congress on this treaty, see supra, §§ 131 ff.

Objectionable, however, as was the treaty, its ratification, if the alternative was war with England, may have been the more prudent course. And it must be remembered President Washington may have had fuller information as to the preparation of the country for war than is possessed by us, and more accurate knowledge, also, of the intentions of the British Government. But the perils of rejecting the treaty do not make its terms less overbearing and unfair.

"That Mr. Jay's treaty was a bad one, few persons even then ventured to dispute. No one would venture on its merits to defend it now. There has been no moment since 1810 when the United States would have hesitated to prefer war rather than peace on such terms. No excuse in the temporary advantages gained can wholly palliate the concessions of principle which it yielded, and no considerations of a

possible war with England averted or postponed, can blind history to the fact that this blessing of peace was obtained by the sacrifice of national consistency and by the violation of neutrality toward France. The treaty recognized the right of Great Britain to capture French property in American vessels, whilst British property in the same situ ation was protected by our previous treaty with France, and, what was worse, the acknowledgment that provisions might be treated as contraband, not only contradicted all our principles, but subjected the United States Government to a charge of a mean connivance in the British effort to famish France, while securing America from pecuniary loss.”

Adams' Gallatin, 158.

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On October 24, 1803, Mr. Jefferson submitted to the Senate a conven tion, signed on May 12, 1803, between Lord Hawkesbury and Mr. King, settling the northeastern and northwestern boundaries. The Senate assented to this, with the understanding that the fifth article, provid ing for a joint survey of the course and bearings of the Upper Missis sippi be thrown out. The British Government did not concur, and in consequence ratifications were not exchanged. This convention, with the correspondence preliminary thereto, is given in 2 Am. St. Pap. (For. Rel.), 382, 584 ff.

As to this convention, see discussion by Mr. Monroe, minister to England, in dispatch of June 3, 1804. 3 Am. St. Pap. (For. Rel.), 93.


§ 150b.

Many of the informal confidential documents connected with the negotiations in London in 1806 are among the Monroe Papers deposited in the Department of State. These papers show that Mr. Fox, who took the head of the department of foreign affairs on the accession, after Mr. Pitt's death, of the Fox-Grenville ministry to power, showed a conciliatory disposition towards, and a great desire to effect a permanent peace with, the United States. He stated at the outset that he was embarrassed by the recent adoption by Congress of the importation act. Mr. Monroe replied that this bill had passed while Mr. Pitt was in power, and when measures antagonistic to the United States were passed with increasing rigor, but that he had no doubt that, if a more liberal course was adopted in England, Congress would recede from its position of retaliation. Before, however,negotiations had materially advanced, Mr. Fox's illness increased so far as to make his withdrawal from active business essential; and with this withdrawal departed the hopes of Mr. Monroe and of Mr. Pinkney of that bold conciliatory action by the ministry which required the aid of Mr. Fox's genius and generosity to secure its adoption. Upon Mr. Fox's illness, the negotiation on the British side was placed in the hands of Lord Auckland, whose prior associations involved him in Mr. Pitt's policy, and Lord Howick, afterwards Earl Grey, who seems to have left the lead in the correspondence to Lord Auckland. The position taken in their conferences by the American envoys was that impressment, being the exercise of a merely municipal power, could not be enforced extraterritorially. Lord Auckland, on the other hand, falling back on the doctrine of indissoluble allegiance, urged that the King had the right at any time and in any place to call on the services of his subjects to aid him in war; and that neutral

merchant ships were not to be regarded as neutral territory to such an extent as to preclude their visitation and search by British officers in quest of British subjects. Backed in this position by the Crown law officers, the British commissioners declared that they could not assent to a solemn surrender of this right, but that they would be willing to discuss any compromise by which the matter could be adjusted satisfactorily to both nations. Mr. Monroe suggested that the Government of the United States, as an equivalent, should undertake to return to British ships all sailors who had deserted from such ships. The counter project of the British commissioners was that statutes should be adopted in the United States making it penal for United States officers to give certificates of citizenship to British subjects, and in Great Britain mak ing it penal for British officers to impress citizens of the United States. The objection to this by the American envoys, an objection they held to be insuperable, was that it prejudiced more or less seriously the right of expatriation. The British commissioners then said that while not prepared explicitly to surrender the right of impressment, reserving the question for future discussion, yet that there should be an understanding between the Governments that this prerogative should only be exercised on the most extraordinary contingencies; that instructions should be given to British commanders to act with the extremest caution even when such emergencies should occur; and that prompt re-dress should be given if any abuse of the prerogative should be shown. Mr. Monroe and Mr. Pinkney being, by this suggestion, left in a position of either disobeying their instructions or of giving up all hopes of a treaty, determined to accept the treaty with this modification, though with a hesitancy and distrust which is abundantly evidenced by the private correspondence among Mr. Monroe's papers. The final reason on their part was that if they erred in thus accepting the treaty, the error could be readily corrected at Washington; if they erred in rejecting the treaty and left London, the error was irremediable. They stated, therefore, to the British commissioners that if they accepted the proposed compromise it was on their own reponsibility, the question being reserved for revision at Washington. The British commissioners on their part conceded to American vessels the right, denied to them by recent rulings in the admiralty court, of carrying European goods, not contraband of war, to any belligerent colony not blockaded by British ships, provided such goods were American prop- ́ erty, and had previously been landed in the United States, paying a duty of at least one per cent. above what was refunded on re-exportation. The produce of such colonies also, by the same proposal, might, if not contraband of war, be brought into the United States, and, if it had paid a duty of two per cent. above drawback, be exported to European belligerent non-blockaded ports.

When the treaty arrived at Washington Mr. Jefferson was for a time in doubt as to he position to take. He had been vehemently attacked for his peace tendencies. His associations, either personal or political,

*"I have been for a long time," said Mr. Quincy, then the leading representative of New England federalism, in a speech on January 19, 1809, "a close observer of what has been done and said by the majority of this House, and, for one, I am satisfied that no insult, however gross, offered to us by either France or Great Britain, could force this majority into a declaration of war. To use a strong but common expression, it could not be kicked into such declaration by either nation." Quincy's Speeches, 143. See, further, as to Mr. Monroe's position, and as to the negotiations at the same time in Washington, supra, § 107.

had not beenwith the shipping interests, and for this very reason he felt himself peculiarly distrustful of any measures which might sanction a claim so odious to those interests as was that of impressment. Before he received information that the American envoys had agreed to the treaty, while they were supposed at Washington to be still hesitating as to its acceptance, Mr. Madison wrote to them, both officially and confidentially, not to hazard the concession. The concession was made, and Mr. Madison's private correspondence shows how reluctant both he and Mr. Jefferson were to overrule it. Mr. Jefferson, in his subsequent letters to Mr. Monroe, speaks of his final non-acceptance of the treaty as an act peculiarly painful to himself. No one can study Mr. Monroe's unpublished writings without seeing that the scar remained with him through his whole life, and that the remembrance of his action in 1807 in agreeing to what he believed to be the dropping of impressment by ignoring it, was vivid in his memory when he submitted to the same method of disposing of the question by the commissioners at Ghent in 1814. But there is this distinction: in 1807 impressment was impliedly recognized in the British proposals by the very restrictions placed on it. In 1814 it was dropped out of sight.

The apparent acquiescence in impressment was the controlling reason-aside from the fact that the treaty was in conflict with instructions— in Mr. Jefferson's mind for its rejection. It was said at the time that the treaty was killed by Mr. Madison from his jealousy of Mr. Monroe. The correspondence, unpublished as well as published, of Mr. Jefferson, Mr. Madison, and Mr. Monroe gives no trace of such jealousy. Mr. Madison's letters show throughout the greatest anxiety that Mr. Monroe's mission should succeed. Mr. Jefferson, in withholding the treaty from the Senate, followed, as the papers show, his own counsels, and it is impossible, on reading the correspondence, not to see that, so far from desiring to injure Mr. Monroe being one of his motives, his peculiar affection for Mr. Monroe was one of the chief grounds for his hesitancy.

Mr. Jefferson, in his annual message in October, 1807, gave the following reasons for non-acceptance of the treaty: "Some of the articles might have been admitted on a principle of compromise, but others were too highly disadvantageous; and no sufficient provision was made against the principal source of the contentions and collisions which were constantly endangering the peace of the two nations."

The body of the correspondence between Messrs. Monroe and Pinkney, ministers to London in 1806, with the British ministry, is, with their instructions, on file in the Department of State. A portion of it, however, was destroyed with other papers at the burning of Washington by the British in 1814. The gap is filled in part from the private papers of Mr. Madison and Mr. Monroe, now deposited in the Department, in part from publications at the time made by the British Government, in part from Congressional publications reprinted in 3 Am. St. Pap. (For. Rel.), 119, 133 f.

In the latter work, pp. 142, 160, is given the exposition of their course by Messrs. Monroe and Pinkney, January 8 and April 22, 25, 1807, with Mr. Madison's replies. As this correspondence relates to questions now finally settled, it is not necessary here to do more than to refer to it by title. Mr. Monroe's letter to the Secretary in vindication of the treaty is given in 3 Am. St. Pap. (For. Rel.), 173. The question is also discussed in 2 Lyman's Diplomacy of the U. S., ch. i; and see supra, § 131, as to treaty making power; and supra, § 107, as to personal relations of the negotiators.

"Permit me to remark that you are under a mistake in supposing that the treaty concluded by Messrs. Monroe and Pinkney was rejected because it did not provide that free ships should make free goods. It never was required nor expected that such a stipulation should be inserted. As to deserting seamen you will find that Great Britain practices against us the principles we assert against her, and in fact goes further; that we have always been ready to enter into a convention ou that subject, founded on reciprocity; and that the documents, long since in print, show that we are willing, on the subject of impressment, to put an end to it, by an arrangement which most certainly would be better for the British navy than that offensive resource, and which might be so managed as to leave both parties at liberty to retain their own ideas of right. Let me add that the acceptance of that would have very little changed the actual situation of things with Great Brit. ain. The orders in council would not have been prevented, but rather placed on stronger ground; the case of the Chesapeake, the same as it is; so also the case of impressments of factitious blockades, etc., all, as at present, pregnant sources of contention and ill humor.

President Madison to Mr. Joy (unofficial), Jan. 17, 1810. 2 Madison's Writings, 467.

In a private letter from Mr. Jefferson (President) to Mr. Monroe, March 29, 1807, Mr. Jefferson, commenting on the conduct of the press in reference to the Monroe-Pinkney treaty (which he withheld from the Senate), speaks of party efforts "to sow tares between you and me, as if I were lending a hand to measures unfriendly to any views which our country might entertain respecting you. But I have not done it (written to you on the subject), because I have before assured you that a sense of duty, as well as of delicacy, would prevent me from ever expressing a sentiment on the subject, and that I think you know me well enough to be assured I shall conscientiously observe the line of conduct I profess. I shall receive you on your return with the warm affection I have ever entertained for you, and be gratified if I can in any way avail the public of your services." In a private letter from Mr. Jefferson to Mr. Monroe, April 11, 1808, Mr. Jefferson's explanation of his course as to the treaty, and as to his relations to Mr. Monroe, are given in greater detail.

MSS. Dept. of State.

Among the Monroe papers in the Department of State is a letter from Mr. Bowdoin, of February 27, 1807, to Mr. Monroe, expressing a general but qualified approval of the treaty just negotiated by Messrs. Monroe and Pinkney.

The subsequent action of the Government of the United States, in respect to Messrs. Erskine and Jackson, is noticed supra, §§ 84, 107.

A portion of the correspondence in respect to Mr. Erskine's mission in 1809 to the United States is found in 3 Am. St. Pap. (For. Rel.), 300 ff.

As to Jackson's mission, see supra, §§ 84, 107.

The correspondence between Mr. Foster, the British minister at Washington, and Mr. Monroe, Secretary of State, beginning with Mr.

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