Grenville’s Notes Respecting the Posts, 5 August 1794
Grenville’s Notes Respecting the Posts
[St. James’s Square] August 5th. 1794
The Provisional Articles were signed at Paris Novr. 30th. 1782. They were to constitute the Treaty of Peace to be concluded between Great Britain and the United States; but that Treaty was not to be concluded, ’till Terms of Peace with France were settled.1 Even these Articles were not ratified in America ’till the 15 April 1783. There is therefore no Pretence to say that the Treaty of Peace ought to have been executed by His Majesty in America early in April 1783 several months before that Treaty was signed and when even the Provisional Articles were not mutually ratified. The Treaty of Peace was in fact not signed ’till Septr. 3rd: 1783. It was not ratified in America ’till the 14th of Jany. 1784, and that Ratification was not exchanged in Europe till the End of May 1784 nor received in London till the 28th of that month.
’Till that period, no order for evacuating the Forts cou’d with propriety be sent from hence. In the beginning of Mr Jeffersons letter2 He quotes from Vattel the indisputable doctrine of the Law of Nations as to the Time when a treaty begins to bind the contracting Parties, namely that when it had received its whole form which certainly is not ’till after the mutual exchange of the ratifications of the Powers in whose name it is concluded. That Gentleman’s subsequent Allegations in p. 61 of a Breach of the Treaty by the non-Execution of the Article respecting those Posts at the several periods which he mentions prior to July 1784 are therefore wholly & evidently unfounded, and the Statement of them could only be calculated to inflame animosities.
On 13 July 1784, there had barely been time for the arrival of orders at Quebec on that subject, supposing those Orders had been given immediately after the Exchange of the Ratifications.
But, in the intermediate time, Measures had been taken in America which are incontestible infractions of the Treaty.
Measures not merely resulting from the continuance of a Status Quo agreeably to reason & to the Practice of all nations during the Suspension of Hostilities and ’till the final Exchange of Ratifications, but new legislative acts adopted after the knowledge of the Terms agreed upon, avowedly intended to defeat the Execution of those Terms, when the Treaty shou’d be concluded & ratified and in their operation necessarily producing that Effect.
On the bare Statement of these Dates, there can be no doubt from which side the first violation of the Treaty proceeded if that Discussion were now necessary or usefull.3
1. For France’s demand that the Anglo-American peace treaty should not be signed in advance of treaties among the European powers, see , 3: 420.
2. See TJ to Hammond, 29 May 1792, , 23: 551–612, in which he argues that treaties come into effect the moment of its notification to the country at large (ibid., 552–53, 601–2), and that therefore Britain was the first to violate the peace treaty by carrying off enslaved persons and refusing to hand over the posts. Because JJ had previously concluded, in the report described below, for which he had been publicly criticized, that the United States had been the first to violate the treaty, he evidently chose, as his instructions implicitly ordered him to do by providing him with a copy of TJ’s letter, to present TJ’s argument that Britain was the first to violate the treaty. See the editorial note “The Jay Treaty: Appointment and Instructions,” , 5: 609–21, especially 614.
3. In his report to Congress of 13 Oct. 1786, , 4: 426–27, JJ had stated the following:
As to the detention of our posts, your Secretary thinks that Britain was not bound to surrender them until we had ratified the treaty. Congress ratified it 14th. January 1784 and Britain on the 9th. April following. From that time to this, the 4th. and 6th. Articles of the treaty have been constantly violated on our part by legislative Acts then and still existing and operating—
Under such circumstances, it is not a matter of surprize to your Secretary that the posts are detained, nor in his opinion would Britain be to blame in continuing to hold them, until America shall cease to impede her enjoying every essential right secured to her, and her people and adherents by the treaty.
For a summary of a subsequent discussion between JJ and Grenville about which nation first violated the peace treaty, see JJ to ER, 13 Sept. 1794, below.