Jay Treaty
Table of Contents
As American relations with Britain deteriorated and the Revolution in France heated up in the early 1790s, America needed to negotiate both commercial and territorial issues with the two European powers. Several issues left unsettled at the end of the American Revolution dictated that the United States must negotiate with Britain in order to avoid further conflict. Henry Adams, great-grandson of then Vice President John Adams, later wrote that the resulting “Jay treaty was a bad one few persons then ventured to dispute; no one would venture on its merits to defend it now.” 1 But Adams overstated the case against the treaty negotiated by U.S. Chief Justice John Jay and British Foreign Secretary Lord Grenville in 1794. Jay, an experienced diplomat, did the best he could with the bad hand he was dealt. Jay’s hand was in fact weakened by Americans who should have been his allies. Treasury Secretary Alexander Hamilton set the framework for Jay’s negotiations, but Hamilton’s loose lips undercut any American military threat that might have encouraged British negotiations. Historian Samuel Flagg Bemis even wrote that the treaty might more correctly be called “Hamilton’s Treaty.” 2
In Paris in 1783, John Jay had demonstrated that he could be a very tough negotiator. Scholar Julian Boyd noted that Jay “was a reluctant rebel, more zealous for the sober guarantees of the Constitution than for the ideals of the Declaration of Independence. While not joining Hamilton in his fear and contempt for the mass of mankind, Jay did labor under the melancholy opinion that it takes a long time to make sovereigns of those who have been accustomed to live as subjects.” 3 New Yorker Jay was a strong-minded Federalist who discounted the short-term value for the new nation of the Mississippi River and the Spanish port at New Orleans. Jay was also an Anglophile and Francophone, having been descended from French Huguenot immigrants. Boyd wrote that Jay “returned from his useful labors in negotiating the Treaty of Peace, bringing with him renewed convictions that [French Foreign Minister] Vergennes was a man of duplicity who needed to be watched. He took his seat in Congress and at once introduced a resolution calling for a suspension of the negotiations for the consular treaty and for the appointment of a committee to revise the terms Congress had agreed on in 1782.” 4 In other words, Jay was no pushover. In the mid-1780s as the American secretary for foreign affairs, however, Jay had attempted to bargain away American rights to the Mississippi River in return for what he felt were more important commercial concessions favored by New England. Kentuckians and Virginians like James Monroe deplored his conduct and distrusted his motives. As a result, America’s shaky unity had been threatened, and an aura of untrustworthiness attached to Jay in the South and West.
For America’s first two decades the orientation of the country’s transmontane region west of the Allegheny Mountains was in doubt. Jay’s negotiations with Spain regarding the Mississippi had contributed to those doubts. Historian James Roger Sharp wrote: “Residents [of Kentucky], desperate over their economic isolation and the resulting financial hardship, were alienated by the federal government’s failure to open up, either by force or diplomacy, the Spanish-controlled Mississippi River so vital to Western commerce. Free navigation of the Mississippi meant more to these Westerners than simply opening up markets for their crops; it also meant that the lands they had purchased on speculation would become more valuable. Bolstering these motives of self-interest was a widespread belief that free access to the Mississippi was a natural geographic right of the United States.” 5
North of the Ohio River, Americans had another concern – the failure of the British to abandon their forts as promised in the Treaty of Paris in 1783. Historian Joseph Charles wrote: “Against the background of general hostility to Britain because of her commercial policies since I783, the early debates of the new government are of particular interest. The question of our future commercial policy was the first serious matter to be taken up when Congress met in New York in I789. To the great amazement of some of the staunchest supporters of the Constitution, it became apparent that there was a strong group opposed to any discrimination against the countries, including Great Britain, which were not in treaty with us.” 6
The crisis in American-British relations – especially regarding trade and frontier issues – came to a head in the winter of 1793-1794. Historian Josiah T. Newcomb wrote that Britain was upset that the French had used America’s final payments on its debt to France to buy war supplies. 7 President George Washington shared with Congress a series of dispatches regarding British relations and Indian affairs that excited his critics in Congress. In their history of the United States, Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg wrote: “Lord Grenville informed the American minister in London, near the end of 1793, that the British government proposed to hold the Northwest posts indefinitely, abandoning all pretense that they would be evacuated when the United States gave full satisfaction of the debts.” Britain clearly was delaying any negotiations over border or commercial questions – hoping that delay would improve its negotiating position. Morison, Commager and Leuchtenburg wrote that “the Republican party [led by Thomas Jefferson] was not eager for war, but favored Jefferson’s and Madison’s favorite plan of commercial retaliation, which would surely have led to war” with Britain. 8 Washington Administration supporters like Alexander Hamilton were much more committed to developing peace and amicable relations with Britain.
Secretary of State Thomas Jefferson had responsibility for foreign relations and foreign commerce. Historian Samuel Flagg Bemis wrote: “It was precisely at this time, December 16, 1793, when the Republican opposition could take advantage of the unsatisfactory trend of Anglo-American affairs to renew their proposals for discrimination against British commerce, that Jefferson submitted to the House of Representatives his long-delayed report on the restrictions and discriminations by foreign nations against the commerce of the United States.” As in 1776, there was a long train of abuses to rankle American sensibilities, according to the author of the Declaration of Independence. Jefferson argued: “If particular nations grasp at undue shares [of ocean commerce], and, more especially, if they seize on the means of the United States, to convert them into their own aliment for their own strength, and withdraw them entirely from the support of those to whom they belong, defensive and protecting measures become necessary on the report of the Nation whose marine resources are thus invaded.” 9
Jefferson’s influence, however, was limited by the fact he was preparing to leave office at the time when he presented his Report on Commerce to Congress. Having done so, the secretary of state resigned and left Washington – effectively leaving Virginia Congressman James Madison as the chief spokesman for the point of view of Jefferson and his fellow Francophiles. Historian Merrill D. Peterson wrote: “Early in January [1794], Madison introduced a series of resolutions based on the Report. France was stamped on its face, the Federalists charged. The movement for discrimination stemmed from the old unreasoning hostility to Britain, revived now solely for political effect. Whatever the disadvantages of the British trade, Federalists said, they were more than offset by the rewards in capital and credit, federal revenue, and dependable markets and supplies. Representatives of the eastern carrying states opposed discrimination, though they presumably had most to gain from the policy, while southerners, who had trembled at the grant of congressional power to legislate in this sphere, furnished the main support. As the anger against Britain mounted, so too did the prospect for the resolutions. But it mounted too far, bringing the two countries to the verge of war, causing the resolutions to be sidetracked in favor of a temporary embargo, and leading finally to the mission of John Jay.” 10 Historian James Roger Sharp noted: “Madison’s attempt in the winter and spring of 1793-94, through a series of resolutions, to gain congressional approval of Jefferson’s earlier plan to discriminate ‘between nations who favor our productions and navigation, and those who do not’ and to penalize offenders brought to a climax the effort to force Great Britain to modify her trade regulations.” 11 Historian Jeffrey Combs wrote: "The questions raised by Madison's resolutions went far deeper than mere rearrangement of American trade. They affected American neutrality and, in Federalist eyes, threatened war itself.” 12
Jefferson, Madison and their supporters liked neither the political or economic system of England. Their European favorite was France, despite that country’s revolutionary excesses. Historian Samuel Flagg Bemis wrote: “The Republicans, Madison their spokesman, beheld in the monopolistic system of Great Britain an attempt to make the commerce of an independent nation subservient to the shopkeepers and shipowners of a foreign power, a power still in possession of parts of American territory and posing as protector of the Indian enemies of the United States. They were exasperated too, at the controlling influence of England over American overseas trade. They were indignant at her insolent disregard of neutral rights of United States citizens to sail the ocean lanes in pursuit of legitimate enterprise.” 13 In their history of the United States, Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg wrote: “In Congress the Republican party was not eager for war, but favored Jefferson’s and Madison’s favorite plan of commercial retaliation, which would surely have led to war.” 14 Historian Joseph Charles wrote: “According to [James] Monroe, Madison's presentation of his resolutions January 3, I794, which revived the issue of discrimination, was an attempt to give the Republican party a national foundation. The Republicans regarded his resolutions as an effort to regulate commerce with an eye to the economic interests of every section. They were in particular a bid for New England support, and they came at a time when that region, as well as the rest of the country, was in the first flush of its enthusiasm for the French Revolution. They came also when the shipping interests were feeling the first impact of large-scale confiscation of their ships by the British. By 1793 France very much needed supplies from the United States, and she presented such a market for our produce as never before.” Charles wrote: “Great Britain's capture of our ships and her system of commercial monopoly were not our only grievances. She still held our western posts and was becoming increasingly threatening in that direction. On February 10, I794, Lord Dorchester, Governor-General of Canada, made a highly inflammatory speech to the western Indians, one which was regarded by many Americans as a direct challenge to war. Thus in the early months of I794 the Revolutionary generation looked out upon a familiar scene. No matter which way they turned, it seemed to them that the British stood in their path. Many Americans had been outraged by the behavior of Citizen Genet, and the conduct of France was in some respects indefensible; but there was a difference between the provocations of France and those of Great Britain. The former were a blow, but the latter were a blow upon an old wound.” 15 In order to avoid military conflict, something had to be done. As historians Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg observed, by the end of 1794, “Washington’s patience, Jefferson’s forbearance, and Hamilton’s long, uphill pull toward good understanding had apparently come to naught.”16
The Federalist response to the initiaties of Jefferson and Madison was made by South Carolina Congressman William Smith using a document that Hamilton had written as a counterweight to Jefferson’s report. 17 The Federalists opposed the more extreme and belligerent proposals made by Madison and his allies. “Many Federalists feared that anti-British discrimination would lead to war, and that war would lead it disaster – perhaps national suicide,” wrote diplomatic historian Thomas A. Bailey. 18 Federalists centered in the Northeast which was much more sensitive to trade issues than were Jeffersonians centered in the South. America was not prepared for conflict with Great Britain. Historian Walter Stahr noted: “In the spring of 1794, many Americans believed that another war with Britain was imminent and inevitable. The war scare started with reports that British warships were seizing American merchant vessels in the West Indies.” 19 Given British tensions with France and strong American sentiment in France’s favor, a treaty with the United States was in Britain’s interest. For the United States, the situation was aggravated by the problems encountered by American ships and sailors in the Caribbean. Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg wrote: “If a Maine schooner laden with lumber and salt fish ventured into the harbor of St. George’s, Bermuda, she would be boarded by a gang of ruffians, stripped of her rudder and sails, her seamen consigned to a calaboose or impressed into the Royal Navy, and the vessel libeled in His Majesty’s court of vice-admiralty. The burden of proof that the cargo was not somehow stained by French association was placed upon the Yankee skipper. Condemnation was certain.” 20 The British system was rigged against Americans.
Despite its arrogance toward its former colony, Britain understood that the diplomatic orientation of the United States – towards France or Britain – could be impacted by treaty relations. Hamilton biographer John C. Miller wrote: “The fact that the British were willing to make a treaty with the United States in 1794 was partly owing to their recognition that the strengthening of the ‘well-intentioned Party in America’ led by Hamilton was Great Britain’s best hope of stemming the tide of Jacobinism in the United States and upholding neutrality against the ‘French faction’ headed by Jefferson and Madison.” Any treaty with Britain was likely to exacerbate deteriorating relations with France, America’s erstwhile ally. The development of a treaty with Britain came in the wake of American policy to back away from its treaty obligations with France, which had been developed during the middle of the American Revolution. Miller wrote that “by summarily rejecting American participation in the proposed Armed Neutrality, Hamilton was in fact practicing what he had so vehemently deprecated in Jefferson’s conduct as Secretary of State. For President Washington was far from sharing Hamilton’s contempt of the Armed Neutrality and aversion to treaties of alliance with the enemies of Great Britain.” 21
Hamilton’s relations with Britain were too close for America’s interests. “Fearing some sort of trade discrimination, the British at this time decided to send over their first minister,” wrote historian Robert H. Ferrell. “George Hammond, a young man of twenty-seven, arrived in November 1791. He soon became an intimate of Hamilton. Secretary of State Jefferson meanwhile discovered that Hammond had no powers to negotiate a treaty of commerce or indeed any other kind of treaty; all the minister could do was discuss. Hammond’s instructions were to couple evacuation of the frontier posts with payment of the prewar debts, and to mediate between the hostile western Indians and the United States government, on the basis of setting up a ‘neutral, Indian, barrier state’ in the territory north of the Ohio and east of the Mississippi, including if possible a strip along the northern border of the state of New York as far as the forests at the outlet of Lake Champlain.” 22
What was contemplated required a top-level American negotiator. South Carolinian Thomas Pinckney, America’s envoy t o Britain at the time, had been unable to make any progress in negotiating a treaty. He was not without diplomatic ability; in 1795 he would be highly successful in negotiating the Treaty of San Lorenzo with Spain. Britain, however, was intransigent. The Washington Administration determined that American interests were best served by the appointment of a special negotiator. Jay biographer George Pellew wrote: “Peace could be secured only by immediate negotiation and at least a temporary settlement of the causes of mutual irritation, and for such a task the ministers at London and Washington were incompetent or unsuited. Mr. Pinckney, the American minister at London, was, according to John Adams, a man of prejudices and strongly pro-Gallican; while Hammond, the English minister at Washington, had little prudence or moderation.” 23
Once the decision was made to send a special envoy to England, the next decision to be made by the Washington Administration was the selection of the envoy. Federalist leaders in Congress deputed Connecticut Senator Oliver Ellsworth to suggest to President Washington that he appoint Hamilton as a special envoy to England. 24 By this time, Jefferson had been replaced as secretary of state by another Virginian, Edmund Randolph, who previously had been Washington’s attorney general. Despite his close relations with Washington, Randolph lacked both Jefferson’s clout and experience in foreign relations. Without Jefferson to battle, Hamilton’s influence over foreign affairs had increased. Hamilton, however, was too controversial and had too many confrontations with Congress to be appointed to this sensitive mission. Historian Nathan Schachner wrote: “The storm over Hamilton was so great, and Washington himself so unwilling, that Hamilton swallowed his mortification and wrote a long letter to Washington in which, after reviewing at length the instant crisis and the measures to be taken to prevent it from ending in war, withdrew his own name from consideration and recommended Jay as the proper man for the mission.” 25
Few Americans had the diplomatic experience that the task required. Benjamin Franklin was dead. John Adams, a former minister to Britain, was vice president and the influential Pennsylvania financier Robert Morris argued against him. 26 Chief Justice John Jay was the substitute that Hamilton and his congressional allies agreed would achieve their purposes. Jay’s name was proposed by Hamilton: "Of the persons whom you would deem free from any constitutional objections, Mr. Jay is the only man in whose qualifications for success there would be thorough confidence, and him alone it would be advisable to send.’” 27 Washington biographer Robert E. Jones wrote: “John Jay was, of all those mentioned to Washington, in the best position to go to Britain, being in the relatively undemanding position of chief justice. Although Jay was not the ideal candidate, a point [Secretary of State Edward] Randolph emphasized, no one else available had the requisite diplomatic experience. Jay accepted the offer of the special mission to London in mid-April, ignoring Washington’s rather pointed suggestion that he resign his seat” on the Supreme Court. 28
Jay had no love of the French from his experiences as an envoy there in 1783-84. He also had a realistic vision of England. While visiting there in 1783, he had written his wife: “America has many excellent Friends in England, and I may also say, many implacable Enemies. This People is immersed in Pleasure, and yet very far from being happy. A Stranger finds among them much to commend and much to blame." 29 He was a conscientious diplomat who had driven a hard bargain with England in the treaty ending the Revolutionary War. “Forty-eight years of age, Jay was now in the prime of mental activity and of a life that had been a model of virtue both in private and public affairs,” wrote historian Samuel Flagg Bemis. “His biographers aptly describe him as one of those epitomes of abstract propriety who existed and prospered in the early history of the United States in such immaculate characters as Washington and the elder and younger Adams. Of profound piety and unbreakable religious faith, unbending in patriotism, endeavoring always to keep an independent and evenly balanced political outlook, fond of good society. Jay was a man on whose personal character the historical student may look back with pleasure.” 30 Historian Richard Norton Smith wrote: “Since 1790 the tall, stooped lawyer had presided over the Supreme Court, where he made an impressive sight as he entered the courtroom wearing a black robe trimmed with salmon-colored facings, his graceful self-assurance reflecting not only the majesty of the law but also a personal status as what one writer has called ‘the scion of a ruling family in the most dynastically ruled of all states.’” 31
Jay’s own history included a number of actions that alarmed the Francophile Republicans. He was clearly anti-French. Diplomatic historian Thomas A. Bailey wrote: “The British hating Jeffersonians were outraged by the choice of so notorious an England-lover.” 32 Jefferson biographer Claude G. Bowers wrote: “No one but Hamilton could have been more obnoxious to the Jeffersonians than John Jay.” 33 Jay was notably independent. Historian John Lamberton Harper noted: “As a diplomat, he had acquired the reputation for doing things his way.” 34 Once Jay returned to Philadelphia after signing the Treaty of Paris, he acted as both a member of Congress and the new American secretary of foreign affairs to block a consular treaty with France. He did everything he could to block the treaty, noted historian Julian P. Boyd, who wrote that Jay’s “obstructionist tactics” on the treaty contrasted with “his statesmanlike report on the infractions of the Treaty of Peace” with Britain. 35
As foreign secretary under the Articles of Confederation Jay had been tasked with negotiating a treaty with Spain that would include determining rights to the Mississippi River. Contrary to his instructions from Congress, Jay proved willing to negotiate away temporarily American rights to the Mississippi – although Jay had been a leader in assuring that America’s territory extended to the Mississippi as a peace negotiator. Historian James Roger Sharp wrote: “Jay’s draft treaty, which was never ratified by the Confederation Congress, was seen as betraying Western interests in favor of Eastern commerce and convinced many Westerners that a national government would be of little help in gaining the right to ship crops to market down the Mississippi. In exchange for certain Spanish trade concessions, Jay had agreed to waive the use of the Spanish part of the river for thirty years.” 36 In the process, Jay clashed with Virginia Congressman James Monroe when Monroe opposed giving Spain control of the Mississippi River. When Jay received his appointment to Britain in 1794, Monroe as the American minister to Paris opposed Jay’s nomination. Historian Harry Ammon wrote that “Monroe considered Jay just as undesirable as Hamilton for the English mission. Not only was Jay a staunch Federalist, but his conduct during the Jay-Gardoqui negotiations in 1786 had undermined Monroe’s confidence in his integrity.” 37
Moreover, Jay had shown himself antagonistic to the French Revolution. Historian John Ferling wrote that Jay “antagonized many. by opening denouncing [French Minister Edmond Charles] Genêt and repeatedly urging the repayment of prewar debts – most of which was owed by southern planters – to British creditors.” 38 In opposing Genêt, noted historian Harry Ammon, “Hamilton worked closely with [New York Senator] Rufus King and Chief Justice John Jay, who undertook much of the organizational work. On August 12 Jay and King published a letter in the New York Press accusing Genet of having threatened to appeal to the people. At the same time they busied themselves in promoting a succession of public meetings at which resolutions were with the people except through the Executive and strongly endorsing the April proclamation.” 39
Fifth, Jay was sympathetic to British arguments regarding retention of forts on the Northwest frontier. Historian Samuel Flagg Bemis noted that Jay wrote a report in 1785 on the forts and other issues to Congress: “From the facts as he saw them he declared Great Britain wholly justified in retaining the posts. He believed honestly that she could not be blamed for holding them while the United States on its side impeded full execution of the treaty.” It was one thing to hold that opinion privately, but Jay shared it with a British diplomat. “The imparting of such confidential information by a man in Jay’s office must have considerable significance in explaining the delay of Great Britain in evacuating the posts.”40 Jay had undermined his own negotiating position when he “pled the cause of British merchants and the justice of permitting them to collect their debts in Virginia and elsewhere, regardless of state law,” wrote historian Julian Boyd. “Where before he had made no move to redeem the pledge in the treaty of 1778, he now declared that when the faith and honor of the United State were given by trea ty , that treaty became part of the law of the land. Where before he had doubted the ability of Congress to make a treaty on matters which lay within the internal policy of the states, he now declared in ringing terms that treaties constitutionally made, ratified, and published are not only independent of the will and power of Such Legislatures, but also binding and obligatory on them.’” 41
Sixth, although the Jeffersonians may not have understood this adequately, the British had taken the measure of the proposed American negotiator. Hamilton biographer Nathan Schachner wrote: “Jay. was a bad choice. Inflexible enough in his ideals of conduct and his intense, if narrow, probity of character, he was utterly unfitted to cope with the genial seeming, shrewdly clever statesmen of England. Lord Grenville, the Secretary of State for Foreign Affairs, read Jay’s weaknesses at a glance and set about the necessary maneuvers to outwit him. The task proved absurdly simple.” 42 Historian Richard Norton Smith argued: “The forty-eight-year-old Jay was too good a judge to be a diplomat, let alone a politician. Relentless legalistic, he readily saw the British viewpoint in their refusal to hand over frontier outposts until the former colonists made good on prewar debts owed to English merchants. Along with this almost religious belief in contractual obligations went a healthy sense of the judiciary’s importance, and of John Jay’s as well. A confidential report prepared for Lord Grenville qualified praise of the chief justice’s abundant good sense by concluding that ‘almost every man has a weak and assailable quarter, and Mr. Jay’s weak side is Mr. Jay.” 43 Such criticism does not reflect the leading role that Jay had taken in negotiating the Treaty of Paris where Jay’s legal sensitivities had strengthened the American negotiating position, but it does suggest that the British understood Jay better than he understood them.
Vice President John Adams, a strong admirer of Jay from their work together on the Treaty of Paris, presided over the three-day debate in the Senate over Jay’s confirmation. In a letter home, Adams wrote about the antagonism to Jay’s nomination: “The opposition to Mr. Jay has been quickened by motives which always influence everything in an elective government. If Jay should succeed, it will recommend him to the choice of the people for president, as soon as a vacancy shall happen. This will weaken the hopes of the Southern States for Jefferson. This I believe to be the secret motive of the opposition to him, though other things were alleged as ostensible reasons; such as his monarchical principles, his indifference about the navigation of the Mississippi, his attachment to England, his aversion to France, none of which are well founded, and his holding the office of chief justice." 44
Jay understood how personally and politically perilous was his mission to London but he had a strong sense of political responsibility. Personal integrity – and his own appreciation for his own personal integrity – was an important part of Jay’s makeup. After dinner with President Washington, Jay wrote his wife: “Peace or war appears to me a question which cannot be solved. Unless things should take a turn in the mean time, I think it will be best on my return to push our affairs at Bedford briskly [where he proposed building a country-house]. There is much irritation and agitation in this town and in Congress. Great Britain has acted unwisely and unjustly, and there is some danger of our acting intemperately." 45
The next day, Hamilton and a group of Federalist senators met with Jay to assure that he would accept the diplomatic post. 46 In accepting the position, Jay clearly put the nation’s welfare above his own ease and popularity. Jay was both devoted to both his faith and his country and it would have been unlike him to turn on either. He knew that little honor would come from his mission. Nine days later, Jay wrote his wife Sally: “No appointm[en]t ever operated more unpleasantly upon me; but the public Considerations which were urged and the Manner in which it was pressed, strongly impressed me with a conviction that to refuse it would be, to desert my Duty for the Sake of my Ease and Domestic concerns & comforts. I derive some Consolation from the Prospect that my absence will not be of long Continuance, and that the same providence which has hitherto preserved me, will still be pleased to accompany and restore me to you and our dear little Family.” 47
In response to a request by President Washington for ideas, Treasury Secretary Alexander Hamilton wrote an outline of the diplomatic instructions needed for Jay’s mission. Indeed, Hamilton rather than Secretary of State Edmund Randolph proved most influential in defining Jay’s goals. Historian John J. Reardon wrote: “Forceful in language but mild in intent, Hamilton recommended that Jay be given wide power, including the right to negotiate a commercial treaty with Great Britain. Few things were to be insisted upon absolutely, and it was implied that some concessions might be made as to our rights as a neutral in return for adequate compensation for the seizures made under the Order in Council of November 6, 1793. Our rights under the Treaty of 1783 were to be insisted upon with a similar delicacy. Hamilton’s views corresponded very closely with the opinions that had been expressed two days earlier in a meeting between Hamilton, Ellsworth, Cabot, King and Jay. In mood at least, this discussion had reflected the same desire to effect an accommodation with England. If the other members of the cabinet submitted their views in writing, no record of them has been found. It mattered little, however, for Hamilton’s carefully drawn opinion became the basis of Jay’s instructions. They were drafted by Randolph and submitted to the President, Hamilton and Jay for approval on May 4.” 48
Although the official instructions came from Randolph, Jay clearly had little respect for the ill-prepared secretary of state. Randolph had no strong understanding of European relations. Unlike former Secretary of State Jefferson, Randolph had never even visited England or France. Unlike Jay, Randolph had never been engaged in negotiations with a foreign power. As a former ambassador, Jay clearly thought he knew more than Randolph about how to negotiate. Samuel Flagg Bemis noted: “Perhaps never in the history of the United States has a plenipotentiary been vested with more unfettered discretion than was Jay in the critical negotiations of 1794.” He noted that most “of his instructions were in the shape of recommendations only.” 49 Hamilton also sent Jay his own private set of instructions in which he downplayed the issue of indemnification if other issues could be resolved. Hamilton biographer John C. Miller wrote: “Hamilton was not a treaty-at-any-price man. He enjoined Jay to do nothing that would not bear scrutiny by public opinion in the United States and to enter into no engagements contrary to the terms of the existing treaties with France. Nor was Jay authorized to surrender any vital American rights and interest: ‘Unless an adjustment of the differences with her [Great Britain] could be effected on solid terms,’ he told Jay, ‘it would be better to do nothing.’” 50 As historian Joseph Ellis summarized Jay’s mission, it was “to avoid the outbreak of war, which was looming because of Britain’s confiscation of American ships and seamen; to restore trade with Britain, which was a vital lifeline of the American economy and the chief source of revenue for the federal government; and to settle the outstanding provisions of the Treaty of Paris (1783), to include the removal of British troops from the northwestern frontier and the payment of debts to British creditors, about £2 million, mostly owed by Virginia planters.” 51 Historian Jay Winik wrote that Jay’s “mandate from Washington was broad: Much the way Franklin and other diplomats had played the European powers off each other in the War of Independence, Jay’s instructions were to convince the English that unless they made concessions, they could not count on continued American neutrality with France. Jay was thus also instructed to consult with Russia, Sweden, and Denmark about the possibility of an armed neutrality agreement to bring press on England, not dissimilar from what Russia’s Catherine had shrewdly formed during the Revolutionary War.” Winik noted that Jay “was undercut by none other than Hamilton himself; somewhat foolishly, Hamilton persuaded Washington to decline an alliance of neutrals – though Denmark and Sweden were interested – on the grounds that it would antagonize the British.” 52
Hamilton made Jay’s task more difficult by talking to a British diplomat in America. It would not be the first time that the American position had been undermined by Hamilton. “Washington’s willingness to discuss a trade agreement and his decision to send a diplomatic agent to London had been leaked by Hamilton to the British agent George Beckwith, who promptly informed the Foreign Office. Hamilton’s intention remains a mystery, but his disclosure emptied Morris’s negotiating toolkit,” wrote James J. Kirschke, biographer of Gouverneur Morris. Morris had been sent to England by Washington in 1790 to work on an informal diplomatic basis. British army officer Beckwith tasked with stirring up trouble in diplomacy and on the American frontier. “Thanks to Beckwith, the British authorities knew, even before Morris did, the entire scope of his mission and the narrow range of options George Washington had afforded him.” 53
In 1793, Hammond sought out Hamilton. “The interview which followed shows how completely Hamilton now – after the resignation of Jefferson – dominated all matters of greater importance to the Department of State, as well as in the Treasury, and, in fact, in the War Department,” wrote Samuel Flagg Demis. The interview also reflects Hamilton’s intervention which effectively any stick that Jay might have been seen to carry along with his carrots. British Minister Hammond informed Grenville that Hamilton had told him that the United States would not participate in an armed neutrality” with other European countries. Historian Joseph Charles maintained that “until Hamilton divulged to Hammond that we would not act with the League of Armed Neutrality, we stood in a stronger position with regard to Great Britain than we had done at any time between I783 and 18I2.” 54 Samuel Flagg Bemis wrote that with this information, Grenville “knew every one of the cards. No longer was there any reason why he should even listen to a recital of Jay’s propositions for the tender treatment of neutral commerce and navigation. There was no longer any reason for haste in the negotiation. Jay, on the other hand, had grown nervous and timid as the conversation at the Foreign Office wore on.” 55 Without that threat, Jay’s diplomatic efforts were emasculated., some historians argued. However, argued Lamberton Harper, that “it is hard to believe that Grenville was seriously concerned about the Armed Neutrality by September 1794, that the news came as a surprise, or that it affected his reaction to Jay’s September 30 draft treaty.” 56 Bemis contended “that Hamilton, speaking for the Administration, though the interview was technically informal, was prepared to accept the principles put forward by the British Orders-in-Council of the June 8, 1793, so vigorously controverted by Jefferson, and January 8, 1794; namely, foodstuffs can be contraband, and the neutral flag does not always cover enemy goods.” 57 Through his meeting with Hammond, Hamilton was in effect writing two sets of instructions – one for Jay and one for the British. “Not only was Jay not made aware of this exchange, but he also had to face the unfortunate timing of arriving for talks when the British were enjoying a series of military triumphs on the continent,” wrote historian L.B. Kuppenheimer. “Against such a background, it would have been difficult for anyone including Hamilton himself to have negotiated anything like favorable terms.” 58
The task Jay undertook was a difficult and important one. Sending Jay to Britain “took the issue out of Congress’s hands and virtually destroyed any chance the legislative branch might have had to pass strong anti-British commercial regulations. It would be inappropriate, the Federalists persuasively argued, to take action against Great Britain now as it would compromise and jeopardize the chances for the mission’s success.” 59 Accompanied by his son and aide John Trumbull, Jay left for England on May 12, 1794, and arrived there on June 8. A week later, he set up residence at the Royal Hotel, which he called “the first, but the most expensive [hotel] in London.” 60 Diplomatic historian Thomas A. Bailey wrote: “Jay did not hold a strong hand, but he did have a few trump cards. The British realized that the Untied States had been goaded to the verge of war; and they did not want war. It would disrupt their valuable flow of supplies from America and divert strength from the real enemy, France.” 61 Historian Robert H. Ferrell wrote: “Jay arrived in London at a time when the British did not feel hard pressed enough to make concessions. The government knew that revenues from British goods entering American ports were sustaining the new federal union and necessary for its very survival.” 62
In Lord William Grenville, the British foreign secretary, Jay found a talented, hard-working, and well-informed adversary. Grenville had held a wide variety of government posts over the previous decade; he was not only knowledgeable on American affairs, he was also well-informed on Jay himself. But although he was a competent adversary, Grenville had much on his plate. The treaty “was only incidental to Grenville’s daily work of handling a foreign business the ramifications of which involved affairs of greatest moment in the chancelleries of all Europe during one of the greatest wars in which Great Britain ever was engaged.” Indeed, European politics and the French Revolution were a challenge to handle. Bemis observed that Grenville was “a more able and a more experienced diplomat than John Jay.” He concluded “that Jay, in his desire for peace and his nervous anxiety about unforeseen contingencies which might endanger the whole negotiation, was induced to accept terms which might have been bettered by an abler negotiator.” 63 Historian John Lamberton Harper argued: “What seems remarkable is the amount of attention the British did pay to Jay. Grenville wrote Hammond on August 8 that Jay’s appearance had ‘led to discussions of much length and importance,’ and the record bears this out.” 64
Jay tried not to take an adversarial approach to the British. He wanted an accommodation, not a war. So did the British, although they did not wish to be too accommodating. Historian Bradford Perkins wrote: “Members of William Pitt’s ministry, and especially his cousin and foreign secretary, Lord Grenville, although by no means prepared to concede everything the Americans wished, did not want to add another enemy when the Europeans war was going badly.” Perkins wrote that “by the time Jay reached England in June, Pitt and his colleagues had already begun to move toward accommodation.” 65 By August 6, Jay gave Grenville a working outline for the treaty. John C. Miller wrote: “Throughout his negotiations with Lord Grenville, Jay acted upon the principle that ‘the quarrel between Britain and America was a family quarrel, and that it is time it should be made up.’ He did not threaten the British with economic or military reprisals; nor did he bring up the possibility that the United States would join the armed neutrality recently formed by the Scandinavian powers to uphold neutral rights against the British navy.” 66 The British, of course, knew that such collaboration was not American policy. Jay biographer George Pellew wrote: “To avoid interminable discussion and hasten an accommodation, Jay, at his first meeting with Lord Grenville. suggested that they should at first avoid written communications, and merely meet and converse informally, ‘until there should appear a probability of coming to some amicable mutual understanding;’ that they should then exchange preliminary papers, which still should not be binding, and that in all this they should not employ secretaries or copyists, in order to escape the influence of public opinion and national feeling as much as possible. They should always bear in mind, said Jay, ‘that this was not a trial of diplomatic fencing, but a solemn question of peace or war between two peoples, in whose veins flowed the blood of a common ancestry, and on whose continued good understanding might perhaps depend the future freedom and happiness of the human race.’ On this broad statesmanlike basis was the negotiation conducted, and the secretaries had a holiday till the treaty was almost ready for signing." I will endeavor to accommodate rather than dispute," were Jay's words to Hamilton.” 67
Jay’s mission was not made easier by events in France or by the francophilia of America’s ambassador in Paris, longtime Jay antagonist James Monroe, who as a U.S. senator had voted against Jay’s appointment and subsequently been sent to Paris to balance the Jay mission. Grenville noted Monroe’s behavior and wrote Jay: “I do not believe that you personally will envy Mr. Monroe the honor of the fraternal kiss which he received: and if such an exhibition is thought not to degrade an American minister I know not why it should not become a matter of complaint on the part of the British government.” 68 On September 13, Jay reported on the conduct of negotiations in letters to Secretary of Randolph. Jay wrote President Washington:
My letter to Mr. Randolph, which accompanies this, contains very full and accurate information respecting our negotiation here. You will perceive that many points are under consideration, and that alterations will probably yet take place in several articles. Although it is uncertain, yet it is not altogether improbable, that Lord Grenville and myself may Agree on terms which, in my opinion, should not be rejected. In that case, I shall be- strongly induced to conclude, rather than by delays risk a change of views, and measures, and ministers, which unforeseen circumstances might occasion.:- The secretary's letter, by Mr. Monroe, and the speech of the latter to the' Convention, are printed, and have caused a disagreeable sensation on the public mind here, and probably on that of the government. The one written by you is spoken of as being within the limits of diplomatic forms.
Gentlemen, whether in or out of office, are doubtless free in their affections or predilections for persons or nations; but as the situation of the United States is neutral, so also should be their language to the belligerent powers. Neither can it be proper to adopt any mode of pleasing one party that would naturally be offensive to the other; and more particularly at a, time when with that other a negotiation for peace, commerce, and friendship is pending.
To be fair, upright, and prudent, is to be politic; and of the truth of this maxim, your character, and very singular degree of respectability, weight, and reputation, afford the strongest proof.
I learn that Virginia is escheating British property, and I hear of other occurrences which I regret; but they shall not abate my perseverance in endeavouring to prosecute peace, and bring the negotiation to such a conclusion as will either ensure peace, with this country, or produce union among ourselves in prosecuting war against it. Whatever may be the issue, I am determined not to lose the only satisfaction that I can be sure of, viz., the satisfaction resulting from a consciousness of having done my duty.
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; and my dependence then was, and still is, on the wisdom, firmness, and integrity of the government; on the general good sense of our people; and on those enlightened and virtuous characters among them who regard the peace, honour, and welfare of their country as primary objects. These men regret the differences which subsist between this country and their own, and sincerely desire to see mutual animosities give way to mutual good-will. As to a political connexion with any country, I hope it will never be judged necessary, for I very much doubt whether it would ultimately be found useful; it would, in my opinion, introduce foreign influence, which I consider as the worst of political plagues. 69
A few days later, Jay wrote Alexander Hamilton, complaining about Monroe’s behavior in France: “The Secretary's letters by Mr. Monroe, and his speech on his introduction to the convention, have appeared in the English papers. Their impression in this country may easily be conjectured. I wish they had both been more guarded. The language of the United States at Paris and at London should correspond with their neutrality. These things are not favorable to my mission.
A speedy conclusion to the negotiation is problematical, though not highly improbable. If I should be able to conclude the business on admissible terms, I shall do it, and risk consequences, rather than by the delays of waiting for, and covering myself by opinions and instructions, hazard a change in the disposition of this court; for it seems our country, or rather some parts of it, will not forbear asperities. I hear that Virginia is taking British property by escheat; and other things which in the present moment are unreasonable are here reported. 70
Jeffersonians, meanwhile, were prepared to believe the worst of Jay’s mission. Back home, Republicans were alert to any sign of Jay’s Anglophilia. In England, the government was alert to foster any latent Anglophilia by Jay. The royal family treated Jay with particular respect “So many agreeable amenities were generally put in his way that he refrained from mentioning them in his official correspondence for fear that a false interpretation might be put on them by the anti-British party at home.” 71 When Jay bowed before Queen Charlotte and kissed her hand, Jeffersonians claimed that the diplomat had “prostrated at the feet of her majesty the sovereignty of the people.” 72 Jay indeed favorably impressed the English. Historian John Lamberton Harper observed: “Grenville later wrote of Jay that his ‘whole conduct. in the course of this arduous and intricate Negotiation [had] been entirely satisfactory.’ To Jay himself, Grenville spoke (at a time when flattery would have been useless) of ‘the sincere esteem and friendship with which your whole conduct has impressed me, and of the high sense which I entertain of your virtues and talents.’” 73
Jay decided to move forward despite the likelihood that the final treaty would be controversial at home. Jefferson biographer Claude Bowers wrote: “Impatient over the delay, Jay submitted a complete draft of a treaty on September 20, 1794, which was, in many respects, an admirable document. When the treaty which was finally signed was submitted with the other papers to the American Government, the draft of September 20th was conspicuously absent – for the actual treaty was an almost complete surrender of the claims of the first draft, and its publication would have had a disastrous effect on Jay’s reputation and on his party.” Indeed historian Samuel Flagg Bemis called the eventual treaty a “stupendous retreat” from Jay’s September draft.
By the fall, Jay was frustrated by the stalemate in which little progress was made. Frustrated, he moved toward conclusion. Although Jay recognized that it fell short of what Americans expected, he signed a treaty with Grenville on November 19. “The negotiation is terminated by a treaty. It will, with this letter, go by the packet, which, in expectation of this event, has been detained above a week,” wrote Jay to Oliver Ellsworth on the day of the signing. “In my opinion we have reason to be satisfied. It is expedient that the ratification should not be unnecessarily delayed. The best disposition towards us prevails in the cabinet, and I hope they will have reason to be content with the delicacy and propriety of our conduct towards them and the nation. Further concessions on the part of Great Britain cannot, in my opinion, be attained. The minister flatters himself that this treaty will be very acceptable to our country, and that some of the articles in it will be received as unequivocal proofs of good-will. We have industriously united our efforts to remove difficulties, and few men would have persevered in such a dry, perplexing business, with so much patience and temper as he has done.” 74 Three days later, Jay wrote Lord Grenville: “I have had the pleasure of receiving the letter which your lordship did me the honour to write yesterday, enclosing a copy of one that you had written to Mr. Hammond. Marks of confidence from those who merit it are grateful to the human mind; they give occasion to inferences which by soothing self-love produce agreeable emotions.
Being aware that our mutual efforts to restore goodhumour and good-will between our two countries should be continued beyond the date of the treaty, I am happy that our sentiments in this respect coincide.
The letters I have written to America with the two (copies of the treaty, which are already despatched, leave me little to add on the subject of your lordship's letter; they are indeed concise, for I had not time to amplify; they Will be followed by others less general and more pointed. There are men among us to whom these ideas will be familiar, and who will not omit to disseminate them. Their opinions and example will have influence, but it will be progressive, not sudden and general.
The storm, I hope and believe, will soon cease; but the agitation of the waters will naturally take some time to subside; no man can with effect say to them, ' Peace, be still.' By casting oil upon them, they will doubtless be the sooner calmed. Let us do so.
I have a good opinion of, Mr. Hammond; nay, more, I really wish him well: the asperities, however, which have taken place, lead me to apprehend that official darts have frequently pierced through the official characters and wounded the men. Hence I cannot forbear wishing that Mr. Hammond had a better place, and that a person well adapted to the existing state of things was sent to succeed him.
My lord, I make this remark on the most mature reflection, and found it on those active principles in human nature which, however they may be repressed, cannot easily be rendered dormant, except in cases of greater magnanimity than prudence will usually allow us to calculate upon.
It is not without reluctance that I give this remark a place in this letter. I class Mr. Hammond among those who I think are friendly to me. I have experienced his attentions and hospitality: not an unkind idea respecting him passes in my mind. Public and common good is my object and my motive.
That official letters and documents have been prematurely and improperly published in America is evident. I have not been sparing of animadversions on this head, and flatter myself that more circumspection will in future be used.
The consuls and other public officers and agents in the two countries will have it much in their power (especially in America, from the nature of the government and state of society) to promote or to check the progress of conciliation and cordiality. I have but imperfect knowledge of those now in the United States, except Sir John Temple, whose conduct and conversation appeared to be conciliatory. I have been informed very explicitly that Mr. *********, the consul in Virginia, is not esteemed, and that his private character is far from being estimable. I mention this as meriting inquiry.
There being no French merchant ships in the American seas, the privateers must either prey on neutral vessels or return without spoil. Hence they become exposed to temptations not easy for them to resist.
The privateers of two hostile nations have no desire to seek and to fight each other. Between mere birds of prey there are few conflicts. If they were recalled, their crews might be usefully employed in ships of war or of commerce. Pardon the liberty of these hints, they occurred to me, and I let my pen run on—perhaps too far.
Permit me to assure you, my lord, that my endeavours to cultivate amity and good-will between our countries and people shall continue unremitted; and that they will not cease to be animated by your lordship's co-operation. To use an Indian figure, may the hatchet be henceforth buried for ever, and with it all the animosities which sharpened, and which threatened to redden it. 75
The treaty involved a fight between the American emissaries to Britain and France as much as between Britain and America. America had a treaty obligation with France dating to American Revolution which although the U.S. declined to honor still placed the new nation in an anomalous position with Britain, constantly concerned about its cross-channel neighbor. England used America’s association with France as a pretext to abuse American rights and to presume that Americans were violating their neutrality. Monroe’s statements in France had made Jay’s job harder. Jay and Monroe were essentially engaged in antithetical missions to which they arrived from antithetical positions. Hamilton biographer John C. Miller wrote: “Even if it is assumed that Lord Grenville was less well disposed toward the United States in September than in June, 1794, it was not owing to anything Hamilton said or did but to the singular conduct of James Monroe, the United States Minister to France. While Jay was negotiating in London, Monroe was receiving and giving – the fraternal embrace’ in Paris and pledging the solidarity of the two republics against the monarchical world. In Grenville’s opinion, Monroe’s actions spoke louder than Jay’s words: he bluntly informed Jay that the confidence of His Majesty’s Government in the sincerity of American professions of good will toward Great Britain was seriously shaken by the behavior of the American Minister in Paris.” 76 Bemis noted that Grenville “was especially taken aback by the fraternal kiss bestowed on Monroe by the President of the Convention and the democratic felicitations, so warmly written by Randolph, which the United States Senate by formal resolution had conveyed to the French Republic. The Foreign Secretary made these ‘unneutral’ effusions the subject of private protest to Jay.” 77 The relations between Jay and Monroe deteriorated for another reason. Monroe wanted to provide a copy of the draft Jay Treaty to the French government, but Jay refused. Miller wrote that “Lord Grenville. told Jay that if Monroe represented the attitude of his government, it would be difficult for His Majesty’s minister to regard it as truly neutral. And unless the British government was persuaded that the United States intended to remain neutral, it was not likely to surrender the Northwest posts or to make a commercial treaty with the republic.” 78
Although his work had been concluded with the signing of the treaty, Jay himself intended to wait in Britain through the winter and sail home in the spring when the Atlantic weather would be better. Jay biographer Walter Stahr wrote: “Most historians have stressed that the final treaty was ‘fairly close to Grenville’s project’ of late August. It was; but it also included several provisions from Jay’s draft of late September. Jay was convinced that the final treaty, under the circumstances, was the best that the United States could do. ‘My task is done,’ he wrote home, and ‘my opinion of the treaty is apparent from my having signed it.’ ‘Further concessions on the part of Great Britain,’ he wrote in another letter, ‘cannot be attained.’ Whether the terms were acceptable would be for ‘the President, Senate and public’ to decide. Although Jay knew that the fate of the treaty was out of his hands, he hoped that there would be peace between Britain and America.’” 79
With the gift of hindsight, Jay is understood to have played a bad hand as well as possible. Historian Marcus Cunliffe wrote that Jay “got about as much as Britain was prepared to concede at that period.” 80 Historian Walter McDougall wrote: "Given his lack of bargaining power, Jay did not do badly. the British, in their anger and strength, demanded Americans swallow a long list of restrictions on their trade with the French, grant most-favored-nation status to Britain, pay their pre-Revolutionary debts, and drop counter-claims for slaves freed by redcoats during the war. Although no trivial concessions, they were well worth making in exchange for a British withdrawal from the whole Great Lakes region." 81
Jay’s critics have been fierce, however. In contrast, historian Stuart Leiberger wrote: “In return for these limited gains the United States paid dearly, accepting a disastrously wide definition of contraband, surrendering the right to sequester debts and impose commercial discrimination, and granting Britain most-favored-nation status, which virtually precluded beneficial treaties with other countries.” 82 Historian Raymond Walters Jr. wrote: “The treaty Jay sent home represented a complete triumph for British diplomacy. The United States won modest concessions at a humiliating price.” 83 Richard Norton Smith maintained: “Jay’s defensive tone was borne out in the treaty he had negotiated. Indeed, a first reading of the twenty-eight articles suggested that Washington’s experiment in secret diplomacy had blown up in his face. Instructed to secure American rights and open British markets; the chief justice did neither. Although agreeing to evacuate the northwestern posts no later than June 1, 1796, the British retained a share of the lucrative fur trade on both sides of the U.S.-Canadian boundary. In exchange for this concession, no more than a belated promise to carry out the terms of the old peace treaty, Jay had bargained away his country’s wartime rights as a neutral power.”
Jettisoning the idea that free ships make free goods, the American envoy accepted Britain’s broad definition of contraband, opened U.S. ports to British vessels without obtaining reciprocal concessions, closed the American coastline to any ship to privateer in service to the king’s enemies, and awarded most favored trading status to a nation currently waging an undeclared war upon the Yankee fleet. Jay did manage to breach the high wall around India, a concession denied English captains at the mercy of the monopolistic East India Company. But he failed dismally in obtaining damages for British spoilations against Yankee commerce. Instead, the question of illegal maritime seizures was referred to a join arbitration commission, as was the disputed northeastern boundary and the claims of British creditors for prerevolutionary debts blocked by American legislators.” 84
America certainly did not get everything it wanted in the treaty, but it also did not get what most Americans wanted to avoid – war. It also opened up more trade between the two countries. Diplomatic historian Thomas A. Bailey wrote: “The Jay Treaty, for all its shortcomings, was the long-coveted commercial treaty with England. It was surprisingly generous in opening trade with the British Isles on a most-favored nation basis, and in making available the British East Indian trade.” 85 Historian John Lamberton Harper wrote: “Grenville had his own reasons to be satisfied. Britain, like America, secured the benefits of peace, implicitly accepting Hamilton’s argument that the hurt done by war would have been far out of proportion to the gain. Specifically, the treaty secured British participation in the fur trade south of the border after withdrawal from the posts. The issue of abducted slaves was effectively buried. British creditors could seek compensation for losses due to legal impediments via another mixed commission. Britain would also received compensation for spoliations by French privateers illegally fitted out in U.S. ports, something previously denied.” 86 On specific subjects, the Jay Treaty determined:
Northwest Forts: Walter Stahr wrote: “Jay proposed that Britain withdraw all its troops from the northwest forts by June 1795, a somewhat ambitious date, given how long it would take to conclude and ratify a treaty, and get word of the treaty to remote settlements.” Stahr wrote regarding the U.S.-Canada border: “Jay deserves great credit for his stubborn refusal to yield what was, at the time, an unknown bit of forest. Although the immediate issue was the ownership of part of what is today Minnesota, the longer term issue was the starting point for the boundary which would some day run all the way from Minnesota to the Pacific Ocean. By insisting on a more northerly boundary, Jay secured for the United State the northern plains, mountains and coast.” 87 George Pellew wrote: “As to the western posts, it was agreed that they should be surrendered by June 12, 1796. But compensation for the detention was denied on the ground that it was due to the breach of the treaty by the United States in permitting the States to prevent the recovery of British debts.” 88 Historian Gordon S. Wood wrote: “The outcome at Fallen Timbers made inevitable the British evacuation of the Northwest posts they had been occupying since the Revolution. In the treaty negotiated by John Jay in 1794. finally agreed to get out of the American territory. The sending of Jay to England in turn frightened the Spanish with the possibility that the British and the Americans might collaborate to threaten Spanish possessions in the New World. Consequently, Spain suddenly decided to reach a long-delayed agreement with the United States.” 89
Indians: Samuel Flagg Bemis wrote: “Jay was unable to get recognition of the principle that Indians dwelling within the territory of one party should not be interfered with by the other party.” 90
Debts: George Pellew wrote: “Where the collection of such bona fide debts incurred before the Revolution had been barred, or their value impaired by ‘legal impediments’ since the peace, it was provided that ‘full and complete compensation’ should be made by the United States, to be ascertained by a board of five commissioners to meet, first, at Philadelphia. Similarly, the British government agreed to make ‘full and complete compensation’ to American citizens for losses sustained ‘by reason of irregular or illegal captures or condemnations under color of authority or commissions from his majesty,’ wherever ‘adequate compensation’ cannot be had at law, the damages to be ascertained by a board of five commissioners to sit at London. These claims should be decided ‘according to the merits of the several cases, and to justice, equity, and the law of nations.’ The same commissioners were also to pass on claims of British subjects for losses by captures within the jurisdiction of the United States, which agreed to make compensation accordingly.”
It must have been a delicate matter to obtain such a concession from Great Britain, for it practically amounted to an admission that the Orders in Council were in violation of neutrality, irregular and illegal, though the language was skillfully adapted to avoid wounding English susceptibilities. Under this clause American merchants received $10,345,000. Jay wrote to Pickering: "Perfect justice to all parties is the object of both the articles (vi., vii.), and the commissioners are empowered to do it, in terms as explicit and comprehensive as the English language affords." 91
West Indies: John C. Miller wrote that under the treaty: “The British West Indies, hitherto closed to American ships were to opened to vessels of seventy tons or less. Thus, while Jay succeeded in breaching the mercantilist walls Great Britain had erected round its empire, the crack was so small that hardly more than a fishing smack could get through. To secure even this limited trade to the British West Indies, Jay was compelled to promise that molasses, sugar, coffee, cocoa, or cotton would not be carried in American ships to any part of the world except the United States.” 92 George Pellew wrote: “As it was, reciprocal freedom of commerce was established between the United States on the one side and British North America and Great Britain on the other; American vessels were admitted to trade between American ports and the East Indies, with certain restrictions as to exportation in time of war; and American vessels of not over seventy tons' burden were admitted to carry to the British West Indies goods of American growth or manufacture, and to export to American ports only West Indian products, on condition that ‘the United States will prohibit and restrain the carrying away any molasses, sugar, coffee, cocoa, or cotton, in American vessels, either from his majesty's islands or the United States to any part of the world except the United States, reasonable seastores excepted.’ It was this latter clause that was so bitterly condemned. The explanation of it, however, is clear. The particular articles mentioned were supposed to be peculiarly the products of the West Indies, and it was unsuspected by Jay that cotton was to be one of the great staples of export from this country. Such lack of foresight was not surprising, since, only the previous year, 1794, when an American ship entered Liverpool with eight bags of cotton fibre as part of her cargo, it was confiscated as an unlawful importation, on the assumption that so large a quantity could not have been the produce of the United States. ‘Moreover, it seems that it was but a few years earlier that the cultivation of cotton had been attempted at all, for ‘a member from South Carolina observed, in the House of Representatives in '89, that the people of the Southern States intended to cultivate cotton, and ' if good seed could be procured, he believed they might succeed.'" 93 Jay’s leverage was limited on these problems. Many of the issues involved maritime and mercantile questions – an area in which America might question but could not challenge British supremacy.
Mercantile Freedom: Biographer Doris Faber wrote that Jay “failed utterly. on the single most important point at issue. He failed to force the British into signing a treaty article guaranteeing American ships the right to sail freely on the seven seas, regardless of whether or not they might be carrying provisions bound for France.” 94 Bemis wrote: “Jay’s Treaty failed to secure recognition of the principles of international maritime law which the United States under the Government of the Confederation had written into all of its treaties with friendly foreign powers or allies.” 95 True enough, but without an threat of military retaliation, Britain had no reason to take America seriously.
Impressments: Biographer George Pellew wrote: “It is true that Jay failed to obtain an article against impressments, which then and the next year he urged on Lord Grenville as essential to preserve friendship between the two countries. But even the war of 1812 failed to secure a formal renunciation of that evil. That negotiation should have succeeded in effecting what war failed to achieve, was scarcely to be expected.” 96 Bemis wrote “the apparent willingness of Grenville early in the Jay negotiations to accede to such a regulation seems to have disappeared after he heard from Hammond that there was no chance of the United States’ joining another Armed Neutrality.” 97
Neutral Rights: To be a neutral, paradoxically, requires a willingness to use force. Gallatin biographer Raymond Walters Jr. wrote that “the United States yielded on its rights as a neutral by agreeing that its vessels would not carry contraband in return for which Britain promised to stop impressing American seamen into her navy.” 98 Historian Robert H. Ferrell wrote: “Jay failed to obtain recognition of American neutral rights, and this failure deserves a brief explanation. From the outset of the war in Europe in 1793 neutral rights, the right of a neutral to trade under specified rules with belligerents during wartime, were a major American concern because of the size of the merchant marine.” According to Ferrell, Jay “managed to gain one concession: ‘The articles as they now stand secure compensation for seizures, and leave us at liberty to decide whether they were made in such cases as to be warranted by the existing law of nations.” 99 Historian Raymond Walters Jr. wrote: “The treaty Jay sent home represented a complete triumph for British diplomacy. The United States won modest concessions at a humiliating price.” 100
Slave Compensation: Southerners would criticize Jay’s failure to arrange compensation for former slaves that Britain removed from America. This was a difficult subject for Jay, a conscientious emancipationist, to negotiate. John C. Miller wrote that “the only concession that Jay might have secured by a more resolute demeanor was a stipulation requiring payment for the Negro slaves the British had carried away from the United States during the War of Independence. But Jay pressed this point halfheartedly.” Jay could hardly argue for compensation under system of forced labor he found morally unsupportable. 101 Historian Don E. Fehrenbacher wrote that Jay “found it useless to press the slave question. British officials remained adamant, insisting, as they had before, that the provision in the peace treaty was prospective only. It did not apply, they said, to slaves that had come under British protection before the war ended. Consequently, the treaty that Jay signed contained no reference to the carried-off slaves. ‘We could not agree about the negroes,’ he wrote. ‘Was that a good reason for breaking up the negotiation?’” 102
Three issues were not decided by the treaty and were committed to arbitration: Maine’s boundary, compensation claims for American ships detained in the Carribean, and pre-Revolution debts from Americans to British merchants
Despite the negative reaction that would greet Jay’s Treaty in the United States, many historians have been understanding regarding Jay’s work. From the time it began negotiating peace with England at the conclusion of the American Revolution, America also desired to conduct a commercial treaty with Britain. Jay’s signal accomplishment was that he averted war with Britain, The treaty has often been criticized as giving the United States too little and too late. But it did provide a tangible benefit that Jeffersonians never appreciated or acknowledged: it kept the United States out of war with a European power. “The ratification of Jay’s Treaty,” wrote historian Richard Brookhiser, “assured that the country would not be tugged by sympathies with France into a showdown with Britain it could not afford.” 103 Historian Fergus M. Bordewich wrote that the Jay Treaty “staved off a war that the United States could not have won, and it allowed American shippers to take advantage of opportunities created by the conflict in Europe. ‘Jay’s Treaty was a shrewd bargain for the United States,’ historian Joseph J. Ellis has written. ‘It bet, in effect, on England rather than France as the hegemonic European power of the future, which proved prophetic. It recognized the massive dependence of the American economy on trade with England [and] it linked American security and economic development to the British fleet, which provided a protective shield of incalculable value throughout the nineteenth century.’” 104 Historian Robert H. Ferrell wrote: “Jay’s Treaty. was something of an innovation in diplomacy in that it established so many mixed commissions to settle outstanding disputes. The United States in this way became a leader in what was to be a favorite nineteenth-century procedure of settlement between nations – arbitration.” 105
Historian Woodrow Wilson wrote: “The treaty was, in fact, a statesmanlike piece of work. Mr. Jay had the sobriety, the steadiness and largeness of view, and the high spirit of a statesman. He had gone to England feeling that the affair he was to engage in was not to be ‘a trial of diplomatic fencing, but a solemn question of peace or war between two countries, in whose veins flowed the blood of a common ancestry, and on whose continued good understanding might perhaps depend the future freedom and happiness of the human race.’ Lord Grenville, with whom he had to deal, had met him in a like spirit of accommodation, and both believed when their work was done that no just exception could be taken to the terms of the treaty ‘except on the part of those who believed the interests of Great Britain and the United States to be in contradiction with each other, or who wished to make them so.’ It was not only a treaty of accommodation, it was also a treaty of commerce,— the first it had proved practicable to get from England since the war of alienation and independence which had broken the old ties forever. It provided that the British garrisons should be withdrawn from the northwestern posts by the 12th of June, 1796; that a commission, to sit in Philadelphia, should determine and provide for the payment of debts due British subjects at the outbreak of the war for independence, and that a similar commission, to sit in London, should adjudicate and adjust the matter of the compensation of American merchants and ship owners for illegal captures or condemnations made during the war between France and Great Britain; and that all pending boundary disputes should go for settlement to a board of joint commissioners. The door of trade between the two countries it opened wide. Trade between America and the British East Indies also it made free. Only the clause governing trade with the British West Indies was unsatisfactory. It provided that no American vessel of more than seventy tons burden should be admitted to that trade, and that no sugar, molasses, coffee, cocoa, or cotton should ever be exported thence in American bottoms to European ports. That clause the Senate rejected. It was October, 1795, before better terms could be obtained and the treaty finally completed. 106 Wilson wrote:
“The treaty undoubtedly left England still free to impress American seamen; to close the ports of France, if she could, against ships laden with provisions, though they were neutral craft and carried no article of war; to shut America forcibly off from trade with the French West Indies, which France herself had declared free while the war should last; and to confiscate all French goods found on American vessels. ‘The treaty from one end to the other,’ exclaimed Mr. Madison, ‘must be regarded as a demonstration that the party to which the envoy belongs is a British party, systematically aiming at an exclusive connection with the British government, and ready to sacrifice to that object as well the dearest interests of our commerce as the most sacred dictates of national honor’; and many another sober man, whose sentiment was not for France or the Rights of Man, but for the new government and the hard -bought independence of America, echoed the painful conviction. It was no light thing to play so humble a part. Washington himself hesitated and earnestly sought counsel in the matter. The alternative was war or the acceptance of the treaty. The treaty, for all England yielded so little by it, gained something for peace and amity and trade.” 107
Having completed the treaty, both Jay and the treaty took months to get to America – the treaty not arriving in New York until March and Jay more than two months later. Hamilton biographer Marie B. Hecht wrote: “The first copy and a duplicate were, in error, placed on the same British ship, which was attacked by a French privateer. In order to protect their contents, both copies were thrown into the sea. The copy carried in an American ship almost had the same fate. A French privateer stopped the American vessel but did not find the carefully hidden treaty. After a voyage of three months, the ship arrived with the surviving copy of the treaty, which was delivered to Washington.” 108 In one way, the delay helped Jay. In his absence, he had been slated by the Federalists to run for governor of New York – the position that had been denied him by anti-Federalist fraud in 1793. Had the contents of the treaty been public earlier, it is inconceivable that Jay would have won the April 1795 election over Robert Yates.
Once the treaty did arrive in America, President Washington kept the contents of the treaty secret as he prepared for the Senate to reconvene in Philadelphia. Historian Gaillard Hunt wrote: "Washington did not pretend to like the treaty. After Jay had delivered it he kept it for four months before he could bring himself to submit it to the Senate.” 109 Meanwhile, Jay himself returned to America in May. He went to his home in New York, where he prepared to take office as governor. Stuart Leiberger wrote: “Shocked that Jay had obtained so little, the president and the secretary of state held the long awaited agreement confidential until a special Senate session could convene to consider it.” 110 From March to June, Washington maintained his own counsel as he pondered how to proceed. Historian Jay Winik wrote: “Yet by the time the Senate met, the air of mystery had only sparked Republican fears and the contents of the treaty had already leaked.” 111 Historian John E. Ferling wrote: “If Washington’s reaction to the Jay Treaty was mixed, he apparently never considered not submitting it to the Senate. For three months, while he carefully kept secret the terms of the pact, the only person to whom the president spoke about the treaty was the secretary of state. Secretary Randolph signaled his lukewarm endorsement of Jay’s handiwork, although he did propose that Washington scuttle the article that limited the size of American vessels trading in the British Caribbean; he also favored tying the implementation of the treaty to Britain’s repeal of its orders-in-council.” 112
“Gentlemen of the Senate,” began President Washington’s message to the Senate. “In pursuance of my nomination of John Jay, as Envoy Extraordinary to his Britannic Majesty, on the 16th of April, 1794, and of the advice and consent of the Senate thereto on the 19th, a negotiation was opened in Lon. ON the 7th o March, 1795, the treaty resulting therefrom was delivered to the Secretary of State. I now transmit to the Senate that treaty, and other documents connected with it. They will therefore in their wisdom decide whether they will advise and consent that the said treaty be made between the United States and his Britannic Majesty.” 113
For a few weeks, the Senate would be able to debate the treaty in private before the public storm over its contents erupted. Washington delayed but he did not prevent that storm. Historian James Roger Sharp observed: “The treaty that Jay negotiated and that Washington sent to the Senate divided the country like no other issue in the history of the young republic.” 114 Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg wrote of the adverse reaction to the Jay treaty: “It is difficult now to understand why, unless the treaty provided an emotional outlet for varied discontents.” 115 Historian Joseph Charles wrote: “Jay was sent to Great Britain not only because of the strained relations between that country and the United States, which is the reason usually given for his mission, but also because of the party struggle and the condition of public opinion in this country. In order to understand the prolonged and bitter fight over the adoption of the Jay Treaty, it is necessary to keep in mind each of these factors in its immediate background: the one which grew out of the international situation and the one which sprang from domestic politics. Viewing only the relative situations of the two countries, the terms which Jay brought back may have been as good as we could have expected, as defenders of the Treaty have always maintained. The opposition, however, as well as many who had previously been strong Federalists, did not believe them to be, and the conditions of the Treaty put more powerful weapons into the hands of the Republicans for the struggle against it than any of them had expected beforehand.” 116
President Washington was in effect handing the hot potato to the Senate. Scholar Julian Boyd wrote that “Jay argued, Congress had a right to refuse ratification. Whether it was expedient or good policy to exercise this right, he said he would leave to that body -- whereupon he proceeded to state his own views on the subject. Such consular jurisdictions, he thought, were contrary to America's interest. In some respects they clashed with the police powers of the states, "with which it is not clear that Congress can authorize any persons to interfere." They threatened to establish a corps of foreign officers in the country, permitting them to exercise surveillance over American affairs while enjoying privileges and immunities. The true policy of the United States, he concluded, "does not require, but on the contrary militates against" such consular establishments. Nevertheless, since matters had gone so far, he recommended that Congress ratify a convention made in conformity with the plan of I782, provided that it could be limited in duration to eight or ten years. There the matter rested for another year.” 117
The Senate took up the treaty’s 27 articles in secret session on June 8. It deliberated for more than two weeks. Particularly vexatious was Article 12 regarding the size of U.S. ships allowed to use British ports in the West Indies, which the Senate decided should be renegotiated. New York Senator Aaron Burr, who had a long record of good relations with Jay, was a leader of the opposition to the treaty. On June 22, he argued at length that the whole agreement should be renegotiated. The Senate rejected his proposal. Burr biographer Marie Hecht argued: “There can be no doubt that Burr’s ideas would have served the best interests of the United States. But the new nation was, quite simply, in no position to achieve a better settlement. Recognition of this reality doomed his proposed modifications.” 118 On June 24 after heated discussions in unseasonably hot weather, the Senate approved the treaty by a vote of 20-10 – the precise margin needed for two-thirds concurrence. Historian James Roger Sharp noted: “The vote was, for the most part, sectional, with only two Southern senators voting in favor of the treaty, while seven of the ten in opposition were from the South and West.” 119
The Senate wanted the treaty kept secret until Washington had decided whether or not to sign it. A Virginia senator, Stevens Thomson Mason, however, leaked the document to a Philadelphia editor who printed the treaty in full on June 30. Mason and South Carolina Senator Pierce Butler had refused to abide by any pledges of secrecy. Butler wrote James Madison: “If this business gives satisfaction in the States, I am very much mistaken. I wish it may not sow the seeds of further discord. Much artifice and maneuvering was practised to keep the new recruits [Senators] in their ranks. All this quackery may pass for awhile but it will only be a means of increasing future evil; the mind of America cannot remain long hoodwinked, the citizens generally are too well informed and too active not to discover the frauds practising.” 120 President Washington had intended for the treaty to be published, noted biographer James Thomas Flexner, but the anti-Federalists beat him to the printing presses. 121
The Senate ratification, however, was only part of the battle. Both Washington and his critics intended a public discussion. Historian Joseph J. Ellis noted that “the Republicans were looking for a winning issue, and the unpopularity of the Jay Treaty seemed like the ideal vehicle. They smelled a political opportunity even before Jay was appointed.” 122 Historian Woodrow Wilson wrote: “On the 2d of July the country knew what he had agreed to and the Senate had ratified. There was an instant outburst of wrath. It swept from one end of the country to the other.” 123 Republicans knew they couldn’t attack President Washington so they focused their wrath on Jay. Historians George Walter Prothero and Ernest Alfred Benians wrote: “Disappointed in their hope that negotiations would fail and war with England follow, the Republicans attacked the treaty with fury. Jay was burned in effigy, guillotined in effigy, hanged in effigy, from Maine to Georgia. The press teemed with pamphlets, coarse, spiteful, and serious; and for months the chief newspapers gave up whole columns of each issue to attacking or defending the work of Jay. The democratic societies, the people at public meetings, the State legislatures, denounced or praised the treaty.” 124 The focus was on the treaty’s defects, not its advantages. Historian Joseph T. Ellis wrote: “The long-term advantages of Jay’s Treaty, however, were wholly invisible to most Americans in the crucible of the moment.” Ellis noted that “word leaked out in the summer of 1795 and then spread, as Madison put it, ‘like an electric velocity to every part of the Union.” 125 Gouverneur Morris perceptively wrote from London in 1795: “I presume that it will be confirmed by a feeble Majority but it will I imagine hang about Mr. Jay’s Neck like a Mill Stone in his political Voyages.” Historian Richard Norton Smith wrote: “The chief justice wryly commented that he could make his way across the continent by the light of his flaming likenesses.” 126 The reaction to the treaty was the most negative in the South. Jay wrote: “The treaty is as it is; and the time will certainly come when it will very universally receive exactly that degree of commendation of censure which, to candid and enlightened minds, it shall appear to deserve.” 127
Once ratified by the Senate, President Washington did not rush to sign the treaty. Instead, he went to Mount Vernon. Conor Cruise O’Brien contended the Washington was engaged in a “coupe de reste. intended to induce both friends and enemies of the treaty to make their positions known.” 128 One person whose counsel Washington sought shortly after the Senate ratification was that of Alexander Hamilton, now retired to private life. The president wrote Hamilton a confidential letter on July 3, 1795 asking “to have the favourable and unfavourable sides of each article stated and compared together." He wrote: “It is not the opinion of those who were determined (before it was promulgated) to support, or oppose it, that I am sollictious [sic] to obtain. My desire is to learn from dispassionate men, who have knowledge of the subject, and abilities to judge of it, the genuine opinion they entertain of each article of the instrument; and the result of it in the aggregate.” 129 Ferling noted that Hamilton quickly “drafted the first of seven letters that he would write to Washington in the next two weeks; in addition, he sent along a typically lengthy essay – it spans fifty pages in the modern edition of Hamilton’s papers – which enjoined Washington to sign the treaty.” 130
Meanwhile, Secretary of Randolph also “came up with his own list of reasons why Washington should ratify the treaty,” wrote historian James Thomas Flexner. “Peace would be secured. There was little chance that altogether new negotiations could produce a more favorable treaty. Indeed, if internal upheavals further weakened France, Britain might be even more demanding. Randolph then put forward an argument long employed by the Federalists and repudiated by Washington, who had stated that the cure would be worse than the disease. Opening the Mississippi to the British, Randolph said, would make it to their interest to help the United States get Spain to open the river’s mouth.” 131 The issue of American access to the Spanish port at New Orleans would result in the Louisiana Purchase eight years later under the administration of President Thomas Jefferson.
In one letter Hamilton wrote that the treaty was “upon the whole as reasonable as could be expected; the controversial points between the two countries opened the prospect of repossessing our western ports; and offered the United States an escape from being implicated in the European war. The continuation of peace with Great Britain was much more important to American commerce than any merely commercial advantages or disadvantages. The compensation of American pre-Revolutionary debts to Britain that Jay had agreed to would cost less than one military campaign. The terms are no in any way inconsistent with national honour and all the immediate disadvantages were capable of revision in a few years.” 132 Hamilton wrote: “It is conceived therefore upon the whole to be the true interest of the U[nited] States to close the present Treaty with G[reat] Britain in the manner advised by the Senate.” 133
On July 22, 1795, Washington wrote: "My opinion respecting the treaty, is the same now that it was: namely, not favorable to it, but that it is better to ratify it in the manner the Senate have advised (and with the reservation already mentioned), than to suffer matters to remain as they are, unsettled." 134 Opposition to the treaty may actually have encouraged Washington to sign it. Historian Todd Este noted that Washington “expressed to several correspondents his alarm over the resistance to the treaty and his anger at the tactics the opponents used. Taking note of the ‘violent, and extraordinary proceedings’ against the treaty, Washington wrote to Secretary of State Edmund Randolph that he took the opposition seriously: ‘Not because there is more weight in any of the objections. than were foreseen at first; for there are none in some of them; and gross misrepresentation in others.’” 135
Washington was key not only to signing the treaty but having it accepted by the American people. Historian Ron Chernow wrote: “In pushing the treaty, the major asset that the Federalists possessed was still George Washington, the unifying figure in American life.” 136 Peter R. Henriques wrote that Washington’s most potent weapon was the confidence most Americans had in his judgment.” 137 Historian James Thomas Flexner, wrote: “To the simplistic argument that the Jay Treaty was anti-French, [Washington] had opposed an equally simplistic argument, which was much closer to the experience of every citizen. He had cut as of old through layers of controversy down to the basic, unassailable truth. The nation was still free and, despite irritations on the ocean and at the conference tables, more prosperous than it had ever been.” 138 Bowers wrote: “All that was required to make Washington the issue in the treaty fight was a stupid attack upon him from the Democratic press, and that was instantly forthcoming.” 139 General Washington did not flinch under enemy fire. Washington’s backbone was reflected in a response to an anti-treaty petition from Boston selectmen: “Without a prediliction [sic] for my own judgment, I have weighed with attention every argument, which has at any time been brought into view. But the constitution is the guide, which I never will abandon. It has assigned to the President the power of making treaties, with the advice and consent of the senate.” 140
In addition to his private, presumably non-partisan counsel from the former secretary of the treasury, Washington asked Hamilton to take up his pen to defend the treaty in a more partisan way. Hamilton biographer Marie Hecht wrote of Hamilton’s Camillus essays: “In a comprehensive, thorough manner, Hamilton defended the treaty, supported its constitutionality, dissected each of its articles and answered attacks on it that had appeared in Republican papers.” 141 Hamilton understood the treaty’s weakness. Hamilton biographer John C. Miller wrote: “When Hamilton first read the text of Jay’s Treaty, he did not know whether to rejoice that Jay had carried out his mission or to lament that the price of preserving peace with Great Britain had come so high.” 142 As he often did, George Washington relied on Hamilton’s pen to defend his policies. Washington innocently wrote Hamilton: “I have seen with pleasure that a writer. has promised to answer, or rather defend the Jay Treaty. To judge of this work from the first number, which I have seen, I auger well of the performance; and shall expect to see the subject handled in a clear, distinct and satisfactory manner; -- but if measures are not adopted for its dissemination, a few only will derive lights from the knowledge or labor of the author, whilst the opposition pieces will spread their poison in all directions; and Congress, more than probable, will assemble with the unfavorable impressions of their constituents."” 143
Thomas Jefferson was against the Jay Treaty but declined to lead the opposition. Historian Joseph Ellis wrote: “Critics could plausibly argue, and Jefferson did, that the treaty created a neocolonial status for the United States within the British Empire. Advocates might have responded that American merchants would be the chief beneficiaries of this arrangement, which only codified diplomatically what was already a fact commercially; trade with Great Britain was the lifeblood of the American economy.” 144 Jefferson wrote James Monroe: “So general a burst of dissatisfaction never before appeared against any transaction.” Merrill Peterson noted: “The treaty would demolish the Federalists, he casually predicted. However, increasingly drawn into this political vortex, he grew alarmed at the resurgence of the Federalists under Hamilton’s leadership.” 145 Todd Estes wrote: “Jefferson was at Monticello, away from the center of action, receiving news only after some delay, and reluctant to participate in the fray himself.” 146 That was standard operating procedure for Jefferson, who liked to be above or outside the fray while he encouraged others to engage in that fray. Hamilton had no such inclinations, and his efforts frightened Jefferson. Leiberger wrote that the Hamilton essays frightened Jefferson as much as they pleased Washington: “Worried over their impact, Jefferson pleaded with Madison to answer them, but unpleasant memories of the Hevlidius-Pacifus exchange dissuaded him from again entering lists.” 147 Historian Joseph J. Ellis noted that “the heated controversy over the Jay Treaty drew him out of his retirement mode.” 148 Jefferson wrote Madison of his fears and of his begrudging admiration for Hamilton’s polemical impact:
“The Features of the Treaty," I do not send, because you have seen it in the newspapers. It is said to be written by Coxe, but I should rather suspect, by Beckley. The antidote is certainly not strong enough for the poison of Curtius. If I had not been informed the present came from Beckley, I should have suspected it from Jay or Hamilton. I gave a copy or two, by way of experiment, to honest, soundhearted men of common understanding, and they were not able to parry the sophistry of Curtius. I have ceased therefore, to give them. Hamilton is really a colossus to the anti-republican party. Without numbers, he is an host within himself. They have got themselves into a defile, where they might be finished; but too much security on the republican part will give time to his talents and indefatigableness to extricate them. We have had only middling performances to oppose to him. In truth, when he comes forward, there is nobody but yourself who can meet him. His adversaries having begun the attack, he has the advantage of answering them, and remains unanswered himself. A solid reply might yet completely demolish what was too feebly attacked, and has gathered strength from the weakness of the attack. The merchants were certainly (except those of them who are English) as open mouthed at first against the treaty, as any. But the general expression of indignation has alarmed them for the strength of the government. They have feared the shock would be too great, and have chosen to tack about and support both treaty and government, rather than risk the government. Thus it is, that Hamilton, Jay, etc., in the boldest act they ever ventured on to undermine the government, have the address to screen themselves, and direct the hue and cry against those who wish to drag them into light. A bolder party-stroke was never struck. For it certainly is an attempt of a party, who find they have lost their majority in one branch of the Legislature, to make a law by the aid of the other branch and of the executive, under color of a treaty, which shall bind up the hands of the adverse branch from ever restraining the commerce of their patron-nation. There appears a pause at present in the public sentiment, which may be followed by a revulsion. This is the effect of the desertion of the merchants, of the President's chiding answer to Boston and Richmond, of the writings of Curtius and Camillus, and of the quietism into which people naturally fall after first sensations are over. For God's sake take up your pen, and give a fundamental reply to Curtius and Camillus. 149
The treaty opponents lacked that pen. In opposition Jefferson mobilized his allies, and the French – to little avail. Historian Todd Estes wrote: “James Madison and Thomas Jefferson, writing frequently to each other and also to other correspondents, spent the summer and fall collecting reports, monitoring public opinion, and expressing their dismay at the treaty and the tactics of its supporters. Both men received information on the treaty’s reception and forwarded accounts of town meetings to each other.” 150 Meanwhile, Thomas Jefferson was also in regular mail contact with the new French minister in America, Pierre-Auguste Adet, to whom he sent his advice about how to respond to the Jay Treaty. “Jefferson,” wrote Conor Cruise O’Brien, “was playing a double game, something that often attracted him. He was briefing Adet against Washington, but at the same time he was warning Adet not to go too far, and always to keep in mind Washington’s great, if undeserved popularity among ordinary Americans.” 151 Historian John C. Miller wrote: “No Republican congressman worked harder to defeat Jay’s Treaty than did Citizen Adet, the French minister to the United States. In March, 1796, he undertook to direct Republican strategy in Congress by conferring with the party leaders, and when they seemed unwilling to act upon his ideas he took matters into his own hands. It was Adet, for example, who, after the Senate had ratified Jay’s Treaty, procured a copy of the still-secret treaty from Senator Steven Thomas Mason of Virginia and arranged for its publication in Benjamin Bache’s Aurora in the hope that the American people would repudiate the work of the Senate. Again, the fight in the House of Representatives against appropriating money to execute Jay’s Treaty, it was Adet who exhorted the Republicans to resist to the bitter end.” 152
The French card did not work. American Minister to France James Monroe strongly objected to the Jay Treaty. French officials took a similar position. Historian Bradford Perkins wrote: “The treaty hit France like a bolt from the blue, especially since James Monroe. fed illusions by insisting that his government would not, and in the face of public opinion could not, compromise with England.” 153 The Jay Treaty, French officials told Monroe, according to historian Harry Ammon, “had the practical effect of canceling the Treaty of 1778 and placing the United States on the allied side.” Ammon wrote that there was a “conflict implicit in his mission: as a diplomat Monroe was a split personality, attempting at one and the same time to serve as a spokesman for his government and to act as a political leader seeking victory for his party.” 154 Historian Samuel Flagg Bemis wrote that French frustration with the Washington Administration “was aggravated in the eyes of French statesmen by Jay’s Treaty. If in the face of that document and of British practice the French were still to adhere to the terms of the American treaty, they would have to stand quietly by and watch British cruisers take French property from neutral American ships, confiscate American-owned naval stores as contraband when en route in American vessels to France and preëmpt (as was the British practice) foodstuffs under similar conditions.” Bemiss wrote: “At first the Directory decided on a more positive step to offset Jay’s Treaty: to send a special envoy extraordinary to Philadelphia to recall Adet and to announce the end of the Franco-American treaties and then himself to withdraw. Monroe confidentially urged [Foreign Minister Charles] Delacroix against such action: it would please the enemies of both countries. ‘Left to ourselves,’ he hinted, ‘everything will I think be satisfactorily arranged and perhaps in the course of the present year; and it is always more grateful to make such arrangements ourselves than to be pressed to it.” 155
Jefferson’s allies mobilized in the United States to oppose the treaty and England. One Jeffersonian journal editorialized: "No treaty ought to have been made with Great Britain, for she is famed for perfidy and double-dealing; her polar star is interest; artifice with her is a substitute for nature. To make a treaty with Great Britain is forming a connexion with a monarch; and the introduction of the fashions, forms, and precedents of monarchical governments has ever accelerated the destruction of republics." It continued:
If foreign connexions are to be formed, they ought to be made with nations whose influence would not poison the fountain of liberty, and circulate the deleterious streams to the destruction of the rich harvest of our revolution. France is our natural ally; she has a government congenial with our own. There can be no hazard of introducing from her principles and practices repugnant to freedom. That gallant nation, whose proffers we have neglected, is the sheet-anchor that sustains our hopes; and should her glorious exertions be incompetent to the great object she has in view, we have little to flatter ourselves with from the faith, honour, or justice of Great Britain. The nation on whom our political existence depends we have treated with indifference, bordering on contempt. Citizens, your only security depends on France, and by the conduct of your government that security has become precarious. 156
Madison shared Monroe’s concern about the treaty’s impact on Franco-American relations. Madison wrote of the treaty: “What can be more absurd than to talk of the advantage of securing the privileges of sending raw materials to a manufacturing nation, and of buying merchandizes which are hawked over the four quarters of the globe for customers? To say that we must take the Treaty or be punished with hostilities, is something still worse. By the way, it is curious to compare the language of the author and abettors of the Treaty with that held on the subject of our commercial importance, when the Constitution was depending. Jay himself could then view its adoption as the only thing necessary to extort the Posts, &c, and open the West India ports. The Federalist [N°. XI] will exhibit a still more striking contrast on this point in another quarter. You intimate a wish that I would suggest any ideas in relation to the Treaty that may occur to my reflections. In my present sequestered situation, I am too little possessed of the particular turns of the controversy to be able to adapt remarks to them. In general, I think it of importance to avoid laying too much stress on minute or doubtful objections, which may give an occasion to the other party to divert the public attention from the palpable and decisive ones, and to involve the question in uncertainty, if not to claim an apparent victory) The characteristics of the Treaty which I have wished to see more fully laid open to the public view are: 1. Its ruinous tendency with respect to the carrying trade. The increase of our shipping under the new Government has, in most Legislative discussions, been chiefly ascribed to the advantage given to American vessels by the difference of 10 per cent, on the impost in their favor. This, in the valuable cargoes from Great Britain, has been sufficient to check the preference of British Merchants for British bottoms; and it has been not deemed safe hitherto by Great Britain to force on a contest with us in this particular by any countervailing regulations. In consequence of the Treaty, she will no doubt establish such regulations, and thereby leave the British capital free to prefer British vessels. This will not fail to banish our tonnage from the trade with that country. And there seems to have been no disposition in the negociator to do better for our navigation in the West India trade; especially if the exclusion of our vessels from the re-exportation of the enumerated articles, Sugar, Coffee, &c., be taken into the account. The nature of our exports and imports, compared with that of the British, is a sufficient, but at the same time our only defence against the superiority of her capital. The advantage they give us in fostering our navigation ought never to have been abandoned. If this view of the subject be just, and were presented to the public with mercantile skill, it could not fail to make a deep impression on New England. In fact, the whole Treaty appears to me to assassinate the interest of that part of the Union. 2. The insidious hostility of the Treaty to France, in general; but particularly the operation of the 15th article, which, as far as I have seen, has been but faintly touched on, though it be, in fact, pregnant with more mischief than any of them. According to all our other Treaties, as well as those of all other nations, the footing of the most favored nations is so qualified that those entitled to it must pay the price of any particular privilege that may be granted in a new Treaty. The Treaty of Jay makes every new privilege result to Great Britain, without her paying any price at all. Should France, Spain, Portugal, or any other nation, offer the most precious privileges in their trade, as the price of some particular favour in ours, no bargain could be made unless they would agree not only to let the same favor be extended to Great Britain, but extended gratuitously. They could not purchase for themselves without at the same time purchasing for their rival. In this point of view, the 15th article may be considered as a direct bar to our treating with other nations, and particularly with the French Republic. Much has been said of a suspected backwardness to improve our commercial arrangements with France, and a predilection for arrangements with Great Britain, who had less to give, as well as less inclination to give what she had. It was hardly imagined that we were so soon to grant every thing to Great Britain for nothing in return; and to make it a part of this bad bargain with her, that we should not be able to make a good one with any other nation. 3. The spirit in which every point of the law of nations is regulated. It is the interest of the United States to enlarge the rights of neutral nations. It is the general interest of humanity that this should be done. In all our other Treaties this policy has prevailed. The same policy has pervaded most of the modern Treaties of other nations. Great Britain herself has been forced into it in several of her Treaties. In the Treaty of Jay, every principle of liberality, every consideration of interest, has been sacrificed to the arbitrary maxims which govern the policy of Great Britain. Nay, a new principle has been created, in the face of former complaints of our Executive, as well as against the fundamental rights of nations and duties of humanity, for the purpose of aiding the horrible scheme of starving a whole people out of their liberties.” 157
The British did not help their own cause when it became apparent that they had resumed their policy of seizing American ships in the spring of 1795 – by way of a secret order to navy commanders on April 25. Historian Josiah T. Newcomb wrote: “American resentment was again aroused, and was fully shared by Washington, Hamilton, and the Federalists. It played into the hands of Madison and the anti-treaty party. The worst of it was that the renewed depredations apparently confirmed the charge, insisted upon by Madison and insistently denied by Hamilton, that Jay in the treaty had acquiesced in the British policy of provision seizures, against which Jefferson had argued so soundly that the British Minister was unable to answer him; and which no American could be sustained in defending. Assuming, as everybody did, that the secret instruction was similar to the Order in Council of June 8, 1793, it followed either that the British were deliberately ignoring the treaty on the thin excuse that it had not yet been ratified; or that they deemed Jay to have made the concession charged when he agreed to the language of Article 18 of the treaty.” 158
Historian Joseph Charles wrote: “The Republicans had taken the initiative with petitions, incendiary pamphlets, and a series of public meetings held in the larger cities, each of which addressed a memorial to the President.” 159 Todd Estes wrote: “Much of the activity both for and against the treaty was designed to influence President George Washington. Washington himself was dedicated to a strict adherence to constitutional principles as he understood them, and throughout the Jay Treaty controversy he held consistently, even excessively legalistic view of the president’s role and duties under the Constitution.” Estes wrote: “Washington’s decision to ratify the treaty on August 14, 1795, capped a furious six-week interval of efforts designed by both sides to sway the president’s mind. His decision ended the first stage of the treaty debate and had a powerful effect on both supporters and opponents.” Estes contended: “Whatever doubts and reluctance he may have had initially about the treaty had long since vanished. Concerned y the outpouring of opposition, furious at tactics used by treaty opponents, troubled by the Randolph implications, and gradually convinced that the treaty was the best that could reasonably be obtained, Washington, once he decided to sign the measure, was energetically and actively engaged in the campaign to bring it to fruition. Having carefully deliberated, weighing pros and cons, Washington was fully and decisively committed to the treaty and played a crucial role in brining about public and congressional acceptance.” 160 Historian John Ferling wrote that President “Washington’s primary hope was to quiet the war fever that had been stirred in some sectors, but ringing in his ears was Hamilton’s reminder that to spurn the treaty was to hazard Britain’s commerce, which ‘would give a serious wound to our growth and prosperity.’ Washington additionally knew that nearly every Federalist wished that nothing be done to harm Great Britain as long as it waged its life-and-death struggle against the forces of radical changed.” 161 Washington’s approval tamped down but did not eliminate opposition. A decade and a half later, Philadelphia physician Benjamin Rush noted that “no sooner did General Washington ratify it than a majority of our citizens defended it.” 162
Still, the opposition continued. Historian Paul Varg wrote: "The Jay Treaty was a reasonable give-and-take compromise of the issues between the two countries. What rendered it so assailable was not the compromise spelled out between the two nations but the fact that it was not a compromise between the two political parties at home. Embodying the views of the Federalists, the treaty repudiated the foreign policy of the opposing party." 163 Jeffersonian John Beckley wrote: “On Saturday, a memorial to the President will be presented, which if adopted will be carried through the different wards of the city and offered for the signature of the individual citizens, by which means we shall discover the names and numbers of the British adherents, old Tories and Aristocrats who modestly assume the title of Federalists, and stile themselves the best friends of our beloved President. At the same time it will effectually show the major and decided sense of the great commercial city of Philadelphia. Is it not a painful reflection, my friend, that the machinations and intrigues of a British faction in our country, should place our good old president in the distressing situation of singly opposing himself to the almost unanimous voice of his fellow citizens, and endangering the peace, happiness, and union of America, as well as destroying his own tranquillity, peace of mind, good name, and fame. But I trust in heaven to enlighten his mind and give him wisdom and firmness to turn away the evil cup so insidiously prepared for him.” 164
Washington spent much of the summer at his home in Virginia. Federalists were frustrated by the delay in signing the treaty. Historian Joseph Charles wrote: “Fearful that if the Treaty were ratified, it would so divide the country as to give the French every opportunity to cause embarrassment to our government, he considered that there was more to be apprehended, whether the Treaty was signed or not, "than from any other crisis since the beginning of the government.'” The inner circle of the Federalist party fairly held its breath, awaiting Washington's decision. Connecticut’s Oliver Ellsworth wrote cryptically, "If the President decides wrong, or does not decide soon, his good fortune will forsake him." 165 The British helped the Federalists out by creating a major internal crisis for the Washington Administration.
A irritated president was called back to Philadelphia by Secretary of War Timothy Pickering who showed Washington documents that seem to implicate Secretary of State Edmund Randolph in treasonous activities with France. Those documents had been supplied by the British ambassador. The British had done the dirty work. Historian Joseph Charles wrote: “While the country was completely absorbed in the question of what Washington would do, Hammond, the British minister, showed Wolcott a dispatch written by Fauchet, the former French minister to the United States, which had been taken in March of that year when the corvette Jean Bart was captured by the British man-of-war Cerberus. The dispatch contained an account dated October 24, I794, which stated that Randolph, the Secretary of State, had approached Fauchet at that time and had asked him for a sum of money with which he could insure the loyalty of three or four men whose conduct was believed to be of vital importance to the Republicans and hence to France.” 166
Because the documents relied on a British translation of French documents that the British had seized and because the documents were about a trusted Washington associate, their reliability might have been doubted. John E. Ferling wrote: “What is most shocking. is that Washington immediately embraced the charge that Randolph had acted as a traitor. He had known and trusted the secretary of state for more than twenty years. Randolph, moreover, had served in his cabinet for six years without the slightest hint of impropriety.” 167 The British government had forwarded to Hammond copies of a dispatch from French diplomat [Joseph] Fauchet that he had sent to Paris but which had been intercepted when they were jettisoned from a French ship overtaken by a British warship. John Dos Pasos wrote: “Since Fauchet was writing with the hope that his report would come under the eyes of the terrible Robespierre he dressed his tale up in the terms of revolutionary oratory. He made Randolph appear as head of a party which. controlled democratic societies all over the nation.” Pickering and Wolcott concluded that Randolph had sought a French bribe in return for his support.” 168 They insisted President Washington to return to Philadelphia where they presented their evidence. Washington confronted Randolph. Randolph was perplexed and incensed. Confronted with the French dispatches, Randolph later wrote, “I could only rely on two principles, which were established in my mind; the first was that, according to my sincere belief, I never made an improper communication to Mr. Fauchet; the second was that no money was ever received by me from him.” 169 Randolph was so affronted by having to explain himself to Wolcott and Pickering that he submitted his resignation in a huff. Randolph further undermined his reputation by writing an extensive defense of his behavior that also attacked the wisdom and lucidity of President Washington. So, French diplomacy claimed a victim in the war – but it was an unintended one.
Having been ratified by the Senate and approved by the president, there was a temporary lull in the Jay Treaty controversy. The following year, the treaty moved to the House of Representatives which moved to insert itself into the deliberations through its constitutional fiscal authority. Historian Joseph Charles wrote: “The parties fought now not only over the merits of the Treaty, but also over the question whether the House had the power under the Constitution to refuse to appropriate the money necessary for a treaty already ratified by the President and the Senate. Thus the passing of the Treaty had again come to depend largely upon extraneous factors. The Constitutional issue presented a true dilemma. Either the Senate did not have complete power as to treaties, or the House complete power to initiate financial measures, both of which powers had been generally assumed supreme.” 170 Historian James Schouler wrote: “The winter having passed in comparative quiet, the struggle came at length in the House over an appropriation for the Jay treaty, for which both sides had been preparing. The treaty, with its suspended article, had come back from Great Britain fully ratified (the new and obnoxious provision order having been repealed), and the President thereupon proclaimed it the law of the land, communicating this action to the House accordingly. [New York Congressman Edward] Livingston at once offered a resolution requesting the President to lay before the House his instructions to Jay, and the correspondence and other documents relating to the negotiation of this treaty.”
Upon this resolution ensued the first of the two great debates in the House upon the British treaty; debates which were ably conducted on both sides, and, with perhaps the exception of that more hurried discussion of Hamilton's national bank in 1791, constituting the first grand controversy in Congress over fundamental doctrines under the present system.
The merits and demerits of the Jay treaty were here postponed to the preliminary inquiry whether the House could rightfully participate in giving treaties their full effect. Against such a right it was contended that the treaty-making power was expressly vested in the President, with the concurrence of two-thirds of the Senate, as a peculiar government function to be exercised in a peculiar manner. Moreover, treaties made under the authority of the United States were by the Constitution pronounced " the supreme law of the land," as co-equal with legislative acts, and quite independent of them. Unless the treaty-making power were thus broadly conferred, it would be nugatory; often inadequate for treaties of peace, and always for those of alliance and commerce. Such were the views ably presented by Smith, Harper, Murray, Tracy, and others on the Federal side.
On the other hand, Gallatin, Madison, Livingston, and Giles, with their political allies, relied upon the fundamental structure of our Federal government, whereby all legislative functions, including the right to borrow and appropriate money and to regulate commerce, are vested in a Congress composed of two houses; and they claimed that unless this House, a co-ordinate branch of Congress, had some discretionary right in the premises, wherever, at all events, some act of legislation was essential to a fulfilment, the people did not rule in the government through their immediate representatives. If treaties are the supreme law of the land, so likewise are the Constitution and pursuant acts of Congress. This was a popular argument upon the very strongest state of facts; for it was undeniable that the Jay treaty circumvented the known declaration and will of a House, the predecessor of this one, in certain provisions recommended, by Hamilton at least, and inserted with that express design in view, of making laws by the more convenient combination of President and Senate instead of President and Congress. 171
Washington had alienated New York Chancellor Robert Livingston when he failed to appoint the New York politician as chief justice of the Supreme Court. Alexander Hamilton had helped compound the alienation of the Livingstons from the Washington Administration. The battle against the Jay Treaty was initiated in the House of Representatives by New York Congressman Edward Livingston, scion of the powerful New York family. Historian Raymond Walters Jr. wrote: “Livingston rose on March 2 to propose that President Washington be asked to lay before the house all the official papers involved in Jay’s negotiation, so that it might debate the treaty and ‘some important Constitutional questions’ involved.” 172 Washington biographer Joseph J. Ellis wrote that Livingston’s motion implied “that full disclosure would reveal mischief behind the scenes.” 173
Livington’s tactic did not have unanimous support from Jeffersonians, wrote historian Merrill D. Peterson. “Madison was dismayed by this turn of events. Apparently still uncertain of the correct constitutional ground, he worried too lest Livingston’s motion force a showdown with the President. Untroubled by these doubts at Monticello, Jefferson applauded the radical move. 174 “Madison,” noted historian James Thomas Flexner, believed that Washington “would give to the request of the House.” 175 Still, noted historian Jerald A. Combs, "Madison tried to soften the resolution. by leaving the choice of the papers entirely to the discretion of the president. Obviously, the thing he most feared about the resolution was that it directly challenged the president. Surprisingly, Madison's amendment was defeated 37 to 47. by his hesitancy, he had lost his control of the Republican faction in the House of Representatives. The leadership had passed to more decisive and more headstrong men." 176
“At a time when there were no public sports, no playlets flying through the air, at a time when oratory was admired as the public today admires pitching or broken field running, the whole nation followed the debate in the House. After various small fry had spoken, the Republicans loosed their champion, the Swiss immigrant Albert Gallatin,” wrote historian James Thomas Flexner. 177 Congressman Albert proved to be the Republicans’ foremost theorist and orator in the House. “During the debates on the Jay Treaty in March of 1796, it was Gallatin who challenged the Federalist assumption that only the Senate and the executive were empowered to make treaties. Gallatin argued that the House of Representatives was not bound to vote appropriations for treaties made by the executive and the Senate.” 178
Federalists protested that infringement on presidential and senatorial power. Gallatin biographer Raymond Walters Jr. wrote: “Gallatin contended that Jay’s Treaty was not the supreme law of the land but remained ‘an inchoate act’ until the House of Representatives authorized the necessary appropriations. He cited instances in which the British Commons had rejected a treaty by refusing an appropriation, and asked whether the House of Representatives, ‘the substantial and immediate representatives of the American people, shall be ranked below the British House of Commons.” 179 In his eloquent speech, Gallatin declared: “I cannot help considering the cry of war, the threats of a dissolution of government, and the present alarm, as designed for the same purpose, that of making an impression on the fears of this house. It was through the fear of being involved in a war that the negotiation with Great Britain originated; under the impression of fear the treaty has been negotiated and signed; a fear of the same danger, that of war, promoted its ratification; and now every imaginary mischief which can alarm our fears is conjured up, in order to deprive us of that discretion which this House thinks it has a right to exercise, and in order to force us to carry the treaty into effect.” 180
In the debate on the Jay Treaty in the House, Gallatin “was a revelation, and the Federalists were beside themselves with rage,” wrote Claude G. Bowers. “Tall, and above medium size, his fine face aglow with intelligence, his black eyes burning with earnestness, his profile resembling in its sharp outlines that of a Frenchman, his accent foreign, his delivery slow and a little embarrassed, he spoke with a clarity and force that made the Federalists wince. He did not wander a moment from his argument – the constitutional rights of the House in the case of treaties involving appropriations.” 181 The Federalists in turn lashed out at Gallatin and his birth in Geneva, Switzerland. Connecticut Congressman Uriah Tracey declared: “The citizens of New England are not of the stamp to cry ‘hosannah’ today and ‘crucify’ tomorrow; they would not dance around a whiskey pole today and upon hearing of a military force, sneak into a swamp. I for once cannot feel thankful to Gallatin for coming all the way from Geneva to give Americans a character of pusillanimity.” 182 Massachusetts Congressman Harrison Gray Otis, a prominent Boston businessman, asked if the Congress should “join a vagrant foreigner in opposition to Washington., a foreigner who ten years ago came to this country without a second shirt on his back, a man who in comparison to Washington is like a Satyre to a Hyperian?”
Hamilton, whose own immigrant status sometimes drew criticism, rallied against the fresh onslaught from treaty opponents like Gallatin, with whom he had first tangled in the Whiskey Rebellion of 1794. Jefferson worried about both the trend of international and domestic politics. He wanted to mobilize opposition and sought Madison’s help. Raymond Walters wrote: “For nearly three weeks the House was engrossed in earnest and able debate over conflicting articles of the Constitution; the Second and Sixth articles which gave the President, with the concurrence of two-thirds of the senators, the right to make treaties that would be ‘the supreme law of the land’; and the First article, which gave both houses participation in the passing of all laws, including appropriation laws.” 183 Jay Winik wrote: “With all the cunning he could muster, the House leader prowled the House chamber, bent arms, relentlessly finagled votes, corralled wavering members, and actively managed the floor debate. He had the votes – by his own count, twenty to spare. For Washington, the situation was perilous; as John Jay had warned: ‘If this treaty fails, I despair of another.” A desperate Washington, aided by Hamilton and others fought back by rushing a defense of the treaty into print.” 184 Ron Chernow wrote: “As demonstrated by his leadership on the Jay Treaty, Hamilton was more than just the principal theorist of the Federalists. He was also their chief tactician and organizer, mobilizing the faithful through numberless letters, speeches, and writings.” 185
In their history of the United States, Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg wrote: “The fight over appropriations for the Jay Treaty in the House marked the crystallization of the party system.” 186 The lines were drawn but not hardened. Livingston’s motion passed by 62-37 margin. John C. Miller wrote: “By this action, the House attempted to give concrete application to the theory that the concurrence of the lower house of Congress was necessary to give validity to treaties and that by virtue of its control of appropriations it possessed a discretionary power of carrying a treaty into effect.” 187
Livingston and Albert Gallatin presented the House resolution to President Washington, who said he would “consider” it. Constitutional issues were at stake. Gallatin biographer Raymond Walters: “After consultation with the cabinet and with Alexander Hamilton, Washington refused to transmit the requested papers. He added that, as he had been a member of the convention that drew up the federal Constitution, he knew that the framers had not intended that the Lower House should have any role in treaty making. Indeed, he declared, the House had no right to ask him to inspect any papers unless it considered impeaching him.” 188 Political scientist Glenn A. Phelps observed: “Washington took strong offense at the request and absolutely refused to comply with it. Again, many scholars point to this as one of the earliest and strongest precedents for executive privilege. But Washington’s message to the House reveals that he made no extravagant claim. His denial was based not on a general claim of executive prerogative, but rather on a constitutional interpretation that narrowed the House’s role in foreign affairs. First, he insisted that the Constitution, not partisan considerations, could be the only basis for resolving the interbranch dispute.” 189
Madison was key to the controversy. Historian John C. Miller wrote: “The grounds upon which the President based his refusal to gratify the wishes of the House brought James Madison into the thick of the dispute. Up to this point, Madison had tried to cool the party hotheads. The peremptory tone of Livingston’s original motion had offended Madison, and he had succeeded in attaching an amendment acknowledging the President’s right to withhold documents prejudicial to exiting negotiations. But as the leading authority on the Constitution in the House of Representatives, Madison could not permit Washington’s interpretation of that document to pass unchallenged. Above all, he rejected the President’s dictum that the proceedings of the Constitutional Convention must govern the interpretation put upon the Constitution. That piece of parchment, he declared, was ‘nothing but a dead letter, and life and validity were breathed into it by the voice of the people.’ And that voice was to be heard not in the debates of the Constitutional Convention but in the proceedings of the state ratifying conventions.” 190
The debate went on for seven weeks from March 7 to April 29, 1796. Although the Republicans began the fight with a solid majority, support gradually withered away. As effective as Gallatin was in leading the Republicans, the Federalists had a powerful weapon. An ill and shaky Fisher Ames spoke slowly at first on April 28: "I entertain the hope, perhaps a rash one, that my strength will hold me out for a few minutes.” Ames would speak for about 90 minutes. Everyone came to hear Ames deliver one of the masterpieces of American oratory. Historian Elisha P. Douglass wrote: “By both friends and enemies Ames was considered one of the best orators of his day.” 191 Ames warned that residents of the frontier would suffer if the treaty were not passed: “On this theme my emotions are unutterable. If I could find words for them-if my powers bore any proportion to my zeal-I would swell my voice to such a note of remonstrance it should reach every log-house beyond the mountains. I would say to the inhabitants, wake from your false security ! Your cruel dangers – your more cruel apprehensions - are soon to be renewed; the wounds, yet unhealed, are to be torn open again. In the daytime your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. You are a father; the blood of your sons shall fatten your corn field ! You are a mother; the war whoop shall waken the sleep of the cradle!” 192
Historian North Callahan noted that Massachusetts Ames delivered a particular effective speech. His opponents tried to pretend otherwise. “Some of the jackasses who had occasioned the necessity of the oratory,” noted Vice President John Adams, “attempted to laugh but their visages grinned horrible, ghastly smiles.” 193 Ames “stigmatized the uproar of the Jeffersonian Republicans as opposition not to the Jay Treaty but to any treaty with Britain. In solemn tones, which grew stronger as he summoned all his physical resources for this supreme effort, but he proclaimed that the Union would collapse and that war would break out should the pact fail,” wrote diplomatic historian Thomas A. Bailey. “I can fancy that I listen to the yells of savage vengeance and the shrieks of torture; already they seem to sign in the western wind; already they mingle with every echo from the mountains.” 194
House attempted to block the appropriation bill, with debate beginning on April 14, 1796. The House spent the last half of April debating the appropriation to fund the treaty. Marginal congressmen from the Middle Atlantic States were subjected to intense lobbying from both sides. As James Madison observed: “The name of the President is everywhere used with the most wonderful success by the treaty partisans.” 195 However, noted historian Joseph Charles, “it was the Jay Treaty more than anything else which made a party leader of” Jefferson. 196
On April 30, the House voted 51-48 to support the funding the treaty required. Nearly two months later, President Washington wrote David Humphreys, his friend and former aide, about the impact of the political attacks on him and the Jay Treaty: “From the Office of State you will receive every thing that relates to public concerns; and the gazettes, which I presume will accompany the dispatches, will give you a pretty good idea of the state of politics and parties in this country; and will show you, at the same time, (if Bache's Aurora is among them) in what manner I am attacked for persevering steadily in measures which to me appear necessary to preserve us (during the conflicts of the belligerent powers) in a state of tranquillity. But these attacks, unjust and as unpleasant as they are, will occasion no change in my conduct; nor will they produce any other effect in my mind than to increase the solicitude which long since has taken fast hold of my breast, to enjoy, in the shades of retirement, the consolation of believing that I have rendered my country every service to which my abilities were competent—not from pecuniary or ambitious motives, nor for a desire to provide for any one farther than their intrinsic merit entitled them to; and surely not with a view to bring any of my own relations into office.” 197 Washington had already decided that he would retire when his term expired and was working with Alexander Hamilton on his “Farewell Address.”
Some critics of John Jay’s work would probably have been unhappy with any treaty he had negotiated. They didn’t like Britain. They didn’t like Jay, and they didn’t like any policy that continued America’s commercial dependency on Britain. Historian James Roger Sharp wrote: “To the critics, Jay had compromised the republic’s independence by moving to a closer (some would say dependent) relationship with the former mother country and had scuttled the opportunity to use commercial sanctions to punish Great Britain’s violation of American neutrality.” 198 Historian Harrison Clark wrote: “The Grenville treaty of 1795 provided a far more satisfactory recognition of American independence than the pact which Jay had negotiated thirteen years before. Europeans then expected that the thirteen former colonies could not hold together and would eventually fall into French or British hands. Now Great Britain conceded not only that the United States was entirely sovereign but was too strong ever to be a French or English satellite. The United States had become Britain’s most important customer, as well as a vitally needed supplier of provisions to the West Indies, and food and raw materials to a Great Britain at war.” 199 On other hand, maintained historian Joseph Charles, “Great Britain was more hard pressed abroad, more divided and straitened at home, and more isolated diplomatically in 1795 than she had been in I775 or was to be in 1812. At the time when the Federalists were threatening that we would have war with Great Britain if we did not accept the Treaty, British leaders were wondering how long they would be able to maintain the war merely against France.” 200
Temporarily, relations with England improved, noted historian Gerard Clarfield, but significant problems remained. Secretary of State Timothy Pickering, Clarfield wrote: “adopted as the sine qua non of his diplomacy the maintaining of peaceful relations with Britain.” He operated out of the interests of his native New England and his philosophical disposition toward Britain.” He was helped by a change in the minister representing England in Philadelphia from George Hammond to Robert Liston. English depredations against American merchant vessels, however, continued. 201 John C. Miller wrote that “simply by confirming neutrality of the United States [the treaty] made possible a large increase in American shipping and trade. As Fisher Ames said in 1796: ‘the vast crop of our neutrality is all seed wheat, and is sown again, to swell, almost beyond calculation, the future harvest of prosperity.’ From 1795 to 1800, the value of American exports to the British Empire increased 300 per cent. During this period, thanks to Jay’s Treaty, the United States became Great Britain’s best customer.” Under the treaty, the U.S. had particular advantages in trade with India, and despite the treaty, the U.S. developed its trade with the West Indies. 202 Historian Gerard Clarfield wrote:“The portents seemed good for continued peace and friendship between Britain and the United States. Yet, despite good intentions on both sides, Anglo-American maritime problems continued to plague the two nations, as far too often the arrogance of British naval commanders threatened the unstable status quo.” Clarfield wrote:“The Jay Treaty, while it had preserved peace, had hardly ended the hostility which Americans felt for Britain.” 203 Depredations and divisions would lead to the War of 1812.
“Jay’s treaty also came as a clearing breeze to Spanish-American relations, which were badly befogged in 1795,” wrote Samuel Eliot Morison, Henry Steele Commager and William E. Leuchtenburg. Historian Bradford Perkins wrote: “In 1795, Spain found itself in a delicate position, in the midst of a maneuver from the British to the French side. Facing war with England, fearing that Jay’s Treaty might presage even closer Anglo-American ties. Spain felt that Jay’s Treaty might presage even closer Anglo-American ties, Spain felt that it could not run the risk that Britain and American would cooperate against it.” 204 Historian Gordon S. Wood wrote: “The sending of Jay to England in turn frightened the Spanish with the possibility that the British and the Americans might collaborate to threaten Spanish possessions in the New World. Consequently, Spain suddenly decided to reach a long-delayed agreement with the United States.” 205 Eventually the Treaty of San Lorenzo was negotiated by Thomas Pinckney on October 27, 1795 that gave the Americans navigation rights to the Mississippi.. 206 It affirmed the thirtyfirst parallel as the southern boundary for the U.S. “Taken together, Jay’s and Pinckney’s treaties opened the West for expansion,” noted historians Larry Schweikart and Michael Allen. “Lost in the international diplomacy was a remarkable reality: what some saw as a sign of weakness in the political system in fact emerged as its strength, proving Madison right. Foreign policy honed each side’s position, and the partisanship resulted in clearly defined opposing views.” 207
“More than two hundred years later, opinions on Jay’s Treaty still differ,” wrote Jay biographer Walter Stahr. “Some argued that Jay conceded too much and obtained too little. Others argued that Jay obtained the best treaty he could and ‘that no other American could have got anything nearly as good.’ Almost all agree that Jay should not have agreed to the prohibition of the export of cotton and other goods; fortunately the Senate deleted this provision and the British agreed to ratify the treaty without it. The key point, lost perhaps in the review of specific provisions, is that Jay preserved peace and postponed war. Without the treaty, the United States might had had to fight Britain in 1794, rather than in 1812, with no navy, with essentially no army, and with its backcountry laced with British forts supported by Indian allies. How such a war would have ended is impossible to say, but in all likelihood it would have. ended badly for the United States, and it is quite possible that Britain would have demanded some American territory at the peace table. Jay was right to fear such a war and to make concessions to avoid it. Jay’s Treaty also helped to cement the West to the East, both by securing the evacuation of the British forts, and, through Pinckney’s Treaty, by opening the Mississippi. Viewed in this way, his work on the treaty was a clear success, indeed one of his key contributions to early American history.” 208 Historian Joseph T. Ellis wrote: “While the specific terms of the treaty were decidedly one-sided in England’s favor, the consensus reached by most historians who have studied the subject is that Jay’s Treaty was a shrewd bargain for the United States. It bet, in effect, on England rather than France as the hegemonic European power of the future, which proved prophetic. It recognized the massive dependence of the American economy on trade with England.” 209
One casualty of the treaty’s ratification was the friendship between Virginians Washington and Madison, who had collaborated closely in the 1780s. 210 Stuart Leiberger wrote: “Even after the treaty’s passage, [Madison] continued to admire and respect Washington, instead blaming his embarrassments on the cabinet and Hamilton.” 211
Already damaged, relations between Washington and Jefferson deteriorated further. “For Jefferson and for Republicans generally, Washington’s decision to sign or not to sign the treaty became a final test of his politics.” 212 Washington’s friendship with Jefferson would not survive. Peter R. Henriques wrote: “The danger of the treaty was a crystal clear to Jefferson and yet the President would not – or could not – see it. If the President was not moved by what Jefferson considered to be unassailable logic, then, to Jefferson, there had to be something wrong with the President’s perception of reality. The only acceptable answer for Jefferson was that the George Washington supporting the Jay Treaty was no longer the real George Washington: ‘His memory was already sensibly impaired by age, the firm tone of mind for which he had been remarkable was beginning to relax, it’s energy was abated; a listlessness of labor, a desire for tranquillity had crept on him and a willingness to let others act and even think for him.’ In effect, he was becoming senile. ‘In his private correspondence with trusted Republicans, he developed the image of an old soldier past his prime, reading speeches he did not write and could not comprehend. a hollow hunk of his former greatness.’” 213
Another casualty of the treaty was the American minister in France, James Monroe. His support for the French government became farther and farther divorced from Washington Administration policy. John C. Miller wrote that “in 1796 Monroe was informed by the Minister of Foreign Affairs that Jay’s Treaty had abrogated the military alliance and commercial treaty of 1778, that Adet was to be recalled from the United States, and that ‘the customary relations between the two nations shall cease.’ And all this, Monroe was given to understand, as merely preparatory to revolutionizing the United States and bending it to France’s will.” 214 America’s relationship with France was also a casualty Historian Alexander DeConde wrote the Franco-American alliance “never recovered. Successive French revolutionary governments were convinced that the Jay Treaty violated the Franco-American treaties of 1778 and that the American government had accepted it against the will of an overwhelming public sentiment.” 215 John Jay had been elected governor of New York in the spring of 1795. Smith wrote: “It is significant that Jay won the governorship before the results of his mission were made public; no future electorate would entrust him with office.” 216 Jay stepped down from the bench, fortunate that the New York election had been held in May before the treaty controversy exploded. Biographer Doris Faber wrote: that Jay “was well aware that by accepting the [treaty] assignment he was, in effect, ending his service on the bench; only the mere formality of submitting a letter remained. For no man embroiled in the controversy that was bound to rage around him could honorably continue in a position that must be above partisan battling, or so it seemed to Jay in his own reflections on the subject.” 217 Georgia’s John Rutledge was another casualty of the Jay Treaty. He was nominated by President Washington to replace Jay as chief justice but two things weighed against his confirmation. First, he had vociferously opposed the Jay Treaty. Second, he was thought to be mentally ill.
The election helped define America’s early parties and the role of public opinion in defining public policy . Political scientist Sean M. Theriault argued that “the Jay Treaty, perhaps more than any other even during Washington’s presidency, divided the political elite into two. parties.” 218 Alexander DeConde wrote that Jeffersonians “carried over into the election of 1796 their campaign against the Jay treaty and the pro-British ‘system’ of Alexander Hamilton.” 219 John Zvesper wrote: “The Republican stand against the Jay Treaty, the Senate and the president was a great liability in the House elections of 1796. The Republicans had enjoyed slight majorities in the House after the elections of 1792 and 1794. The Federalists won a clear majority in 1796 (again, difficult to count precisely, but something like 64 to 43), and they held their majorities in both the House and the Senate until 1801. For Republicans, the first lesson of the elections of 1796 (as it would be again in 1798) was that it was difficult to attack the government successfully in the presence of foreign policy crises. In 1796, the second lesson was that it was always going to be difficult if not impossible to get Republican policy enacted without a Republican president. Republicans might have taken some consolation as well from the fact that in the Jay Treaty dispute even Federalists were now relying much more on the direct influence of public opinion on the government's policy deliberations. That was the major innovation in American government that Republicans had intended from the very first. Federalists–many of them very uneasily–were now actually going along with this innovation. But it was the Republicans' idea, and it would be the Republicans who would institutionalize this idea in party government. 220
The treaty tilted American diplomatic relations towards Britain and against France — thus setting up the diplomatic and political conflicts of the next four years. Historian Gerard Clarfield wrote: “The architect of American policy, Secretary of State Timothy Pickering, adopted as the sine qua non of his diplomacy the maintaining of peaceful relations with Britain. An ardent political conservative, Francophobe, and New England Federalist, Pickering was acutely aware of the economic importance for New England of continued peace with the British. Beyond any economic considerations, however, he had a deep admiration for England as a powerful defender of political conservatism and believed British naval power to be the one force capable of thwarting the advance of French arms and revolutionary ideology.” 221
Perhaps John Jay best summed up the impact of his treaty. In July 1795, Jay wrote: "The treaty is as it is; and the time will certainly come when it will very universally receive exactly that degree of commendation or censure which, to candid and enlightened minds, it shall appear to deserve.” 222 Two months later, he wrote:: “As to the treaty no calumny on the one hand nor eloquence on the other, can make it worse or better than it is. At a future day it will be generally seen in its true colors and in its proper point of view." 223
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