Defusing a Dangerous Situation - The Jay Treaty
Updated: Feb 16, 2021
On 1 February 1793 Revolutionary France declared war on Great Britain, expanding a conflict already raging on the European continent to every corner of the oceans. Some ten weeks later President George Washington formally proclaimed American neutrality, despite the United States’ military alliance with France dating to 1778. To the chagrin of the Parisian revolution’s most enthusiastic American admirers, Washington interpreted the alliance treaty very narrowly, noting that it obligated protection of French colonies in defensive wars only. The proclamation, which forbade Americans from “committing, aiding, or abetting hostilities against any” nation, dashed French hopes of treating U.S. ports as bases of operation for their warships.
Unfortunately, a British order of the king-in-council issued on 8 June 1793 shattered any hope that neutral American vessels might profit from the war while the nation remained entirely unaffected. George III’s Privy Council instructed commanders of His Majesty’s ships to seize neutral cargos of grains bound to French ports. British authorities would then either buy the foodstuffs at market prices or release them on bond for onward voyages to friendly ports. More egregious and largely uncompensated abuses resulted from a second order dated 6 November 1793, authorizing vessels participating in Vice-Admiral Sir John Jervis and General Sir Charles Grey’s campaign against the French Leeward Isles to seize any vessel laden with enemy produce, regardless of the vessel’s registry or cargo’s ownership. British forces seized and condemned over 250 American ships.
A new order-in-council dated 8 January 1794 replaced the earlier measures, returning British rules for restriction of neutral trade to their historic norms. Even still, British rules fell far short of the liberal practice enshrined in article twenty-three of the 1778 Franco-American treaty that neutral-flagged vessels protected any cargo from capture—the Dutch originated liberal principle that ‘free ships make free goods’.
News of seizures in the West Indies reached American ports during the spring of 1794, causing public outcry in a nation still sensitive to any insult from its former mother country. Convening in the first week of March, the U.S. Congress soon began considering its options. Republicans in Jefferson's coalition demanded a declaration of war, but Jefferson’s ally, James Madison, called for an embargo on trade with Britain instead. Congress voted on a trade embargo against Britain in March 1794. It was approved in the House of Representatives but defeated in the Senate when Vice President John Adams cast a tie-breaking vote against it. Increasingly, it seemed as though the young United States would be dragged into this conflict between the European powers.
At the national level American politics was divided between the factions of Jefferson and Madison, which favored the French, and the Federalists led by Hamilton, who saw Britain as a natural ally and thus sought to normalize relations with Britain, especially in the area of trade. Washington sided with Hamilton. Washington received a note from the American envoy to London, Thomas Pinckney, saying that the English government was open to negotiations with the United States over the differences between the two countries. Hamilton devised a framework for negotiations, and President George Washington nominated Supreme Court Chief Justice John Jay, an experienced diplomat whom the Senate confirmed by a two-thirds majority in mid-April, to negotiate a comprehensive treaty.
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.”
ISSUES AND THE NEGOTIATIONS
From the British perspective, improving relations with the United States was a high priority lest it move into the French orbit. Additionally, there were issues of unpaid pre-1775 debts owed to English merchants. To get a suitable treaty, British negotiators ignored elements within the English government that wanted harsher terms.
At the same time, the most pressing issues for the Americans were normalizing trade relations with Britain and resolving issues left over from the Treaty of Paris. These included:
The British were occupying forts on U.S. territory in the Great Lakes region, at Detroit and Mackinac in modern-day Michigan, on the Niagara and Oswego rivers in New York, and on the Maumee (also known as Miami) in modern-day Ohio.
The British were providing munitions to First Nations peoples in armed conflict with settlers in the Northwest (Ohio and Michigan).
The boundary with Canada was vague in many places and needed to be more sharply delineated.
American merchants wanted compensation for 250 merchant ships which the British had confiscated in 1793 and 1794.
American merchants wanted the British West Indies reopened to American trade.
Southern interests wanted monetary compensation for slaves, owned by Loyalists, who were taken away to the West Indies along with their masters in 1781–83 as well as those freed by the British and taken away to Canada and the West Indies at the end of the war.
The British were impressing American sailors into the Royal Navy to fight against France.
Jay reached London in June 1794, only shortly after Britain’s Foreign Secretary Lord William Grenville received dispatches from America alerting him to the full extent of the crisis. Grenville and his cousin and ally William Pitt, being relative economic liberals, looked favorably on the American overtures for a commercial treaty and wished to avert war. 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 in the past; 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. 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.
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. In Grenville’s opinion, Monroe’s actions spoke louder than Jay’s words: he bluntly informed Jay that the behavior of the American Minister in Paris undermined the confidence of His Majesty’s Government as to the sincerity of American professions of good will toward Great Britain. 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.”
Despite these “roadblocks”, negotiations went ahead steadily in a cordial spirit, producing a draft agreement by September before stalling. By the fall, Jay was frustrated by the stalemate in which little progress was made but continued to move 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.”
Jay played a bad hand as well as possible. Given his lack of bargaining power, Jay did not do badly. The British, negotiating from the stronger position, 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.
In return, while America certainly did not get everything it wanted in the treaty, it also did not get what most Americans wanted to avoid – war. Here are some highlights of the various provisions included in the treaty:
Northwest Forts: Jay proposed that Britain withdraw all its troops from the northwest forts by June 1795, an unrealistic date given how long it would take to conclude, ratify, and get word of the treaty to remote settlements. Instead, they agreed that the surrender of the posts should occur by June 12, 1796. Sending 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.
U.S.-Canada border: Jay’s stubborn refusal to yield what was, at the time, an unknown bit of forest turned out to be critical to the future of the United States. 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 someday 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.
Indian Rights: Article III of the Jay Treaty declared the rights of Indians, American citizens, and Canadian subjects to trade and travel between the United States and Canada, which was then a territory of Great Britain. Legal experts dispute whether the War of 1812 abrogated the treaty rights outlined in the Jay Treaty. Nevertheless, the United States has codified this right in the provisions of Section 289 of the Immigration and Nationality Act of 1952 and as amended in 1965. As a result of the Jay Treaty, "Native Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study, retirement, investing, and/or immigration" if they can prove that they have at least 50% blood quantum, and cannot be deported for any reason. This Article is the basis of most Indian claims. Unlike other legal immigrants, Canadian-born Native Americans living in the US are entitled to public benefits and domestic tuition fees on the same basis as citizens.
Debts: Prior to the Jay Treaty, legal maneuvering in the courts blocked the collection of debts to English merchants incurred before the American Revolution. The Jay Treaty provided that the United States would make ‘full and complete compensation’ on claims by England found to be valid. A Commission, meeting in Philadelphia, made up of five commissioners – both English and American - was to hear and decide these claims.
Similarly, the British government agreed to make ‘full and complete compensation’ to American citizens for shipping and cargos taken by the Royal Navy or British Privateers. The damages were, like the Revolutionary War claims, to be determined by a board of five commissioners – American and English – meeting in London The same commissioners were also to hear and decide on claims of British subjects for losses by captures within the jurisdiction of the United States and by French privateers fitted out in American ports.
Jay’s Treaty was something of an innovation in diplomacy in that it set up 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. While international arbitration was not entirely unknown, the Jay Treaty gave it a strong impetus and is often spoken of as the start of modern international arbitration.
Jay, a fierce opponent of slavery, dropped the issue of the claims by Americans for losses due to slaves carried off by the British during the American Revolution. British officials remained adamant, insisting, as they had before, that the provision in the peace treaty did not apply to slaves that had come under British protection before the war ended. Jay found it useless to press the slave question. This angered Southern slaveholders and became a target for attacks against the Treaty by Jeffersonians during the ratification debates.
West Indies and Trade: Under the treaty, the British West Indies, previously closed to American ships, were opened to vessels of seventy tons or less, and allowing the importation of goods of American growth or manufacture. While this provision in the treaty succeeded in breaching the walls against outside trade Great Britain had erected round its empire, it was not the “opening of trade” that many had desired. Under the Treaty, America agreed that molasses, sugar, coffee, cocoa, or cotton either from his majesty's islands or the United States to any part of the world except the United States, reasonable sea stores excepted.
Neutral Rights: One area of failure, and perhaps the most important for trade purposes, was the failure of the Treaty to guarantee American ships the right to sail freely on the seven seas, regardless of whether or not they might be carrying provisions bound for France.
Impressments: Another area where the Treaty did not resolve American concerns was the question of impressment of American sailors into the Royal Navy. Although Jay urged this issue on Lord Grenville throughout the negotiations as essential to preserve friendship between the two countries. The Royal Navy’s need for sailors to man the ships necessary to support the war with France seem to have outweighed any other consideration. Even the war of 1812 did not secure a formal renunciation of this practice.
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. The first copy and a duplicate were, by mistake, placed on the same British ship. When a French privateer attacked this ship, the master threw both copies into the sea to protect their contents. A third 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 in New York with the surviving copy of the treaty and delivered it to President Washington.
DISSENT AND APPROVAL
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. From March to June, Washington kept his own counsel as he pondered how to proceed. Finally, Washington sent the treaty to the United States Senate for its consent in June 1795. Ratification required a two-thirds vote. Because of the makeup of the Senate, that support was uncertain, and the eventual ratification hard won.
The Senate took up the treaty’s 27 articles in secret session on June 8. It deliberated for more than two weeks. Particularly irritating was Article 12, limiting the size of U.S. ships allowed to use British ports in the West Indies. The Senate passed a resolution on June 24, with the instruction to amend the treaty by suspending Article 12. In mid-August, the Senate ratified the treaty 20–10, with the condition that the treaty have specific language on the June 24 resolution.
The Senate wanted the treaty kept secret until Washington had decided whether 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.”
Thomas Jefferson was harshly critical of the treaty and used the treaty as a platform to rally new supporters for the Republicans. Although, when viewed impartially, the Jay Treaty was a reasonable give-and-take compromise of the issues between the two countries given the existing circumstances, what rendered it so vulnerable to attack was 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 Jeffersonian Republicans.
The Jeffersonians opposed any agreements with Britain, choosing instead to advocate support for France and the Revolution in the wars raging in Europe. To justify this, they argued that the treaty with France from 1778 was still in effect. They considered Britain as the center of aristocracy and the chief threat to the United States' Republican values. In February 1798, Jefferson wrote to John Wise on the current state of political parties:
“Two political Sects have arisen within the U. S. the one believing that the executive is the branch of our government which the most needs support; the other that like the analogous branch in the English Government, it is already too strong for the republican parts of the Constitution; and therefore in equivocal cases they incline to the legislative powers: the former of these are called federalists, sometimes aristocrats or monocrats, and sometimes Tories, after the corresponding sect in the English Government of exactly the same definition: the latter are styled republicans, Whigs, jacobins, anarchists, dis-organizers, etc. these terms are in familiar use with most persons.”
The treaty was one of the major catalysts for the advent of the First Party System in the United States by further dividing the two major political factions within the country. The Federalist Party, led by Hamilton, supported the treaty. On the contrary, the Democratic-Republican Party, led by Jefferson and Madison, opposed it. Jefferson and his supporters had a counterproposal to set up "a direct system of commercial hostility with Great Britain", even at the risk of war.
The Jeffersonians raised public opinion to fever pitch by accusing the British of promoting Indian atrocities on the frontier. The fierce debates over the Treaty in 1794–95, transformed the Republican movement into a Republican party. To fight the treaty, the Jeffersonians established coordination in activity between leaders at the capital, and leaders, actives and popular followings in the states, counties, and towns. The Federalists fought back, and Congress rejected the Jefferson–Madison counter-proposals.
Once ratified by the Senate, President Washington did not rush to sign the treaty. Instead, he went to Mount Vernon. Washington threw his great prestige behind the treaty, and the Federalists organized and rallied public opinion more effectively than did their opponents. Hamilton convinced President Washington that it was the best treaty that he could expect. Washington insisted that the U.S. must remain neutral in the European wars. He pointed out to the American Treaty that, although it did not provide everything that one might wish, the nation was still free and, despite irritations on the ocean and at the conference tables, more prosperous than it had ever been. President Washington signed it in late August and the Treaty proclaimed in effect on February 29, 1796.
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Ebel, Carol, PhD. Jay Treaty. n.d. 08 August 2019. https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/jay-treaty/.
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Thorpe, Francis N., ed. "A Letter from Jefferson on the Political Parties, 1798." American Historical Review, Vol. 3, No. 3 (1898): 488-489.