The Jay Treaty, Part V: Text, contd.

            The balance of the various articles of the Jay Treaty that have not yet been discussed can be located under the third topic heading named at the beginning of the previous post in this series – the exigencies of war. These varied and various provisions, though they address a number of different subjects – the definition of war material, the treatment of privateers, a categorical rejection of piracy, etc. – are united by their common instigating rationale. That is, unlike previous sections that dealt with the nature of Anglo-American trade or the mutual resolution of existing disputes, Articles 17 through 26 of the Jay Treaty were all concerned in some way or another with ameliorating the tensions that Britain’s ongoing war with the French Republic and its allies either had exerted or was likely to exert upon the relationship between the United States and that selfsame kingdom. To that end, and as a preliminary example, Articles 17 and 18 sought to clearly define the circumstances under which goods deemed to constitute “Contraband of war” bound for enemy ports could be confiscated when discovered aboard the vessel of a friendly nation. These sections also detailed precisely which goods constituted said contraband, and the manner by which aggrieved parties might be indemnified should there be any uncertainty as to the status of their seized assets. The fact of war between Britain and France, the displacement of French shipping by American proxies, and the resulting collision between British wartime and U.S. commercial priorities had combined to make these kinds of clarifications necessary in so much as they contradicted the simultaneous efforts of Great Britain and the United States to foster stable, harmonious relations.  

Article 19 followed this attempt at harmonizing the demands of the British war effort with those of the Anglo-American relationship by entreating the naval officers and privateers of both parties to behave courteously and with honor towards the passengers and crews of the friendly vessels that they choose to detain. Privateers in particular – officially sanctioned pirates, more or less – were to suffer financial penalties if they were found to violate this code of conduct, and judicial proceedings against the, “Vessel or Goods or Property” of either party in the context of maritime commerce were to be initiated in a forthright and open fashion. Article 20 then proceeded to assign to each of the signatories the responsibility for refusing entry to unsanctioned pirates into any of their ports, while also entreating the proper authorities to see to it that stolen property confiscated in the event of a confrontation with these selfsame pirates be returned to its proper owners, “As far as they can be discovered [.]” As with articles 17 and 18, these provisions were doubtless seen to be necessary because of the way they stood to moderate or prevent any serious conflicts between British military priorities and the dignity and good humor of the United States of America. Whereas the former were served by enlisting American aid in combating piracy and facilitating the continued apprehension of contraband shipping, the latter benefited from financial disincentives to overzealous behaviour on the part of privateers and a guarantee against undue molestation or injury.   

Passing over articles 21 and 22 for the moment, articles 23 through 25 of the Jay Treaty again sought to address the potentially conflicting maritime policies of the United States and Great Britain by accommodating the war needs of the latter to the commercial needs of the former. To that end, Article 23 first declared that each party would be expected to hospitably receive the ships of the other in their respective ports, “Their Officers and Crews paying due respect to the Laws and Government of the Country.” In turn, “The officers [of either] shall be treated with that respect, which is due to the Commissions which they bear.” To this reciprocal concession was added a further guarantee on the part of Great Britain that American vessels endangered by inclement weather, attack by enemy ships, or any similar misfortune, would be permitted to enter, “Any of His Majesty’s Ports, into which such Vessel could not in ordinary cases claim to be admitted [.]” Article 24 then proceeded to bind both parties to prevent the arming of, “Any Foreign Privateers […] who have Commissions from any other Prince or State in Enmity with either Nation” in their ports, or from attempting to sell their captured goods or purchase additional provisions. Though ostensibly of a piece with the aforementioned agreement (Article 20) to refuse assistance to pirates, this provision set itself apart by requiring the relevant parties to withhold aid and comfort from agents sponsored specifically by the enemies of Great Britain and the United States. In consequence, though the Washington Administration had already publicly declared its intention to remain neutral in the ongoing European war, the terms of Article 24 nonetheless obliged them to help place the enemies of Britain – thus exiled from American harbors – at a strategic disadvantage. 

Article 25 then effectively concluded the subject at hand – the treatment by both parties of ships of war and privateers – by proceeding to describe the manner in which said vessels, belonging to or commissioned by the United States or Great Britain, were to be treated in the ports of the other nation. Upon entering the seaport of the opposite party with a prize – i.e. a captured ship – in tow, the text affirmed that no fees would be charged, no investigations made, and no searches conducted. Rather, the vessel in question would be permitted to depart with its prize intact at any point its commander desired. Furthermore, on the topic of civilian ships of either party found to be within the maritime jurisdiction of the other, Article 25 declared that both the United States and Great Britain would endeavor to protect said vessels from the depredations of, “Ships of war, or others having Commission from any Prince, Republic, or State whatever.” As with the previous article of the Jay Treaty, this provision also in many ways belied the policy of non-interference previously endorsed by contemporary United States government.

Though President Washington had declared plainly enough in April, 1793 that the American republic would thereafter, “With sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers,” agreeing to protect British shipping in American waters and allowing the captured vessels of Britain’s enemies to pass freely through American ports arguably stretched the bounds of impartiality. Though nothing in the text of Article 25 – or indeed in any of the other sections or clauses of the Jay Treaty – required the United States to take hostile action against another nation, it would be difficult to deny that the fulfilment of its terms could only come at the expense of those states with which Britain was at war. Banished from American ports, unable to call upon American aide if captured, and blocked from attacking British vessels in American waters, French vessels operating in the North Atlantic were bound to suffer to a greater extent than if the restrictions here cited had not been agreed. By setting these conditions on its continued stable relations with the United States, Great Britain thereby appeared to demonstrate a degree of indifference towards the former’s stated foreign policy.    

  If the implications of articles 24 and 25 of the Jay Treaty perhaps hinted at the contemporary British government’s merely nominal respect for Washington’s proclamation of neutrality, the terms of the aforementioned Articles 21 more clearly seemed to confirm the same. Of all those provisions hashed out between negotiators Jay and Grenville, this one dealt most directly with the issue of preventing armed conflict between Great Britain and the United States. And while, if scrupulously observed, it showed itself entirely capable of doing just that, it also appeared to pay little heed to previous American efforts in that same quarter. Consider, to that end, the opening statement of Article 21. “The Subjects and Citizens of the Two Nations,” it read,

Shall not do any acts of Hostility or Violence against each other, nor accept Commissions or Instructions so to act from any Foreign Prince or State, Enemies to the other party, nor shall Enemies of one of the parties be permitted to invite or endeavor to enlist in their military service any of the Subjects or Citizens of the other party; and the Laws against all such Offences and Aggressions shall be punctually executed.

Recalling that President Washington had already asserted the intention of his government to remain neutral as regarded Britain, France, and their various co-belligerents, and further warned his fellow citizens against, “Committing, aiding, or abetting hostilities against any of the said powers” under pain of prosecution, the text cited above would appear only to be a slightly more detailed restatement of the same. Britain, it seemed, while in agreement as to the substance of the contemporary American position, required more than a unilateral guarantee.      

Bearing in mind the events of 1793, the efforts of Ambassador Genêt to enlist the United States of America as a French ally in that nation’s war with Great Britain, and the extent to which he was nearly successful, Britain’s inability to trust the stated intentions of the American government was perhaps not entirely unwarranted. The Washington Administration did, of course, manage to counter Genêt’s best attempts. The United States refused to aid the French Republic in its war with Great Britain, refused to provide the materials, provisions, and funds that the French Ambassador requested, and ultimately declared its formal and inviolable neutrality. And yet, for all that, a number of British merchant vessels were captured by privateers that had been commissioned and outfitted in American ports, a number of American statesmen offered their personal assistance to Genêt’s various enterprises, and the nation was widely overtaken by a general surge in pro-French sentiment. The private assurances of Treasury Secretary Hamilton aside, it therefore doubtless appeared unclear to the government of Prime Minister William Pitt to what extent American neutrality could be depended on. Even if the forthcoming Election of 1796 did not result in a radical change in American foreign policy – a distinct possibility if like Thomas Jefferson emerged victorious – the Washington Administration had shown only a limited ability to command the obedience of its fellow citizens. A more binding proviso, embedded within the text of a larger agreement that the United States would be hesitant to jeopardize, therefore doubtless appeared eminently sensible to British strategic thinking.      

            The terms of Article 26, while on the surface offering no particular advantage to either party concerned in its enforcement, contained similarly complex implications to those discussed above. In the event of war between the United States and Great Britain, it stated, “The Merchants and others of each of the Two Nations, residing in the Dominions of the other, shall have the privilege of remaining and continuing their Trade so long as they behave peaceably and commit no offence against the Laws [.]” Should it have proven impossible for a given subject of the British Crown or citizen of the United States to behave in a manner beyond suspicion, the hosting governments reserved the right to order the individual in question to remove themselves, their family, personal effects, and property at the conclusion of twelve months from the time of notification. Pausing here for a moment, certain points are worth making note of. One is that both American and British merchants were active within the various territories of the other at the time that the Jay Treaty was drafted in 1794. Another is that both the United States and Great Britain were equally capable of abusing or abridging the civil rights of individuals who nominally enjoyed the protection of their laws. The passage of the Alien and Sedition Acts by the United States Congress in 1798 – by which non-citizens deemed “dangerous” could be imprisoned and deported – and the various efforts of the Pitt Ministry during the War of the First Coalition (1792-1797) to restrict freedom of the press, the right of assembly, and the writ of habeas corpus speak amply to this assertion. Finally, it can be stated with almost absolute certainty that the contemporary government of the United States of America would have forsworn invoking the deportation provisions permitted them under the terms of Article 26 far sooner than the administration of Prime Minister William Pitt.

            Now here is where things get interesting.

            In all, the significance of that selfsame article of the Jay Treaty at the time of its drafting and submission to the appropriate British and American authorities would seem to have been as follows. Both parties were assuredly eager to protect the liberty and the livelihoods of the British and American merchants living and working in the territories of the other. Both parties were similarly capable of invoking the terms of Article 26, in time of war between Great Britain and the United States, to remove such citizens of the opposing party which they suspected of behaving in an otherwise than peaceful and lawful fashion. That being said, the government of the United States of America was far more likely of the two to publicly reject even the notion of behaving in such a peremptory manner towards the British subjects living and working in American territory. The Revolutionary War, after all, had ostensibly been fought in order to preserve and promote the natural rights of the individual against the depredations of Britain’s tyrannical monarchy and corrupt aristocracy. It stands to reason, therefore, that while 18^th century American statesmen were perfectly capable of ordering the seizure and detention of foreign residents or fellow citizens on specious grounds, they were exceedingly unlikely to admit to the intention until it became absolutely necessary.  

            In consequence, and despite the virulent accusations of his critics, American envoy – and sitting Chief Justice of the Supreme Court – John Jay was unlikely to have insisted on the inclusion of such a provision as Article 26 within the text of the treaty he had been sent to negotiate. Thus, British envoy William Grenville likely did insist on behalf of his own government. The leader of that government, the aforementioned William Pitt, perhaps envisioned a time when removing suspected American merchants from British territory might become necessary. Doubtless he felt this was a sensible precaution – indeed, it may well have been – though it could only have encouraged an outraged response from exactly the people whose approval was necessary for the Jay Treaty to attain the force of law – i.e. the membership of the United States Senate. Eager for confirmation of what they suspected in their hearts to be true – that Great Britain cared little for American dignity, and even less for American independence – Senators belonging to the Republican faction would surely feel wholly justified in their misgivings by this ostensibly clear example of Britain’s characteristic disregard for individual liberties in general and American liberties in specific. Jay, as much a politician as any of the Founders, was unlikely to have been ignorant of this fact, and yet allowed the provision in question to remain a part of the completed treaty.

            The probable reason for this will be examined in weeks to come. For the moment I ask my readers to bear it in mind, and also to meditate on the various implications of the Jay Treaty herein discussed. Parts of it, recall, seemed to favor Britain’s commercial interests, others appeared to cater mainly to the amenable resolution of certain standing grievances, and yet more arguably pivoted upon the need to harmonize British military necessity with American national honor. It was, in short, a complex document. Pierce the veil of that complexity, however, and intentions rise to the forefront. The needs of the British imperial economy, the rising appetite of the American shipping industry, the strategic requirements of the British war machine, and the dignity of the American national character; each of these motives fed into the outcome of the Jay Treaty negotiations. They, along with others, shaped its contours, set its limits, and in large part defined how it was to be received by the parties to which it applied. Hopefully the preceding discussion has gone some way towards exploring this process, and in a way that stopped short of tiresome verbosity. And hopefully the discussion yet to come will provide some insight into how contemporary Americans reacted to the treaty once presented to them, how those reactions translated into action, and what significance those actions held.