The Jay Treaty, Part VII: Subtext, contd.

The aforementioned Alexander Dallas offered criticisms not dissimilar to those of his Republicans colleague Robert Livingston, though they were accompanied by a great many more complex and substantive complaints. Published in Dunlap and Claypoole's American Daily Advertiser in July, 1795, the Pennsylvania lawyer’s Features of Mr. Jay’s Treaty was lengthy, highly-structured, and quite broad in its approach. Across eight parts, and within those an average of six subsections each, Dallas made a detailed and well-documented case that the offending treaty – among other things – was poorly executed, settled little between Great Britain and the United States, gave only the illusion of reciprocity, chiefly served the interests of the Federalists and their allies, and violated the very essence of the United States Constitution. While it would not do to examine his every complaint – there are so many, and they cover so much ground between them – several appear of particular significance to the discussion at hand.

Consider, for instance, Part I, sections 3, 4, and 5. Therein, before even beginning to delve into the finer points of the treaty itself, Dallas offered a series of criticisms of the very manner in which that document was commissioned, drafted, and submitted for ratification. The dispatch of Jay to London for the purpose of securing a treaty, Section 3 first explained, came at the expense of Congress, whose members were then in the midst of offering a series of responses to Britain’s recent aggressive disregard of American maritime neutrality. These efforts, helmed by Republicans – like James Madison – and Federalists – like Jonathan Dayton and Abraham Clark – were, as Dallas put it, “Suspended, or rather annihilated, by the interposition of the executive authority [.]” If this passage makes it sounds as if the author of Features took some particular issue with the treaty-making authority that the United States Constitution granted to the Chief Executive, there is good reason for it. Part VIII of the same treatise asserted at length the fear and suspicion Dallas nurtured of the ability of the President and the Senate, in cooperation with a foreign power, to subvert the rightful responsibilities of the House of Representatives or even alter the very nature of the Constitution itself. Bearing this in mind, it would seem a fair reading of the cited text of Part I, Section 3 of Features to conclude that Dallas believed the very existence of the Jay Treaty to represent a usurpation of the legislative authority of the United States government.

The evident disdain harbored by Dallas for the process by which the Jay Treaty was crafted found echoes and elaborations in the aforementioned sections 4 and 5. In the former, the Pennsylvania lawyer called into question the disagreeable circumstances of Jay’s dealings with his British counterpart Grenville and the unfortunate consequences thereof. As with Livingston’s complaints in his Cato essays, this line of enquiry inevitably involved casting aspersions upon the character and the competence of the American envoy. During the length of his commission in London, Dallas opined, Mr. Jay, “Enveloped by a dangerous confidence in the intuitive faculties of his own mind, or the inexhaustible fund of his diplomatic information, neither possessed nor wished for external aid [.]” Grenville, meanwhile, was willing and able to bring to bear, “The auxiliary sagacity of his brother ministers [and] all the practical knowledge of the most, enlightened merchants of a commercial nation.” This imbalance, so described by Dallas, was seemingly Jay’s doing – burdened by overconfidence, he had allowed a better-armed opponent to outmaneuver him. That being said, and which Dallas also seems to admit, the circumstances under which Jay had been asked to work were hardly ideal. Alone, separated from the resources of his government by a vast ocean, and faced with an opposite number whose diplomatic assets were close at hand and nearly limitless, Jay was arguably doomed by the conditions of his assignment to work from a position of comparative weakness. In consequence of all of these various conditions, Part I, Section 4 of Features went on to explain, “Mr. Jay was driven from the ground of an injured, to the ground of an agressing, party; he made atonement for imaginary wrongs, before he was allowed justice for real ones [.]” Thus, in addition to the very notion of a treaty with Great Britain representing a potential invasion of the legislative authority, Dallas appeared to believe that the act of its negotiation had been poorly conducted by an arrogant, ill-equipped, and outclassed envoy.

  The diverse deficiencies which Dallas perceived in the processes by which the Jay Treaty was accomplished, Part I, Section 5 of Features went on to explain, found their final expression in the manner by which the offending document was ultimately ratified. Contrary to the virtues of, “Principle, argument, and decorum [,]” which most contemporary Americans doubtless agreed ought to have guided every action and intention of their national government, Dallas asserted that the debate and ratification of the Jay Treaty were conducted under highly irregular and improper conditions. “The first resolution taken by the senate,” he explained, was to, “Stop the lips and ears of its members against every possibility of giving or receiving information [.]” This action – undertaken with the belief that undue public clamor was best avoided until after a decision had been made – thereafter had the regrettable consequence of placing every member of the Senate in what Dallas described as a parallel condition to that which Jay had suffered in London. “Presumed to be inspired,” Senators were left without that pivotal resource required for them to perform their assigned duties – i.e. the input of their constituents – and made to substitute their own understanding for that of their fellow countrymen. Closing off opportunities for pubic consultation doubtless also had the effect of shortening the length of the debate, thus limiting the potential for periods of reflection and re-evaluation between sessions.  

Having accomplished this initial coup, the proponents of the Jay Treaty appeared all too ready to resort to similarly questionable tactics whenever its fate seemed in doubt. Among these, Dallas explicitly noted,  “The danger of exposing to odium and disgrace the distinguished American characters, who would be affected by a total rejection of the treaty,” and, “The feeble, but operative, vote of a member transported from the languor and imbecility of a sick room [.]” Whereas the dubiousness of the latter would appear more or less self-explanatory, the former charge likely warrants some explanation. The phrase “distinguished American characters” was likely intended as a reference to Revolutionary War hero, lauded Patriot, and sitting President George Washington (1732-1799). Undoubtedly the single most popular man in the United States during the latter half of his lifetime, the stability and effectiveness of the early federal government were often and openly attributed by contemporaries to his uncanny ability to command the loyalty and affection of his fellow Americans. To damage Washington, therefore, by exposure of incompetence, or neglect, or poor judgement, was accordingly to risk damaging the prospects – if not the very existence – of the American republic itself. Bearing this in mind, Dallas’ intimation would seem to have been that Washington’s connection with the Jay Treaty – he had commissioned it personally, was solely responsible for Jay’s conduct during the length of this commission, and had endorsed it prior to its introduction in the Senate – had been pointed up by that document’s supporters as cause to vote for ratification. Allow the treaty to go down to defeat, the threat would seem to follow, and risk disgracing the President, injuring his ability to hold the nation together, and potentially bringing about the dissolution of the United States of America.

Not all of the condemnations that Dallas offered in his Features were quite as abstract or fundamental as those explored above. Part III, for example, by posing a number of queries in response to various cited articles of the Jay Treaty, sought to expose some of the practical disadvantages that were embedded in its terms. Consider, to that end, Section 2. Referring to the clause of the third article of the Jay Treaty that permitted Great Britain and the United States to access the, “Ports of either party, on the eastern banks of the Mississippi [,]” Dallas asked a very simple, but highly significant, question. “What ports,” he wrote, “has Great Britain on the eastern banks of the Mississippi?” The answer, as of 1795, was none. Following the cession of West Florida – a strip of territory on the Gulf of Mexico between the Florida panhandle and Louisiana – to Spain in 1783, no portion of any British territory or colony in North America abutted the Mississippi River. The United States of America, by comparison, could claim sovereignty over almost the entire eastern shore of that most vital of inland passages, from its source in what was then the Northwest Territory to just short of its outflow into the Gulf of Mexico. By asking the aforementioned question, Dallas plainly intended to draw attention to this fact and prompt recognition in his audience of the true nature of British reciprocity. By Mr. Jay’s hand, the United States had given British vessels the right to land at any of its ports along the vast reaches of the Mississippi River. And Britain, while appearing to extend the same courtesy, had in fact surrendered nothing in exchange.     

Part III, Section 5 of Features drew attention to another evident imbalance within the terms of the Jay Treaty, in this case having to do with the official recognition of private property. Acknowledging that the ninth article of the latter document stipulated that the citizens of the United States and the subjects of Great Britain who then held land within the territory of the other, “Shall hold the lands in the same manner as natives do,” Dallas again posed a very simple question. “What is the relative proportion of lands so held?” he asked. As mentioned previously, the answer was not likely to offer comfort to those citizens of the American republic for whom Britain remained a source of suspicion and distrust. Far more British subjects owned land within the confined of the United States than did American citizens in any British territories. And while a number of declared Loyalists had suffered their properties to be appropriated and resold by the various state governments, many so-called “Tories” remained in possession of their American assets well into the 1790s. No doubt bearing this fact in mind, Dallas offered two further queries as to the purpose of Article 9 of the Jay Treaty. What, he asked, would be the effect, “To revive the claims of British subjects, who, either as traitors or aliens, have forfeited their property within the respective states?” And also, he asked, what effect would likely result from,

The operation of such a compact on the internal policy of the union, combined with the solemn recognition of a colony of British subjects, professing and owing allegiance to the British crown, though settled within the acknowledged territory of the United States, by virtue of the second article?

While, as before, he offered no answers, Dallas’ purpose was plain enough. In spite of appearing to treat the United States and Great Britain as equals by offering a series of mutual concessions, it was his evident estimation that the terms of the Jay Treaty bowed to British priorities by overvaluing what little that Britain was willing to give up and undervaluing what the United States was being asked to surrender.       

This was, at least in part, a matter of opinion. As with the essays that Robert Livingston published under the pen-name Cato, the criticisms of the Jay Treaty offered in Features by one Alexander J. Dallas constituted both a substantive, probing critique of the relevant agreement between the United States and Great Britain as well as an example of politically-motivated invective. The manner in which Dallas questioned the seeming liberality of the British position within certain articles of the treaty, for instance, was undeniably warranted. Much of what Grenville had agreed to give up was worthless next to what Jay had agreed to part with in exchange. And as the results of these various exchanges were bound to exert some manner of effect on the domestic economy, or state politics, or border relations in the frontier west, Dallas had the right – nay, the responsibility – to publicly question how and why they had been arrived at. His suspicion of the secretive manner in which the Jay Treaty was debated – and ultimately ratified – in the Senate seemed to derive from a similar attitude of concern. Regardless of whether the Washington Administration supported the terms of the Jay Treaty or not, the many and various results of its adoption were too far-reaching for the relevant approval process to be conducted beneath what Dallas fairly described as “a veil of secrecy.” The Treaty of Amity, Commerce, and Navigation stood to affect far too many Americans in too many ways for its particulars to be shrouded from the American public until after the thing had been debated and endorsed.

Then again, much of what Dallas wrote in his Features of Mr. Jay’s Treaty represented little more than a personal attack on the character and capabilities of Mr. Jay himself. And whether John Jay was an arrogant man, whether he was overly confident in his abilities as a diplomat, or whether he allowed his pride to direct the course of his negotiations with William Grenville were fundamentally immaterial to the quality of the agreement that his efforts had produced. A man possessed of all of these negative attributes could have orchestrated the most stunning diplomatic coup in American history, and a man of evident virtue, probity, and poise could have found himself at the centre of an equally embarrassing diplomatic rout. Whether the Jay Treaty represented one or the other was largely subjective. And so, in large part, were the qualities that Dallas attributed to Jay himself. Were the defects apparent in the Jay Treaty a reflection of whatever personal or professional deficiencies its namesake may have possessed? It was practically impossible to say so for certain in 1795 – as it remains so in 2017 – just as it was Mr. Jay’s province alone to state which thoughts were foremost in his mind as he sat opposite Mr. Grenville. What can be taken for granted as fact is this: Jay was a Federalist and Dallas – like Livingston – was a Republican. And from this fact derives a reasonable conclusion: Dallas, by party inclination, was likely to oppose the efforts of John Jay and his allies regardless of what results their labours produced. Federalist were haughty, arrogant, aristocratic, and self-interested, or so the Republican party line steadfastly held. Their attempts to concentrate power in the hands of the federal government and cultivate friendly relations with Great Britain confirmed it, and their affirmations of loyalty to the principles of the late Revolution could not belie it. For Dallas to have believed otherwise would have marked him out as an exception among his peers, any proof of which is simply in evidence. 

All that being said – and as with the aforementioned Livingston/Cato essays – the accuracy of the claims and criticisms Dallas offered in his anti-Jay Treaty diatribe are less relevant to understanding the significance of that document than the mere fact that Dallas believed and articulated them. He was, after all, a rising power in the Republican faction, and it can be taken for granted that he spoke for a number of his fellow partisans when he penned his aforementioned anti-establishment polemic. And while his characterization of Jay himself as a supercilious diplomatic incompetent who too easily allowed himself to be manipulated by a better-informed and more prudent opponent were par for the course among contemporary Republicans – and is thus fairly uninformative – his disapproval of the process by which the Jay Treaty was commissioned, drafted, and ratified provides potentially invaluable insight into the evolving ideological doctrine of the Republican political organization. As discussed above, Dallas seemed to regard the very existence of a formal agreement between Great Britain and the United States – commissioned by the President and ratified by the Senate – as something of an imposition upon the prerogative of the federal legislature. The preliminary efforts of the House of Representatives to respond to mounting British intransigence – to quote once again from a particularly striking passage – were, “Suspended, or rather annihilated, by the interposition of the executive authority [.]” Combined with the concerns Dallas also voiced in Features as to the potential dangers that he perceived in the treaty-making power of the President, it would seem reasonable to conclude that some portion of the still-evolving Republican faction to which Dallas belonged were as concerned by what the Jay Treaty represented in the abstract as by its actual contents.

It bears recalling, at this stage, how little time had passed between the ratification of the United States Constitution in 1788 and the drafting and passage of the Jay Treaty in 1794/95. Though the national government formed by the Constitution had so far successfully overseen the creation of a national bank, the allocation of a national debt, and the entry into the union of two additional states, many of its specific powers and responsibilities remained essentially untested. In consequence, critics of a strong federal government – many of whom had voted or campaigned against ratifying the draft constitution – still had much to be concerned about by the time John Jay departed for London in 1794. The aforementioned treaty-making authority – located in Article II, Section 2 – was almost certainly at the top of any such list. Specifically, it was the accompanying clause of Article VI that appeared the most troubling in its implications. “All Treaties made, or which shall be made, under the Authority of the United States [,]” it stated, were by right to supersede, “Any Thing in the Constitution or Laws of any state [.]” In consequence, it seemed, the President and 2/3 of the Senate effectively possessed the ability to write laws in cooperation with foreign powers which neither the House of Representatives nor the individual states could in any way impact or resist. A more terrifying threat to the republican prerogative critics of the Constitution would surely have been hard-pressed to imagine, and it was doubtless only the absence of a need for any international agreements between 1789 and 1794 that allowed other issues – sovereign immunity, say, or freedom of the press, or protection from unreasonable search and seizure – to take hold of the ongoing public debate.    

The events of 1793 obviously changed all that. Relations with Britain had soured to the extent that a formal rapprochement was deemed necessary, and by the summer of 1795 the first international treaty negotiated by the United States under the auspices of the Constitution lay before the American people. And while most of the discussion that followed revolved around the terms and implications of the treaty itself, certain of its critics did not hesitate to question the validity of the process by which the agreement had been made. Alexander Dallas keenly articulated a number of concerns on that head, doubtless held in common with a number of his Republican colleagues. Was it appropriate for the President of the United States to be able to effectively invalidate the authority of Congress by the use of the treaty-making power? Of yet more pressing concern, was it conceivable that the Chief Executive and the upper house of Congress could conspire with a foreign power to make alterations to the Constitution itself, absent the otherwise mandated authority of the lower house and the state legislatures? While in reality these questions did not have easy answers, Alexander Dallas was evidently convinced to the contrary. The tone of Features, the subjects he chose to draw attention to, and the authorities he cited all point to a strong antipathy – if not a mortal concern – on his part for what the process of drafting and ratifying the Jay Treaty signified for republican government in America. Accept this procedure as the norm, he seemed keen to affirm, and there was no telling what contortions the United States would come to suffer.