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.

The Jay Treaty, Part VI: Subtext

            To return to a discussion begun some weeks ago, the Jay Treaty was received with something less than universal approbation upon the arrival of the completed text on American shores in May, 1795. The Republican faction, led by former Secretary of States Thomas Jefferson and Congressman James Madison, reacted as though Jay had acted solely on behalf of the merchant elite of the United States, bound the American republic once more in servitude to the British Crown, and thereby helped to extinguish the “flame of liberty” that the late Revolution had initially sparked. The Federalists, led in the main by former Treasury Secretary Alexander Hamilton, were conversely supportive of Jay’s efforts and eager to see the draft ratified, though they, too, nurtured their share of misgivings. Article 12 – whereby American merchant vessels were permitted access to ports in the British West Indies on very restrictive terms – was more than slightly insulting, they admitted, and was best either discarded or modified. When presented to the Senate for debate in June, this core disagreement was buttressed by yet more objections from John Jay’s growing chorus of critics. Upwards of ten separate articles, Senate Republicans asserted, were unfit for ratification, and several further omissions on Jay’s part were in need of explanation. Why, they asked, had the American envoy failed to address the impressment – or kidnapping, as indeed it was – of American sailors by British Navy personnel? And why, their Southern cohort was particularly eager to know, did the treaty entirely neglect to arrange for the repayment of slave owners whose property had been illegally carried off during the British retreat in 1783?

With twenty Federalists in attendance to ten Republicans, these enquiries did not necessarily require answers. The Federalists controlled the chamber and the treaty had the backing – if not the wholehearted approval – of President Washington. Thus, while the majority Federalists agreed with their crossbench colleagues that the aforementioned Article 12 would be partially suspended pending renegotiation, the remainder of Republican objections were summarily dismissed. The Jay Treaty was accordingly ratified by a party-line vote on June 24^th, 1795, signed by the president in late August of that year, and subsequently came into force on February 29, 1796. In the interim, however, is when the real battle commenced. Because the Senate deliberations had been conducted under a veil of secrecy – so ordered by President Washington for fear of a possible public backlash – the treaty only entered the forum of public opinion after its various provisions had been legally approved. And while it did so at the hands of chastened Republicans desirous of drumming up popular opposition to their Federalist rivals, there were those among even that latter faction who understood – to borrow a turn of phrase from a much later era in American history – that sunlight was indeed the best disinfectant. Among his Federalist colleagues, Hamilton in particular was eager to see the treaty made public, and for his opponent’s inevitable exaggerations to be confronted by the truth. Thus, it seemed, the leadership of both factions then vying for control of American public life were similarly keen to enter the next – and undeniably the most politically and culturally impactful – phase of what was set to become one of the first great public debates in the history of the American republic.   

     

            On the Republican side neither Jefferson nor Madison deigned to lead the charge against the Jay Treaty in the political press, though they were the ostensible leaders of that faction. Instead, the likes of New Yorker jurists Robert R. Livingston (1746-1813) and Henry Brockholst Livingston (1757-1823), and Pennsylvania attorney Alexander J. Dallas (1759-1817) took up the task from behind a series of Roman – i.e. classically republican – pseudonyms like Cato, Cinna, and Decius. By and large, these published critiques tended towards attacking Jay personally – his political predilections, professional qualifications, etc. – drawing attention to the injuries committed by Great Britain that the treaty did not address – impressment and slave reimbursement chief among them – and generally portraying the drafted agreement as one which unnecessarily prostrated the interests of the United States of America before Britain’s commercial and military priorities. Robert Livingston’s Cato essays, published in the New York Argus, focused specifically on this third point, though to ultimately questionable effect. Jay’s willingness to capitulate to his opposite number on so many issues was wholly unnecessary, Livingston/Cato asserted, because Great Britain had in fact been teetering on the brink of disaster at the time Jay arrived in London in 1794.

This was the case, he further explained, because the French and British fleets were theretofore holding each other in check to the point that America’s entry into the war on the side of the French Republic would have utterly devastated British shipping and crippled the British economy. This being so, Jay should have made use of the resulting leverage to rightfully assert his nation’s aggrieved status. Britain, after all, had violated the terms of the Treaty of Paris by continuing to occupy American territory in the West, had injured American trade in the region, and had instigated Native raids against American settlers. In response, Jay should have demanded that a British evacuation – which the Jay Treaty did accomplish – be accompanied by,

Reparation for the loss of trade – a compensation for the expense of the war the British had exited with the Indians – a public punishment of the British subjects who had personally appeared in arms against us, [and] the removal from office of Lord Dorchester, who had, in his address to the Indians, encouraged them to violate the treaty of peace.

Granting that Livingston’s portrayal of British desperation circa 1794 was generally uniformed and inaccurate, his assertion of America’s status as the injured party in certain of its disputes with Great Britain was substantially true. Successive British governments had indeed violated the terms of the Treaty of Paris. American settlement and trade had been hampered by the continued British military presence in the region of the Great Lakes, and the Native inhabitants of the same had been encouraged – often quite openly – by British officials to make war upon the newcomers who were so intent on invading their ancestral homeland. What Livingston failed – or declined – to recognize, however, was that there were other forces acting upon the Anglo-American relationship than what solely transpired in the North American wilderness.

However justified Jay might have been – morally or legally – in seeking the fulfilment of all or part of Livingston’s various concessions, it was another matter entirely whether or not Great Britain was in any way inclined to respond. British North America – at that time composed of what is now central and eastern Canada – was but one outpost of a very large and very complicated global empire, and far from the most lucrative or strategically important. In consequence, though the government of the United States had every reason to regard the presence of British military personnel in American territory as an existential threat, the contemporary British government was conversely more apt to be concerned by the stability and prosperity of its holdings in the Caribbean or the East Indies. In addition, notwithstanding Livingston’s assertions to the contrary, Great Britain was very nearly at the apex of its historic power and influence at the end of the 18^th century. Even if offered proof positive of its own misdeeds in North America’s frontier west, few forces under the sun could have compelled the contemporary British government to act in a way contrary to what it perceived as its own best interests. Accordingly faced with complaints – well-founded or otherwise – rendered by a minor power and in a relatively unimportant portion of his nation’s imperial holdings, British negotiator William Grenville had no reason to respond to the kind of violent indignation that Livingston seemed to favor, and every reason to seek a resolution that gave away only as much as was absolutely necessary.

Another of Livingston/Cato’s complaints worth noting – for the same reasons as those detailed above – was his assertion that the terms of Article 3 of the Jay Treaty effectively surrendered control of the North American fur trade to British commercial interests. An examination of the relevant text once more reveals the truth at the core of the Republican’s complaint, though not to the effect that he surely intended. The terms of Article 3 did permit both citizens of the United States and subjects of Great Britain, along with, “The Indians dwelling on either side of the said Boundary Line” to travel and trade by water or overland navigation between, “The respective Territories and Countries of the Two Parties on the Continent of America [.]” Because the contemporary fur trade was conducted with the invaluable assistance of the Native inhabitants of the North American interior, and because Article 3 also made an exception of, “The Country within the Limits of the Hudson’s Bay Company” for the purposes of the aforementioned freedom of movement, this clause would necessarily have affected the direction in which that trade flowed.

Rupert’s Land – corresponding to large portions of the Canadian Arctic, Northern Quebec, Manitoba, and Saskatchewan – was the formal designation of the cited territory under Hudson’s Bay Company administration. Over one million square miles in size, it represented some of the richest fur trapping prospects on the continent, and following the loss of the Thirteen Colonies was likely the single greatest incentive for a sustained British presence in North America. Blessed with unchallenged sovereignty over this lucrative region, and possessed of a vast potential Native and mixed-race workforce, Great Britain could accordingly claim in 1794 to be the sole dominant power in the global market for luxury furs. Bearing this in mind, the aforementioned terms of Article 3 make a fair deal of sense. Rather than countenance any threat to their supremacy in this quarter – by, say, opening prime trapping grounds to potential rivals – the contemporary British government opted to reassert their sole access to Rupert’s Land while also securing the free movement of Hudson’s Bay Company agents within the borders of the United States. Thus, while American fur traders – be they Native or otherwise – were forbidden from accessing the most fertile trapping territory in North America, no region being worked by American agents within the confines of that country was closed to employees of the much larger and wealthier British cartel. Britain, therefore, offered little and gained much. America, conversely, offered all it had and gained nothing.

At any rate, this is doubtless how Livingston would have characterized the exchange. Another way to think of it – a wide angle lens, if you will – would be to understand the concessions that the Jay Treaty appeared to make to British interests in the context of the relative power of the United States and Great Britain and the nature of their respective economic needs. Britain was by far the superior military, diplomatic, and commercial actor. Its navy was unparallelled in the 18^th century world, its prestige was considerable, and its economy was a finely-tuned machine that turned Jamaican coffee, Indian spices, and Canadian fur into British gold. Comparatively, the United States was small, weak, unimpressive, and impoverished. An experienced diplomat like John Jay could not have been ignorant of these facts, and would have set his expectations and priorities accordingly. The United States could not threaten Britain into abandoning its own best interest, or overawe its government, or offer economic reprisals in return for noncompliance. Prime Minister Pitt needed the wealth of the British world to continue to flow into London, and he would have it notwithstanding American warnings to the contrary. Accommodation was the only answer, or surely seemed so to Jay. Let Britain have its empire, its trade regulations, and its monopolies. The growth and prosperity of the United States of America wasn’t threatened by any of these things. All that it needed – not wanted, or desired, or pined for – was reliable access to British markets on terms that at least managed to avoid causing insult. This, Jay could accomplish – and did accomplish – at a minimal cost to his fellow countrymen.

And yet, the fact that Livingston believed what he wrote in the Cato essays – and we shall assume, for want of evidence to the contrary, that he did believe it – is of surpassing importance to the present discussion. Regardless of how the facts may have appeared to John Jay, his opposite number William Grenville, President Washington, Alexander Hamilton, or the Federalist members of the Senate who voted to ratify the treaty, Robert Livingston believed that the United States had given too much too readily to Great Britain. He located his displeasure chiefly in what he perceived as Jay’s kowtowing to British priorities, and he asserted that the American republic was in a much stronger position vis-à-vis it former colonial master than had his nation’s chosen envoy. The likelihood that a fair number of Livingston’s fellow Republicans agreed with this view of the matter makes such a public position terribly important to understanding the nature of the Jay Treaty debate. However they had arrived at that point, some portion of the main anti-establishment faction in contemporary American politics believed that the logic which essentially underpinned the Jay Treaty – that the United States was in an inferior position to Great Britain, and so had to seek compromise – was faulty. In their minds, it seemed, the logistical difficulties inherent in attempting to extract concessions from one of the most powerful nations on earth were meaningless next to the weight of American moral indignation, and the power of post-revolutionary political idealism. Practical evidence to the contrary, Livingston believed that the United States of America was a great nation, and Great Britain had no right to treat with it as though it were anything less. 

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.

The Jay Treaty, Part IV: Text, contd.

Moving on to the second theme under which the various articles of the Jay Treaty might fairly be organized – existing grievances – the nature of the settlement appears on the whole somewhat more balanced. Rather than generally defer to British priorities in pursuit of certain key concessions, American negotiator Jay seemed to have arrived at a series of agreements with his British counterpart Grenville that required each of their respective nations to sacrifice and to gain in equal measure. Take, for instance, the terms of Article 2. While the text thereof began by plainly stating the intention of George III (1738-1820) to, “Withdraw all His Troops and Garrisons from all Posts and Places within the Boundary Lines assigned by the Treaty of Paris to the United States” – thus resolving a major sticking point in Anglo-American relations that had persisted since 1783 – the terms that followed showed that this long-overdue retreat was to be far from unconditional. In exchange for Britain’s removal of any military presence from the disputed territory, the text went on to say, all British settlers or traders, 

Within the Precincts or Jurisdiction of said Posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their Effects; and it shall also be free to them to sell their Lands, Houses, or Effects, or to retain the property thereof, at their discretion [.]

While this may have appeared to a given segment of the contemporary American population as an overly generous response to the final ending of an illegal military occupation – more on that later – the essence of the exchange was very much in the nature of give and take. Britain had agreed to well and truly vacate a series of military posts in what it acknowledged was American territory, to the likely detriment of resident traders and settlers and the Native inhabitants of the surrounding region. In recognition of the potentially awkward position that the former group may then have found themselves in – and perhaps as a general show of good faith – the United States agreed in turn to respect the property and citizenship of all existing residents of the relevant territories. Thus, both sides were asked to make sacrifices – the United States agreed to recognize the property claims of foreign citizens while Britain lost formal access to a series of strategically-placed outposts – and both stood to gain – the United States gained final recognition of its territorial sovereignty and Britain ensured that its subjects in the relevant territories would be free from molestation – in roughly equal measure.

This same spirit of reciprocity reappeared – and was arguably expanded upon – in articles 4, 5, 6, and 7. Each of these sections applied different forms of joint arbitration to a series of issues that had been cause for tension between the United States and Great Britain since the conclusion of the Revolutionary War. Article 4, for example, after first admitting that the text of the Treaty of Paris (1783) had attempted to establish a western boundary between the American republic and British North America upon impracticable terms – i.e. by a line drawn due west from the northernmost corner of Lake-of-the-Woods to the Mississippi River that had since proven geographically impossible – determined to leave the final definition of the relevant border to a process of joint negotiation. “Measures shall be taken,” the text accordingly proposed, “in Concert between His Majesty’s Government in America, and the Government of the United States, for making a joint Survey of the said River [.]” In the event that the applicable terms of the Treaty of Paris were indeed found to be invalid, “The two Parties [would] thereupon proceed by amicable negotiation to regulate the Boundary Line in that quarter […] according to Justice and mutual Convenience [.]” Therefore, without knowing precisely which of them in the final measure stood to benefit and which stood to lose, the United States and Great Britain agreed to work together towards the resolution of an issue that had troubled them both. 

Article 5 of the Jay Treaty then proceeded to apply this same basic principle to another ambiguity in the terms that defined the eastern border of the relevant parties in North America. Whereas the aforementioned Treaty of Paris had defined the border between the United States and British Nova Scotia as following a line, “Drawn due north from the source of St. Croix River to the highlands [,]” Article 5 confessed that neither party was entirely certain which water channel, “Was truly intended under the name of the River st Croix [.]” In consequence, said article referred the final decision on this disputed point to a joint commission of American and British investigators. One commissioner each was to be chosen by the British monarch and the President of the United States, with the third selected by the mutual agreement of the other two. The three Commissioners were then to be, “Sworn impartially to examine and decide the said question according to such Evidence as shall respectively be laid before Them on the part of the British Government and of the United States.” Once they arrived at their decision, after conducting whatever investigation they felt best satisfied the inquiry at hand, the said Commissioners were to sign and seal a declaration to that effect and submit it, along with their accounts and journals, to the appropriate authorities. At that point, in accordance with the text of Article 5, both the United States and Great Britain were bound, “To consider such decision as final and conclusive, so as that the same shall never thereafter be called into question [.]”

Articles 6 and 7 further expanded upon this framework of shared resolution by applying a slightly enlarged form of the aforementioned joint commission to the task of resolving key disputes over private property. Specifically, the former sought to address the repayment of losses suffered by such British merchants or subjects as were in possession of debts owed to them since before 1783 by citizens of the United States, while the latter aimed at assessing losses and awarding damages to those merchants and citizens of the United States and Great Britain as had suffered their property to be confiscated, “during the course of the War in which Hi Majesty is now engaged [.]” In both cases, the adjudicating body was to be comprised of two representatives each chosen by the British Crown and the American President, with the fifth appointed by the mutual agreement of the other four. Members of both investigatory bodies were to be bound by a common oath to, “Honestly, diligently, impartially, and carefully [,]” examine and decide all complaints referred to them, and were to recuse themselves from cases in which they had a personal stake. The respective commissions were to operate for a full eighteen months from the time of their first formal meeting, with the possibility of a single extension not exceeding a further six months. Damages awarded were to be final, with the sums to be paid in hard currency – i.e. gold or silver – to the relevant creditor or claimant no sooner than twelve months from the time of the Jay Treaty’s final ratification.

Articles 9 and 10 of the Jay Treaty, while they dispensed with the mechanism of conflict resolution that the preceding provisions had taken pains to establish, their combined terms nonetheless demonstrated the same “give-and-take” approach to addressing certain grievances that had persistently troubled the Anglo-American relationship. Consider, to that end, the terms of the former. All British subjects, Article 9 declared, “Who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty, shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein [.]” In fairness, this may not have been wholly intended to be a mutual concession. The number of Americans that held land and title in contemporary British America or Britain proper was significantly smaller than the still sizeable quantity of either American-born Loyalists that had been forced to flee during the Revolutionary War or British subjects that had purchased land in the United States in the years after 1783. In consequence, British subjects almost certainly stood to benefit from this clause to a far greater extent than did citizens of the American republic. That being said, nothing in this selfsame article indicated that the British government was interested in seeing the return of those Loyalist properties or estates that had already been seized and sold by certain state governments during the Revolution. The chief concern, rather, seemed to be with preventing similar incidents from occurring in the future. In this, the United States was included – its citizens were to be protected on the same basis as their British counterparts – thus maintaining at least the principle of equality between the two nations.  

The terms of Article 10 were similarly preventative, rather than punitive. “Neither the Debts from Individuals of the one Nation, to Individuals of the other,” it read, “nor shares nor monies, which they may have in public Funds, or in the public or private Banks shall ever, in any Event of war, or national differences, be sequestered, or confiscated [.]” Doubtless this provision owed both to the prior abrogation of certain personal obligations on the part of American debtors during the Revolutionary War – addressed in specific in the aforementioned Article 6 – as well as to the fact that British subjects owned a far from insignificant number of shares in the newly-minted Bank of the United States. In spite of this seemingly one-sided impetus, however, the admonition at the core of Article 10 was still one of principally mutual significance. Regardless of the facts of the middle 1790s – who owed what to whom, in which form, in what amount – it remained a matter of agreement in both the United States and Great Britain that harmonious commercial relations between the two held great potential worth. In pursuit of this common goal, therefore, it behooved the relevant parties to ensure the creation and growth of trans-Atlantic personal and financial partnerships and promote confidence in their respective markets. And while there were a great many mechanisms that might have aided these efforts, perhaps the most fundamental was a consensual guarantee that the sanctity of private debts, shares, and other types of investments would be unconditionally respected, in time of peace, mutual discontent, or even declared war.       

While one may reasonably interpret the recurrent resort to joint arbitration or mutual exchange embodied by articles 4 through 10 of the Jay Treaty as a sign that neither Britain nor the United States felt that they possessed leverage enough in the relevant policy areas to dictate terms to the other, they may also stand in evidence of a shared legal and cultural understanding. Though grievances and suspicions between the Great Britain and the United States had naturally lingered long after peace had been established in 1783, the fact of the Jay Treaty itself would seem to indicate that both parties believed that a mutually satisfactory resolution of their myriad complaints was at least possible. And while the contemporary British government seemed willing to quite strongly – and successfully – pursue American adherence to its own commercial priorities, Jay and Grenville’s evident faith in the efficacy of joint arbitration and mutual exchange would seem to point to their shared perception of a degree of socio-cultural kinship between the nations they respectively represented. In spite of the injuries that had been caused by American disregard for debts held by British subjects, or by British interdiction of American maritime trade, Great Britain and the United States of America did share certain common legal, cultural, and philosophical sensibilities. Common Law jurisprudence, natural rights, the importance of free and frequent elections, and a suspicion of standing armies – these shared principles, and numerous others, bound together the American republic and its former colonial overlord in a way that was effectively beyond compare for any other pair of nations in the 18^th century world. In consequence, though the immediate priorities of the United States and Great Britain may have differed significantly in 1794 – to the point, at times, of coming into conflict – there remained always a sound basis for mutual understanding embedded in the core socio-cultural assumptions nurtured by each.

The Jay Treaty, Part III: Text

            The treaty that John Jay presented to his countrymen upon his return from London in June, 1795 was arguably not what either the Federalist or Republican political factions hoped it would be. While, if ratified, it stood a very good chance of averting armed hostilities between the United States and Great Britain, it hardly represented a diplomatic coup on the part of the American republic. Upon reviewing its terms, Jefferson and his partisans decried it as a rank capitulation to British interests and Jay a traitor who had sold the independence of the United States to Great Britain in order to preserve the commercial interests of his merchant allies in New York and New England. While Hamilton and his Federalists allies in large part disagreed with this characterization, they too found fault with the document that Jay had helped craft. The accord, the Secretary of the Treasury privately confided, was “execrable” and “an old woman’s treaty,” though he also opined that its rejection, “Would greatly shock and stagnate pecuniary plans and operations in general.” Indeed, it seemed that almost no one in the contemporary United States was particularly pleased with the settlement that their chosen envoy had managed to secure. It was too generous to Britain, some said, and not generous enough to the American republic; it represented an unpardonable injury to American national honor, and stood to visit great harm upon American commerce. Granting that there was some truth to all of these allegations – and that the various public and private expressions thereof will be discussed at length in weeks to come  – it will remain for the present to address a far simpler enquiry.

            What was it that the Jay Treaty actually said?

            Across twenty-eight articles, the Treaty of Amity and Commerce focused on and returned to a number of key themes or policy areas of particular significance to the Anglo-American relationship. For the purpose of summary, these in turn might fairly be condensed down to three basic headings: trade, standing grievances, and the exigencies of war. The first concerned matters of private business, travel, taxation, and commercial access – who was required to pay import duties, on which goods, in which ports, under what circumstances, etc. The second dealt with issues of sovereignty, security, and property that had either persisted since the ratification of the Treaty of Paris (1783) or arisen in the years that followed – the continued British occupation of American territory and seizure of American merchant ships, the American non-payment of British-held debts, and so forth. The third, and perhaps the most immediately significant, concerned the pressures that the ongoing war in Europe exerted on both the United States and Great Britain and need to prevent those pressures from transforming a simple misunderstanding into a formal armed conflict – the needs of the British war effort as balanced against the dignity and independence of the United States. With a few minor exceptions, every article of the Jay Treaty can be slotted into one of these three categories. For that reason, they will form the basis of the synopsis that follows.

            And so…   

    

Under the heading of trade, the Jay Treaty had a great deal to say. Given the sheer volume of commerce conducted between the two signatories – Great Britain and the United States of America – at the end of the 18^th century, this should come as little surprise. Though the late Revolution had severed formal political ties between the mother country and its former colonial dependency, Britain remained the largest single purchaser of American produce into the 1790s, and the United States one of the largest customers for British manufactured goods. In order to ensure that the resulting commercial relationship – and the wealth that it generated on both sides of the Atlantic – remained on a stable footing for the foreseeable future, it only made sense for both parties to develop a clear understanding of what each expected of the other, their respective priorities, and the privileges they were willing to extend. Article 3 first attempted to accomplish this by defining precisely who and under what circumstances persons could travel and transact business between the United States and Britain’s remaining territory in North America. Subjects of the British Crown and citizens of the United States alike – as well as “the Indians dwelling on either side of the said Boundary Line” – were accordingly granted the right, “Freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America [.]” This permission was further augmented by allowing the concerned parties, “To navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other [,]” though not extending to their respective, “Sea Ports, Harbours, Bays, or Creeks [.]”  Combined, these regulations would seem to indicate that Great Britain was prepared to allow the United States to carry on an overland trade with its North American colonies while reserving the ocean trade with the same to its own merchants. 

            As to the goods that were to be transported between British North America and the United States, Article 3 further specified that all merchandize not otherwise prohibited could be carried into or out of either territory, by residents of either territory, and on an equal basis. In so doing, American merchants transporting goods into British North America would be subject to, “No higher or other Duties” than would be owed by British merchants engaged in the same trade, and vice versa. In addition, duties would not be levied on furs brought into either territory, and the native inhabitants thereof would be permitted to pass from one side of the boundary line to the other, free form any imposts or taxes so long as they only carried, “their own proper Goods and Effects of whatever nature [.]” This duty exemption was also extended to all those goods, “Which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places.” In light of recent commercial tensions – the seizure of American merchant vessels by the British Navy, resultant threats of an American embargo on British goods, etc. – provisions such as these were doubtless expected and welcomed by both of the relevant parties. British North America represented an obvious source of potential customers for American products, and access to markets in the United States presented an obvious goal for British merchants operating in what were then Upper Canada and Lower Canada. A high degree of clarity, efficiency, and cooperation thus stood to benefit all involved. 

Passing over Article 11 – which was nothing more or less than a brief preamble for what followed – the twelfth through the sixteenth articles of the Jay Treaty further expanded upon the initial clarification of trade priorities, concessions, permissions, and exemptions embodied by Article 3. To that end, Article 12 set about defining trade relations between the United States and the British West Indies. In so doing, the text made careful note of the size of vessels permitted to enter British ports in the Caribbean (no more than seventy tons), the kinds of goods allowed to be transported to the same (only those, “Being of the Growth, Manufacture, or Produce of the said States”), the import charges to be paid on such goods (“No other or higher […] than shall be payable by British Vessels, in the Ports of the United States”), and the manner of products permitted to be carried away on American ships (all those considered to be of the, “Growth, Manufacture or Produce of the said Islands”). Article 13, which conversely endeavored to regulate American seaborne trade with the British East Indies, was only slightly less explicit in its terms and conditions. American vessels, it stated, would pay the same duties as would British vessels in American ports, were permitted to purchased and remove, “All articles of which the Importation or Exportation […] shall not be entirely prohibited [,]” and could only export cargoes purchased in the East Indies to, “Some Port or Place in America [.]”

Article 14 then proceeded to clarify the notably more generous terms applied to trade between the United States and Britain proper. The American republic and Great Britain, it rather vaguely declared, were to enjoy, “A reciprocal and perfect liberty of Commerce and Navigation.” The subjects and citizens of each nation could pass back and forth from one to the other, “Without hindrance and molestation,” land their ships at whatever port, or city, or river they cared to, take up residence, rent warehouses to store their property, and generally enjoy, “The most complete protection and Security for their Commerce [.]” This batch of territorial trade regulations – articles 12, 13, and 14, referring respectively to the West Indies, the East Indies, and Britain itself – was then followed by a rather dense summation of all remaining tariffs and duties to be charged and collected by the relevant parties. In the form of Article 15, this passage described the imposts that would be laid upon certain goods arriving in or departing from British or American ports, what relation these duties would have to those laid upon articles imported or exported from any other nation or nations, and the various potential exceptions to these regulations that Britain in particular felt it necessary to reserve. Article 16 then proceeded to acknowledge the right of both parties to appoint Consuls for the purpose of protecting and monitoring their respective commercial interests in the each other’s territory, with the caveat that either the United States or Great Britain, “May except from the residence of Consuls such particular Places, as such party shall judge proper to be excepted.” 

It is worth noting, before advancing to the second topic heading under which the various articles of the Jay Treaty arguably fall, the evident presence of a unifying rationale across the sections just now discussed. Granting that the document in question represents a bilateral agreement between two distinct – and theoretically equal – parties, the density, specificity, and structure of the relevant commercial regulations would seem rather strongly to indicate the ascendancy of British priorities over American. Take, by way of evidence, the descending severity of trade terms applied to American merchants in the West Indies, the East Indies, and Britain proper. American traders, eager to carve out a place for themselves in a global economy dominated in the late 18^th century by established European powers, would doubtless have preferred to access every corner of the British Empire on the same generous conditions as spelled out in Article 14. From the perspective of competitive, monopolist Britain, of course, such an concession to a potential rival was wholly unacceptable. The economy of its globe-spanning empire was vast, complex, and precisely balanced. Increasing taxes here was meant to increase revenues there, and fund military expenditures, and decrease demand for certain commodities, and so on, and so forth. In consequence, though the government of Prime Minister William Pitt was, circa 1794, willing to grant the United States access to certain markets within the larger British imperial economy, this access was bound to be accompanied by a great many restrictions, regulations, and precisely-worded caveats.      

 To that end, recollect once more the terms of articles 12, 13, and 14 of the Jay Treaty. The first, concerning the West Indies, placed the most specific restrictions upon American trade in any region of the British Empire. There was, in point of fact, a very good reason for this. As sugar-producing islands like Jamaica and Saint Kitts represented the figurative jewels of the contemporary British imperial economy, British trade ministers had every reason to desire to protect their nation’s ability to successfully extract the wealth thereof. And as that these same cash-crop islands required foodstuffs to be brought in by ship, and as the United States represented the closest and largest source of the same, permitting unfettered American access to local markets posed a serious possible threat. If merchants from the United States, free to come and go as they pleased, simply traded their staple provisions for molasses, coffee, or cacao which they then sold in European markets, Britain might quickly have found itself economically displaced. Instead of representing a costly venture – in terms of defense and provisioning – that paid off only if properly attended to, the West Indies might thereafter have become a lodestone around Britain’s neck that filled the coffers of American merchant cartels while demanding nothing in the way of expenses from the American government. Permitting American vessels operating in the Caribbean to purchase and transport certain commodities only if they were bound for American ports – thus forfeiting the profits of some portion of the sugar and coffee that British trade policies had endeavored to produce – accordingly represented a concession that still managed to preserve the core of Britain’s commercial interests.

Articles 13 and 14 appear similarly representative of mid-18 century Britain’s highly complex and carefully calculated approach to commerce. That the former placed less specific – though in some cases more broad – restrictions upon American trade in the East Indies than Article 12 did for the West Indies speaks to the position then enjoyed by British merchant cartels in the contemporary Indian Subcontinent. While the British East India Company was a major player in only a handful of territories, worked in large part through native intermediaries, and was in the midst of an often bloody competition with its French counterpart, the British government was doubtless still quite keen on heading off any potential disruption of the monopoly that British traders were attempting to construct. The United States of America most assuredly represented just such a potential disruptive influence. If American merchants managed to find ways to work cheaper, for instance, or secured favorable agreements with certain native princes or potentates eager to offset East India Company influence, Great Britain could potentially have found itself priced out or forced out of the East Indies market. Attempting to regulate American trade with the Indian states – by allowing American vessels to trade in the East Indies only so long as they sold their cargoes in the United States – therefore accordingly represented a means of preserving the sphere of control British traders were attempting to erect in contemporary South Asia.

Much the same logic – i.e. holding American trade priorities second to the commercial needs of the larger British Empire – might be seen to explain the substance of Article 14. As the contemporary United States wholly lacked a manufacturing sector that could compete with Great Britain’s emerging industrial might, there was simply no need to protect British factory owners from overseas competition by erecting tariff barriers against the United States of America. The American republic was a nation of farmers in the middle 1790s, and British trade ministers were doubtless entirely confident that their nation could afford to purchase the (much-needed) produce of the United States while still reaping a profit by selling luxury goods, farming implements, and textiles back across the Atlantic. In the event that this proved not to be the case – if, say, the United States attempted to tweak the balance of trade between itself and Great Britain by putting forth certain regulatory measures of its own – Article 15 provided a combined preventative measure and potential solution. The British government, it read, would retain the right to impose further duties on American vessels, “As may be adequate to countervail the difference […] now payable on the importation of European and Asiatic Goods when imported into the United States in British or American vessels.” What this meant, in essence, was that Britain could effectively raise the cost of imported American goods in order to offset any harmful price difference between cargoes being brought to the United States in American vessels versus British vessels. Article 15 also prohibited the government of the United States from assigning additional duties of its own on British imports that would further increase this selfsame price difference. Combined with the aforementioned twelfth, thirteenth, and fourteenth articles, this attempt at effectively slotting the United States of America into the larger British imperial economy stands in evidence both of contemporary British commercial expectations – i.e. that regulating trade was a complex business, and that all those eager to participate would need to observe that complexity – and the willingness of the Washington Administration to submit to the same in exchange for access to certain high-value markets.