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.