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.