Jay Treaty

The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America, commonly known as the Jay Treaty, and also as Jay's Treaty, was a 1794 treaty between the United States and Great Britain that averted war, resolved issues remaining since the Treaty of Paris of 1783 (which ended the American Revolutionary War),[1] and facilitated ten years of peaceful trade between the United States and Britain in the midst of the French Revolutionary Wars, which began in 1792.[2] The Treaty was designed by Alexander Hamilton and supported by President George Washington. It angered France and bitterly divided Americans. It inflamed the new growth of two opposing parties in every state, the pro-Treaty Federalists and the anti-Treaty Jeffersonian Republicans.

Jay Treaty
First page of the Jay Treaty
ContextTo relieve post-war tension between Britain and the United States
SignedNovember 19, 1794 (1794-11-19)
LocationLondon
EffectiveFebruary 29, 1796 (1796-02-29)
Negotiators
Signatories
Jay's Treaty at Wikisource

The Treaty was negotiated by John Jay and gained many of the primary American goals. This included the withdrawal of British Army units from forts in the Northwest Territory that it had refused to relinquish under the Paris Peace Treaty. The British were retaliating for the United States reneging on Articles 4 and 6 of the 1783 treaty; American state courts impeded the collection of debts owed British creditors and upheld the continued confiscation of Loyalist estates in spite of an explicit understanding that the prosecutions would be immediately discontinued.[3] The parties agreed that disputes over wartime debts and the American–Canadian boundary were to be sent to arbitration—one of the first major uses of arbitration in modern diplomatic history. This set a precedent used by other nations. The Americans were granted limited rights to trade with British colonies in the Caribbean in exchange for some limits on the American export of cotton.

The Jay treaty was signed on November 19, 1794,[4] and submitted to the United States Senate for its advice and consent the following June. It was ratified by the Senate on June 24, 1795, by a two-thirds majority vote of 20–10 (the exact number necessary for concurrence). It was also ratified by the British government, and took effect February 29, 1796, the day when ratifications were officially exchanged.

The treaty was hotly contested by Jeffersonians in each state. An effort was made to block it in the House, which ultimately failed. The Jeffersonians feared that closer economic or political ties with Great Britain would strengthen Hamilton's Federalist Party, promote aristocracy, and undercut republicanism. This debate crystallized the emerging partisan divisions and shaped the new "First Party System", with the Federalists favoring the British and the Jeffersonian republicans favoring France. The treaty was for ten years' duration. Efforts failed to agree on a replacement treaty in 1806 when Jefferson rejected the Monroe–Pinkney Treaty, as tensions escalated toward the War of 1812.[5]

Issues
John Jay, chief American negotiator

The outbreak of war between France and Great Britain (and other countries) in 1793 ended the long peace that had enabled the new nation to flourish in terms of trade and finance. The United States now emerged as an important neutral country with a large shipping trade.[6] From the British perspective, improving relations with the United States was a high priority lest it move into the French orbit. British negotiators ignored elements that wanted harsher terms in order to get a suitable treaty.[7] From the American viewpoint, the most pressing foreign policy issues were normalizing the trade relations with Britain, the United States' leading trading partner, and resolving issues left over from the Treaty of Paris. As one observer explained, the British government was "well disposed to America. ... They have made their arrangements upon a plan that comprehends the neutrality of the United States, and are anxious that it should be preserved."[8]

Without warning American officials, the British government used the Royal Navy to capture nearly 300 neutral American merchant ships carrying goods from French colonies in the West Indies.[9] Americans were outraged and Republicans in Jefferson's coalition demanded a declaration of war, but James Madison instead called for an embargo on trade with Britain.[10] British officials told First Nations near the Canada–U.S. border that the border no longer existed and sold weapons to them. Congress voted on a trade embargo against Britain in March 1794.[11] It was approved in the House of Representatives but defeated in the Senate when Vice President John Adams cast a tie-breaking vote against it.[12]

At the national level American politics was divided between the factions of Jefferson and Madison, which favored the French, and the Federalists led by Hamilton, who saw Britain as a natural ally and thus sought to normalize relations with Britain, especially in the area of trade. Washington sided with Hamilton. Hamilton devised a framework for negotiations, and President George Washington sent Chief Justice of the Supreme Court John Jay to London to negotiate a comprehensive treaty.

The American government had several outstanding issues:[13]

  • The British were occupying forts on U.S. territory in the Great Lakes region, at Detroit and Mackinac in modern-day Michigan, Niagara and Oswego in New York, and Maumee (also Miamis) in modern-day Ohio. Britain said it was in response to American refusals to pay debts that had been agreed upon.[14]
  • The British were continuing to impress American sailors into the Royal Navy to fight against France.[15]
  • American merchants wanted compensation for about 300 merchant ships which the British had confiscated in 1793 and 1794.
  • Southern interests wanted monetary compensation for the holders of slaves taken by the British to the West Indies in 1783.[16]
  • American merchants wanted the British West Indies to be reopened to American trade.[17]
  • The boundary with Canada was vague in many places, and needed to be more sharply delineated.[18]
  • The British were providing munitions to First Nations peoples in armed conflict with settlers in the Northwest (Ohio and Michigan).[19]

Treaty terms

Both sides achieved many objectives. Several issues were sent to arbitration, which (after years of discussion) were resolved amicably mostly in favor of the U.S. Britain paid $11,650,000 for damages to American shipping and received £600,000 for unpaid pre-1775 debts. While international arbitration was not entirely unknown, the Jay Treaty gave it a strong impetus and is generally taken as the start of modern international arbitration.[20]

The British agreed to vacate its forts in United States territory—six in the Great Lakes region and two at the north end of Lake Champlain—by June 1796; which was done. They were:

Name Present-day location
Fort au Fer Lake Champlain – Champlain, New York
Fort Dutchman's Point Lake Champlain – North Hero, Vermont
Fort Lernoult (including Fort Detroit) Detroit River – Detroit, Michigan
Fort Mackinac Straits of Mackinac – Mackinac Island, Michigan
Fort Miami Maumee River – Maumee, Ohio
Fort Niagara Niagara River – Youngstown, New York
Fort Ontario Lake Ontario – Oswego, New York
Fort Oswegatchie Saint Lawrence River – Ogdensburg, New York

The treaty was "surprisingly generous" in allowing Americans to trade with Great Britain on a most-favored-nation basis.[21] In return, the United States gave most favored nation trading status to Britain, and acquiesced in British anti-French maritime policies. American merchants obtained limited rights to trade in the British West Indies.[22] Two joint boundary commissions were set up to establish the boundary line in the Northeast (it agreed on one) and in the Northwest (this commission never met and the boundary was settled after the War of 1812).[23]

Jay, a strong opponent of slavery, dropped the issue of compensation for slaves, which angered Southern slaveholders and was used as a target for attacks by Jeffersonians.[24] Jay was unsuccessful in negotiating an end to the impressment of American sailors into the Royal Navy, which later became a key issue leading to the War of 1812.

American Indian rights

Article III states, "It is agreed, that it shall at all times be free to His Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, 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, (the country within the limits of the Hudson's Bay Company only excepted) ... and freely carry on trade and commerce with each other." Article III of the Jay Treaty declared the right of Indians, American citizens, and Canadian subjects to trade and travel between the United States and Canada, which was then a territory of Great Britain.[25] Legal experts dispute whether the treaty rights were abrogated by the War of 1812.[26] Nevertheless, the United States has codified this right in the provisions of Section 289 of the Immigration and Nationality Act of 1952 and as amended in 1965. As a result of the Jay Treaty, "Native Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study, retirement, investing, and/or immigration" if they can prove that they have at least 50% blood quantum, and cannot be deported for any reason.[27][28] Article III of the Jay Treaty is the basis of most Indian claims.[29] Unlike other legal immigrants, Canadian-born Native Americans residing in the US are entitled to public benefits and domestic tuition fees on the same basis as citizens.[27]

Approval and dissent
Thomas Jefferson was harshly critical of the treaty.

Washington submitted the treaty to the United States Senate for its consent in June 1795; a two-thirds vote was needed. The treaty was unpopular at first and gave the Jeffersonians a platform to rally new supporters. As historian Paul Varg explains,

The Jay Treaty was a reasonable give-and-take compromise of the issues between the two countries. What rendered it so assailable was not the compromise spelled out between the two nations but the fact that it was not a compromise between the two political parties at home. Embodying the views of the Federalists, the treaty repudiated the foreign policy of the opposing party.[30]

The Jeffersonians were opposed to Britain, preferring support for France in the wars raging in Europe, and they argued that the treaty with France from 1778 was still in effect. They considered Britain as the center of aristocracy and the chief threat to the United States' Republican values. They denounced Hamilton and Jay (and even Washington) as monarchists who betrayed American values. They organized public protests against Jay and his treaty; one of their rallying cries said: Damn John Jay! Damn everyone that won't damn John Jay! Damn every one that won't put lights in his window and sit up all night damning John Jay![31]

The treaty was one of the major catalysts for the advent of the First Party System in the United States by further dividing the two major political factions within the country. The Federalist Party, led by Hamilton, supported the treaty. On the contrary, the Democratic-Republican Party, led by Jefferson and Madison, opposed it. Jefferson and his supporters had a counter-proposal to establish "a direct system of commercial hostility with Great Britain", even at the risk of war. The Jeffersonians raised public opinion to fever pitch by accusing the British of promoting Indian atrocities on the frontier.[32] The fierce debates over the Treaty in 1794–95, according to one historian, "transformed the Republican movement into a Republican party". To fight the treaty, the Jeffersonians "established coordination in activity between leaders at the capital, and leaders, actives and popular followings in the states, counties and towns".[33] Jay's failure to obtain compensation for "lost" slaves galvanized the South into opposition.[34]

The Federalists fought back and Congress rejected the Jefferson–Madison counter-proposals. Washington threw his great prestige behind the treaty, and Federalists rallied public opinion more effectively than did their opponents.[35] Hamilton convinced President Washington that it was the best treaty that could be expected. Washington insisted that the U.S. must remain neutral in the European wars; he signed it, and his prestige carried the day in Congress. The Federalists made a strong, systematic appeal to public opinion, which rallied their own supporters and shifted the debate. Washington and Hamilton outmaneuvered Madison, who was opposition leader.[36] Hamilton by then was out of the government, and he was the dominant figure who helped secure the treaty's approval by the needed 2/3 vote in the Senate. The Senate passed a resolution in June, advising the President to amend the treaty by suspending the 12th article, which concerned trade between the U.S. and the West Indies. In mid-August, the Senate ratified the treaty 20–10, with the condition that the treaty contain specific language regarding the June 24 resolution. President Washington signed it in late August. The Treaty was proclaimed in effect on February 29, 1796 and the House funded it in April 1796, in a series of close votes and after another bitter fight.[37]

James Madison, then a member of the House of Representatives, argued that the treaty could not, under Constitutional law, take effect without approval of the House, since it regulated commerce and exercised legislative powers granted to Congress. The debate which followed was an early example of originalism, in which Madison, the "Father of the Constitution", lost.[38] One interesting feature of this nationwide constitutional debate was an advisory opinion on the subject written by Chief Justice Oliver Ellsworth, in which he rejected any alleged right of the House of Representatives to decide upon the merits of the treaty.[39] After defeat on the treaty in Congress, the Jeffersonian Republicans lost the 1796 presidential election on the issue.

When Thomas Jefferson became president in 1801, he did not repudiate the treaty. He kept the Federalist minister, Rufus King, in London to negotiate a successful resolution to outstanding issues regarding cash payments and boundaries. The amity broke down when the treaty expired in 1805. Jefferson rejected a renewal of the Jay Treaty in the Monroe–Pinkney Treaty of 1806 as negotiated by his diplomats and agreed to by London. Relations turned increasingly hostile as a prelude to the War of 1812. In 1815, the Treaty of Ghent superseded the Jay treaty.

Evaluations

Historians Stanley Elkins and Eric McKitrick note that, in conventional diplomatic terms and as a "piece of adversary bargaining", Jay "got much the worst of the 'bargain'. Such a view has to a great degree persisted ever since."[40] They conclude that Jay did not succeed in asserting neutral rights, but he did obtain "his other sine qua nons"; he got none of things that were "desirable, but not indispensable".[41] They add that Jay's record on the symbolic side was open to many objections. However, on the "hard" (or realistic) side, "it was a substantial success, which included the prevention of war with Great Britain".[42]

Historian Marshall Smelser argues that the treaty effectively postponed war with Britain, or at least postponed it until the United States was strong enough to handle it.[43]

Bradford Perkins argued in 1955 that the treaty was the first to establish a special relationship between Britain and the United States, with a second installment under Lord Salisbury. In his view, the treaty worked for ten years to secure peace between Britain and America: "The decade may be characterized as the period of 'The First Rapprochement'." As Perkins concludes,

For about ten years there was peace on the frontier, joint recognition of the value of commercial intercourse, and even, by comparison with both preceding and succeeding epochs, a muting of strife over ship seizures and impressment. Two controversies with France ... pushed the English-speaking powers even more closely together.[44]

Starting at swords' point in 1794, the Jay treaty reversed the tensions, Perkins concludes: "Through a decade of world war and peace, successive governments on both sides of the Atlantic were able to bring about and preserve a cordiality which often approached genuine friendship."[45] Perkins suggests that, except perhaps the opening of trade with British India, "Jay did fail to win anything the Americans were not obviously entitled to, liberation of territory recognized as theirs since 1782, and compensation for seizures that even Britain admitted were illegal". He also speculates that a "more astute negotiator than the Chief Justice" would have gotten better terms than he did.[46] He quoted the opinion of "great historian" Henry Adams that the treaty was a "bad one":

No one would venture on its merits to defend it now. There has been no time since 1810 when the United States would not prefer war to peace on such terms.

Perkins gave more weight than other historians to valuable concessions regarding trade in India and the concession on the West Indies trade. In addition, Perkins noted that the Royal Navy treated American commerce with "relative leniency" during the wars, and many impressed seamen were returned to America. As Spain assessed the informal British-American alliance, it softened its previous opposition to the United States' use of the Mississippi River and signed Pinckney's Treaty, which the Americans wanted. When Jefferson took office, he gained renewal of the commercial articles that had greatly benefited American shipping.[47]

Elkins and McKitrick find this more positive view open to "one big difficulty": it requires that the British negotiated in the same spirit. Unlike Perkins, they find "little indication of this".[48]

George Herring's 2008 history of US foreign policy says that, in 1794, "the United States and Britain edged toward war" and concludes, "The Jay Treaty brought the United States important concessions and served its interests well."[49] Joseph Ellis finds the terms of the treaty "one-sided in Britain's favor", but asserts with a consensus of historians that it was

a shrewd bargain for the United States. It bet, in effect, on England rather than France as the hegemonic European power of the future, which proved prophetic. It recognized the massive dependence of the American economy on trade with England. In a sense it was a precocious preview of the Monroe Doctrine (1823), for it linked American security and economic development to the British fleet, which provided a protective shield of incalculable value throughout the nineteenth century. Mostly, it postponed war with England until America was economically and politically more capable of fighting one.[50]

In the HBO miniseries John Adams, Vice President John Adams is shown casting the tiebreaker vote in favor of ratifying the Jay Treaty. In reality, his vote was never required as the Senate passed the resolution by 20–10. Furthermore, the Vice President would never be required to cast a vote in a treaty ratification, because the Vice President votes only in case of a tie, and Article II of the Constitution requires that treaties receive a two-thirds vote for approval. Vice President Adams had however earlier cast a tie-breaking vote in opposition to a trade embargo on the British in 1794.[12]

See also

References
  1. Estes, 2006, p. 15
  2. Jean Edward Smith, John Marshall: Definer of a Nation (1998) p. 177
  3. Gregory Fremont-Barnes, ed., Encyclopedia of the Age of Political Revolutions and New Ideologies, 1760–1815 (2007) p. 438
  4. "Jay Treaty". Britannica.com. Encyclopaedia Britannica. Retrieved November 19, 2019.
  5. Marshall Smelser, The Democratic Republic: 1801–1815 (1968) pp. 139, 145, 155–56.
  6. Samuel Flagg Bemis, Jay's Treaty: A Study in Commerce and Diplomacy (1923) ch 1
  7. Perkins (1955) pp. 2–4
  8. Gouverneur Morris quoted in Perkins (1955) p. 22; the British foreign minister felt, "this Country is anxious to keep the Americans in good humour". Perkins (1955) p. 22
  9. David M. Kennedy; Lizabeth Cohen; Mel Piehl (2016). The Brief American Pageant: A History of the Republic. Cengage Learning. p. 149. ISBN 9781305854765.
  10. Jerald A. Combs (1970). The Jay Treaty: Political Battleground of the Founding Fathers. U of California Press. p. 120. ISBN 9780520015739.
  11. Combs (1970). The Jay Treaty: Political Battleground of the Founding Fathers. University of California Press. p. 121. ISBN 9780520015739.
  12. Smith 1962, p. 858.
  13. Bemis, Jay's Treaty: A Study in Commerce and Diplomacy (1923) ch 2
  14. Patrick Richard Carstens (2011). Searching For the Forgotten War – 1812: United States of America. Xlibris. p. 178. ISBN 9781456867553.
  15. Charles R. Ritcheson, "Thomas Pinckney's London Mission, 1792–1796, and the Impressment Issue". International History Review 2#4 (1980): 523–41.
  16. Francis D. Cogliano (2014). Emperor of Liberty: Thomas Jefferson's Foreign Policy. Yale UP. p. 121. ISBN 9780300179934.
  17. Alice B. Keith, "Relaxations in the British restrictions on the American trade with the British West Indies, 1783–1802". Journal of Modern History 20.1 (1948): 1–18.
  18. Emma S. Norman (2014). Governing Transboundary Waters: Canada, the United States, and Indigenous Communities. Routledge. p. 36. ISBN 9781135040208.
  19. Spencer C. Tucker (2014). The Encyclopedia of the Wars of the Early American Republic, 1783–1812: A Political, Social, and Military History. ABC-CLIO. p. 739. ISBN 9781598841572.
  20. Thomas A. Bailey, A Diplomatic History of the American People (10th Ed. 1980) pp. 77–78.
  21. Bailey, p. 77
  22. Wayne S. Cole, An Interpretive History of American Foreign Relations, (1974) p. 55.
  23. The Treaty also allowed people to pass freely across the US-Canada border to carry on trade and commerce.
  24. Paul Finkelman (2014). Slavery and the Founders: Race and Liberty in the Age of Jefferson. pp. 171–72. ISBN 9781317520252.
  25. INA, Cornell.
  26. Smith, Caitlin (2012). "THE JAY TREATY FREE PASSAGE RIGHT IN THEORY AND PRACTICE" (PDF). American Indian Law Journal. 1 (1): 161.
  27. "Border Crossing Rights Under the Jay Treaty". Pine Tree Legal Assistance. Retrieved June 10, 2019.
  28. "First Nations and Native Americans". United States Embassy, Consular Services Canada. Archived from the original on April 22, 2009. Retrieved March 3, 2009.
  29. Karl S. Hele, Lines Drawn upon the Water: First Nations and the Great Lakes Borders and Borderlands (2008) p. 127
  30. Varg, 1963 p. 95.
  31. William Weeks, Building the Continental Empire, p. 23.
  32. Elkins and McKitrick, p. 405.
  33. William Nisbet Chambers. Political Parties in a New Nation: The American Experience, 1776–1809 (1963), p. 80.
  34. Sean Wilentz, The Rise of American Democracy (2006) 67–68.
  35. Estes, 2001, pp. 127–158
  36. Estes, 2000, pp. 398–99.
  37. "Jay’s Treaty", American Foreign Relations.
  38. Rakove, pp. 355–65
  39. Casto, William. "Two Advisory Opinions by Chief Justice Oliver Ellsworth", The Green Bag, Vol. 6, p. 413 (2003).
  40. Elkins and McKitrick
  41. Elkins and McKitrick, p. 410.
  42. Elkins and McKitrick (1995). The Age of Federalism. p. 412. ISBN 9780199796052.
  43. Marshall Smelser, The Democratic Republic, 1801–1815 (1968).
  44. Perkins p. vii
  45. Perkins p. 1.
  46. Perkins: The First Rapprochement p. 3.
  47. Perkins, Cambridge History of American Foreign Relations I: The Creation of a Republican Empire,(1995) pp. 99–100, 124.
  48. Elkins and McKitrick, pp. 396–402.
  49. George Herring, From Colony to Superpower: U.S. Foreign Relations since 1776 (2008) pp. 73, 78
  50. Joseph Ellis, Founding Brothers: The Revolutionary Generation (2000) pp. 136–37.

Bibliography
  • Bemis, Samuel Flagg. Jay's Treaty: A Study in Commerce and Diplomacy (1923) remains the standard narrative of how treaty was written online
  • Charles, Joseph. "The Jay Treaty: The Origins of the American Party System", in William and Mary Quarterly, (1955) 12#4 pp. 581–630 in JSTOR
  • Combs, Jerald. A. The Jay Treaty: Political Background of Founding Fathers (1970) (ISBN 0-520-01573-8) Focusing on the domestic and ideological aspects, Combs dislikes Hamilton's quest for national power and a "heroic state" dominating the Western Hemisphere, but concludes the Federalists "followed the proper policy" because the treaty preserved peace with Britain.
  • Elkins, Stanley M. and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800. (1994), ch. 9
  • Estes, Todd (2001). "The Art of Presidential Leadership: George Washington and the Jay Treaty". Virginia Magazine of History and Biography. JSTOR. 109 (2): 127–158. JSTOR 4249911.
  • —— (2000). "Shaping the Politics of Public Opinion: Federalists and the Jay Treaty Debate". Journal of the Early Republic. JSTOR. 20 (3): 393–422. doi:10.2307/3125063. JSTOR 3125063.
  • —— (2006). The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture. ISBN 978-1-5584-9515-9.
  • Farrell, James M. "Fisher Ames and Political Judgment: Reason, Passion, and Vehement Style in the Jay Treaty Speech", Quarterly Journal of Speech 1990 76(4): 415–34.
  • Fewster, Joseph M. "The Jay Treaty and British Ship Seizures: the Martinique Cases". William and Mary Quarterly 1988 45(3): 426–52 in JSTOR
  • Hatter, Lawrence B. A. Citizens of Convenience: The Imperial Origins of American Nationhood on the U.S.-Canadian Border. Charlottesville: University of Virginia Press, 2017.
  • Hatter, Lawrence B. A. "The Jay Charter: Rethinking the American National State in the West, 1796-1819," Diplomatic History, 37 (September 2013): 693-726
  • Negus, Samuel D. "'Further concessions cannot be attained': the Jay-Grenville treaty and the politics of Anglo-American relations, 1789–1807. Texas Christian University, 2013. (PhD thesis) online
  • Perkins, Bradford. The First Rapprochement: England and the United States, 1795–1805 1955.
  • Perkins, Bradford. "Lord Hawkesbury and the Jay–Grenville Negotiations", The Mississippi Valley Historical Review, 40#2 (Sep. 1953), pp. 291–304 in JSTOR
  • Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Alfred A. Knopf, New York. 1997. ISBN 0-394-57858-9
  • Smith, Page (1962). John Adams. Volume II, 1784–1826. New York, NY: Doubleday & Company, Inc. OCLC 852986620.
  • Varg, Paul A. Foreign Policies of the Founding Fathers. 1963. online

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