According to Jefferson, the President originally took the same view of the French treaty that he did. Jefferson relates that on April 18, 1793, Washington spoke of having "never had a doubt of the validity of the French treaty," and he notes that in the cabinet disputes Washington was inclined to his views. As the embarrassments of the Administration thickened, the President, it is true, leaned more and more toward Hamilton, but this inclination was due more to necessity than to personal partiality. The explanation stands out in Jefferson's own account of events. Hamilton was clear, positive, and decided as to what to do and how to do it. Jefferson was active in finding objections but not in finding ways and means of action. This contrast became sharper as time went on, and, as Washington was in a position where he had to do p148something, he was forced to rely on Hamilton more and more. Jefferson held that it would be inexpedient for the general government to assume the duty of fortifying the harbors, and that there was no constitutional authority for establishing a military academy. On November 28, 1793, there was a prolonged wrangle over these issues at a cabinet meeting, which the President ended by saying that he would recommend the military academy to Congress, and "let them decide for themselves whether the Constitution authorized it or not."a This was the last of the quarrelsome cabinet sessions recorded by Jefferson. He vacated the office of Secretary of State, December 31, 1793, and thereafter the ascendancy of Hamilton in the Cabinet was indisputed.
An immediate effect of the change was to give new vigor to efforts at reaching a settlement with Great Britain. The old troubles over her retention of the western posts still continued, and in addition to them came new difficulties arising from war measures. On January 30, 1793, Thomas Pinckney, then American minister to Great Britain, wrote that war was about to begin, "and although our claim to a free intercourse is founded in reason and our national right, yet, as we have no armed p149neutrality the members whereof this people have to fear, they may stop our vessels bound to French ports with provisions." What was feared soon happened. By the French decree of 1793, the French colonies were opened to American trade and West Indian commerce flourished. This was now afflicted by contraband regulations laid down by Great Britain, under which many American vessels were seized for carrying cargoes to or from French ports. Although Genet's activities and the extent to which they were indulged by the United States did not tend to promote friendly relations with Great Britain, yet it does not appear that the British policy was inspired by resentment. The regulations as defined by instructions issued on June 8, 1793, made liable to detention all vessels carrying "corn, flour, or meal" to French ports, with the proviso that the cargoes might be purchased on behalf of the British government and the ships might then be released with a due allowance for freight, or they might be allowed to dispose of their cargoes in the ports of any country in amity with Great Britain. Vessels attempting to enter a blockaded port were liable to seizure and condemnation, save that the ships of Denmark and Sweden might be p150seized only if they should persist in trying to enter after once having been turned back.
Conciliatory explanations were made by Hammond, the British minister, in notifying our State Department. He pointed out that only corn and flour were contraband, that the regulations did not extend to other provisions, and that they secured "to the proprietors, supposing them neutral, a full indemnification for any loss they may possibly sustain." The special privilege extended to Denmark and Sweden was attributed to treaty requirements and therefore could not be regarded as invidious. In reply Jefferson at home and Pinckney abroad argued in behalf of the United States for the principle that free ships make free goods, but Great Britain would not hearken to a doctrine that struck at the efficacy of her sea power.
Washington besought Congress to support the efforts of the Administration by making, for the defense of American interests, such provision as would inspire respect. In his address of December 3, 1793, he observed: "There is a rank due to the United States among nations which will be withheld, if not absolutely lost, by the reputation of weakness. If we desire to avoid insult, we must be able to repel it; if we desire to secure peace, one of p151the most powerful instruments of our rising prosperity, it must be known that we are at all times ready for war." The answer of Congress was the grudging consent to some naval preparations already recounted.
After the passage of the navy bill Sedgwick of Massachusetts endeavored to interest the House in the general subject of military preparation. On March 12, 1794, he introduced resolutions for raising fifteen additional regiments for two years, the term to be extended for three years in case of the outbreak of war. In advocating this measure he spoke of the sorry experience of the country in depending upon militia. Their "want of discipline occasions them to commit a great waste on the property of their fellow citizens, besides a waste of public property." As long as we depend upon militia, "European nations will not consider us as able to retaliate and assert our rights." Nothing came of this sensible proposal, but Sedgwick made an auxiliary suggestion which Congress did adopt. He urged that the sailing of vessels from the ports of the United States be prohibited. An embargo would hold over foreign nations the threat that, unless they behaved themselves, their supplies from the United States might be p152cut off. Such embargo was voted for a month from March 26, 1794, which was subsequently extended for another month, and the President was authorized to lay, regulate, and revoke embargoes during the recess of Congress. Congress regarded the embargo policy as a cheap way out of a difficult situation, but this method was really not only far more costly to the nation than would have been the straightforward course of arming for defense, but at the same time accomplished nothing. Dayton of New Jersey proposed to supplement the embargo by the sequestration of all debts due from citizens of the United States to British subjects. Clark of New Jersey outdid his colleague by proposing to prohibit all commercial intercourse between the United States and Great Britain until such time as that country should surrender the western posts and should make restitution for all losses sustained by American citizens.
Violent speeches were made on these proposals at the very time when the House was refusing to support either an army or a navy. Sedgwick introduced some good sense into a debate that was alternating between blatant vaporing and legal pedantry, by pointing out that, under the Constitution, the President of the United States ought p153to be allowed to have some say about the matter. It was the function of the President to treat with foreign powers, and yet the House was now considering action which was in effect "prescribing the terms of treaty, and restraining the constitutional power from treating on any other terms." This argument was used effectively by a number of speakers. It turned the main position taken by the advocates of non-intercourse, which was that the real objection came from the bondholders who feared that the ensuing loss of revenue might prevent them from getting their interest. Such imputations of sordid motive became fruitless when the issue was raised of the constitutional authority of the President, but the advocates of non-intercourse met this new point of view by pointing out that the Constitution gave Congress the right to regulate commerce. The feeling against Great Britain was so great that the House was bent on indulging it, and on April 25, 1794, the non-intercourse bill was passed by a vote of 58 to 34. The Senate was so evenly divided that, on the motion to pass the bill to its third reading, there was a tie vote, and Vice-President Adams, who was called upon for a casting vote, gave it against the bill. About a month later in the House p154another attempt was made to carry the policy of non-intercourse by a joint resolution, but by this time a reaction in favor of the Administration had set in and the resolution received only 24 yeas to 46 nays, James Madison being among those who stuck to the proposal to the last.
While the House was abandoning itself to reckless mischief-making, Washington was striving to arrange matters by negotiation. The perplexities of his situation were great and varied. As a military man he knew that American jurisdiction was precarious so long as Great Britain held the interior. The matter had been the subject of prolix correspondence between Jefferson and Hammond, but the American demands that Great Britain should surrender the frontier posts in accordance with the treaty of peace had been met by demands that America, in accordance with that same treaty, should first satisfy various claims of British subjects for restitution, indemnity, and relief. The regular diplomatic machinery stuck fast at this point, both at home and abroad. In one of his gossipy, confidential letters Fisher Ames remarked that Hammond was a most "petulant, impudent" man, habitually railing against the conduct of our government "with a p155gabble that his feelings render doubly unintelligible." But Pinckney, our representative in England, was equally undiplomatic. He was "sour and also Gallican"; although calm in manner, "he had prejudices, and unless a man has a mind above them, he can do little service there."
Washington decided that it would be wise to send a special envoy to deal with all the points at issue. He thought first of Hamilton, but was warned that the Senate would not ratify such an appointment. Hamilton recommended John Jay as "the only man in whose qualifications for success there would be thorough confidence." Jay was then chief-justice, but the crisis was so dangerous as to justify Washington in calling him even from that important post. He had matchless qualifications for the mission. He had been minister to Spain, 1778‑1782; he had been one of the commissioners who had negotiated the treaty of peace of 1783; he had been Secretary of Foreign Affairs, 1784‑1789; so that he had had an experience which familiarized him with every detail of the questions at issue. As a negotiator he had always gained marked success by acting upon his own principle that "a little good-natured wisdom often does more in politics than much slippery craft." p156Jay showed fine patriotism in accepting the appointment. He remarked to his friends that no man could frame a treaty with Great Britain without making himself unpopular and odious and he accepted the mission under "a conviction that to refuse it would be to desert my duty for the sake of my ease and domestic concerns and comforts."
Jay was nominated as envoy extraordinary on April 16, 1794, and, after three days of violent debate, the appointment was confirmed by the Senate. The event did not moderate the rage of the House for immediate action. Some members urged that it was indelicate for the House to be passing reprisals at a time when the Executive was attempting friendly negotiations; but the reply was made that, if there was any indelicacy, it was on the part of the Executive, inasmuch as the House proceedings had been already begun when the President decided to nominate an envoy extraordinary. While Congress was fuming and wrangling, Jay was proceeding with his difficult task. He sailed on May 12, and on June 8 landed in England where he was hospitably received. Despite these personal attentions, the differences to be adjusted were so numerous and complicated that p157on the surface the situation looked almost hopeless. Conditions, however, were really more favorable than they appeared to be. A change, latent but influential, had taken place in the mental attitude of the governing class in England. There had been a notion that American independence would not last long and that the country would eventually be restored to the British Crown. The drift of events was rather in that direction until Hamilton's measures gave the ascendancy to the forces making for American national development. The practical statesmanship of Great Britain perhaps saw more clearly the significance of what was taking place than did that of America itself, and it was prepared to reckon with this new condition. Moreover, the European commotion resulting from the French Revolution had brought to the front a new set of interests and anxieties, for the free handling of which a settlement of differences with the United States might be advantageous. The effect of such considerations was at least to render the situation more manageable than might have been expected, and Jay improved his opportunities with admirable tact.
In pursuance of his principle of bringing "good-natured p158wisdom" to bear, Jay suggested to Lord Grenville, the British Secretary for Foreign Affairs, that they should dispense with written communications, and merely meet and converse informally "until there should appear a probability of coming to some amicable mutual understanding." Even after such understanding should be put into writing, it was not to be regarded as official or binding, but simply as an exchange of private memoranda. So strictly was this informal method adhered to that the regular force of secretaries and copyists had nothing to do with the proceedings until the treaty was almost ready for signing. Jay had been instructed to demand compensation for some three thousand slaves who had followed the British troops when they departed, but Lord Grenville stood firm on the principle that the slave, once under the British flag, became a free man, the property rights of the former owner thereupon becoming extinct and not forming a subject for compensation. Jay, who really held the same opinion, had to yield the point. It was agreed that the western posts should be evacuated by June 1, 1796, an arrangement which would allow the British government to retain them about two years longer. That government had already p159justified its retention of these posts by averring that the United States had not complied with the articles of the peace treaty relating to British debts. Jay was not in a position to argue the point with any force, for when he was Secretary of Foreign Affairs he had advised Congress that these articles "have been constantly violated on our part by legislative acts, then and still existing and operating"; and that Great Britain was therefore not to blame for retaining the posts. The British government was undoubtedly cognizant of this report, and Jay could not make any effective opposition to a proviso which in effect said to the United States, "before surrendering the posts we will wait and see whether you intend to fulfill your agreements." The root of the trouble — an evil often felt and still experienced in the United States — was defective sovereignty, an inability of the whole to control the behavior of its parts.b Jay could not deny that the peace treaty had been violated by state legislation, and only by the humiliating means of an avowal of its impotence could he exonerate the national government from the imputation of bad faith. The matter was disposed of by provision for a joint commission to decide upon all cases in which it was alleged that p160unlawful impediments had been placed in the way of collection of debts due British subjects, and by the United States undertaking payment of the awards. A similar commission was to pass upon American claims for British violation of neutral rights. This arrangement was a concession whose practical value was eventually shown by the fact that as a result American merchants received some millions of dollars.
Jay displayed marked adroitness as a negotiator in dealing with the issues growing out of past differences, but he made an extraordinary slip in providing for commercial relations between the two countries. In their general tenor the articles displayed broad liberality. Between all British dominions in Europe and the territories of the United States there was to be "a reciprocal and perfect liberty of commerce and navigation." American vessels were to "be admitted and hospitably received" in the ports of East India, and, although participation in the coasting trade was prohibited, it was provided that this restriction should not prevent ships going from one port of discharge to another. The East Indian trade was not, however, so important as the nearer West Indian trade, and with respect to the latter p161the treaty provisions were narrow and exacting. American vessels were limited to seventy tons burden, and it was provided that "the United States will prohibit and restrain the carrying away of molasses, sugar, coffee, or cotton in American vessels, either for his Majesty's Islands or the United States, to any part of the world except the United States, reasonable sea-stores excepted." Jay, in a letter to Washington, excused his acceptance of this restraint on the ground that "the commercial part of the treaty may be terminated at the expiration of two years after the war, and in the meantime a state of things more auspicious to negotiation will probably arise, especially if the next session of Congress should not interpose fresh obstacles."
The treaty was silent on the subject of impressment, but Jay's failure on that point was just what was to have been expected in view of the unwillingness of the United States to defend its commerce. Impressment was not abandoned until many years afterwards, and then not through treaty stipulation but because the United States had a navy and could resist aggression on the seas. In its treatment of the subject of contraband, the treaty took positions in accord with the p162international law then received, but in one respect it made a distinct advance. Provision was made that war between the two countries should never become the pretext for confiscation of debts or annulment of contracts. This position involves the noble principle that war should never supersede justice but should be the servant of justice. Great practical advantage was experienced from it in the War of 1812, when the United States was a creditor nation.
On the whole, Jay's diplomacy was as enlightened as it was shrewd, but at the time it exposed him to furious denunciation which he disdained to notice. "I had read the history of Greece," he wrote to a friend, "and was apprised of the politics and proceedings of more recent date." The philosophic composure which he drew from his knowledge of history enabled him to behave with calm dignity while he was being burned in effigy, and while mob orators were heaping insult and calumny on his name. After a struggle that shook the Government, the treaty was ratified by the Senate on June 24, 1795, with the exception of the article about the West Indian trade, an omission to which Great Britain made no objection. The treaty was extremely unpopular, chiefly because p163unreasonable expectations of its provisions had been entertained. People had yet to learn that national independence has its defects as well as its advantages, and that the traditional intimacy between the West Indies and America was now on a footing of privilege and not of right. The great benefits conferred by the treaty were therefore not appreciated, and so violent was the fury its terms excited that it was perhaps fortunate that Jay did not resume his seat on the Supreme Bench. Before his return from England and before the details of the treaty had been made public, he had been elected governor of New York, and to accept this office he resigned the chief-justiceship.
a Congress would take its time: the Act authorizing the school would only be signed into law by President Adams on March 16, 1802, and the U. S. Military Academy was founded at West Point that year. A brief history and a timeline may be found on the Academy's site; fuller histories, at History of West Point.
b The "trouble" is still with us in 2007: the Federal government cannot, for example, bind the States to comply with foreign notions of penal justice by eliminating the death penalty — something European governments and public opinion choose not to understand. The United States are a federation; rather than a "trouble" due to "defective sovereignty", this state of things can be referred to the U. S. Constitution, which acknowledges that ultimate sovereignty is vested in the States. Sovereignty is not defective so much as shared; and the States are in no way "parts" of a whole, but rather co-participants or contracting parties, as indicated by the very name "United States". Failure to accept the constitutional view would bring on the War Between the States in 1861: which, incredibly, monstrously, but with great logic at least, Ford views as an excellent thing because it wiped out the "vial of woe" that was States' rights (p220).
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