A SETTLEMENT WITH ENGLAND
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 something, 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." 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
neutrality 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 seized
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 the 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 cut 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 to 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 another 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 gabble 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." Jay 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 on 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 wisdom" 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 justified 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. 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
unlawful 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 the 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 international 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 unreasonable 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.