The Jay Treaty, also known as Jay's Treaty and the Treaty of London of 1794,[1] between the United States and Great Britain averted war, solved many issues left over from the American Revolution, and opened ten years of largely peaceful trade in the midst of the French Revolutionary Wars. It was highly contested by Jeffersonians but passed Congress and became a central issue in the formation of the First Party System. The treaty was signed in November 1794, but was not proclaimed in effect until February 29, 1796.
The terms were designed primarily by Treasury Secretary Alexander Hamilton with strong support from President George Washington and chief negotiator John Jay. The treaty increased trade and averted war, which pleased both sides. Jay obtained the primary American requirements: British withdrawal from the posts that they occupied in the Northwest Territory of the United States, which they had promised to abandon in 1783. Wartime debts and the US-Canada boundary were sent to arbitration — one of the first major uses of arbitration in diplomatic history. The Americans were also granted some rights to trade with British possessions in India and the Caribbean in exchange for American limits on the export of cotton. The treaty averted possible war but immediately became one of the central issues in domestic American politics, with Thomas Jefferson and James Madison leading the opposition. They feared that closer economic ties with Britain would strengthen the Federalists. The treaty encouraged trade between the two nations for a decade, but it broke down after 1803. Efforts to agree on a replacement treaty failed in 1807, as tensions escalated to the War of 1812.[2]
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From the British perspective, the war with France made it imperative to improve relations with the U.S. to keep the U.S. from falling into the French orbit. From the American viewpoint, the most pressing foreign policy issues were normalizing trade relations with Britain, America's leading trading partner, and resolving issues left over from the American Revolution. 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."[3]
In 1793–94, the British Navy captured hundreds of American neutral ships and the British in Canada were supporting Indian tribes fighting the U.S. in Ohio (territory the British gave the U.S. in 1783). Congress voted an embargo for two months. Hamilton and the Federalists favored Britain over France and sought to normalize relations. Hamilton designed the plan and Washington sent Chief Justice Jay to London to negotiate a comprehensive treaty. The American government had a number of issues it wanted dealt with:
Both sides achieved many objectives. The British agreed to vacate the six western forts by June 1796 (which was done), and to compensate American ship owners (the British paid $10,345,200 by 1802).[4] In return, the United States gave most favored nation trading status to Britain, and acquiesced in British anti-French maritime policies. The United States guaranteed the payment of private prewar debts owed by Americans to British merchants that could not be collected in U.S. courts (the U.S. paid £600,000 in 1802). Two joint boundary commissions were set up to establish correctly the boundary line in the northeast (it agreed on the Saint Croix River) and in the northwest (this one never met). Jay, a strong opponent of slavery, dropped the issue of compensation for slaves, which angered Southern slaveowners. Jay was unsuccessful in negotiating an end to the impressment of American sailors into the Royal Navy, which later became one of the key issues that led to the War of 1812.
Article III of the Jay Treaty declared the right of aboriginal peoples (people indigenous to Canada and/or the US) to trade and travel between the United States and Canada, which was then a territory of Great Britain. In the United States, this right was restated in section 289 of the 1952 Immigration and Naturalization Act, currently codified as 8 U.S.C. § 1359: Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.[5]
Unrestricted passage: The Jay Treaty applies to His Majesty's Subjects, and to the Citizens of the United States, and the Indians dwelling on either side of the said boundary line.
It allows people to pass and repass freely by land or inland navigation, across the border on the Continent of America and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce.
Note: ARTICLE XXVIII of the Jay Treaty states “It is agreed that the first ten articles of this treaty shall be permanent, and that the subsequent articles, except the twelfth, shall be limited in their duration to twelve years”
Washington submitted the treaty to the United States Senate for ratification in June 1795. The treaty was unpopular at first, and gave the Jeffersonians a platform to rally new supporters. As 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."[6] The Jeffersonians were opposed to Britain, preferring support for France in the French Revolutionary Wars, and arguing the treaty with France from 1778 was still in effect. They looked at Britain as the center of aristocracy and the main threat to America's republican values. Therefore 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 went: 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![7]
Thomas Jefferson and James Madison strongly opposed the Treaty — they favored France — thus setting up foreign policy as a major dispute between the new Federalist and Republican parties. Furthermore they had a counterproposal designed 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.[8] 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."[9] Jay's failure to obtain compensation for "lost" slaves galvanized the South into opposition.[10]
The Federalists fought back and Congress rejected the Jefferson-Madison counterproposals. Washington threw his enormous prestige behind the treaty, and Federalists rallied public opinion more effectively than the opponents.[11] Hamilton convinced President Washington it was the best treaty that could be expected. Washington, who insisted the U.S. must remain neutral in the European wars then raging, 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 as opposition leader.[12] Hamilton, now out of the government, was the dominant figure who helped secure its approval by the needed 2/3 vote. 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 in the series of close votes after another bitter fight the House funded the Treaty in April 1796.[13]
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," ironically, lost.[14]
After defeat in Congress, the Jeffersonian Republicans fought and lost the 1796 presidential election on the issue.
When Jefferson became president in 1801 he did not repudiate the treaty, and instead 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 finally in 1805, as relations turned hostile, leading to the War of 1812. In 1815, the Jay treaty was replaced by the Treaty of Ghent.
Elkins and McKitrick note that in conventional diplomatic terms, 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."[15] They conclude that although Jay got nowhere on the matter of neutral rights, he did get "his other sine qua nons [sic]"; he got none of things that were "desirable, but not indispensable."[16] They add "Jay's record on the 'soft'[17] was open to many objections; on the 'hard' side, it was a substantial success, which included the prevention of war with Great Britain."[18]
Historian Marshall Smelser argues that the treaty effectively postponed war with Britain, or at least postponed it until the country was strong enough to handle it.[19]
Bradford Perkins argued in 1955 that the treaty was the first establishment of a special relationship between Britain and America, 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."[20] 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."[21]
Perkins suggests that (saving 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.[22] He also quoted the opinion of the "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":
On the other hand Perkins gives more weight than other historians to valuable concessions regarding trade in India and the concession on the West Indies trade. In addition, reports Perkins, the Royal Navy treated American commerce with "relative leniency" during the wars, and many impressed seamen were returned to America. Furthermore, Spain, seeing an informal British-American alliance shaping up, became more favorable regarding American usage 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.[23]
Elkins and McKitrick find this more positive view open to "one big difficulty": it would require that the British have negotiated in the same spirit. Unlike Perkins, they find "little indication of this"; preferring to view the British not as future-oriented, but, having had no indication that America required attention, wishing to take it off the long list of things that did.[24]
The newest history of US foreign policy says, 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."[25] Joseph Ellis finds the terms of the treaty "one-sided in Britain's favor", but asserts a consensus of historians that it was[26]
"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."