Imagine walking through a major city and seeing crowds of people seething in anger to the point where they were guillotining or burning in effigy, the Chief Justice of the United States. This happened in many towns and cities across America in the summer of 1795. The focus of their wrath was Chief Justice John Jay. This was not over any Supreme Court decision. Instead, it was over a treaty that Jay had negotiated with Britain to prevent another war between the two countries. This would become known as the Jay Treaty - perhaps the most hated treaty in all of American history.
To understand the reasons for this level of hatred, we need to understand why the US needed the treaty, and why it was so controversial. As we’ve discussed over the last few episodes, pretty much all of Europe was at war with France in the early 1790s following the French Revolution.
The US, still struggling under debts from the Revolutionary War, was in no mood to get involved in a new war. President Washington desperately tried to maintain US neutrality. That would prevent the necessity to spend money on a wartime army and navy, while still trying to maintain the trade necessary to fund the government through tariffs. It was with this concern that Washington sent John Jay to Britain to negotiate a treaty.
Need for Negotiations
The friction between Britain and the US never really ended after the Revolutionary War. Many in Britain thought that the 1783 peace treaty was just a temporary measure so that they could stop fighting in America and focus on the war with France and Spain. Over time, these British leaders believed that the former colonies would find themselves in trouble without a large power to protect them, and would want to return to the British Empire. As a result, these advocates wanted to keep the new United States in as miserable of a condition as possible, until they made the decision to return.
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| John Jay & The Jay Treaty |
When Britain went to war with France, it pushed the matter even further. In June of 1793, the British government ordered its navy to seize any neutral ships carrying food to sell to France. In November, Britain expanded its orders to seize neutral ships trading with French colonies as well. These colonies had become major US trading partners. As a result, the British seized hundreds of ships in early 1794. On the ships it captured, it continued to impress American sailors into British service.
British aggression was not limited to the high seas. It also increased hostilities on the frontier. In early 1794, Canada’s Governor, Guy Carleton, now called Lord Dorchester, told a delegation of Indians that he expected a new war to break out between the US and Britain. For several years the Lieutenant Governor of Upper Canada, John Graves Simcoe, had been calling for the establishment of a buffer state controlled by Native Americans, in western those lands ceded to America in the peace treaty. British forces still maintained their outpost at Detroit. They pushed this further, by building a new Fort Miamis, which is near modern day Toledo, Ohio.
Congress, which still had no navy, and not much of an army, could do little about any of this. At the end of March, Congress closed all American ports for 30 days, essentially ending all foreign trade. The reasoning was that American ships trading with anyone other than Britain would likely be seized, and America wanted to stop trade with Britain in hopes that it would encourage Britain to change its policies. Over the following weeks, the Democratic-Republicans in Congress, led by James Madison, pushed for a sequestration of debts to Britain. Essentially, if an American business owed money to anyone in Britain, they would have to give that money to the US government instead, so that it could be used to pay for the damages inflicted by the British. The Federalists managed to kill the proposal.
America’s Ambassador to Britain, Thomas Pinckney, had no diplomatic experience before he got there. The South Carolinian had served as a Continental officer during the war He was elected governor after the war and led South Carolina through ratification of the US Constitution. He had been in London for a little over a year when things really began to heat up. As Ambassador, he protested Britain’s growing presence in US frontier territories, the seizure of neutral US merchant ships, and the impressment of US sailors.
Britain’s foreign minister, Lord Grenville, seemed unconcerned by these protests. He pushed back, arguing that the US had failed to live up to the peace treaty, and had still not allowed the collection of British debts in America. Britain had no real need to be concerned since the US had no military to back up its protests with any sort of force. Pinckney’s reports back to America made clear Britain had no intention of changing its policies and that British officials were unconcerned that the US might declare war on Britain.
Jay’s Appointment
President Washington knew that diplomacy was his only option. War with Britain would be a disaster. He needed to send someone to London who could negotiate some way out of this. The problem was that the US did not have much of a diplomatic corps.
Benjamin Franklin, of course was dead by this time. John Adams had spent years at the Court of St. James, but he was already Vice President. Despite this experience, Washington did not really trust Adams as a good negotiator. He floated the idea to several people who argued that Adams would be a bad choice.
Washington also considered sending Thomas Jefferson, who had resigned as Secretary of State at the end of 1793. Advisors counseled against Jefferson’s appointment. He was too pro-French and did not seem politically aligned with the President’s goals. There were similar criticisms made about appointing James Madison.
The US Ambassador to France Gouverneur Morris had already traveled to London for negotiations. The British essentially dismissed him as too combative and too pro-French. The choice had to be someone who would be a little more aligned with British interests.
Washington considered giving the job to Alexander Hamilton. Although Hamilton had no real diplomatic experience, he seemed capable and was strongly aligned with the faction that wanted a better relationship with Britain. By this time, however, Hamilton had become a political lightning rod. His appointment would have invited strong Republican opposition. Washington wanted a Federalist, but not someone that controversial. He eventually turned to John Jay.
Jay had been part of the team that negotiated the final peace treaty with Britain. He had spent years serving in Europe and then as the Secretary of Foreign Affairs for the Confederation Congress. Jay would also be acceptable to Britain.
In 1786, Jay had written a report for the Confederation Congress justifying Britain’s continued occupation to frontier posts because the US had refused to allow British recovery of debts against American merchants in US courts. Jay’s report had been meant to encourage Congress to take further steps to allow the collection of debts and was meant to remain secret. But for some inexplicable reason, Jay gave a copy of his report to the British Ambassador. This report made its way to London. It told British officials that Jay was amenable to the British position. The Americans did not know this, but it weakened Jay’s negotiating position from the start.
The problem with Jay’s nomination was that he was already serving on the Supreme Court as Chief Justice. After Washington nominated Jay, a number of Senators objected that it was unconstitutional for someone to hold two government jobs. Despite these objections, the Senate approved the appointment. John Jay sailed for London on May 12, 1794.
Negotiations
The trans-Atlantic trip was a relatively fast one, Jay arrived in London on June 15th. The British received him with the respect that was due to a diplomat. He met with Foreign Minister Lord Grenville a few days after his arrival. He also received a formal introduction to King George III a few weeks later.
Things seemed to get off to a good start. Both parties agreed to the end of aggressive measures in the Northwest Territory, and that both sides would maintain the status quo during negotiations. Negotiations continued through July and into August. Jay completed his first proposed treaty on August 6th, calling for the British evacuation of posts on American territory, compensation for ships seized by the British, and access for American ships to the British West Indies.
A few weeks later, Grenville countered with the British proposal. He suggested that boundaries between Canada and the US needed to be adjusted so that Britain had access to the Mississippi River. He was open to trade in the West Indies, but only for smaller ships, under 70 tons. These ships could not profitably make the trans-Atlantic voyage and therefore would limit trade between the US and the West Indies. It would essentially create a British monopoly on trade between the West Indies and Europe.
Jay objected to these British proposals. Giving up over 35,000 acres of US territory to give Britain access to the Mississippi River would be unacceptable. He also objected to the size limitation on US ships. The US were not British colonies and Britain should not be permitted to dictate how American merchant ships conducted trade in the West Indies.
One of Jay’s instructions was to push for the reimbursement of slaves taken during the Revolutionary War. This had been a provision in the 1783 peace treaty that the British simply ignored. Grenville argued that if slaves on their own traveled into British lines during the war, they were no longer considered the property of their masters and Britain should be free to allow them to leave the country. This was a difficult point for Jay to argue since he personally opposed slavery. Eventually he let the matter drop.
Another big issue was British arming and supplying Indian tribes in the Northwest Territory. Britain insisted on being permitted to trade with them, but agreed not to try to forge political ties or supply them in wars against the US. Jay called for a total demilitarization of the Great Lakes area, to which Grenville seemed amenable. Britain also agreed to limit what it considered contraband in order to allow American shipments of food and other raw materials to Europe.
Jay and Grenville debated back and forth for weeks. These were private talks, Even their secretaries did not participate and we don't have any formal records of their discussions.
The main reason Britain was willing to debate at all was the fear that the US might join the League of Armed Neutrality. If it did, this might draw other European powers into a war against Britain. Even though the US had no navy of its own, attacks on American shipping could result in other European navies coming to the assistance of the US.
By the end of September, Jay submitted a draft treaty, including free trade and other expansive rights for neutral shipping. It also prohibited British treaties with Indian tribes in US territory and affirmed that neither country would arm tribes or encourage war. It also called for a demilitarization of the Great Lakes region, the right of free trade worldwide, except for a limitation on specific contraband items going to Britain’s enemies. It barred the impressment of sailors and that Britain would reduce certain import tariffs.
The British, however, began to harden their negotiations and take a more aggressive stance. Apparently, Alexander Hamilton had told the British Ambassador to the US that America had no interest in joining the League of Armed Neutrality. The Administration wanted to stay out of European entanglements. The ambassador, of course, relayed this information to London.
This news reached Grenville on September 30, the same day Jay submitted his draft treaty. Grenville realized that the strongest card that the US had to play against Britain in the negotiations was a bluff. Therefore, Britain could pretty much dictate whatever terms it wanted and the US could do little about it.
Britain still saw some value in completing a treaty on its own terms, but it began to reject many of the tentative agreements that the parties had already reached. Grenville rejected the idea that Britain could not make agreements, treaties, or alliances with Indian tribes in the Northwest Territory. He called for the removal of provisions that Britain would try to restrain their Indians from conducting war against the US. He dropped the idea of disarmament around the Great Lakes or even giving a firm commitment to withdraw British posts from US territory.
Britain demanded the authority to search any ship on the open seas for anything that it considered to be contraband. It also wanted the definition of contraband to be just about anything headed to Europe other than food.
Final Treaty
Jay had to make continued concessions to get anywhere. Finally, by November, the two parties had worked out a final agreement. The British finally agreed to remove their military garrisons from US territory, but only by June 1, 1796, about a year and a half later. Both countries agreed to appoint a three member commission to resolve boundary disputes.
Anyone would be permitted to cross the US Canadian border for issues of trade. Britain and the US agreed that either of them could use the Mississippi River, although since Spain controlled most of the river, it was unclear what this would mean.
A commission would be set up in the US to adjudicate claims from British merchants who were still trying to collect debts from before the Revolution. Another commission would be set up in London to adjudicate seizures of US merchant ships. The US also agreed to compensate British merchant ships for seizures that ended up in US ports during the Citizen Genet controversy.
Trade with the British West Indies was limited to smaller ships of 70 tons or less. Addressing the Republicans threat to sequester or confiscate private British funds, the treaty prohibited this, even if the countries went to war. Britain would still be free to seize ships at sea, but if Britain captured food cargo, it would at least reimburse the owners for the value.
Overall, it really didn’t resolve any of the American complaints, but Jay thought that it would at least prevent an open war with Britain. He and Lord Grenville both signed the treaty on November 19, 1794.
Ratification
The next step was getting the treaty back to America for presidential approval, and Senate ratification. Even that proved difficult. Three copies of the treaty were sent across the ocean. French ships managed to stop all three of them. Two of the ships dumped the treaties overboard to prevent capture by the enemy. The third copy did make it, but took three and a half months during a brutal winter passage to reach America. During a French naval search of that ship, the courier opted to hide the treaty rather than toss it. He arrived in Philadelphia on March 7, 1795, four days after Congress had ended its session and gone home.
Americans got word of the treaty more than a month earlier. In late January, Benjamin Franklin Bache published news that a treaty had been signed in London, but no one knew the details. Rumors swirled. Republicans feared the worst. President Washington did not help quell these concerns when, after he received the treaty, he opted to keep its terms a secret.
Jay personally had a difficult voyage back to America. His six weeks at sea traveled through constant storms, including 32 consecutive days of rain. He finally reached New York at the end of May. The treaty terms were still a secret to almost everyone and Jay wasn’t revealing anything either.
One big surprise for Jay was that he had been elected Governor of New York during his absence. Recall that Jay had run against Governor Clinton three years earlier. He had won the popular vote then, but Clinton managed to win the election by having the ballots of three counties invalidated. In 1795, Clinton announced that he would not seek another term. Voters, many of whom were still outraged by that stolen election, swept Jay into office without him even knowing anything about it. Upon learning the news, Jay resigned his office as Chief Justice and was sworn in as governor.
Meanwhile all Americans, except for President Washington and a few close advisors, remained in the dark about the terms of the Jay treaty. Washington called the Senate back into a special session to debate the treaty. While the Senators were able to read the treaty, they adopted a gag order forbidding all Senators from revealing the treaty’s contents. Inevitably though, Senators began leaking some information fueling public concerns.
The Federalist majority managed to block all the Republican efforts to make changes to the treaty. A treaty would require a two-thirds vote. The Senate could not go along with Article XII, which limited the sizes of ships that could trade with the British West Indies and also prohibited the export of the products which were mainly produced in the West Indies, including sugar, coffee, cotton, and cocoa and molasses. With that change, the Senate gave its provisional consent by a vote of 20-10, just passing the necessary two-thirds approval, on June 24, 1795.
Public Reaction
Even after passage, the Senate maintained the gag order. By this time though, leaks and rumors were all through the public press. A few days after the final vote, one of the opponents, Senator Stevens Mason of Virginia, gave a copy of the treaty to Benjamin Franklin Bache, editor of the anti-administration newspaper The Aurora. On July 1, Bache published the full text.
As expected, Americans were outraged by the treaty’s terms. It achieved almost nothing that Americans wanted, and actually legitimized some of the actions the British were doing to Americans. Protests turned into mob riots across America. Jay was burned in effigy. A Philadelphia mob burned a copy of the treaty in right front of the British Ambassador’s residence, then used stones to shatter all of his windows. One Bostonian wrote on a wall “Damn John Jay! Damn everyone who won’t damn John Jay!” Another mob in Boston burned a British ship that they believed was acting as a privateer.
Alexander Hamilton tried to give a speech supporting the treaty in New York City, but was driven away by mobs throwing stones at him. Republicans organized town meetings calling for a rejection of the treaty. While Federalists attempted to run some rallies in support of the treaty, these were overwhelmed by the rallies against it.
Despite the outrage, President Washington signed the treaty on August 14, 1795. Washington was not happy with the treaty either but without a navy and without a sizable army, the treaty was the only way the US could avoid war with Britain. The British Parliament accepted the treaty without Article XII, and the Jay treaty became the law of the land.
Next Week: Thomas Paine brings us The Age of Reason.
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Next Episode 388 The Age of Reason (coming soon)
Previous Episode 386 Confronting Rebellion, 1794
Next month's Round Table Book: The Banker Who Made America: Thomas Willing and the Rise of the American Financial Aristocracy, 1731-1821, by Richard Vague - Go to https://bookshop.org/shop/ARP. Find the book in my bookshop and use the code ARP15 to save 15% off the price.
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Further Reading
Websites
John Jay’s Treaty 1794-1795: https://history.state.gov/milestones/1784-1800/jay-treaty
Charles, Joseph. “The Jay Treaty: The Origins of the American Party System.” The William and Mary Quarterly, vol. 12, no. 4, 1955, pp. 581–630. JSTOR, https://doi.org/10.2307/1918627
DEMMER, AMANDA C. “Trick or Constitutional Treaty? The Jay Treaty and the Quarrel over the Diplomatic Separation of Powers.” Journal of the Early Republic, vol. 35, no. 4, 2015, pp. 579–98. JSTOR, http://www.jstor.org/stable/24768869
Estes, Todd. “Shaping the Politics of Public Opinion: Federalists and the Jay Treaty Debate.” Journal of the Early Republic, vol. 20, no. 3, 2000, pp. 393–422. JSTOR, https://doi.org/10.2307/3125063
Estes, Todd. “The Art of Presidential Leadership: George Washington and the Jay Treaty.” The Virginia Magazine of History and Biography, vol. 109, no. 2, 2001, pp. 127–58. JSTOR, http://www.jstor.org/stable/4249911
Negus, Samuel D. “FURTHER CONCESSIONS CANNOT BE ATTAINED”: THE JAY-GRENVILLE TREATY AND THE POLITICS OF ANGLO-AMERICAN RELATIONS, 1789-1807, Texas Christian University (Ph.D. Thesis) 2013 https://repository.tcu.edu/server/api/core/bitstreams/5358e931-9251-4cdc-ac89-0c98e450b951/content
Newcomb, Josiah T. “New Light on Jay’s Treaty.” The American Journal of International Law, vol. 28, no. 4, 1934, pp. 685–92. JSTOR, https://doi.org/10.2307/2190755
Free eBooks
(from archive.org unless noted)
Bemis, Samuel Flagg. Jay's Treaty: A Study in Commerce and Diplomacy, MacMillan Co. 1923
Monaghan, Frank John Jay, Defender of Liberty, New York: Bobbs-Merrill, 1935.
Perkins, Bradford The First Rapprochement: England and the United States, 1795-1805, Univ. of Cal. Press, 1967 (borrow only).
Smith, Donald L. John Jay; Founder of a State and Nation, NY: Teacher’s College Press, 1968 (borrow only).
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Chernow, Ron Alexander Hamilton, Penguin Press, 2004.
Chernow, Ron Washington, A Life, Penguin Press, 2010.
Chervinsky, Lindsay M. The Cabinet: George Washington and the Creation of an American Institution, Belknap Press, 2020.
Combs, Jerald A. The Jay Treaty: Political Battleground of the Founding Fathers, Univ. of Cal. Press, 1970.
Ellis, Joseph J. His Excellency. George Washington, Alfred A. Knopf, 2005.
Estes, Todd The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture, Univ. of Mass. Press, 2006 (borrow on archive.org).
Heidler, David S. & Jeanne T. Washington's Circle: The Creation of the President, Random House, 2015.
Leibiger, Stuart Founding Friendship George Washington, James Madison, and the Creation of the American Republic, Univ. of Virginia Press, 1999.
Miller, John C. Alexander Hamilton and the Growth of the New Nation (or Portrait in Paradox), Harper & Brothers, 1959 (borrow on archive.org)
Nester, William The Hamiltonian Vision, 1789-1800, Potomac Books, 2012.
Stahr, Walter John Jay: Founding Father, Bloomsbury Academic, 2005.
* As an Amazon Associate I earn from qualifying purchases.
