Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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JAY'S TREATY

II.211.1

JAY'S TREATY (IN U. S. HISTORY). The acknowledgment of the independence of the United States by the definitive treaty of peace of Sept. 3, 1783, made the United States a member of the family of nations de jure, but not de facto. The articles of confederation had given congress the power of "entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." This restriction upon the powers of congress practically prohibited the negotiation of any commercial treaty, since it was impossible that any other government would knowingly concede valuable commercial privileges to the citizens of the United States in return for a treaty which the government of the United States had no power to enforce, and which the respective states had a vested right to nullify at pleasure. Under the confederation, treaties, having more or less bearing upon commerce, were, it is true, negotiated with the Netherlands (Oct. 8, 1782), with Sweden (April 3, 1783), with Prussia (Sept. 10, 1785), and with the Barbary States (see ALGERINE WAR); but all these treaties contained stipulations really beyond the powers of congress, and were only allowed to exist without objection because of the almost entire absence of present commercial intercourse between the United States and the other contracting parties. The most important commerce of the United States was then with Great Britain, and that country not only refused to make any provisions for commercial relations in the definitive treaty of peace, but continued her refusal to make a commercial treaty with the United States throughout the period of the confederation and until 1794. Powers to make such a treaty were given to the American commissioners in 1783, to John Adams in 1785, to Gouverneur Morris in 1789, and to Thomas Pinckney in 1792, but the British government preferred to regulate trade with America by act of parliament.

II.211.2

—By the terms of the definitive treaty of peace special obligations were imposed upon both parties Great Britain agreed to withdraw her fleets and armies from the United States without carrying away negroes; and the United States agreed that there should be no lawful impediment to the collection of debts due to British subjects, and that congress should "recommend" to the states the restoration of the confiscated estates of tories and a cessation of confiscations for the future. The use of the word "recommend," and the contemporary debates in parliament, show that the British commissioners fully understood the limitations upon the powers of congress at the time; nevertheless, though congress punctually fulfilled its agreement by twice strongly recommending the state legislatures, in 1783 and 1787, to abstain from further confiscations, the British government chose to consider the inattention of the state legislatures an infraction of the treaty, and refused to withdraw its troops from the northwestern forts. Until 1796, therefore, the posts of Michili mackinac, Detroit, Fort Eric, Niagara, Oswego. Oswegatchie (on the St. Lawrence), and Point au fer and Dutchman's Point (on Lake Champlain) all lying within the territory of the United States, were garrisoned by British troops, whose officers exercised jurisdiction over the surrounding country. After Wayne's victory over the Indians in 1794, it was with great difficulty that the American general restrained his troops from assaulting and capturing a newly built British fort, just south of Detroit, which they met in the pursuit As a matter of course, this refusal to withdraw the British troops was a very fair excuse for the state legislatures to continue their inattention to the recommendations of congress.

II.211.3

—After the inauguration of the new form of government in 1789, under which entire constitutional power over treaties was intrusted to the federal government, two efforts were made by President Washington, as above stated, in 1789 and 1792, to establish commercial relations with Great Britain on a treaty basis; but the British government, apparently unconscious or unwilling to believe that a vigorous national government, capable of retaliation, had been developed in the United States, persisted in its course of unfriendliness, refusing to send a minister resident to the United States, to pay for about 3,000 negroes carried away by retiring British fleets, to enter into a commercial treaty, or to order the evacuation of the northwestern posts.

II.211.4

—In arranging the duties on imports the 1st congress made no attempt at retaliation upon Great Britain, but was governed mainly by the pressing necessity for raising a revenue. though protection to American interests was also kept in view. Great Britain's continued refusal to enter into a commercial treaty gradually brought up the idea of retaliation, and a house resolution of Feb. 23, 1791, called out an elaborate report from Jefferson, secretary of state, dated Dec. 16, 1793, upon "the nature and extent of the privileges and restrictions of the commercial intercourse of the United States with foreign nations" The strongest points which this celebrated report made against Great Britain were that parliament had only consented to modify the original prohibition of any American trade with Great Britain by allowing American productions to be carried thither in American ships; and that even this privilege was made dependent on the king's permission, given annually by proclamation, in default of which American vessels would be again entirely interdicted from British ports. The report advised a resort to the power of congress to "regulate commerce with foreign nations," 1, by favoring the commerce of any nation which should remove or modify its restrictions upon American commerce, and 2, by an exactly equivalent retaliation upon any nation which should impose high duties upon American productions, prohibit them altogether, or refuse to receive them except in American vessels.

II.211.5

—Jefferson's report fired a train which very nearly resulted in a war with Great Britain. To the inflammable material previously accumulated in the grievances against that country, the interests attaching to the French revolution had already been added, and the anti-neutral "orders in council" to the British navy raised popular excitement almost to the war point during the winter of 1793-4; so that the proposal of retaliation was not at any time discussed from an economic point of view, but was supported by the republicans (or democrats), and opposed by the federalists, mainly because it was considered a means of throwing the moral weight of pronounced American sympathy into the anti-British scale, while avoiding open war in alliance with the French republic. (See DEMOCRATIC-REPUBLICAN PARTY, II.; FEDERAL PARTY, I.; EMBARGO, I.) The first step was the introduction of a series of resolutions in the house, Jan 3, 1794, by Madison, designed to carry Jefferson's second recommendation into effect. The first resolution, asserting the general principle of retaliation, passed the house, Feb. 3, by a vote of 51 to 46, and the other resolutions were postponed until March by their supporters to await the progress of events. But in the meantime the anti-British feeling in the house had been growing steadily stronger. Madison's resolutions were practically superseded, March 26, by the passage of a joint resolution laying an embargo on ships in American ports; on the following day a proposition was introduced by Jonathan Dayton, a New Jersey federalist, to sequester all debts due by Americans to British subjects, and turn them into a fund for indemnifying American sufferers from British spoliations, and this, in its turn, was superseded by a proposition, April 7, to prohibit commercial intercourse between the United States and Great Britain, after November 1 following, until the latter country should cease its anti-neutral naval policy and evacuate the northwestern posts. Before the non intercourse resolution could be passed. President Washington again intervened, as he had done a year before (see GENET, CITIZEN), to check the torrent of anti-British feeling and action, and, April 16. sent to the senate the nomination of John Jay as minister extraordinary to Great Britain, for the purpose of securing peace and "a friendly adjustment of our complaints." The nomination was confirmed by the senate. 18 to 8. nevertheless the house persisted in passing, by a vote of 58 to 38, April 21, its non-intercourse resolution, which was only defeated in the senate by the casting vote of the vice-president.

II.211.6

—The president had abandoned his first selection, Hamilton, for the mission, chiefly on consideration of the bitter opposition which would inevitably meet any treaty negotiated by him. His second choice, Jay, was a much more fitting one, his great ability, tact, diplomatic skill and experience, popularity, known moderation, and freedom from partiality either to France or to Great Britain, made him, to quote Hamilton's own words to the president. "the only man in whose qualifications for success there would be thorough confidence, and him whom alone it would be advisable to send." There were but two objections to his nomination. his position as chief justice, and the needlessness of any extraordinary nomination while there was already a minister to Great Britain. It is difficult to answer the former objection; only imperative necessity and the lack of pressing occupation for the court itself, could excuse such an experiment upon the independence of the judiciary. In the second objection there was no force. In nominating Jay, the president had made an opportunity to declare that his confidence in Mr. Pinckney, the resident minister in London, was undiminished. The extraordinary nomination had a different reason, it was intended and seems to have been taken as an assurance to Great Britain that the executive of the United States intended, if possible, to maintain neutrality. No such assurance was necessary to France, for that country was already assured of the mass of popular sympathy in the United States. In this case, therefore, Washington deliberately cast the weight of his personal and official influence into the lighter scale, as Adams, his successor, in the exactly parallel case of 1798-9, threw his into the opposite scale when it became the lighter. (See X. Y. Z. MISSION, EXECUTIVE.)

II.211.7

—Jay reached London June 15, and entered without difficulty or delay upon the work of his mission with Lord Grenville, the English negotiator; and the two arranged the terms of a treaty, Nov. 19, in twenty-eight articles. Of the three American claims, the treaty settled but one outright: the northwestern posts were to be surrendered on or before June 1, 1796, but no compensation was to be paid for their previous wrongful detention; the American claims for compensation for illegal seizures were to be referred to commissioners for settlement; and the claims for compensation for negroes carried away were waived by Jay because of the flat refusal of the English negotiator to consider them. (See SLAVERY) Joint commissioners were to settle the northeastern and the (then) northwestern boundary of the United States, and the British debts whose collection had been prevented during the confederation; and no debts were in future to be confiscated by either party in the event of war. These points having been settled in the first ten articles, which were to be permanent, the other articles made up a treaty of commerce and navigation, limited to twelve years. Trade between the United States and the British dominions in Europe was to be reciprocally free; direct American trade to the British East Indies, but not the coasting trade there, was permitted; trade to the British West Indies, in vessels of not more than seventy tons, was permitted; and neither country was to allow its citizens to accept commissions of war against the other, or to permit privateers of a third (enemy) power to arm, enlist men, or take prizes within cannon shot of its coast. Neutral persons unlawfully commissioned or enlisted were to be considered pirates. Contraband goods were specified in general terms, and it was agreed that such articles as provisions, when made contraband by particular circumstances, should be paid for, and that the forfeiture of contraband goods should not forfeit the whole cargo. The article relating to West Indian trade was specially limited to two years after the conclusion of peace between Great Britain and powers at war with her in 1794, and the Americans were to renounce, in return for it, the exportation of sugar, molasses, cocoa, coffee, and cotton, to Europe.

II.211.8

—June 8, 1795, the treaty was laid before the senate in special session, and after a secret debate of over two weeks it was ratified, June 24, by a vote of 20 to 10, the exact two-thirds majority necessary for the ratification of a treaty; but the ratification was made conditional on the addition of an article to suspend that part of the 12th article relating to the West Indian trade. The principal objection to this article arose from its prohibition of the exportation of certain articles, above named, from the United States. The colonial system of European nations then included a general prohibition of trade to their colonies; and when Great Britain permitted a modified trade to her West Indian colonies, she demanded in return a renunciation of American trade in sugar, etc., in order that these colonial productions should not thus be indirectly transmitted through the United States to foreign nations. Jay seems not to have known that the culture of cotton had already been introduced into the United States. The additional article was finally added to the treaty, Oct. 28, 1795, but full navigation with the British West Indies was not obtained until October, 1830.

II.211.9

—Jay had reached New York, May 28. and from that time the whole country had been intensely anxious to know the nature of the treaty. After its ratification by the senate that body had still prohibited its publication; but, while the president was still in doubt whether or not to complete the conditional ratification by his signature, Senator Mason, of Virginia, sent a copy of the treaty, June 29, to the Philadelphia "Amora," a democratic newspaper, for publication. Its appearance in print, July 2, was the signal for an outbreak of political excitement which was probably never paralleled until slavery took a place in politics The newspapers were filled with articles, signed with Latin names, Cato, Camillus, Cains, Atticus, Decius, and Cinna, in the fashion of the time, mainly against the treaty; and town meetings and mass meetings, from Boston to Savannah, passed resolutions calling upon the president to withhold his signature. The ablest series of letters was that of Hamilton in defense of the treaty, over the signature of Camillus; the most venomous was that of "A Calm Observer," in the "Aurora." commonly attributed to John Beckley, clerk of the house. At first the attacks were directed against Jay; and the treaty, in its implied recognition of the British right of search, impressment and power to make any class of goods contraband. in its regulation of the West Indian trade, and in its failure to obtain compensation for the retention of the northwestern posts or for the negroes carried away from New York city, offered so many vulnerable points that attack was easy The opponents of the treaty, however, went further than mere resolutions. Jay was repeatedly burned in effigy, and one society "lamented the want of a guillotine" for him; in New York Hamilton was stoned while defending the treaty at a public meeting; in Philadelphia the mob burned a copy of the treaty before the British minister's house; and in Charleston, after a meeting led by John Rutledge, who had just been appointed chief justice in Jay's place, the British flag was dragged through the streets and burned before the house of the British consul.

II.211.10

—Notwithstanding the defects of the treaty. Washington believed it to be the best that could be obtained, and signed it, sending to the British government, at the same time, an urgent remonstrance against a recent order in council which made provisions contraband. The remonstrance secured the repeal of the order. The democratic leaders (see DEMOCRATIC-REPUBLICAN PARTY, II.) of the republican party at once attacked the president personally, with the object of destroying his influence in congress and of inducing the house to deny the appropriation (about $90,000) necessary for carrying the treaty into effect. From August until the following spring the attacks upon the president became progressively more open and bitter. From the beginning he was accused of usurpation, in collusion apparently with the senate majority, in having negotiated a treaty which endeavored to shut out the house of representatives from a share in the constitutional powers of regulating commerce, of establishing rules of naturalization, of defining piracy, of making rules of concerning captures, and of laying taxes. Side issues were then brought in: he was accused of having neglected to ransom American captives in the Barbary States, of having written letters designed to procure submission to Great Britain during the revolution, and of having drawn more than his salary from the treasury. Only the last named charges seem to have moved the president, though he complained that they were all couched "in terms so exaggerated and indecent as could scarcely be applied to a Nero, a notorious defaulter, or even to a common pickpocket." The alleged letters he demonstrated to be forgeries, and the secretary of the treasury disproved the other charge. But toward the time when congress was to meet, the attacks on the main issue grew warmer; an impeachment of the president was suggested; hints were given of the necessity of a Brutus for this "step-father of his country"; and some effect was produced not only on congress but on state legislatures. The house of delegates of Virginia, Nov. 20, voted down a resolution expressing their undiminished confidence in the president; and the federal house of representatives, Dec. 16, struck out a paragraph declaring their confidence in the president, which their committee had inserted in their draft of a reply to the message.

II.211.11

—On the other hand, the tide had really been turning, throughout the country, not so much in favor of the treaty as in support of Washington. The other state legislatures, with the exception of South Carolina, refused to follow Virginia's lead, and either voted strong declarations of their confidence in the president, or refused to consider the matter; commercial bodies of all the states approved the treaty; and the current of public meetings, at first entirely against the treaty, had turned before February, 1796. Nevertheless, a struggle in congress was inevitable, and it began with a resolution offered in the house, March 2, 1796, by Edward Livingston, of New York, calling on the president for Jay's instructions. Upon this resolution the debate lasted from March 7 until March 24, when it was passed by a vote of 62 to 37. March 30, the president, although he had already published the instructions by sending them to the senate, refused, as a matter of precedent, by yielding to the demand for the envoy's instructions, to countenance the idea that the assent of the house was necessary to the validity or execution of a treaty. April 7, the house, by resolution, which was passed by a vote of 57 to 35, declared that it claimed no agency in the making of treaties, but that it claimed, as part of congress, a right to deliberate upon the expediency of carrying into effect a treaty containing regulations on the subjects given by the constitution to the control of congress. April 15, debate began upon a federalist resolution that the treaty ought to be carried into effect. The first vote was taken in committee of the whole, April 29, and stood 49 to 49, but the speaker, though opposed to the treaty, voted for the resolution in order to give further opportunity to consider it. The report of the committee of the whole was considered in the house, on the following day, and a proposition was made to amend the resolution so as to read "That, although, in the opinion of this house, the treaty was highly objectionable," it was nevertheless expedient, considering all the circumstances, to carry it into effect. By the casting vote of the speaker, the vote standing 48 to 48, the word "highly" was stricken out; the entire amendment was then lost by a vote of 49 to 50; and the original report was adopted by a vote of 31 to 48. This ended the first and greatest struggle in congress against the application of the treaty power.

II.211.12

—The conflict had the good result of laying open to view a difficulty in the practical workings of the constitution, which could not well have been guarded against, and which has only been avoided by the steadily forbearing and pacific policy of successive executives. (See EXECUTIVE) The treaty power is certainly limited, but it is impossible to locate the limiting line exactly. Treaties are not, as it is sometimes loosely said, "the supreme law of the land"; "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States," together make up the supreme law of the land, and treaties, therefore, can at best hold but a co-ordinate rank. It is easy to see that a treaty involving the establishment of a foreign prince upon the throne of the United States, though made under every constitutional form, would be invalid, and that Jay's treaty, though clashing slightly with the powers of congress, was not invalid; but between these two extreme cases there are countless supposable cases open to question. It is impossible, for instance, to believe that in 1798 a federalist house of representatives would have voted money for the execution of a treaty of offensive and defensive alliance with France, passed by a democratic president and senate. It is equally impossible to conceive a republican house of representatives in 1882 submitting to the abolition of the protective system and the establishment of free trade by treaties made by a democratic president and senate. And yet the reasoning of Washington's message of March 30, 1796, makes it the duty of the house in all these cases to remain entirely passive. Perhaps the easiest solution of the difficulty is that offered by Story, as cited below: "Whether there are any other restrictions [than that treaties shall not abrogate the organic law] necessarily growing out of the structure of the government, will remain to be considered whenever the exigency shall arise."

II.211.13

—Curiously enough, when the difficulty next appeared for consideration, upon the annexation of Louisiana by treaty in 1803 (see ANNEXATIONS, I.), the federalists opposed, and the republicans supported, the supremacy of the treaty power and the obligation upon the house to execute its arrangements. In 1819-20 (see COMPROMISES, IV.) the difficulty did not appear naturally, but was forced in, for it is not easy to see, in a treaty stipulation for all "the privileges of citizens" to the people of Louisiana, au obligation upon congress to admit any state government which they might form. The question was again unsuccessfully raised when the bills appropriating money for the Gadsden purchase in 1854 and for the Alaska purchase in 1867 (see ANNEXATIONS, V., VI.), came before the house. In future discussions of the question, however, it must be remembered that the final decision of the house to vote the money necessary for the execution of a treaty has never yet been made on the distinct ground of obligation to do so; expediency has so far been the only test.

II.211.14

—In examining the question the reader will find most useful an opinion of Caleb Cushing and an article by Dr. Spear, both cited among the authorities; the former inclines toward, and the later against, the supremacy of treaties over laws.

II.211.15

—See authorities under CONFEDERATION, ARTICLES OF; 1 Lyman's Diplomacy of the United States, 190; Trescott's Diplomacy of the Administrations of Washington and Adams, 119; 4 Hildreth's United States, 522, 544; 1 Schouler's United States, 289; 2 Sparks' Life of Gouverneur Morris, 4; 1 Benton's Debates of Congress, 22, 458, 639; 1 Wait's State Papers, (2d edit.), 422, (Jefferson's report); 2 J. Adams' Letters, 156; 1 Flanders' Lives of the Chief Justices, 401; 4 Hamilton's Works, 519, 531; Jay's Life of John Jay, 310; 7 Hamilton's Works, 172, (the Camillus letters); 1 von Holst's United States, 121; 6 Hamilton's United States, 272; 2 Adams' Life of John Adams, 195; 11 Washington's Writings, 36, 513; 1 Gibbs' Administrations of Washington and Adams, 218; 3 Rives' Life of Madison, 511; 2 Randall's Life of Jefferson, 267; 2 Benton's Debates of Congress, 23; 2 Marshall's Life of Washington (edit. 1838), 370; Hunt's Life of Edward Livingston, 67; Monroe's Conduct of the Executive, 147; 4 Jefferson's Works (edit. 1829), 317, 464, 498; 2 Elliot's Debates, 367; Federalist, 64, 75; Rawle's Commentaries, 171; Story's Commentaries, § 1499; Carey's American Remembrancer is a useful collection of essays, etc., on both sides; for the treaty of peace of Sept. 3, 1783, and Jay's treaty, see 8 Stat. at Large, 80, 116; 6 Opinions of the Attorneys General, 291 (Cushing's opinion); 17 Albany Law Register, 460 (Dr. Spear's article on Extradition).

ALEXANDER JOHNSTON.

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