lawrence b. a. hatte r
The Jay Charter: Rethinking the American National
State in the West, 1796–1819*
While John Jay’s contemporaries passed sentence on his diplomatic efforts in
London by burning him in effigy, historians generally view the Jay treaty as a
critical turning point in the history of the American national state. Echoing the
arguments presented by the Federalist supporters of the treaty, scholars generally
agree that the Jay treaty helped to pave the way for Indian removal and white
settlement in the trans-Appalachian west by securing the withdrawal of the British
garrisons from the western posts south of the Great Lakes. News of the British
evacuation allowed American General Anthony Wayne to capitalize on his military
victory over the northwest Indian confederacy at Fallen Timbers in August 1794.
The defeated warriors made peace with Wayne and a large land cession to the
United States at Greenville in July 1795.1
* The author wishes to thank the anonymous reviewers for their valuable comments. He also
wishes to thank Peter Onuf, Max Edelson, Martin Öhman, and the participants of the transatlantic
seminar at the universities of Edinburgh, Glasgow, and Virginia for their observations on an earlier
draft.
1. For the significance of the Jay treaty to the expansion of the American national state, see
Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region,
1650-1815 (Cambridge, 1991), 472; Reginald Horsman, Expansion and American Indian Policy,
1783-1812 (Norman, OK, 1992), 103; Jeremy Adelman and Stephen Aron, “From Borderlands
to Borders: Empires, Nation-States, and the Peoples in Between in North American History,”
American Historical Review 104 (1999): 823; Alan Taylor, The Divided Ground: Indians, Settlers, and
the Northern Borderland of the American Revolution (New York, 2006), 326; Patrick Griffin, American
Leviathan: Empire, Nation, and Revolutionary Frontier (New York, 2007), 250. The author David
Lavender is a notable exception. Lavender argued that the Jay treaty benefitted British traders in
the West, and claimed that “the very name of the treaty came to be spoken on the frontier, like an
oath.” Lavender, The Fist in the Wilderness (New York, 1964), 41. In contrast to the popular vitriol
of 1794–1795, diplomatic historians have generally been kind to John Jay. The venerable Samuel
Flagg Bemis’s Jay’s Treaty: A Study in Commerce and Diplomacy, first published in 1923, remains the
authoritative account of the treaty’s origins and negotiation. While Bemis acknowledges that an
abler negotiator than Jay might have obtained a treaty more advantageous to the United States, he
concludes that the weakness of the American Union, politically, economically and in terms of
national cohesion, meant that it would have lost a war with Great Britain in 1794. Consequently,
Bemis argued, historians must consider Jay’s treaty a success because it secured Anglo-American
peace and, therefore, the survival of the United States. Bemis, Jay’s Treaty: A Study in Commerce and
Diplomacy (New Haven, CT, 1962), 369–73. Bemis also recognized that the Jay treaty allowed
Laurentine merchants access to the western country, but he gave Jay credit for resisting Grenville’s
attempt to secure free-trade access. Bemis, Jay’s Treaty, 352. Bemis’s measured assessment, a
rebuttal of Henry Adam’s attack on Jay, has provided the baseline for the development of more
Diplomatic History, Vol. 37, No. 4 (2013). ß The Author 2013. Published by Oxford University
Press on behalf of the Society for Historians of American Foreign Relations. All rights reserved.
For permissions, please e-mail: [email protected]. doi:10.1093/dh/dht032
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693
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The protests of James Madison, Albert Gallatin and other opponents of the Jay
treaty have generally received short-shrift from historians of early American diplomacy and state formation. Scholars usually interpret the Republican assault on
the treaty as a visceral reaction to accepting a treaty that acknowledged that the
United States was both economically and geopolitically inferior to Great Britain.
In such a view, the ideological aversion of Madison, Gallatin and their allies to
friendship with Great Britain lay behind their opposition to the Jay treaty, rather
than specific concerns about its actual provisions.2
This article argues that taking seriously the Republican critique of the Jay
treaty’s western provisions does not simply offer a new interpretation of the
treaty, but that it also opens a window on the complex process of state formation
in the Anglo-American borderland. State formation encompassed a broad array of
activities and developments at both the center and the periphery. To be sure,
building an American national state in the West meant creating a fiscal military
state capable of breaking the resistance of native peoples on the periphery, as well
as meeting the demands of security for the lives and property of white settlers in the
trans-Appalachian west, as the work of Patrick Griffin, Andrew Cayton, and Alan
enthusiastic interpretations of the Jay treaty as an American diplomatic victory. The Canadian
historian of Anglo-American relations Alfred Leroy Burt offered a more generous assessment of
Bemis’s general conclusion: “though now we see that Jay added a cubit to his stature by his
negotiation in London, he was guillotined in effigy at home for what he had done abroad. He
was executed as a traitor to his country when he was actually saving it from rushing madly into a
suicidal war.” Burt is inconsistent in his assessment of the Jay treaty, however, describing the
commercial concessions contained in the third article as “an international servitude imposed
upon the United States.” A. L. Burt, The United States, Great Britain and British North America.
From the Revolution to the Establishment of Peace after the War of 1812 (New York, 1961; first published, 1940), 157, 199. Bradford Perkins pointed to the decade-long prosperity enjoyed by
Americans because of the commercial clauses of the Jay treaty. Perkins, Prologue to War:
England and the United States, 1805-1812 (Berkeley, CA, 1961), 67; Perkins, The First
Rapprochement: England and the United States, 1795-1805 (Berkeley, CA, 1967), 42–43. Stanley
Elkins and Eric McKitrick argue that not only was the Jay treaty the best agreement that the
United States could have hoped to obtain from Great Britain in 1794, but also that “no other
American [than John Jay] could have got anything nearly as good.” Elkins and McKitrick, The Age
of Federalism: The Early American Republic, 1788-1800 (New York, 1993), 410. The positive assessment of the Jay treaty continues in the recent Oxford history surveys of the early American republic
and American Foreign Relations. Gordon S. Wood, Empire of Liberty: A History of the Early Republic,
1789-1815 (Oxford, 2009), 131–32; George Herring, From Colony to Superpower: U.S. Foreign
Relations since 1776 (Oxford, 2008), 81.
2. Stanley Elkins and Eric McKitrick argue that the opposition to the Jay treaty “when it first
took form, was in no way a response to the actual terms of the treaty.” Rather, Elkins and
McKitrick explain how republican fraternity with France and a general opposition to friendly
connections with Britain were the driving force behind the Republican opposition. Elkins and
McKitrick, Age of Federalism, 415. See also, Perkins, The First Rapprochement, 31–34; Todd Estes,
The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture (Boston,
2006), 19–20; David C. Hendrickson, Union, Nation, or Empire: The American Debate over
International Relations, 1789-1941 (Lawrence, KS, 2009), 30; Herring, From Colony to Superpower,
78–79. To be sure, Madison, Gallatin, and their cronies had no desire to enter into a treaty of amity
with Britain, particularly one that came at the expense of their republican brothers in France.
Nevertheless, their arguments criticizing the concessions that the treaty made to British subjects in
the West raised valid concerns.
The Jay Charter : 695
Taylor has shown. It also involved deploying the power of the inchoate American
national state in politically expedient ways. That is, creating what Max Edling has
described as a “light and inconspicuous” national state in harmony with the antistatist tradition in American politics, or what Brian Balogh has dubbed a “government out of sight” on the western frontier. While Indian removal and white settlement were an essential part of western state formation, diplomacy (e.g., the
Louisiana Purchase in 1803 and the treaty of Ghent in 1814), commercial policy
(e.g., the Customs Act of 1799, the Jeffersonian embargo and nonintercourse acts)
and changing legal definitions of citizenship were all part of the intricate process of
creating an American national state.3
The treaty of Amity, Commerce and Navigation, negotiated between U.S.
Supreme Court Chief Justice John Jay and the British Foreign Secretary Lord
Grenville, was meant to avert an Anglo-American war by resolving flashpoints in
the West, chiefly, Britain’s retention of the western posts, and in the Atlantic,
where American merchant vessels fell prey to British seizures in both the
Caribbean and the English Channel. The treaty consisted of twenty-eight articles:
The first ten of which were perpetual, the last eighteen of which would expire in
1806.
The Jay treaty made specific provisions concerning citizenship and residency
for those already dwelling on the U.S. side of the Anglo-American, as well as
creating terms under which all western peoples—Britons, Americans, and
Indians—could travel and trade across the boundary line. Britain agreed to evacuate the western posts no later than June 1, 1796 by the second permanent article.
This article also permitted British subjects who were resident at the western posts
prior to the transfer to remain living on American soil, allowing them one year
from the date of the British evacuation to decide whether they would elect to
remain British subjects, or, by default, become citizens of the United States.
The third article ensured that “it shall at all Times be free” for all British subjects,
American citizens, and Indians, regardless of their place of residence, to “pass and
repass” the boundary between the United States and British North America
to “freely carry on trade and commerce” in perpetuity. The implied reciprocity
of the third article was chimerical. Theoretically, American citizens could trade
with the Indian nations in Upper and Lower Canada, but in practice the established commercial and kinship ties between British traders and Indian hunters
north of the Great Lakes meant that American traders stood little chance of breaking into the Indian trade of British Canada. The porous border created by the Jay
3. Griffin, American Leviathan; Andrew R. L. Cayton, “‘Separate Interests’ and the
Nation-State: The Washington Administration and the Origins of Regionalism in the
Trans-Appalachian West,” Journal of American History 79 (1992): 39–67; Taylor, Divided
Ground; Max M. Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and
the Making of the American State (New York, 2003); Brian Balogh, A Government Out of Sight: The
Mystery of National Authority in Nineteenth-Century America (New York, 2009).
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treaty favored British merchants and traders over their potential American
competitors.4
Federalist supporters of the Jay treaty were correct to celebrate the promised
British withdrawal from the western posts. The departure of British troops from
American soil removed an egregious affront to American national honor.
Moreover, possession of the western posts helped federal troops maintain peace
on the frontier, a prerequisite for the orderly white settlement and economic development of western lands envisioned by the framers of the Northwest Ordinance
of 1787.5
Republican critics of the Jay treaty were correct to protest the rights of commercial access and residence that the treaty granted British subjects in the
Northwest Territory. James Madison of Virginia argued before the U.S. House
of Representatives in April 1796 that the Jay treaty rendered useless American
possession of the western posts. The value of the posts, in Madison’s estimation,
lay in controlling the Indian trade by monopolizing the portages associated with
them. The treaty, however, guaranteed that the “carrying places are to be enjoyed
in common.” Madison recognized that equal access did not mean equal facility.
Laurentine merchants—British subjects prosecuting the trade of the extended St.
Lawrence River valley—possessed superior capital to their American competitors.
Moreover, the merchant houses of British-Canada could import goods from Great
Britain duty-free through Montreal. These advantages, Madison predicted, would
deny American citizens the bounty of the western trade and allow the British
government to maintain its political influence among the western Indian nations.
Albert Gallatin, a congressman from western Pennsylvania, was “at a loss” to
understand why the treaty’s second article allowed British traders to reside on
American soil without becoming citizens of the United States and “without
being subject to any control from our Government.” He also echoed Madison’s
concern that the Laurentine trade undermined the security of the United States in
the West because of the influence these foreign traders enjoyed among the
Indians.6
4. The Jay Treaty, November 19, 1794, in Hunter Miller, ed., Treaties and Other International
Acts of the United States of America (Washington, DC, 1931), 2: 246–48. For the Jay-Grenville
negotiations, see Bemis, Jay’s Treaty, 318–45. See also, Elkins and McKitrick, The Age of Federalism,
406–14.
5. For the vision of economic development and orderly settlement that underlay the
Northwest Ordinance and its antecedent documents, see Peter S. Onuf, Statehood and Union: A
History of the Northwest Ordinance (Bloomington, IN, 1987), 1–20.
6. [Madison HR] April 15, 1796, Annals of Congress, 4th Cong., 1st sess., 978–79. Madison had
rehearsed this argument in a letter to an anonymous correspondent the previous year. From James
Madison to unknown, August 23, 1795, in E. A. Cruikshank, ed., The Correspondence of Lieut.
Governor John Graves Simcoe, with Allied Documents Relating to His Administration of the
Government of Upper Canada (Toronto, 1926), 4: 83. [Gallatin HR], April 26, 1796, Annals of
Congress, 4th Cong., 1st sess., 1186. For similar criticism of the Jay treaty, see [Swanwick HR],
April 15, 1796, Annals of Congress, 4th Cong., 1st sess., 995; [Nicholas HR], April 16, 1796, ibid.,
1007; Federalist supporters of the Jay treaty in the House denied the claims presented by Madison
and Gallatin that British merchants would continue to monopolize the western trade. Benjamin
The Jay Charter : 697
This article explores state formation through episodes of conflict between
Laurentine merchants and the federal government from the transfer of the western
posts in 1796 to the final termination of the Jay treaty’s western provisions in 1819.
The commercial and political rights recognized in the Jay treaty codified the operation of the trading network that connected the Atlantic entrepôt of Montreal in
the British province of Lower Canada with traders, hunters, and farmers in the
trans-Appalachian west. Laurentine merchants constructed a charter of rights
from the concrete provisions, ambiguities, and silences contained in the Jay treaty’s
western articles. In their dealings with both British and American officials, the
merchants consistently advanced the most favorable interpretation of the political
and commercial rights that they enjoyed under the treaty’s provisions as subjects of
a foreign power, trading and residing in the United States. The process of creating
a sovereign American state with fixed national boundaries remained unfinished in
1796, despite the transfer of the western posts.7
Drawing on the work of scholars who have explored the problem of union, this
article argues that the Laurentine trade threatened the integration of the West into
an American national state. The work of Peter Onuf, James E. Lewis, Jr., Peter
Kastor, and others has demonstrated the volatility of western allegiance and the
importance that settlers placed on gaining economic access to the Atlantic marketplace. In the late 1780s, and again in early 1800s, fears of western separatism
emerged in response to Spanish and French threats to exclude American citizens
from commercial access to the Mississippi River, illustrating the extent to which
the political allegiance of westerners flowed through commercial channels. The St.
Lawrence River presented the same challenge to the expansion of the American
Goodhue of Massachusetts pointed out that the third article of the Jay treaty also opened commerce with Canada to American merchants. Goodhue was convinced that “the enterprise of our
people is such, that we shall unquestionably carry on almost all the trade of Upper Canada, and that
Great Western country that will be opened to us.” [Goodhue HR], April 18, 1796, ibid., 1053–54.
The New Yorker William Cooper, of Cooperstown fame, echoed Goodhue’s sentiments, pointing
to the commercial advantages enjoyed by Albany, Schenectady and other trading towns on the
Hudson River. Cooper noted that the Crown continued to send the King’s stores to the upper
country posts via the Hudson after 1763, even when Canada and New York were both part of the
British Empire and, were, therefore, in direct competition with one another. [Cooper HR], April
20, 1796, ibid., 1095, 1097. For other Federalist arguments supporting the superior enterprise of
American merchants and navigation, see [Griswold HR], April 26, 1796, ibid., 1178; [Gilbert HR],
April 27, 1796, ibid., 1210–11. For the significance of the Jay treaty debate in the development of
the first party system, see Jerald A. Combs, The Jay Treaty: Political Battleground of the Founding
Fathers (Berkeley, CA, 1970). For the importance of the Jay treaty debate to the development of an
American popular political culture, see Estes, The Jay Treaty Debate. For a discussion of the concept
of state formation, see Michael A. Braddick, State Formation in Early Modern England, c.1550-1700
(New York, 2000).
7. For the significance of the Laurentine trade to Canadian political and economic development, see Donald Creighton, The Empire of the St. Lawrence (Toronto, 1956). See also, Fernand
Ouellet, Economic and Social History of Quebec, 1760-1850 (Ottawa, 1980). For the historical use of
the term “charter” to “recognize the rights of, an entire people, a certain class, or specific individuals,” see Donald S. Lutz, “From Covenant to Constitution in American Political Thought,”
Publius 10 (1980): 112–13.
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national state and the survival of the Federal Union by threatening to attach westerners to the British Empire, rather than the American Republic.8
Federal officials and Laurentine merchants fought over the political and commercial rights granted to British subjects by the Jay treaty. The unfolding of these
conflicts reveals the central role that local federal officials played in strengthening
the authority of the American national state. This process of state formation, in
which the innovation of federal officials at the periphery enforced policy conceived
at the center, parallels the system of “local diplomacy” described by Peter Kastor in
the Orleans Territory. The Laurentine trade became an increasing cause for concern for the Republican administrations of the early nineteenth century. Reports
from the western territories implicated Laurentine traders in the rising hostility of
the western Indians to the federal government. Federal customs and territorial
officials found innovative ways to disrupt trade through regulation and taxation,
while also remaining within the letter, if not the spirit, of the Jay treaty’s western
provisions.9
The innovations of federal customs officials and Jeffersonian commercial policy
enforced an increasingly narrow definition of the rights that Laurentine merchants
and traders could claim under the Jay treaty. The capacity of the federal state to
control trade at critical chokepoints in the riverine transportation system of the
West led Laurentine merchants to gradually abandon their rights under the Jay
treaty. Laurentine merchants entered into a partnership with the New York merchant John Jacob Astor in 1811. With their rights abolished by the treaty of Ghent,
the Montreal partners sold their remaining commercial interests in the United
States to Astor in 1817. The energetic enforcement of new federal trade regulations and narrowing definitions of citizenship in the aftermath of the War of 1812
were integral to the process of creating an American national state.
* * * *
As the first anniversary of the British evacuation of the western posts approached in
May 1797, the merchant George Sharp circulated a petition among the
8. Onuf, Statehood and Union, 1–20; Peter S. Onuf, “The Expanding Union,” in Devising
Liberty: Preserving and Creating Freedom in the New American Republic, ed. David Thomas Konig
(Stanford, CA, 1995), 50–80; James E. Lewis, Jr., The American Union and the Problem of
Neighborhood: The United States and the Collapse of the Spanish Empire, 1783-1829 (Chapel Hill,
NC, 1998), 12–40; Peter J. Kastor, The Nation’s Crucible: The Louisiana Purchase and the Creation of
America (New Haven, CT, 2004), 36–42; John Craig Hammond, Slavery, Freedom and Expansion in
the Early American West (Charlottesville, VA, 2007). In 1786 and 1787, John Jay and the Spanish
minister Don Diego Gardoqui discussed closing the navigation of the Mississippi River to
American citizens in exchange for the United States receiving commercial privileges elsewhere
in the Spanish Empire. The retrocession of Louisiana to Napoleonic France again brought into
question the economic access of American citizens to the Mississippi River and New Orleans
during the “Mississippi Crisis” of 1801–1803. Lewis, The American Union and the Problem of
Neighborhood, 16–17, 25–27.
9. Kastor describes local diplomacy as “a system in which international relations on the borderlands ran parallel to, but were never entirely distinct from, the elite negotiations that are the
familiar stuff of diplomatic history.” The Nation’s Crucible, 112–115.
The Jay Charter : 699
townspeople of Detroit. The petition offered an opportunity for all British subjects
who wished to remain residents of the United States to record their election to do
so. When Sharp registered the declaration with Peter Audrain, the prothonotary of
Wayne County, at the end of the following month, 113 male heads of household in
Detroit had signed or made their mark. One-third of the adult male population of
the town of Detroit—one-fifth of all of Wayne County, which included the present-day state of Michigan, in addition to portions of Wisconsin, Indiana and
Illinois—chose to alienate themselves from the body politic of the United States.10
Sharp’s declaration realized the fears of the Jay treaty’s opponents that an open
commercial border with British North American would undermine the integration
of the West into an American national state by exposing westerners to foreign
influence. Many of those who signed or attested Sharp’s declaration had ties to the
Laurentine trade. Eighteen of Detroit’s most prominent merchants signed the
declaration, as did Captain John Fearson, whose sloop, the Saguinah, depended
on the Laurentine trade for its cargo. The Indian trader Gabriel Hunot, who
wintered in the Ohio Country, made his mark. Mathew Dolson, a Detroit
tavern keeper and farmer, also signed the declaration. Dolson regularly supplied
Laurentine merchants with wheat and Indian corn to provision the Indian trade
northwest of Lake Superior. The livelihoods of Dolson and fellow farmers in
Detroit’s agricultural hinterland might not depend on the Laurentine trade, but
the sale of their produce helped them obtain some of life’s comforts.11
Federal territorial and military officials at Detroit believed that the presence of a
sizeable alien minority in Wayne County exposed the United States to both internal and external threats. The magistrates and sheriff of Wayne County complained to Winthrop Sargent, the acting governor of the Northwest Territory, in
July 1797 that “it was with difficulty that the Sherrif could procure a Jury of real
10. George Sharp to Peter Audrain, May 20, 1797, Ms. Hershel Whitaker, Burton Historical
Collection (hereafter, BHC), Detroit Public Library. The declaration contained 113 signatures or
marks. A further five individuals, whose names are absent from the declaration registered by
George Sharp, signed a letter to James Wilkinson as British subjects, expressing their concern
at his declaration of martial law. “The Petition of Sundry British Magistrates, Merchants and
others holding property residing in and resorting to the Town of Detroit,” July 24, 1797, RG 59,
Notes from Foreign Legations, Great Britain, vol. 2 (hereafter, British Legation Notes), National
Archives of the United States, Washington, DC. The American government undertook three
censuses of Detroit and its environs in July and August 1796 that divided the greater Detroit
and Wayne County region into nine categories of which “the city” was one. According to the
combined census, 653 men above the age of sixteen lived in Detroit and Wayne County, at least
118 of whom (18 percent) elected to remain British subjects. From the same census, 106 men above
the age of sixteen resided in the city of Detroit, of whom 36 (34 percent) elected to remain British
subjects. Donna Valley Russell, ed., Michigan Censuses 1710-1830 Under the French, British, and
Americans (Detroit, 1982), 59, 60–62, 74.
11. George Sharp to Peter Audrain, May 20, 1797, Ms. Hershel Whitaker, BHC. Among the
Laurentine merchants of Detroit who elected to remain British subjects were: George Sharp, John
Askin, John Askin, Jr., Alexander Duff, James Leith, George Leith, William Hands, Angus
Mackintosh, James Mackintosh, Jean Baptiste Barthe, William Park, John McGregor, Robert
Gouie, Richard Donovan, Robert Innis, Richard Pattinson, Jonathan Schieffelin, and William
Forsyth.
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Citizens to attend the last Sessions, or Ballifs to do their duty.” Moreover, Sharp’s
declaration gave the magistrates “reason to fear, that little or no dependence can be
put in the Militia of the County if called upon.” A rash of desertions among the
federal garrison at Detroit made the weakness of the local militia more troubling.
General James Wilkinson, the senior officer in the U.S. Army, blamed local
Laurentine merchants for promoting desertions by plying his troops with liquor
and harboring deserters once they made their way across the Detroit River into
Upper Canada.12
The threat of war and rebellion meant that federal officials had particular cause
to fear the weakness of the militia and the desertions that plagued the regular
garrison at Detroit during the summer of 1797. Rumors circulated on the frontier
and in Philadelphia that both Great Britain and Spain were readying military
expeditions in Upper Canada and in Spanish Louisiana to attack one another’s
North American possessions by advancing through the federal Northwest
Territory. In addition, federal officials suspected the exiled Duc d’Orléans, a
claimant to the French throne, of fomenting revolution among settlers in
Kentucky and the Ohio Country. Wilkinson believed that the majority Canadien
population of Detroit would flock to the Orléanist banner once raised, throwing
off their allegiance to the United States in favor of a return to French rule.13
General James Wilkinson proclaimed martial law in Detroit on July 12, 1797,
barely a year after federal troops had taken possession of the western posts. “To
guard the National Interests against the Machinations of its enemies, secret or
ouvert [sic], Foreign or Domestic,” Wilkinson resolved to treat “all persons resorting to or residing within the limits” of Detroit as “followers of the army.”
Wilkinson’s proclamation received the support of the magistrates and sheriff of
Wayne County, who entertained “disagreable [sic] apprehensions from the dangers that at present MENACE its tranquility from an approaching Ennemy, as
well as from internal and increasing factions.” No matter Wilkinson’s later maverick behavior, he was no loose cannon in 1797. Federal officials on the Great
Lakes frontier agreed that the authority of the federal government was fragile, if
not imperiled.14
12. Machinations Against the United States Government, July 12, 1797, in Milo M. Quaife,
ed., The John Askin Papers (Detroit, 1931), 2: 112–13 (hereafter, Askin Papers). Only 29 out of 111
militiamen on the muster roll reported for duty when two companies of the town’s militia were
mustered in December 1796. Chalbert Joncaire to Winthrop Sargent, December 6, 1796,
Microfilm edition of the Winthrop Sargent Papers (hereafter, Sargent Papers), Massachusetts
Historical Society, 4: 214–15. Threat of Revolution in Detroit, July 16, 1797, Askin Papers, 2:
116. Sargent was the secretary of the Northwest Territory and acting governor during the absence
of Arthur St. Clair.
13. Gerald H. Clarfield, Timothy Pickering and American Diplomacy, 1795-1800 (Columbia,
MO, 1969), 120–24. James Wilkinson to Winthrop Sargent, May 28, 1797, Sargent Papers, 4: 302.
14. By James Wilkinson Brigadier General and Commander in Chief of the Troops of the
United States, A Proclamation, July 12, 1797, British Legation Notes, vol. 2. Machinations Against
the United States Government, July 12, 1797, Askin Papers, 2: 112–13.
The Jay Charter : 701
The Laurentine merchants of Detroit protested Wilkinson’s proclamation of
martial law as a violation of the rights they claimed under “the sacred source of a
public and solemn Treaty.” The petitioners argued that Wilkinson’s proclamation
“tallys neither with the true spirit or letter of the Treaty” because it abridged the
eleventh article of the Jay treaty, guaranteeing “that generally the Merchants and
Traders on both sides [of the Anglo-American border] shall enjoy the most complete protection and security for their Commerce.” Wilkinson dismissed the
Laurentine petition, arguing that martial law “has for its object the security of
your persons and your property, and the Suppression of disorders and licentiousness.” Consequently, Wilkinson claimed, martial law “invades no single privilege
of Citizenship, or right of Treaty valuable or invaluable.” Wilkinson acknowledged the Jay treaty’s western provisions while looking to protect his military
authority.15
Further controversy erupted at Detroit in the fall of 1797 over the right of
federal officials to regulate the Indian trade. Federal troops at Fort Defiance
stopped the trader John McDonald, who was on his way with a “pirogue loaded
with Goods to a pretty large amount” to trade among the Indians at the Ottawa
towns, under the direct orders of Wilkinson. McDonald, Wilkinson claimed, was
“a man mischievously disposed toward the Government of the United States . . .
who had countenanc’d the purchase of stolen Horses from the Indians.” Wilkinson
took it upon himself to prohibit McDonald from trading within the “Military
reservations” as part of a general order to “prevent frauds and abuses, and to
preserve tranquility with the natives.” He believed that federal regulation of the
Indian trade was critical to the domestic security of the United States.16
When news arrived in Detroit that federal troops had turned McDonald back at
Fort Defiance, it ignited a firestorm among Laurentine merchants, who saw the
ban as an assault on the right of free access to the Indian trade guaranteed to British
subjects by the Jay treaty. The merchants were all the more suspicious of
Wilkinson’s motive for banning McDonald because of rumors that the General
had awarded trading monopolies to American merchants at the expense of their
British rivals. Audrain reported to Sargent that he had been “informed by Mr. Duff
that the Commander in chief has granted an exclusive priviledge [sic] for trading
with Indians at and in the neighbourhood of Defiance to Mr. Hunt of Cincinnati,
and a similar one to Mr. George McDougall for all the ottawa Towns.” Audrain
could not comment on the authenticity of the rumors. But he did attest that “this
15. The Petition of sundry British Magistrates, Merchants and others holding property residing in and resorting to the Town of Detroit, July 24, 1797, British Legation Notes, vol. 2. James
Wilkinson to the British Magistrates, Merchants, and other holding property and residing in and
resorting to the Town of Detroit, n.d., ibid.
16. Peter Audrain to Winthrop Sargent, October 12, 1797, Sargent Papers, 4: 446–47. From
Jas. Wilkinson to Leith, Shepherd, and Duff, October 15, 1797, in E. A. Cruikshank and A. F.
Hunter, eds., The Correspondence of the Honourable Peter Russell, with Allied Documents Relating to His
Administration of the Government of Upper Canada During the Official Term of Lieut.-Governor J.G.
Simcoe, while on Leave of Absence (Toronto, 1932), 1: 304 (hereafter, Russell Papers).
702 : d i p l o m a t i c h i s t o r y
report has produced a great deal of uneasiness at this place amongst the british
Merchants, that they make a common cause of it, and publicly assert that if the
Commander in chief does not grant redress in the premisses [sic], they are determined to carry their Complaint to a Superior authority.”17
Laurentine merchants considered the right to freely trade within the territory of
the United States to be the critical privilege guaranteed to them by the Jay treaty,
an opinion shared by the British government. Governor-General Lord Dorchester
demanded that the United States agree to a supplementary article to the Jay treaty
before he would order the evacuation of the British garrisons from the western
posts in 1796. Dorchester was concerned that federal officials would use the treaty
of Greenville, agreed between the United States and the western Indian nations in
1795, to limit or proscribe the access of British subjects to the Indian trade. The
United States asserted the right to regulate intercourse with the western Indians in
the eighth article of the treaty of Greenville. Congress enacted its regulatory power
over any “citizen, or other person resident in the United States,” engaged in the
Indian trade the following year. The Adams administration agreed to Dorchester’s
demand to ensure that the transfer of the western posts would proceed without
delay. Secretary of State Timothy Pickering and Phineas Bond, the British consul
in Philadelphia, agreed a supplementary article, stating that “no treaty subsequently concluded by either of the contracting parties . . . can be understood to
derogate, in any manner, from the rights of free intercourse, and commerce,
secured by the aforesaid third article of the treaty of amity, commerce, and navigation.” Wilkinson’s ban raised the question of what regulatory powers the federal
government could assert over the Indian trade while still honoring the rights of free
commercial access granted to British subjects by the Jay treaty and its supplementary article.18
McDonald’s employers, the Detroit firm of Leith, Shepherd & Duff, petitioned
Wilkinson to restore their access to the Ottawa towns on the grounds that the Jay
treaty prohibited the General from interfering with the free trade of British subjects in the West. The merchants’ petition cited “the Solemn Treaty of Amity and
commerce” in support of their request, which, they reminded Wilkinson, guaranteed them “that no partiality would be shown betwixt Citizens of the United States
and british Subjects.” The merchants suggested that James Leith, a partner in the
firm, could replace McDonald at the Ottawa towns until the federal authorities
brought the trader to trial. Moreover, the merchants pointed out that their firm
had “always had a licence from the Governor for the said Jno. McDonald as well as
for the other traders at Different posts – and that it is their wish and Study to abide
17. Peter Audrain to Winthrop Sargent, October 12, 1797, Sargent Papers, 4: 446–47.
18. The Jay Treaty, in Treaties, 2: 246–48; Treaty with the Wyandot, Etc., 1795, August 3,
1795, in Charles J. Kappler, ed., Indian Affairs: Laws and Treaties (Washington, DC, 1904), 2:
42–43. An Act to regulate Trade and Intercourse with the Indian Tribes, and to preserve Peace on
the Frontiers, May 19, 1796, U.S. Statutes at Large, I, 471. Phineas Bond to Timothy Pickering,
April 9, 1796, British Legation Notes, vol. 2. Explanatory Article to Article 3 of the Jay Treaty,
May 4, 1796, in Treaties, 2: 346–48. Burt, United States, Great Britain and British North America, 160.
The Jay Charter : 703
Strictly by the Laws of the Country.” The equal commercial access of Britons and
Americans to the western trade recognized by the Jay treaty had compelled
Audrain to issue a license to McDonald in October 1796. The prothonotary,
however, bristled at issuing licenses to British subjects on equal terms with
American citizens: “They will not perform any militia duty, they will not serve
upon Juries &c. & c. why and how,” Audrain asked of Sargent in September 1797,
“could they claim the same advantages with Those who cheerfully go through
these duties?” Audrain was bemused by the way that the Jay treaty’s western provisions blurred the line between American citizens and British subjects in the west
by helping to disconnect commercial rights from political responsibilities.19
Although Wilkinson granted the petition of Leith, Shepherd & Duff, his reply
troubled the Laurentine merchant community because the General refused to
acknowledge the restrictions that the Jay treaty placed on his right “to regulate
within the Military reservation.” The Laurentine merchants believed Wilkinson
would abuse this pretended power to favor the few American merchants operating
in the Ohio Country. Indeed, Wilkinson made no secret in his reply of “the preference to Mr. McDougal” or that it was “founded on the presumption of his
services to Government . . . and the manifest confidence reposed in him by my
predecessor in Command, and the acting Governor of the Territory.” Publicly,
Wilkinson “disavow[ed] the determination, springing from a sense of duty, and
Justified by the usage of Nations, to give a preference to the Citizens of the United
States.” The General begged Leith, Duff & Shepherd “to believe me incapable of
intrenching [sic] on the rightful pretensions of any foreigners.” Privately,
Wilkinson explained to Sargent that he considered regulatory powers in the military reservations to be essential to the security of the United States. “Nothing is
more certain,” the General claimed, “than that the natives imbibe the prejudices &
politicks of their Traders.” Wilkinson saw the Laurentine trade as a dangerous
channel of foreign influence among the western Indian nations who ought to owe
exclusive obedience to the government of the United States.20
The Laurentine merchants petitioned Peter Russell, the acting lieutenant-governor of Upper Canada, to protest both Wilkinson’s expulsion of McDonald, and
his pretended authority to regulate the Indian trade in the military reservations as
“incompatible with the Treaty of Amity, commerce & navigation.” The
“Canadian Merchants trading to the Territory of the United States North West
of the Ohio” called on Russell to deploy “the energy and justice of Government” to
secure “a re-establishment of our Rights.” The petitioners drew Russell’s attention
to the far reaching implications of Wilkinson’s claim to “an exclusive jurisdiction
within what he calls the Military Reserve.” Such authority, the petitioners argued,
19. Petition of Leith Shepherd and Duff to Jas. Wilkinson, c.1797, Russell Papers, 1: 303.
20. From Jas. Wilkinson to Leith, Shepherd, and Duff, October 15, 1797, Russell Papers, 1:
304. James Wilkinson to Winthrop Sargent, November 17, 1797, Sargent Papers, 4: 476. George
McDougal was among the minority of Detroit merchants who became an American citizen in
1796.
704 : d i p l o m a t i c h i s t o r y
would mean that the Jay treaty “so far as it respects His Majesty’s Subjects trading
to the Territory N. West of the Ohio, becomes little more than a pleasing dream.”
The military reserve, the petitioners explained, “comprehend generally all the
Trading Posts where the Indians live or resort to for trade, and which nature
has pointed out as the most eligible spots for establishments of a commercial
description.” Consequently, unless “the principle of Military Jurisdiction be
fully & unequivocally abandoned and the right of Trade according to the
Treaty as amply supported,” the petitioners argued, “no man of common sense
will hazard his person or his property in situations liable to the injuries & indignities arising from the whim or caprice of a Military Commandant.”21
The Adams administration upheld the Laurentine merchants’ complaint that
Wilkinson had trespassed on the commercial rights they claimed under the Jay
treaty when the British minister Robert Liston raised the issue with Secretary of
State Pickering in 1798. This disavowal of Wilkinson’s innovations reflected
Pickering’s specific commitment to the Jay treaty’s western provisions and his
general support for the Anglo-American rapprochement that the treaty had
helped broker. Friendship with Great Britain was all the more important to
President John Adams and Pickering in early 1798 because of the deterioration
of U.S. relations with the French Republic. News arrived in Philadelphia in
February that a French privateer had violated American neutrality by seizing a
British merchantman in Charleston harbor; the following month, the XYZ dispatches arrived from Paris, describing how French officials in Paris had insulted
the national honor of the United States by demanding payment before they would
open negotiations with the American diplomats. Liston reported to the Laurentine
merchants in the summer of 1798 that the U.S. government had assured him that
“such arrangements would be made as to preclude the future interference of that
Officer [Wilkinson] in Commercial Matters.” With the aid of Liston and the
support of Adams and Pickering, Laurentine merchants had successfully used
the Jay treaty as a charter to protect their commercial rights in the western territories of the United States.22
The Jay treaty ensured that the Laurentine trade with the United States flourished in the closing years of the 1790s. The Jay treaty removed uncertainty among
Laurentine merchants about their long-term commercial access to the Ohio and
Illinois countries. Moreover, the prolonged period of peace in the Northwest
Territory that followed the treaty of Greenville benefitted the Laurentine trade.
War no longer kept Indian warriors from the hunt. Traders no longer forbear
21. Petition of Leith, Shepherd, and Duff and Others to Peter Russell, October 27, 1797,
Russell Papers, 1: 307–8.
22. Peter Russell to Robert Liston, November 4, 1797, British Legation Notes, vol. 2. Duff
and Shepherd to Peter Russell, July 9, 1798, RG 1, L 3, Upper Canada and Canada, Province of:
Land Committee, Petitions for land grants and leases, 1790–1867, vol. 285, L4/19; microfilm reel
C-2125, Library and Archives of Canada (hereafter, LAC), Ottawa. Elkins & McKitrick, The Age of
Federalism, 582. For Pickering’s commitment to the Jay treaty, see Clarfield, Timothy Pickering and
American Diplomacy, 22–26.
The Jay Charter : 705
entering Indian villages or the wintering grounds of the Maumee and Wabash
River valleys from fear for their lives. Additionally, the disrupted hunts of the war
years had allowed game stocks to increase, improving the yield of the renewed
hunts.
Robert Hamilton, a merchant of Queenston, on Lake Ontario, estimated in
November 1798 that the Laurentine trade “in the territory of the United States
about Detroit, and towards the Illinois & Mississippi . . . may be computed to
amount to about one hundred thousand pounds Provincial Currency [£90,000
sterling] annually.” Hamilton claimed that Laurentine merchants in Detroit had
imported over 43,000 gallon of liquor and trade goods worth approximately
£50,000 in 1797. Moreover, Hamilton’s calculation excluded the additional
Laurentine goods imported into Spanish Louisiana, and those destined for the
trade northwest of Lake Superior, both of which passed through Michilimackinac.
Hamilton further estimated that Indian hunters, living within the territory of the
United States, provided Laurentine merchants with 5,826 packs of peltries, which
he estimated to be worth over £78,000.23
The growth of the Laurentine trade after 1796 worked to exclude American
Atlantic merchants from forming ties with merchants, traders, and Indians in
Montreal’s extensive commercial hinterland. Hamilton boasted in November
1798 that “it is Notorious that no established Mercantile house in the States
hath yet engaged in this Trade. The few Articles which are brought are generally
brought by Adventurers who seldom appear a second time.” Peace and protection
allowed Laurentine merchants to exploit the geographical advantage that the St.
Lawrence River held over both the Hudson and Ohio Rivers in the western trade.
Hamilton estimated that the carriage of a “Barrel of three hundred weight” from
Montreal to Kingston cost between “three to three and a half Dollars,” while the
cost of transporting the same cargo from Albany to Oswego, by the Mohawk River,
was “from nine to Ten dollars.” Additionally, as Madison had observed in his
denunciation of the Jay treaty, Laurentine merchants enjoyed the advantage of
importing goods into the United States duty-free, while their potential competitors in Baltimore, Philadelphia, and New York paid duties on British manufactured goods imported from London. Rather than engage in a futile competition
with the Laurentine trade, American merchant houses, including John Jacob Astor,
23. Memorandum on Trade and Commerce by Robert Hamilton, September 24, 1798, in
Russell Papers, 2: 266–68. By comparison, £54,180 worth of both trade goods and liquor had moved
through Detroit, destined for the territory of the United States in 1790. Schedule of applications
for fur trade licenses, 1790, RG 4, B 28, Quebec, Lower Canada, Canada East: Applications for
Licences, Bonds, and Certificates 1763–1867, vol. 115: 2347 (microfilm reel H-1098), LAC. 1790
was the last year in which the government of Quebec kept records of Indian trade licenses, which
enumerated the goods dispatched from Montreal to the western country. For the numerous
currencies in use in British North America in the eighteenth and nineteenth centuries and a
useful conversion table, see A. B. McCullough, “Currency Conversion in British North
America, 1760-1900,” Archivaria 16 (1983): 83–94. All figures are in pounds sterling, unless otherwise noted.
706 : d i p l o m a t i c h i s t o r y
Hamilton & Reid, and Seton & Maitland, imported furs and peltries trapped in the
Ohio and Illinois countries from Montreal.24
Laurentine merchants ascribed the growth of their trade in the late 1790s to the
benefits that they derived from the Jay treaty. Hamilton observed that “far from
having lost anything by the American Treaty, the Trade of this Country has visibly
increased by that Mutual and unrestrained Intercourse which has taken place between the Americans and us in consequence of this Treaty.” Peltry returns from
Detroit had grown from 1,910 packs in 1796 to 2,704 packs in 1798, while exports
of Jamaican Rum from Upper Canada to the United States had grown from
58,989.5 gallons in 1797 to 65,802.75 gallons in 1798.25
The Jay treaty also ensured that neither the system of federal Indian Factories,
that Congress eventually expanded into the territories north of the Ohio River
after 1802, nor the more intrusive regulatory measures, enacted under the new
Indian Trade and Intercourse Acts of 1799 and 1802, affected the prosperity of the
Laurentine trade. Congress offered limited financial support for the federal Indian
Factories, which found it difficult to compete with the established trade networks
in the West or meet the demands for goods from the western Indian nations;
indeed, the factory at Detroit closed in 1805, only three years after it first
opened its doors for business. Laurentine merchants protested having to pay for
Indian trade licenses, but they found some federal regulations useful. For example,
merchants welcomed the exclusion of liquor from Indian Country under the new
Indian Intercourse Act of 1799 because it would help to lower their trading expenses. Angus Mackintosh wrote John Connor, his trader at Sandusky, that “the
new regulations made this year respecting the Trading with Indians are much in
favor of the traders.” Mackintosh ordered Connor “to send me an Express if any of
your Neighbours are found sending [liquor] into their Camps and you yourself
must strictly observe not to send either a White man or an Indian on such a duty.”
24. Memorandum on Trade and Commerce by Robert Hamilton, September 24, 1798, in
Russell Papers, 2: 266-68.
General James Wilkinson was unable to find merchants who made their “remittancy to the
Atlantic States” to supply the garrisons under his command in 1797. James Wilkinson to Henry
Burbeck, July 13, 1797, Northwest Territory Collection (M858), William L. Clements Library,
Ann Arbor, Michigan. The argument that the Laurentine trade enjoyed insurmountable geographic and economic advantages over American Atlantic merchants was an old one by 1798.
For an earlier articulation of this argument, see James McGill to Hon. Henry Hamilton, August 1,
1785, in Douglas Brymner, ed., Report on Canadian Archives, 1890 (Ottawa, 1891), 56–58. The
confidence that British colonial officials and Laurentine merchants placed on the superior western
navigation of the St. Lawrence River provided the foundation for visions of a trans-continental
commercial empire centered on the Great Lakes. See J. G. Simcoe to Sir Joseph Banks, January 8,
1791, in Correspondence of Lieut-Governor John Graves Simcoe, 1: 17–18; From Robert Hamilton to J.
G. Simcoe, January 4, 1792, in ibid., 1: 97. See also, Lillian F. Gates, Land Policies of Upper Canada
(Toronto, 1968), 25–26. For the burgeoning commercial ties between Montreal and New York
City in the 1790s, see Majorie Wilkins Campbell, McGillivray: Lord of the Northwest (Toronto,
1962), 97–99.
25. Memorandum on Trade and Commerce, September 24, 1798, in Russell Papers, 2: 266–68.
The Jay Charter : 707
The limited regulation of the Indian trade that was allowed the federal government
by the Jay treaty posed little threat to the commercial interests of the Laurentine
trade.26
The growth of American settlements in western New York and the Ohio
Country promised new opportunities for Laurentine merchants. Robert
Hamilton predicted that “the demand for Goods of all kinds from this Province
[of Upper Canada] must further increase with the progress of American
Settlements which are forming along the South side of the River St. Lawrence
and the Lakes.” The merchant was convinced that the growth of agricultural
production in the new settlements would inevitably flow into Laurentine channels
because he believed that the St. Lawrence River was “the natural, we may indeed
say the only outlet for all the produce of these Settlements.” Consequently, he
looked forward to the rise of new commodities in the Laurentine trade, including
lumber, wheat, flour, and potash, produced by American settlers, who, in return,
would demand British manufactured goods. Settlement might destroy game stocks
and diminish peltry returns from the Ohio country, but the economic activities of
western settlers would ensure the continued vitality of the Laurentine trade in the
United States.27
* * * *
On April 25, 1805, two boats of the North West Company, loaded with trade
goods, pushed away from Lachine, Montreal’s portage with the St. Lawrence
River. The boats, under the command of Joseph Labelle, were destined for the
company’s storehouse at Kaministiquia, on the northwest shore of Lake Superior.
Labelle guided them by the “accustomary and usual rout [sic] of Navigation,”
down the St. Lawrence, across Lake Ontario, through the Niagara River valley,
then across Lake Erie and, finally, “by the way of Sandwich . . . through lake St.
Clair and Huron.”28
Labelle and his boats encountered “waves and great swells” when they entered
the Mackinac Straits, at the tip of Michigan’s lower peninsula, on June 11. “From
stress of weather, & with a view for the safety of said Boats & cargoes, and to
26. An Act to regulate Trade and Intercourse with the Indian Tribes, and to preserve Peace on
the Frontiers, March 3, 1799, U.S. Statutes at Large, I, 743–49. Ora Brooks Peake, A History of the
United States Factory System, 1795-1822 (Denver, 1954), 14–15. For the numerous difficulties
facing the federal factory system, see Peake, A History of the United States Factory System, 204–56.
Angus Mackintosh to John Connor, July 3, 1800, MG 19, A 31, Angus Mackintosh fonds, vol. 2,
LAC.
27. Memorandum on Trade and Commerce, September 24, 1798, in Russell Papers, 2: 266.
28. Answer and claim of Northwest Company, in Transactions of the Supreme Court of the
Territory of Michigan, 1805-1814, edited by William Wirt Blume (Ann Arbor, 1935), 2: 36–37.
Kaministiquia, renamed Fort William in 1807, is the site of present-day Thunder Bay, Ontario.
The North West Company constructed the portage to the northwest trade as an alternative to
Grand Portage, which lay inside the borders of the United States after 1783.
708 : d i p l o m a t i c h i s t o r y
preserve the same, as well as his life as well as the lives of the Boatmen & passengers,” Labelle put in at Grosse Isle on Michilimackinac Island around four o’clock
in the afternoon to wait out the storm. Labelle moored the boats a few feet off
shore, landed a tent and set about building a fire to make some tea to warm the
boatmen. Three hours later, David Duncan, the U.S. collector of customs for the
port of Michilimackinac, and a squad of federal troops from the island’s garrison
disturbed Labelle’s alfresco afternoon tea, seizing the two North West Company
boats and their cargoes on suspicion of smuggling.29
Michilimackinac was one of six new ports of entry that Congress created in the
Great Lakes with the Customs Act of 1799. The Jay treaty permitted the erection
of a customs barrier along the Anglo-American border, but it restricted the tariffs
that the British and Americans could impose to “render in a great Degree the local
advantages of each Part common to both.” More specifically, the Jay treaty ensured
that British subjects who imported goods into the United States through the Great
Lakes would pay the same duties as American citizens importing the same goods
through the Atlantic ports of the United States. The collection of duties on the
Great Lakes stopped Laurentine merchants from importing British manufactured
goods into the United States duty-free, but the Jay treaty ensured that the federal
government could not impose discriminatory tariffs to exclude the Laurentine
trade from American soil. Laurentine merchants also continued to enjoy a cheaper
carriage of goods from Montreal to the Lakes, than did their competitors in the
American Atlantic ports.30
William and Duncan McGillivray, the North West Company’s agents at St.
Joseph’s Island, immediately protested Duncan’s seizure as a contravention of the
free navigation of the Great Lakes, protected by the Jay treaty. The McGillivrays
argued that Duncan’s seizure was illegal because the boats were lawfully seeking
shelter from a storm and the boatmen had not landed any of the goods on
American soil. “Had any Part of their Cargoes been landed, & a Sale attempted,”
the agents observed, “the Thing would have been totally different: but stopping
merely within a few Feet of the Shore, and only for a Couple of Hours, cannot
surely give you a Right to make a Seizure of Property.” If they were to accept such a
right, the McGillivrays pointed out, “with the same Propriety might our Vessels be
seized in the River Sinclair or in the Streights of Saint Marys; a Situation in which it
was never contemplated by the Treaty to place British Subjects.” Duncan refused
to discuss the seizure with the North West Company agents, referring them
29. Answer and claim of Northwest Company, in Transactions of the Supreme Court of the
Territory of Michigan, 1805-1814, 2: 36–37.
30. An act to regulate the collection of duties on imports and tonnage, March 2, 1799, U.S.
Statutes at Large, I, 638, 701–2. The six western customs districts created by section 17 of the act of
March 2, 1799, were: Erie, Detroit, Michilimackinac, Massac, Illinois, and Ohio. The customs act
exempted peltries from customs duties, permitted Indians to carry their personal property across
the Anglo-American border without hindrance and guaranteed that British subjects would not pay
higher rates of ferriage than did American citizens.
The Jay Charter : 709
instead to the Supreme Court of the Michigan Territory in Detroit for the resolution of their complaint.31
At the same time as the North West Company and Duncan wrangled over the
seizure at Michilimackinac, a controversy was brewing further south over the
commercial access of Laurentine merchants to the newly acquired Louisiana
Territory. Merchants west of the Mississippi River had long been in the habit of
acquiring British manufactured goods from Montreal by the time of the Louisiana
Purchase in 1803. Arthur St. Clair, the governor of the Northwest Territory,
described the Mississippi trade in 1791 as being “almost entirely in the hands of
the british [sic] – even much the greatest part of the merchandize for the trade of
the Misouri [sic] River is brought from Michilimackinac by that of the Illinois,
partly by spanish Subjects themselves, and partly by british [sic] Traders.” The
Laurentine trade with Spanish Louisiana, however, was on a precarious footing:
It depended on the collaboration of the commandant at St. Louis, or in case of his
opposition, Spanish subjects smuggling the goods across the Mississippi River at
Cahokia.32
Laurentine merchants believed that the Louisiana Purchase placed their transMississippi trade on a regular footing. They expected the western provisions of the
Jay treaty to extend to the Louisiana Territory now that it was part of the United
States, protecting their trade with the merchants and traders of St. Louis and the
Indian nations of the Missouri River valley. Laurentine merchants invested heavily
in expanding their trans-Mississippi trade. In 1804, the first year of federal territorial government in Louisiana, the value of goods that Laurentine merchants
imported into the United States through Michilimackinac increased by nearly
three-fourths on the previous year.33
It soon became apparent that the confidence of the Laurentine merchants was
misplaced. In August 1805, British traders and boatmen found their passage across
the Mississippi River to St. Louis obstructed by proclamation of their old adversary, James Wilkinson. Wilkinson, now governor of the Louisiana Territory, gave
notice on August 26, 1805 that “no person the Citizen or Subject of a foreign
Power, will be permitted to enter the Missouri River for the purpose of Indian
31. Copy of a Letter addressed to Captain Duncan the Collector of the Port of
Michilimackinac, by the Agents of the North West Company after his Seizure of the Two
Boats, June 13, 1805, British Legation Notes, vol. 3. The Collector’s Answer, June 14, 1805,
British Legation Notes, vol. 3.
32. Report of Governor St. Clair to the Secretary of State, February 10, 1791, Clarence Edwin
Carter et al, eds., The Territorial Papers of the United States, Vol. II: The Territory Northwest of the
River Ohio, 1787-1803 (Washington, DC, 1934), 331.
33. Laurentine merchants imported goods paying customs duties of $33,545 (c. £7,548) in
1804, a 73 percent increase on $19,361 (c. £4,356) paid in 1803. United States Bureau of Customs,
District of Michilimackinac, Impost Book (1802–1865), Bentley Historical Library, Ann Arbor,
Michigan. Goods imported by the Laurentine trade through Michilimackinac were bound for the
Illinois Country and the Louisiana Territory. The opening of the Kaministiquia portage in 1803
meant that goods destined for the northwest trade no longer passed through the United States.
U.S. customs duties remained the same between 1803 and 1804.
710 : d i p l o m a t i c h i s t o r y
trade.” Moreover, Wilkinson’s proclamation ensured that “no goods or merchandizes will be permitted to enter the said River which have not been imported or
made by Citizens of the United States or persons resident within the Territories
thereof.” Wilkinson justified his “somewhat extrajudicial” exclusion of Laurentine
traders from the Louisiana Territory in a letter to Secretary of War Henry
Dearborn, which emphasized the serious threat that foreign subjects engaged in
the Indian trade posed to American sovereignty west of the Mississippi. “It is well
known,” Wilkinson explained, “that the Indian trade, from Hudsons [sic] Bay and
the St. Lawrence, to the remotest streams of the lakes, the Mississippi and the
Missouri is nearly monopolized by British Traders, their factors Agents and
Engagées.” Wilkinson considered the commercial loss suffered by the United
States was “a trifling ill, when compared to the transcendent influence, which is
thus acquired and perpetuated by a foreign power, over the aborgines within our
national limits.”34
Wilkinson believed that the Jay treaty’s western provisions imperiled federal
authority in the newly acquired Louisiana Territory because it constrained the
legal ability of the U.S. government to limit the rights enjoyed by foreign subjects.
The Governor described “the British Treaty” to Dearborn as “an accursed instrument” that was responsible for British subjects claiming “the privilege to penetrate
our recently acquired Territory.” Wilkinson had intended that his proclamation
banning British traders from the Missouri River valley would unfetter federal
regulatory power over the Indian trade of the trans-Mississippi west.
Nevertheless, Wilkinson feared that “under the existing laws and the British
Treaty, the British Merchants Will I fear baffle my attempts to keep them out
of the Missouri.” The influence of the Laurentine trade among the Euro-American
and Native American residents of the Louisiana Territory caused Wilkinson concern because he recognized that neither of these groups was as yet firmly attached
to the government of the United States.35
The Jay treaty ensured that nationality and political allegiance remained
amorphous categories in the American west. It was not that the western provisions
of the Jay treaty created dual nationality, or legally permitted individuals to move
between subjecthood and citizenship. Rather, the treaty had not put in place a legal
framework to record the nationality of the residents of the western posts. It was
impossible for federal officials to verify individual claims to nationality, creating a
situation in which the legal basis of citizenship was uncertain in the West. The
signatories of Sharp’s petition in Detroit in 1797 had created an instrument to
declare their election to remain British subjects on their own initiative. It was far
34. Proclamation by Governor Wilkinson, August 26, 1805, in Carter, ed., Territorial Papers,
Vol. XIII: The Territory of Louisiana-Missouri, 1803-1806, 203. Governor Wilkinson to the
Secretary of War, September 8, 1805, in ibid., 196–97.
35. Governor Wilkinson to the Secretary of War, September 8, 1805, in Territorial Papers, Vol.
XIII: The Territory of Louisiana-Missouri, 1803-1806, 196–97. For the volatility of allegiance in the
Louisiana Territory, see Onuf, “Expanding Union”; Lewis, The American Union and the Problem of
Neighborhood; Kastor, The Nation’s Crucible.
The Jay Charter : 711
from clear to either federal officials or private individuals whether the silence of the
majority of the residents of the western posts implied their consent to become
American citizens. Laurentine traders looked to exploit this legal ambiguity to
claim citizenship almost a decade after the British evacuation in 1796.
Wilkinson soon discovered that traders would claim to be an American citizen
in St. Louis and a British subject in Montreal. Wilkinson explained to Dearborn
how Laurentine traders had already “availed themselves of an extraordinary clause
in the Treaty . . . to acquire the equivocal attributes of American Citizen and
British Subject, which they acknowledge or deny as may best suit their interests.”
Wilkinson pointed to the example of “a Mr. Aird a Scotchman” who had recently
arrived in St. Louis “with a considerable quantity of goods from Michilimackinac.”
On learning of Wilkinson’s proclamation, Aird claimed American citizenship on
the basis of his residence at one of the western posts in 1796. Wilkinson expected
other traders, including the influential Scot, Robert Dickson, to follow suit.
Without being able to determine the legitimate basis of citizenship, let alone the
legal status of a given individual, Wilkinson’s prohibition of foreign subjects from
entering the Missouri River proved unenforceable.36
Laurentine merchants, nevertheless, addressed a memorial to Thomas Dunn,
the administrator of the Lower Canada in the absence of Lieutenant Governor
Milnes, protesting Wilkinson’s proclamation as a violation of the Jay treaty.
“Trusting confidently to the Treaty of Amity and Commerce,” the Laurentine
merchants of Montreal explained, they had “extensively engaged in the Trade with
the Indians within the Territories of the United States” with the understanding
that the United States government would make “no distinction” between the
commercial rights of British subjects and their own citizens. Consequently, the
Montrealers expressed “their utter astonishment” on learning of Wilkinson’s proclamation “forbidding the entry into the Missouri River of all Persons whatever, not
being citizens of the United States.” Such was the scope of Wilkinson’s proclamation that “even the Canoe-men are preventing from going into the [Missouri]
River along with the Merchandize they had been hired and engaged to transport.”
This regulation had compelled Laurentine traders, who had received no advance
notice of Wilkinson’s proclamation when they had entered their goods with the
American collector at Michilimackinac, to hire “a new set of men . . . for the remaining part of the Voyage up the River, in order to convert the goods into skins
and Furs.” The Montrealers claimed that the additional expense incurred by the
need to hire American citizens in St. Louis to navigate their canoes up the Missouri
River “will amount to a prohibition of the Trade.”37
Anthony Merry, the British minister in Washington, DC, presented a litany of
treaty violations to Secretary of State James Madison in early January 1806.
36. Governor Wilkinson to the Secretary of War, September 8, 1805, in Territorial Papers, Vol.
XIII: The Territory of Louisiana-Missouri, 1803-1806, 196–97.
37. Memorial of Montreal Merchants, November 8, 1805, in Historical Collections of the
Michigan Historical and Pioneer Society (Lansing, MI, 1896), 25: 218–20 (hereafter, MPHC).
712 : d i p l o m a t i c h i s t o r y
Alongside the memorial that Dunn had forwarded to Merry from Quebec, the
Laurentine merchants of Montreal had dispatched William McGillivray to
Washington to present their grievances against the U.S. government to Merry.
Merry protested Wilkinson’s proclamation excluding the Laurentine trade from
the Louisiana Territory in his first letter of January 6. He explained how the
Laurentine trade had never met “with any material obstruction on the part of
the Spanish Government,” and the “astonishment” of Laurentine merchants
that the federal officials would violate “the positive Right given them by the abovementioned Articles of the Treaty” to trade within the territory of the United
States.”38
Merry’s second letter of January 6 offered a remonstrance against the “improper Hardships upon that Trade imposed by American Collectors and Superintendents of Indian Affairs,” which the minister considered “a Contravention of
both of the Letter and Spirit of the Third Article of the Treaty of 1794.” First,
Merry complained that goods imported into the United States from Upper
Canada through the ports of Michilimackinac and Detroit were “being charged
in Reality, by the mode of calculating them, although not nominally, with higher
Duties than are levied on the same articles when they are imported into the Atlantic
Ports of the United States.” While federal customs collectors in the American
Atlantic ports used the London price of imported goods as the prime value in
calculating customs duties, their colleagues in the Great Lakes used Montreal
prices, which were one-third higher. By this sleight of hand, British goods imported into the United States through the Great Lakes paid 5.5 percentage points
more in ad valorem duties than the same goods imported through American Atlantic ports. Merry further complained of the unreciprocated “alien Tonnage
Duty” levied on British vessels entering American ports and the Indian trade
licensing system, which required British traders to pay US$6 for a license to
trade among the Indians, as violations of the free navigation and free intercourse
recognized by the Jay treaty.39
Merry’s final letter of January 7 protested Duncan’s seizure of the North West
Company’s property at Michilimackinac “as extremely vexatious and unauthorized
by any Principle of the Treaty.” Merry explained to Madison that the case was yet
38. Anthony Merry to James Madison, January 7, 1806, No. 1, British Legation Notes, vol. 3.
39. Anthony Merry to James Madison, January 7, 1806, No. 2, British Legation Notes, vol. 3.
Extra official communication with regard to the Canada Trade, American State Papers, Foreign
Relations (Washington, DC, 1832), 3: 153 (hereafter, ASPFR). Laurentine merchants illustrated
their complaint against the calculation of customs duties in the Great Lakes by contrasting the
duties due on £100 of London goods imported through Montreal and through the American
Atlantic ports. £100 of goods in London were worth £133.3.8 in Montreal. Customs collectors
at Michilimackinac added 10 percent to the Montreal prime value to calculate the worth of the
goods at £146.13.4. Consequently, £100 of London goods imported through Michilimackinac, via
Montreal, paid £22 in customs duties charged at the ad valorem rate of 15 percent. Customs
collectors at New York added 10 percent to the London prime value to calculate the worth of
£100 of London goods at £110. Consequently, £100 of London goods imported through New
York paid only £16.10.10 in customs duties charged at the ad valorem rate of 15 percent.
The Jay Charter : 713
to come to trial in the Supreme Court of the Michigan Territory in Detroit. The
delay was a serious hardship to Laurentine merchants because they had purchased
on credit the goods held in federal custody at Michilimackinac, the interest on
which continued to accumulate without any prospect of payment. “A Twelve
month’s Detention” of the North West Company’s property threatened the “great
Injury of all the Persons concerned in it.” Merry lay the case before Madison “in
the just Hope and Expectation that not only by this Means it will meet with a more
prompt and favorable Decision, but that such Directions will be given to the
Collector as shall prevent a repetition of similar vexations to the British Trade.”
In sum, Merry asked the U.S. government to repudiate the local initiatives of
federal officials at Detroit and Michilimackinac as violations of the Jay treaty.40
In contrast to Pickering’s accommodation of Liston’s complains in 1798,
Secretary of State James Madison rebuffed Merry’s protests. Much had changed
in American politics, diplomacy and Indian affairs to ensure that the U.S. government wished to place the narrowest possible construction on the commercial and
political rights granted to British subjects by the Jay treaty. The election of
Thomas Jefferson as president in 1800, and his reelection in 1804, meant that
Republicans, rather than Federalists, controlled the executive in 1806. Aside
from the general Anglophobia of Jefferson and his followers, the Republican electoral victories meant that two of the Jay treaty’s leading critics occupied key positions in Jefferson’s cabinet: James Madison as the secretary of state and Albert
Gallatin as the secretary of the treasury. The former responsible for diplomacy, the
latter for customs enforcement.
By 1806, diplomatic relations between the United States and Great Britain had
deteriorated since the rapprochement of 1794. Britain’s vigorous prosecution of its
fight for survival against Napoleonic France placed considerable strain on AngloAmerican relations. The Royal Navy’s impressment of American sailors and violation of America’s neutral maritime trading rights remained an unresolved source
of conflict between the U.S. and British governments. In addition, Merry was an
unpopular figure within Washington society. Merry demanded that President
Jefferson award him social precedence over the ministers of other nations, the
consequence of which, Jefferson noted to James Monroe, “will be that Mr. &
Mrs. Merry will put themselves into Coventry, & that he will lose the best half
of his usefulness to his nation, that derived from a perfectly familiar & private
intercourse with the secretaries & myself.” Merry was not oblivious to the fact that
the sourness of Anglo-American relations made it unlikely that the Laurentine
complaints would meet with a sympathetic ear in Washington. Merry wrote
Thomas Dunn, executive of Lower Canada, that the unresolved disputes between
Britain and the United States meant that the U.S. government “seem little disposed to come to an accommodation” regarding the Laurentine complaints.41
40. Anthony Merry to James Madison, January 8, 1806, British Legation Notes, vol. 3.
41. Jefferson to Monroe, January 8, 1804, in Paul Leicester Ford, ed., The Writings of Thomas
Jefferson (New York, 1897), 8: 290–91. Merry to Dunn, January 30, 1806, 80, RG 7,
714 : d i p l o m a t i c h i s t o r y
The situation on the western frontier also appeared more urgent in 1806 than it
had in 1798. The aggressive acquisition of Indian lands pursued by William Henry
Harrison, governor of the Indiana Territory, leading to the treaty of Fort Wayne
in 1803, fractured the peace settlement established between the western Indian
nations and the United States at Greenville in 1795. Reports from federal Indian
agents in the Indiana and Louisiana Territories warned of rising discontent among
the western nations. The Shawnee prophet Tenskwatawa began preaching a
nativist message of resistance to the Jeffersonian project of civilization, which
aimed to promote commercial agriculture among Indians, in 1805. Governor
Harrison blamed the machinations of British agents, particularly Laurentine traders, for the growing support of the western Indians for Tenskwatawa’s opposition
to American western expansion.42
Madison embraced the local innovations of federal officials as a means of limiting the commercial and political rights that the Jay treaty granted to British subjects. The Secretary of State upheld Wilkinson’s proclamation excluding British
subjects from trading with the Indians of the Louisiana Territory. Madison explained to Merry that the commercial rights that British subjects enjoyed within
the territory of the United States extended only so far as the “boundary of 1783 and
consequently, that it excludes the territory since acquired.” The Secretary of State
referred Merry’s protests concerning customs tariffs, tonnage duties and Indian
trade licenses to Attorney-General John Breckinridge. The Attorney-General held
that the means by which federal collectors calculated customs duties was perfectly
legal, as was the collection of tonnage duties. Breckinridge did, however, determine that British subjects ought not to pay for their Indian trade licenses under the
terms of the Jay treaty. Finally, Madison offered relief to the North West
Company: He informed the British minister that the Treasury would “order restitution of the Merchandize seized, on their [the North West Company] giving
security for the payment of the forfeiture in Case of Condemnation.” The
Jefferson administration continued to honor the word, if not the spirit, of the
western provisions of the Jay treaty, but Madison and his fellow cabinet members
would look to impose the narrowest possible definition of the rights granted by the
treaty.43
Governor-General’s Office, Correspondence from the British Minister to the United States,
1799–1807, G15B, vol. 1: 80, LAC. Perkins, Prologue to War, 67–69; Tucker and Hendrickson,
Empire of Liberty, 189–97.
42. Horsman, Expansion and American Indian Policy, 150–52; Gregory Evans Dowd, A Spirited
Resistance: The North American Indian Struggle for Unity, 1745-1815 (Baltimore, MD, 1992), 118; R.
David Edmunds, The Shawnee Prophet (Lincoln, NE, 1983), 28–41. For Jefferson’s policy of civilization, see Anthony F. C. Wallace, Jefferson and the Indians: The Tragic Fate of the First Americans
(Cambridge, MA, 1999), 206–40.
43. James Madison to Anthony Merry, January 29, 1806, RG 7, G15B, vol. 1: 16–22, LAC.
James Madison to Anthony Merry, May 21, 1806, MG 16, Public Record Office, London, Foreign
Office Papers 5/49/90, LAC (hereafter, FO). John Breckinridge to James Madison, March 22,
1806, FO 5/49/91-2.
The Jay Charter : 715
The thawing of Anglo-American relations in 1806 encouraged Laurentine merchants to hope for the redress of their grievances against the U.S. government and
the restitution of the commercial and political rights that they claimed under the
Jay treaty. The death of the British Tory Prime Minister William Pitt in January
1806 and his replacement with the Fox-Grenville so-called “Ministry of All the
Talents” suggested that the British government would pursue a more conciliatory
approach to their diplomatic relations with the United States. Indeed, Whitehall
recalled the despised Anthony Merry from Washington, replacing him with the
more amiable David Erskine. The British government also placed the trade between the United States and the British West Indies on a more regular footing and
quietly backed away from enforcing the Essex decision of the High Court of the
Admiralty, which would otherwise have allowed the Royal Navy greater powers to
stop American merchant vessels bound for France or the French colonies.44
The Jefferson administration dispatched William Pinkney to join James
Monroe, the American minister to the Court of St. James, to negotiate a new
treaty with Great Britain to replace the temporary articles of the Jay treaty,
which were due to expire in 1806. Jefferson also charged Pinkney and Monroe
with brokering a deal to resolve the U.S. government’s outstanding disputes with
Great Britain, concerning impressment and neutral maritime trading rights.
Laurentine merchants believed that the treaty negotiations in London would
offer the perfect opportunity for the King’s ministers to restore their commercial
and political rights. The merchant committee of Montreal sent a memorial to the
Lords of Trade in February 1806, complaining about their exclusion from the
Louisiana Territory. Later that year, they sent a memorandum to Lord Auckland
and Lord Holland, the British commissioners for the new American treaty, detailing their grievances against the U.S. government, which included the restrictions
imposed on their access to the Louisiana Territory, the calculation of customs
duties, the collection of tonnage duties and the payment required of them for
Indian trade licenses. Auckland and Holland took up the Laurentine complaints
with Monroe and Pinkney in October 1806. The British Commissioners pushed
their American counterparts for redress of grievances, which they considered a
“direct violation of the treaty of 1794” and “highly detrimental to the private
interests of the Canada merchants.” The new treaty of Amity, Commerce and
Navigation signed on December 31, 1806 made no mention of the Laurentine
complaints. Nevertheless, The British Foreign Secretary Lord Howick wrote
David Erskine in Washington that “every means will be taken to obtain Redress
for the Removal of the Inconveniences complained of” when Auckland and
Holland negotiated the additional and explanatory articles with Monroe and
Pinkney in the spring.45
44. Perkins, Prologue to War, 102–6.
45. Extra official communication with regard to the Canada Trade, ASPFR, 3: 152–53.
Holland and Auckland to Lord Howick, October 20, 1806, FO 5/51/178. Privy Council for
716 : d i p l o m a t i c h i s t o r y
The four most powerful merchant houses in Montreal formed a new
copartnership to expand their commercial operations in U.S. territory even
though the outcome of the Anglo-American negotiations in London remained
uncertain. On December 31, 1806, the same day that the new Anglo-American
treaty was signed in London, James and Andrew McGill & Co., Parker, Gerrard,
Oglivy & Co., Forsyth, Richardson & Co., and William and Duncan McGillivray
& Co. signed a ten-year agreement, forming the Michilimackinac Company.
Despite the confidence exuded by the Laurentine merchants in forming the new
company, the new copartners eagerly awaited news of the Anglo-American negotiations in London. James McGill explained to his London patron John
Brickwood, in January 1807, that unless the “freedom of Indian Trade can be
assured the prosecution of it must be given up.”46
McGill was to be disappointed. The sixth and seventh additional and explanatory articles agreed in London in the spring of 1807 resolved the Laurentine
complaints. The former guaranteed the commercial access of British subjects to
the trans-Mississippi west in return for opening the Hudson’s Bay Company’s
territory to American citizens. The latter resolved the complaints regarding the
calculation of customs duties and the payment required for Indian trading licenses.
The new treaty, however, never made it to the U.S. Senate for ratification.
President Jefferson rejected the treaty because it failed to resolve the issue of
Royal Navy impressment. Madison was aghast at the unwarranted concessions
that he believed Pinkney and Monroe had offered to British merchants.
Madison’s instructions to the American Commissioners in May 1806 made clear
his concerns about the influence of British traders among the western Indians and
his continued opposition to the third article of the Jay treaty, which he described as
being “very seriously detrimental to the United States.” Moreover, the Secretary of
State had instructed Pinkney and Monroe to pursue an amendment to the Jay
treaty to “mutually authorize the parties to confine the Indian trade within their
respective limits to their own traders.” It certainly was not the policy of the
Jefferson administration to grant new commercial concessions to British traders
west of the Mississippi River, as Monroe and Pinkney had done.47
Trade to Hon. George Walpole, February 20, 1806, FO5/51/19. Howick to Erskine, January 8,
1807, FO 5/52/25.
46. James McGill to Isaac Todd, October 23, 1806, James McGill Collection, Folder 3:
Letterbook, 1802–1807, McGill University Special Collections, Montreal. Agreement Between
the North West Company and the Michilimackinac Company, December 31, 1806, MG 19, B1,
North West Company fonds, vol. 2, Minute Book, 1801–1811, 61, LAC. Thomas Blackwood to
James and Andrew McGill, June 10, 1807, Thomas Blackwood Letterbook, 1806–1807, MS 430/
1, McGill University Special Collections. James McGill to John Brickwood, January 2, 1807,
James McGill Collection, Folder 3: Letterbook, 1802–1807.
47. Extra official communication with regard to the Canada Trade, ASPFR, 3: 153. Additional
and explanatory articles . . . to be added to the treaty of amity, commerce, and navigation between
His Britannic Majesty and the United States of America, signed at London, the 31st day of
December 1806, ASPFR, 3: 165. Tucker and Hendrickson, Empire of Liberty, 199. Mr.
Madison, Secretary of State, to Messrs. Monroe and Pinkney, Ministers Extraordinary and
Plenipotentiary of the United States in London, May 30, 1806, ASPFR, 3: 126. Monroe and
The Jay Charter : 717
Jefferson and Madison’s rejection of the treaty of 1806 denied the
Michilimackinac Company a sense of security, but it did not rob the
Montrealers of their trans-Mississippi trade. Laurentine imports into the United
States through Michilimackinac remained relatively stable between 1805, the year
in which Wilkinson issued his proclamation excluding foreign traders from the
Louisiana Territory, and 1807, when news arrived of the failure of AngloAmerican negotiations to lift Wilkinson’s ban. The Michilimackinac Company
succeeded in circumventing the proclamation excluding British traders from
Louisiana by exploiting the ambiguous legal status of westerners. The company
employed agents, including both Robert Dickson and James Aird, who claimed
American citizenship under the Jay treaty. The U.S. District Judge at St. Louis,
John B. C. Lucas, complained about the problems he faced in determining the
authenticity of individual claims to citizenship in February 1807. He wrote Henry
Dearborn that traders would swear to their American citizenship under oath, while
being “well known to be residents in Montreal or Near that place in Canada.”
Lucas concluded that “som[e] better evidence than an oath in my opinion ought to
be required of an Indian Trader.” Although vexed by the local innovations of
federal officials at the periphery, and increasing opposed by the policy and diplomacy of the Jefferson administration in Washington, Laurentine merchants continued to prosecute their trade with Indians, merchants and traders in the western
territories of the United States under the protection of the Jay treaty.48
* * * *
In the late spring of 1808, “twenty Boats laden with merchandize” of the
Michilimackinac Company left Lachine bound for Michilimackinac. John Lees,
the collector of customs for the port of Niagara, aided by troops from the U.S.
garrison at Fort Niagara, seized eight of the vessels when they entered the Niagara
River on May 21, 1808. In the course of the seizure, several American soldiers fired
on the Canadien voyageurs navigating the boats, their shots falling on the Canadian
Pinkney explained to Madison that the “seventh article of the project is wholly that of the British
commissioners,” which they had only accepted because they feared that Auckland and Holland
would consider its rejection “an unfriendly act.” Messers. Monroe and Pinkney to Mr. Madison,
April 25, 1807, ASPFR, 3: 163.
48. District of Michilimackinac, Impost Book (1802–1865). After the high of 1804, Laurentine
merchants paid $26,108 (c. £5,874) in customs duties in 1805, £26,430 (c. £5,947) in 1806, and
£22,441 (c. £5,049) in 1807. The decline between 1806 and 1807 was likely the result of the
formation of the Michilimackinac Company, whose corporate demand for Indian trade goods
would be less than the separate demands of the four individual firms. The creation of copartnership
as a means of limiting risk by eliminating competition and maximizing returns on investment was a
well-established business practice in the Laurentine trade by 1806, following the model established
by the North West Company. Judge Lucas to the Secretary of War, February 9, 1807, Territorial
Papers, Vol. XIV: The Territory of Louisiana-Missouri, 1807-1812, 96.
718 : d i p l o m a t i c h i s t o r y
shore of the Niagara River. Although no one was killed in the confrontation, the
collector removed the goods and boats into Fort Niagara and left the voyageurs
“adrift[,] to cross the river to the British side in the best manner they could.” The
simmering tensions between the Laurentine trade and federal officials had erupted
into open commercial warfare.49
John Lees had seized the Michilimackinac Company boats for violating the
latest supplementary embargo act, which required cargo vessels entering or leaving
American waters to seek clearance from the collector of customs at the nearest
point of entry. Congress passed the series of commercial restrictions known collectively as the Embargo as an instrument of economic warfare, intended to coerce
Great Britain and France into recognizing the neutral maritime rights of the
United States. Laurentine merchants argued that Congress’s extension of the
Embargo to include inland navigation in March 1808 violated their right of commercial access to the western territories of the United States. George Gillespie, a
partner in the firm of Parker, Gerrard & Oglivy, traveled to Washington, DC to
represent the interests of the Michilimackinac Company to the Jefferson administration. Gillespie “return’d to Montreal perfectly satisfied” with “assurances
given him that the Indian Trade should not in any way be affected, either by the
Non importation or Embargo Laws.” Jefferson signed an additional embargo act
in April 1808 that appeared to confirm the assurances that Gillespie had received
in Washington. The act stated that none of the commercial restrictions imposed
by Congress on cross-border trade would infringe on the right of British subjects
to trade freely with Indians in the United States.50
The Michilimackinac Company’s agent at Queenston, Robert Hamilton, protested Lees’s seizure to Captain Leonard, the U.S. commandant of Fort Niagara,
as a violation of the assurances that the Montreal partners had received from
President Jefferson. Hamilton called for the immediate restitution of the company
property. The Michilimackinac Company could ill-afford a protracted legal battle
to recover their property. Unless the company boats left immediately for
Michilimackinac, Hamilton explained to Leonard, it would be impossible for
the goods to reach “this Season the different inland Trading Posts for which
they are intended.” The company would incur an additional year’s worth of interest due on the goods that they had imported from London without any prospect of
converting the merchandize into furs. Captain Leonard refused to discuss the
legality of the seizures made “under the direction of the Civil Authority of the
49. Robert Hamilton and Thomas Dickson to Francis Gore, May 25, 1808, RG 5, A-1, Upper
Canada Sundries: Correspondence of the Civil and Provincial Secretaries, 1766–1841, vol. 7:
3107–8; microfilm reel C-4504, LAC.
50. Tucker and Hendrickson, Empire of Liberty, 202-12. Robert Hamilton to Captain
Leonard, May 24, 1808, RG 5, A-1, vol.7: 3118–19; microfilm reel C-4504, LAC. An Act in
addition to the act entitled “An act laying an embargo on all ships and vessels in the ports and
harbors of the United States,” and the several acts supplementary thereto, and for other purposes,
April 25, 1808, U.S. Statutes at large, II, 502.
The Jay Charter : 719
United States,” and the Michilimackinac Company boats and cargo remained in
the custody of John Lees.51
His efforts at Niagara frustrated, Hamilton and his fellow agent Thomas Dickson petitioned Francis Gore, the lieutenant-governor of Upper Canada, to make “a
proper representation to the Government of the United States in such a manner as
you think best to endeavour to procure the restitution of these Boats and Goods.”
Hamilton and Dickson’s patrons in Montreal wrote Governor-General Sir James
Craig in Quebec to protest the Niagara seizure, and the Michilimackinac Company
sent a memorial directly to David Erskine, the British minister in Washington.52
Erskine protested the Niagara seizure as “a flagrant Insult” that “might in its
Consequences seriously affect the Harmony and good Understanding between
His Majesty’s Provinces of Canada & the Ajacent [sic] Territories of the United
States.” Erskine demanded that Lees immediately restore the Michilimackinac
Company’s property. He further called on Madison to issue orders to federal
civil and military officials on the Great Lakes to respect the commercial rights
of British subjects “secured to them by Treaties, & carried on upon Waters to the
free & uninterrupted Navigation of which they had as much Right as Citizens of
the United States.”53
Treasury Secretary Gallatin acceded to Erskine’s demand for the restoration of
the Michilimackinac Company’s property, but Madison denied that Lees had
acted illegally. Madison believed that Hamilton and Dickson knew that the company boats should have reported to Lees on entering the Niagara River, as evidenced by the fact that the pair were “without any other Plea, except that of
Ignorance.” Madison chided the company agents for “the Tone of their
Complain,” which the Secretary of State thought “ought to have been very different.” Erskine vehemently opposed Madison’s claim that the United States had the
right to demand that British boats seek clearance from American collectors on the
Niagara River. Erskine argued that Lees’s actions were “a gross Outrage” and that
the boats “were not bound to report themselves at the Port of the United States, at
Niagara, having cleared out from one of their own Ports and being bound to
another situated upon Waters, to the free navigation of which, they had a most
unquestionable Right.” The British and American governments remained at loggerheads over their respective interpretations of the right of free navigation contained in the Jay treaty, leaving the Michilimackinac Company exposed to future
seizures by federal customs officials in the Great Lakes.54
51. Robert Hamilton to Captain Leonard, May 24, 1808, RG 5, A-1, vol. 7: 3119–20; microfilm reel C-4504, LAC. Capt. Leonard to Hamilton, May 24, 1808, ibid., 3129–30.
52. Robert Hamilton and Thomas Dickson to Francis Gore, May 25, 1808, RG 5, A-1, vol. 7:
3107–11, microfilm reel C-4504, LAC. Sir James Craig to Hon. D. M. Erskine, June 2, 1808,
MPHC 25: 248.
53. David M. Erskine to James Madison, June 21, 1808, British Legation Notes, vol. 3.
54. James Madison to David Erskine, June 29, 1808, RG 5, A-1, vol. 8: 3193; microfilm reel
C-4505, LAC. David Erskine to James Madison, July 2, 1808, British Legation Notes, vol. 3.
720 : d i p l o m a t i c h i s t o r y
The impasse between Erskine and Madison over Lees’s seizure reflected the
increasingly troubled relationship between London and Washington. The
Leopard-Chesapeake affair—when the British warship HMS Leopard fired on the
USS Chesapeake after the latter refused to allow British sailors to search the
American crew for deserters from the Royal Navy—brought the two countries
to the brink of war in June 1807. Moreover, Washington received myriad reports
from federal officials across the West during the winter of 1807–1808, claiming
that British agents were inciting the western Indian nations to go to war with the
United States. From Chicago, the Indian agent Charles Jouett warned that the
Shawnee Prophet Tenskawatawa was “immediately under the British influence
and exerting all his arts to induce to war against the United States.” From Fort
Wayne, William Wells reported that “British agents at Malden are at this time
passing through this country informing the Indians that their father King george
had sent seven Large vessels to america Loaded with Soldiers to releave his red
children from oppression and restore their country to them again.” At Louisville,
William Clark expressed his concerns to Washington that British agents exercised
control over the Mandan nation, and his fear that “the British Traders have already
inroads to the Upper portion of the Missouri [River Valley].” The British government and its Indian allies, it seemed to Washington, stood poised for war.55
Federal agents singled out the traders of the Michilimackinac Company for
particular mention as enemies of the United States. Meriwether Lewis, governor
of the territory of Upper Louisiana, wrote Secretary of War Henry Dearborn of
the “Michilimacanac company” in July 1808. Lewis explained how “desperate in
their fortunes, inprincipals from their habits, and hostile in the extreem to our
government, they become a fit instrument under the direction of the N[orth].
West company to mar our best arrangements for the happiness of the indians
and the tranquility of the frontier.” Lewis called for increased powers of regulation
over the Indian trade, explaining to Dearborn that “if we permit the British traders
to supply the Indians of Louisiana as formerly, the influence of our government
over the Indians is lost; for the Indians in possession of their merchandize feel
themselves independent of every government.” Jefferson agreed with Lewis’s assessment of the threat posed by the Laurentine traders and the Governor’s call for
greater regulatory powers. The President wrote his protégé from Monticello in
August 1808 that the federal government meant to employ “the severest measures”
to prevent British traders from crossing to the west of the Mississippi River, while
55. Perkins, Prologue to War, 140–46. Charles Jouett to Secretary of War, December 1, 1807,
in Territorial Papers, Vol. VII: The Territory of Indiana, 1800-1810, 496. William Wells to Secretary
of War, December 5, 1807, in Territorial Papers, Vol. VII: The Territory of Indiana, 1800-1810, 498.
William Clark to the Secretary of War, December 3, 1807, in Territorial Papers, Vol. XIV: The
Territory of Louisiana-Missouri, 153–54.
The Jay Charter : 721
enforcing strict regulations on the Indian trade to the east. Laurentine merchants
were correct to fear for the future of their trade with the United States.56
The Niagara seizure convinced Laurentine merchants of the federal government’s ability to control trade at critical junctions of the St. Lawrence riverine
network. The Michilimackinac Company claimed that Lees had seized over
£26,000 of merchandise, approximately one-third of the company’s annual outfit
of £80,000. Moreover, by the end of 1808, Laurentine merchants believed that the
federal government meant to deploy this regulatory power to destroy their trade
within the United States. The Laurentine merchants of Montreal informed
Governor-General Craig in a memorial of October 1808 that they “have for
some time seen progressing, with extreme concern, a systematic plan to drive
the British Indian traders from the American territory, by every species of vexation.” Duncan’s seizure at Michilimackinac in 1805, the inequitable calculation of
customs and tonnage duties, the licensing of the Indian trade and, finally, Lees’s
seizure at Niagara confirmed the suspicions of Laurentine merchants: The U.S.
government was deliberately attacking their commercial interests to ensure that
“the Indian trade within the American Limits must speedily be abandoned by
British subjects.” After 1808, many Laurentine merchants questioned whether
their trade with the United States was viable if the federal government was bent
on its destruction.57
The Montreal memorialists believed that only high-level diplomacy could preserve their trade. They called on the British government to reopen negotiations
with the Jefferson administration to secure their commercial rights within the
United States and to recover the property seized at Niagara. Despite Gallatin’s
order to Lees to restore the Michilimackinac Company boats and goods, the
property remained in the collector’s custody because the Montreal partners had
refused Lees’s demand that they pay a bond in double the value of the boat and
property (over £50,000), and “other preliminaries which could not be agreed to by
the memorialists without acknowledging American jurisdiction in a question foreign to it.” The memorialists argued that agreeing to Lees’s demands would mean
“abandoning the strong ground whereon they stand as British subjects pursuing
their lawful business under common rights of free navigation, solemnly secured by
the Treaty of 1794.” The memorialists argued that the embargo was illegal because
Congress could not legislate to restrict the right of free navigation guaranteed to
British subjects by the Jay treaty without the consent of their sovereign, George III:
The treaty was a compact between nations that could only be amended by their
mutual consent. “Upon this principle,” the Michilimackinac Company contended,
“neither the American embargo, nonimportation, or any other act of the States,
can govern the present case, or control or regulate the right of navigation
56. Governor Lewis to the Secretary of War, July 1, 1808, in Territorial Papers, Vol. XIV: The
Territory of Louisiana-Missouri, 200–2. The President to Governor Lewis, August 21, 1808, ibid.,
220–21.
57. Memorial of the Merchants of Montreal, October 20, 1808, MPHC, 25: 254–56.
722 : d i p l o m a t i c h i s t o r y
stipulated by the said Treaty.” The British government ought to demand a reaffirmation of the Jay treaty by the government of the United States.58
The ministries of the Duke of Portland and Spencer Perceval sympathized with
the complaints that the Laurentine merchants leveled against the government of
the United States in 1808, not least because they recognized the important role
that British traders would play in mobilizing the western Indian nations in the
event of an American war. However, there was little hope of the British government pursuing a fruitful discussion of the western provisions of the Jay treaty with
the Jefferson administration without first resolving the longstanding irritants of
impressment and neutral maritime rights.
The growing belief among Laurentine merchants that the United States meant
to deny them access to western trade provided the New York merchant John Jacob
Astor with the opportunity to break the Laurentine monopoly of western trade.
Astor wrote to New York Governor Clinton DeWitt of his plan “to embrace in the
course of 4 or 5 years the whole of the furr Trade & to extend it to the western
ocean” in January 1808. Astor had been involved in the western trade for over
twenty-years by the time he outlined his plan to Clinton. Until 1808, however, the
Laurentine monopoly had forced Astor to purchase furs from either Montreal or
London. In his letter to Clinton, Astor estimated that Americans “Draw g of our
furrs for ham [home] consumption from canada & Import annually to the amount
of 400,000$ [£90,000] furrs collect’d on the Mississippi and Missourie.” Astor
secured a twenty-five-year charter for the American Fur Company from the
New York State Legislature in April 1808, as well as the tacit support of
President Jefferson for his scheme to exclude British merchants from the western
trade.59
The commercial policy of Jefferson and Madison determined the course of the
punctuated negotiations between Astor and the Laurentine merchants over
the sale of the Michilimackinac Company. Diplomatic negotiations between the
Madison administration and the new British minister Francis James Jackson in the
fall of 1809 gave Laurentine merchants mistaken cause to hope for an AngloAmerican rapprochement. Consequently, the Montrealers rebuffed Astor’s offer
to purchase half of the Michilimackinac Company. Madison’s dismissal of Jackson
in November 1809 meant that Laurentine merchants had no reason to expect the
President to relax the nonintercourse proclamation that he had issued the previous
August. John Richardson, a partner in the firm of Forsyth, Richardson & Co.,
travelled to New York with William McGillivray to make “an arrangement for the
58. Memorial of the Merchants of Montreal, October 20, 1808, MPHC, 25: 252–53.
59. John Jacob Astor to DeWitt Clinton, January 25, 1808, DeWitt Clinton Papers, vol. 4;
microfilm reel 2, Butler Rare Book and Manuscript Library, Columbia University, New York.
Kenneth Wiggin Porter, John Jacob Astor, Business Man (Cambridge, MA, 1931), 1: 167. For the
transcontinental scope of Astor’s plan, see James P. Ronda, Astoria & Empire (Lincoln, NE, 1990).
While Jefferson was enthusiastic about Astor’s plan to exclude Laurentine merchants from the
western trade, he was uneasy about the American Fur Company’s push for monopoly. Ronda,
Astoria & Empire, 39–44.
The Jay Charter : 723
sale of Mr. Astor of the Interests of the Michilimackinac Company” in early
1810.60
News of the passage of Macon’s Bill No. 2, however, ended the tentative agreement that Astor and the Laurentine merchants had negotiated in New York. The
bill resumed American commerce with both Great Britain and France, and would
normalize commercial relations with which ever of the two belligerents acted first
in recognizing American neutral maritime rights by March 3, 1811. The bill
divided opinion among Laurentine merchants over whether Britain would
accept these terms. If Britain did, then the Laurentine trade could continue uninterrupted; if Britain did not, then they would have to abandon their trade with
the United States, or risk further seizures by American customs officials. The
division ensured the demise of the Michilimackinac Company in 1810. James
and Andrew McGill & Co. and Parker, Gerrard & Oglivy sold their trading interest to Forsyth, Richardson & Co. and McGillivrays & Co., who formed the new
Montreal-Michilimackinac Company in the summer of 1810.61
The remaining Laurentine merchants trading to the United States agreed
terms with Astor in the late spring of 1811 in response to Madison’s proclamation
of November 1810, which threatened to suspend all commerce with Great Britain
unless the British government recognized American neutral maritime rights by
February 2, 1811. Astor took a majority share in the new South West Company, in
copartnership with Forsyth, Richardson & Co. and McGillivrays & Co. to run five
years from April 1811. The South West Company and North West Company
agreed that the “line of Boundary established between Great Britain & the
U:States” would form the commercial boundary dividing the “trade of the
North West Co. from the Michilimackinac trade—or South West Company.”
The formation of the South West Company, which would be supplied equally
by New York and Montreal, broke the Laurentine monopoly of western trade
through the Great Lakes for the first time since the American Revolution.62
* * * *
Diplomacy and federal policy dismantled the western provisions of the Jay treaty in
the years of peace that followed the end of the War of 1812. The American peace
60. Lavender, Fist in the Wilderness, 122. John Richardson to Thomas Forsyth, February 17,
1810, MPHC, 25: 268.
61. Lavender, Fist in the Wilderness, 127. Forsyth Richardson & Co. to Jacques Porlier, June 8,
1810, in Collections of the State Historical Society of Wisconsin, ed. Reuben Gold Thwaites (Madison,
WI, 1910), 19: 337–38 (hereafter, WHC).
62. Lavender, Fist in the Wilderness, 148. Annual Meeting, July 11, 1811, Hudson’s Bay
Company Archives, F1/1 North West Company Minute Book (1807–1814): 39, 42; microfilm
reel 5M1, Provincial Archives of Manitoba, Winnipeg, MB. If Astor had not entered into a partnership with the remaining Laurentine merchants interested in the western trade of the United
States, the commercial territory of the Michilimackinac Company would have been absorbed by
the North West Company, under the terms of their agreement of December 31, 1806. July
Meeting 1809 at Fort William, Hudson’s Bay Company Archives, F1/1 North West Company
Minute Book (1807–1814): 33–34.
724 : d i p l o m a t i c h i s t o r y
commissioners in Ghent doggedly refused to renew the third article of the Jay
treaty in both the treaty of Ghent, concluded on December 31, 1814, and the
commercial convention negotiated with Great Britain in 1815. British subjects
would no longer enjoy any right of free commercial access to the United States.63
Freed from the constraints that the Jay treaty’s western provisions had placed
on federal power, the U.S. government quickly moved to exclude foreign nationals
from the domestic Indian trade. At Michilimackinac, the U.S. Indian agent
William H. Puthuff established a network of informers throughout the Great
Lakes region to aid his detection of Laurentine traders attempting to infiltrate
the Indian trade of the United States. Puthuff’s network proved remarkably successful in capturing furs destined for Montreal. By June 1816, the Indian agent had
$15,000 of furs in his custody and bragged to Lewis Cass, the governor of the
Michigan Territory, that he was “apprized of every Trader who has thus gone into
the Country and their place of trade.” In Washington, Congress passed the Indian
Intercourse Act in April 1816, which declared that only American citizens were
eligible to obtain licenses to trade with the Indian nations residing within the
bounds of the United States. Laurentine merchants and traders could no longer
maintain their liminal position between the United States and British Empire.64
The Laurentine trade withdrew its commercial operation from the territory of
the United States in 1817. The Montrealers, engaged in an actual shooting war
with the earl of Selkirk’s settlers on the Red River, in the present-day Canadian
province of Manitoba, did not have the stomach to fight a commercial war against
federal agents in the Great Lakes. Forsyth, Richardson & Co. and McTavish,
McGillivrays & Co. sold their remaining interest in the South West Company
to John Jacob Astor in early 1817. Thus ended Montreal’s forty-year ascendency in
the western trade.65
Despite the withdrawal of the Laurentine trade from the territory of the United
States in 1817, British traders continued to live on American soil, at places such as
Green Bay. While they might now answer to Astor in New York, rather than the
McGillivrays in Montreal, the loyalty of these British subjects continued to
frighten federal agents, who suspected them of being a channel of foreign influence
among the western Indian nations. Without finding a practical means by which
federal officials could determine the nationality of westerners, that is, by creating a
fixed category of American citizenship, the exclusion of foreign subjects from the
Indian trade would prove as unworkable in 1817 as it had in Louisiana in 1805.
British subjects could no longer claim commercial rights within the territory of the
63. Lavender, Fist in the Wilderness, 253; Burt, United States, Great Britain and British North
America, 376.
64. Seizure of Furs, William H. Puthuff to Lewis Cass, June 6, 1816, in WHC, 19: 415.
William H. Puthuff to Lewis Cass, June 20, 1816, ibid., 20: 420.
65. American Fur Company’s Agents, John Jacob Astor to Ramsey Crooks, March 17, 1817, in
WHC, 19: 451.
The Jay Charter : 725
United States, but individuals such as Dickson and Aird could still claim American
citizenship, based on their residence at the western posts in 1796.66
U.S. Attorney-General William Wirt found a legal solution to the problem of
hybrid nationality among westerners in 1819. Secretary of War John C. Calhoun
referred the case of Jacques Porlier to Wirt in September 1819. Porlier, a British
subject who had resided in the Michigan Territory since 1791, was attempting to
claim American citizenship under the second article of the Jay treaty. Wirt determined that the treaty merely allowed the residents of the western posts in 1796 the
opportunity to apply for immediate American citizenship, without the usual requirement of a period of residency, rather than actually conferring citizenship on
these individuals. Consequently, Wirt concluded that Porlier was “not yet, in my
opinion, a citizen of the United States.” Wirt’s ruling became the basis for federal
policy in the West. Lewis Cass wrote the Indian agents of the Michigan Territory
in October 1819 that “no license will be granted to any person claiming to be an
American Citizen under the [second] article . . . unless such a person has also been
naturalized agreeable to the acts of Congress.” Hybrid nationality no longer
existed in the West.67
The undoing of the Jay treaty’s western provisions between 1814 and 1819
reveals much about the process of creating an American national state. That is,
the importance of diplomacy, commercial policy and the legal definition of citizenship to federal state formation. Diplomacy was a critical dimension of federal
state formation. The War of 1812 extinguished the political and commercial rights
of British subjects within the territory of the United States, which the American
negotiators at Ghent refused to renew. These rights had allowed Laurentine merchants to exploit the commercial and geographical advantages they enjoyed over
their potential competitors in Albany and Pittsburgh for control of the western
trade. The Laurentine trade threatened the founder’s vision for the western expansion of the American Republic. In the short term, the Laurentine trade maintained ties between the British Empire and the western Indian nations, which
threatened the security of the United States in the West. In the long-term, the
Laurentine trade jeopardized the American national project in the West. The
founders believed that the self-interest of westerners would forge intersectional
east–west bonds, with commercial ties forming national sinews. The Laurentine
trade, however, suggested an alternative outcome to the commercial development
of the West: The promotion of north–south transnational connections between
western farmers and Laurentine merchants.68
66. For the concern of federal Indian agents about the British subjects of Green Bay, see John
Bowyer to Lewis Cass, May 16, 1818, in WHC, 20: 56–57.
67. William Wirt to J. C. Calhoun, September 3, 1819, in WHC, 20: 121–22. Lewis Cass to
Agents at Michilimackinac, Green Bay, Chicago, Fort Wayne, and Piqua, October 11, 1819, in
WHC, 20: 127.
68. For the development of a separate political economy in eastern and southern Ohio, see
Kim M. Gruenwald, River of Enterprise: The Commercial Origins of Regional Identity in the Ohio Valley,
1790-1850 (Bloomington, IN, 2002). See also, William H. Bergman, “A ‘Commercial View of
726 : d i p l o m a t i c h i s t o r y
Republican commercial policy, conceived at the center and enacted through
local innovations at the periphery, was an essential part of creating an American
national state. Only by engaging in commercial warfare was the federal government able to restore the founders’ vision of western expansion by disrupting the
Laurentine trade with the United States. Following the Customs Act of 1799, the
local innovations of federal officials from David Duncan in 1803 to William
Puthuff in 1816 drove the gradual erosion of the Laurentine trade’s economic
advantages in the western trade.
Although historians generally agree with Albert Gallatin’s assessment that a
“small army” would be necessary to enforce the embargo along the porous AngloAmerican border, Laurentine merchants thought otherwise by 1811. The seizure
of the North West Company’s property at Michilimackinac in 1805 and the capture of the Michilimackinac Company boats at Niagara in 1808 convinced
Laurentine merchants that the federal state had the capacity to control crossborder trade at critical chokepoints in the riverine network of the Great Lakes.
It was one thing to go undetected, smuggling a raft of lumber across the St.
Lawrence River to Vermont in the dead of night; it was quite another thing to
risk moving twenty boats loaded with goods worth tens of thousands of pounds
through the Niagara River. Republican commercial policy helped fulfill the founders’ vision of western expansion by promoting the integration of western trading
centers into a national economy. The partnership between Laurentine merchants
and Astor in 1811 and the final withdrawal of the Laurentine trade from the United
States in 1817 promoted the rise of New York, and the eclipse of Montreal, as the
metropole of western trade. This shift in western trading patterns foreshadowed
the emergence of intersectional east-west ties and the withering of north–south
transnational connections.
Creating a fixed legal definition of citizenship was also critical to creating an
American national state. The western provisions of the Jay treaty had restrained
the ability of the federal government to connect commercial rights with political
allegiance. More troubling, the treaty created an ambiguous situation in the West
where it was practically impossible to distinguish American citizens from British
subjects. Individuals like Dickson and Aird occupied a liminal position between the
American Republic and the British Empire by claiming membership in both political communities as they saw fit. Dismissing the behavior of Dickson and Aird as
unprincipled is too easy; their loyalty, like many westerners, lay with the
Laurentine trade. It was the source of their prosperity and was comprised of
their kin and friends. Fixing nationality was integral to federal state formation
because it allowed the U.S. government to pursue policies of economic nationalism. Securing the allegiance of westerners to the American Union and cementing
their membership in the political community of the United States was synonymous
with the commercial integration of the West into an inchoate national economy.
This Unfortunate War’: Economic Roots of an American National State in the Ohio Valley, 17751795,” Early American Studies 6 (2008): 137–64.