PRESIDENTS AND THE CONSTITUTION
PRESIDENT AS CHIEF DIPLOMAT?
MONDAY, SEPTEMBER 8, 2008
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© The Bill of Rights Institute, All rights reserved
RESOURCES
http://www.senate.gov/artandhistory/history/minute/Uproar_Over_Senate_Treaty_Approval.htm
http://www.loc.gov/rr/program/bib/ourdocs/jay.html
http://millercenter.org/academic/americanpresident/washington/essays/biography/5
http://www.columbia.edu/cu/lweb/digital/jay/jaytreaty.html
http://www.yale.edu/lawweb/avalon/diplomacy/britain/jaymenu.htm
http://www.u-s-history.com/pages/h455.html
NARRATIVE
As the official with the constitutional responsibility to receive ambassadors and the power to
negotiate treaties, the President was the chief diplomat of the United States. George Washington
was intensely conscious that he set an example for future Presidents with every act of diplomacy.
One of his first challenges came with the negotiation of Jay’s Treaty.
In one of his first acts as chief diplomat, Washington sent John Jay to England to work out
questions that had remained unsettled after the 1783 Treaty of Paris. In Jay’s Treaty, the British
agreed to evacuate the Great Lakes forts they had continued to occupy after the Revolution, but
most other U.S. concerns were not addressed. Most significantly, the British failed to recognize
rights of neutral countries and made no commitment to stop impressment of American sailors.
Though the Senate ratified the document, many Americans were unhappy with the Treaty
because it did not sufficiently protect the rights of Americans. Public protests erupted across the
country. Criticism of Jay and even of President Washington was very harsh and insulting, but
Washington maintained his dignity, never responding publicly to the insults. When people sent
the President petitions opposing the treaty, he sent this response:
“…I have weighed with attention every argument…. But the constitution is the guide,
which I never will abandon. It has assigned to the President the power of making treaties,
with the advice and consent of the senate. ... that they ought not to substitute for their
own conviction the opinions of others…”
If a letter from Treaty opponents was disrespectful, he did not reply at all. Regarding one set of
petitions, Washington noted: "No answer given. The Address too rude to merit one." When
Treaty opponents in the House of Representatives demanded documents related to the Treaty, the
President declined, stating that the Constitution provides no role for the House in treaty
ratification.
Though he had hoped for stronger protection of American interests, Washington accepted the
Treaty, explaining, "My opinion respecting the treaty (is that I am) not favorable to it, but that it
is better to ratify it in the manner the Senate have advised…, than to suffer matters to remain as
they are, unsettled." Washington signed the unpopular treaty even though it had significant
shortcomings because, in his judgment as “Chief Diplomat,” a flawed agreement was better than
no agreement. Washington set the example as chief diplomat, demonstrating both the orderly
process of shared responsibility between the Senate and the President, and the Constitution’s
placement of the President in the central position regarding foreign affairs.
BACKGROUND TO JAY’S TREATY
the issues:
Britain was still smarting from the loss of her colonies
Despite their signing the Treaty of Paris of 1783, both the British and Americans continued
to breach the terms/conditions of the Treaty of Paris of 1783:
Tensions between the two countries had increased since the end of the Revolutionary War
Britain's continued occupation of military posts on American territory had Jay warning
Congress to prepare for war in 1786.
The demands by their former owners for the return of slaves taken by the British during
the revolutionary war were not being met.
American state courts repeatedly impeded or blocked the collection of debts owed the
British before/during the war
American state courts repeatedly upheld the confiscation of Loyalist estates while
impeding or blocking the restitution of Loyalist properties taken during the war.
Jay himself, in a report that he prepared for Congress, affirmed that the Americans had been first
to breach the peace treaty, an opinion that he indiscreetly shared with Sir John Temple, the
British consul general in New York.
The British were once again inciting Native Americans to attack settlers in the West, hoping to
destabilize the fledgling Republic.
Following the beginning(s) of the French Revolution in 1789, many Americans (mindful of
French aid during their own struggle for independence) supported returning the favor by
providing aid to the radical French revolutionaries.
The French Revolution led to war between Britain and France in 1793. Divisions emerged in the United States between those who supported the French, including Secretary of State Thomas Jefferson, and those who supported the British, including Secretary of the Treasury Alexander Hamilton. Any sentiments for aiding France in any conflict with Great Britain were reinforced by American
anger in response to the British policy of provoking Native Americans in the West to attack
American settlements.
Within days of Washington's second inauguration, France declared war on a host of European
nations, England among them.
Controversy over American involvement in the dispute redoubled.
The Jefferson and Hamilton factions fought endlessly over the matter.
The French ambassador to the U.S.—the charismatic, audacious "Citizen" Edmond Genet—had
meanwhile been appearing nationwide, drumming up considerable support for the French cause.
Washington was deeply irritated by this meddling (which he considered to be
subversive).
When Genet allowed a French-sponsored warship to sail out of Philadelphia against
direct presidential orders, Washington demanded that France recall Genet.
In mid-1793, Britain announced that it would seize any ships trading with the French, including
those flying the American flag.
The British were interfering with American trade and shipping.
Britain’s impressments of American sailors and seizure of naval and military supplies bound to enemy ports on neutral ships
Americans protested British seizures of cargoes from American ships they believed were
unrelated to war.
In protest, widespread civil disorder erupted in several American cities.
British exports flooded U.S. markets, while American exports were blocked by British trade restrictions and tariffs. Britain had by an Order in Council issued on November 6, 1793, widened its attacks on neutral
ships to include any trading with the French West Indies.
Widespread depredations followed – over 250 American ships were seized.
The two countries appeared to be on the brink of war
By 1794, tensions with Britain were so high that Washington had to stop all American shipments
overseas.
In addition, Washington commissioned the construction of six large warships (among them the
USS Constitution, aka "Old Ironsides").
An envoy was sent to England to attempt reconciliation, but the British were now building a
fortress in Ohio while increasing insurgent activities elsewhere in America.
By 1794 a turbulent international context existed.
By late 1793/early 1794, news arrived of British incitement of Indians on the Northwest
border.
QUESTIONS
1. Why was John Jay sent to London?
Washington was leery of any such foreign entanglement, considering his country too weak and unstable to fight another war with a major European power.
President Washington responded to these threats by urging Congress to take
defensive measures while at the same time sending an envoy to London to explore
the possibility of reaching an accommodation (i.e. reaching a diplomatic solution)
with the British.
John Jay, by that time the Chief Justice, was chosen for the mission and he
was appointed as Envoy Extraordinary to Great Britain.
The negotiations sought to settle outstanding issues between the two countries that
had been left unresolved since American independence.
Fearing the repercussions of a war with Britain, President George Washington sided
with Hamilton and sent pro-British Chief Justice John Jay to negotiate with the
British Government.
At President George Washington's request, Chief Justice of the United States John
Jay sailed to London to negotiate a reduction of tensions between the two nations.
The president wanted (and Jay was instructed to negotiate):
The withdrawal of British troops from the United States' northwestern
territories
Compensation to slave holders for slaves British soldiers had abducted
during the Revolutionary War
British payment to ship-owners for trading vessels seized by the Royal Navy,
Free and open (unrestricted) trade with the British West Indies.
Hamilton recommended an approach that would: stabilize relations with Great Britain guarantee increased trade between the United States and Great Britain.
Jay was briefed by Alexander Hamilton to seek the following:
compensation for spoliations of American ships
clarification of the rules governing British searches and/or seizures of
vessels.
American insistence of the relinquishment by the British of their posts in the
Northwest
British adherence to the terms of the Treaty of Paris
If possible, Jay was to seek limited access for American ships to the British
West Indies.
In return, the United States would:
take responsibility for pre-Revolutionary debts owed to British merchants
and others.
Jay looked to Hamilton for specific instructions for the treaty.
2. What is the official name of Jay’s Treaty?
“Treaty of Amity Commerce and Navigation, between His Britannic Majesty; and
The United States of America”
3. Trace the treaty-making process by creating a timeline using Jay’s Treaty as an example.
Summer 1794
John Jay arrived in London
Correspondences during treaty negotiations:
John Jay to Lord Grenville (August 6, 1794)
Lord Grenville to John Jay (August 30, 1794)
John Jay to Edmund Randolph (September 13, 1794)
November 19, 1794
The negotiated treaty was signed by representatives of the United States and Great Britain
June 8, 1795
President George Washington submitted to the Senate all of the documents related to the
negotiation of Jay's Treaty.
U.S. Senators debated whether to ratify the agreement.
June 24, 1795
The U.S. Senate ratified the treaty with the necessary two-thirds majority (20-10) with a
reservation inserted regarding a provision that limited American trade in the British West
Indies and a copy of the resolution announcing the Senate’s approval of Jay’s Treaty was
sent to President George Washington.
After much agonizing, President Washington approved (that is, signed) the treaty.
Summer of 1795
terms were leaked by a Democratic Republican senator and so became known to the wider public.
April 14, 1796
The U.S. House of Representatives began debate over whether to appropriate the funds
necessary to implement the terms and conditions of the agreement ratified by the Senate
within the United States.
Opponents in the House attempted to block passage of the appropriations bill but were
unsuccessful.
April 30, 1796
The appropriation for the treaty was narrowly approved by a vote of 51-48 (two votes
determined the outcome).
Congress approved the treaty with the proviso that trade barriers imposed by
England be lessened.
Washington, while dissatisfied with elements of the treaty, signed it nonetheless.
4. How successful was John Jay in protecting American interests?
Jay’s only significant bargaining chip in the negotiations was the threat that the United
States would join the Danish and the Swedish governments in defending their neutral
status and resisting British seizure of their goods by force of arms.
In an attempt to guarantee good relations with Britain, Hamilton independently
informed the British leadership that the United States had no intention of joining in this
neutral armament.
Hamilton’s actions left Jay with little leverage to force the British to comply with
U.S. demands.
The resulting treaty addressed few U.S. interests, and ultimately granted Britain
additional rights.
Jay was only partially successful in getting Britain to meet America's demands; Jay
achieved only a limited success
Jay’s Treaty did guarantee compensation to American merchants for British seizures of
their vessels and/or cargoes.
Other concessions Jay obtained were a surrender of the northwestern posts (already
agreed to in 1783) and a commercial treaty with Great Britain that granted the United
States “most favored nation” status, but seriously restricted U.S. commercial access to
the British West Indies.
All other outstanding issues, including the Canadian-Maine boundary, compensation
for pre-revolutionary debts, and British seizures of American ships, were to be resolved
by arbitration.
Jay even conceded that the British could seize U.S. goods bound for France if they paid
for them and could confiscate without payment French goods on American ships.
In the final estimation, the treaty that emerged from these discussions was a bit of a
mixed bag, but probably the best America could have hoped for, given the realities of
the situation.
Jay made little headway in attempts to get compensation for slaves taken by the British
during the War of Independence and was unable to secure British recognition of the
neutral rights of American ships.
Neither did he succeed in persuading the British to remove their naval vessels from the
Great Lakes or desist from aiding the Indians during times of war.
Nonetheless, he did achieve the key objectives outlined by Hamilton.
The British were to relinquish their military posts on the Northwest frontier
mixed commissions were to resolve:
the spoliation of American vessels by the Royal Navy
pre-Revolutionary debt
boundary issues
Vessels under seventy tons would be allowed access to the markets of the British
West Indies for a limited number of years.
Critics argued that John Jay negotiated a weak treaty that undermined freedom of
trade on the high seas and failed to compensate Americans for slaves taken by the
British during the Revolution.
Worst of all, the treaty did not address the then-common British practice of
impressment.
Jay found it difficult even to secure the British ministry's full attention.
War with France, after all, took precedence over negotiations with the largely impotent
United States.
Alexander Hamilton defended the treaty, writing under the pen name Camillus.
In his first article, Hamilton began:
It was to have been foreseen, that the treaty which Mr. Jay was charged to negotiate
with Great Britain, whenever it should appear, would have to contend with many
perverse dispositions and some honest prejudices; that there was no measure in which
the government could engage, so little likely to be viewed according to its intrinsic
merits—so very likely to encounter misconception, jealousy, and unreasonable dislike.
While acknowledging the treaty’s shortcomings, most historians believe that it was the best
that could be hoped for given America’s lack of international clout at the time.
5. Who was among the treaty’s opponents? Why was there such opposition and public
outcry against the treaty?
opposition to the treaty in the United States was intense.
The treaty's opponents included:
members of the Senate's anti-administration Democratic-Republican
minority
They demanded that the treaty be renegotiated—among other
reasons—because it failed to protect America's trading agreements
with France.
For the incipient Republican interest, any concessions to the British w
ere intolerable.
Republican newspapers railed against the treaty's perceived
surrender to the British.
Jay's concessions on the West India question, as well as agreement to surrender the
right of commercial retaliation for ten years, fueled opposition to the treaty.
Many Americans were unhappy about Jay’s Treaty because it did not sufficiently
protect the rights of Americans.
Among the rights left unaddressed were the fact that the British failed to
recognize rights of neutral countries and made no commitment to stop
impressment of American sailors.
Jay failed to obtain protections for American shipping or reimbursement for stolen
slaves, and he prematurely conceded American responsibility to pay British
merchants for pre-Revolutionary War debts.
Jay's treaty contained provisions that many considered humiliating to the United
States.
John Rutledge, Washington's recess appointee to replace Jay as chief justice, criticized
ratification of the treaty as a sellout.
Robert Livingston, another prominent New Yorker, did not hold back in his criticism
of the treaty:
“Were we to estimate the difference in this point of view, between an immediate
evacuation and one that is to take place in June 1796, it would certainly not fall short
of $1,000,000, independent of the destruction of our fellow citizens, whose lives are
beyond all price.”
6. How did critics and opponents of Jay’s Treaty voice, express, or demonstrate their
opposition? Provide at least three examples or instances.
Meetings were organized to denounce the treaty
Jay was burned in effigy
Jay (who resigned from the Supreme Court) later remarked that he could
have traveled the length of the country by the light of bonfires burning his
effigy.
Hamilton (who favored the treaty) was stoned by an angry crowd in New York.
Petitions objecting to Jay's treaty were sent to Washington from a large number of
towns, cities, and counties.
Similar petitions were also sent to various state legislatures, such as this draft of a
letter to an unknown correspondent containing a petition to the General Assembly
of Virginia protesting Jay's Treaty.
The treaty's opponents, members of the Senate's anti-administration DemocraticRepublican minority, demanded that the treaty be renegotiated.
When the text of the treaty became public, mobs took to the streets to condemn
George Washington, John Jay, and the United States Senate.
A mob marched on the Philadelphia home of Pennsylvania Senator William
Bingham.
In Frankfort, Kentucky, the state legislature denounced Senator Humphrey
Marshall and demanded that the Constitution be amended to allow for the recall of
United States senators.
Marshall was "burned in effigy, vilified in print, and stoned in Frankfort."
Many of the other senators who had provided the two-thirds majority necessary to
approve John Jay's treaty with Great Britain experienced similar popular outrage.
James Madison was a leading opponent of the ratification of Jay's Treaty as
indicated in these notes for a speech he gave in 1796 related to the treaty.
Thomas Jefferson was adamantly opposed to Jay's Treaty and expressed his
opposition in a number of letters to friends and colleagues.
Soon after the provisions of the treaty were made public, Jefferson wrote to
James Monroe on September 6, 1795, that
"so general a burst of dissatisfaction never before appeared against
any transaction. Those who understand the particular articles of it,
condemn these articles. Those who do not understand them minutely,
condemn it generally as wearing a hostile face to France."
A month later Jefferson agreed with Edward Rutledge
"in thinking the treaty an execrable thing . . . I trust the popular
branch of our legislature [U.S. House of Representatives] will
disapprove of it, and thus rid us of this infamous act, which is really
nothing more than a treaty of alliance between England & the
Anglomen [Anglophiles] of this country against the legislature &
people of the United States."
During the debate in the House, Jefferson wrote another letter to James
Monroe, stating that
"the most remarkable political occurrence with us has been the treaty
with England, of which no man in the U S. has had the effrontery to
affirm that it was not a very bad one except A. H. [note: Alexander
Hamilton] under the signature of Camillus. It's most zealous
defenders only pretended that it was better than war, as if war was
not invited rather than avoided by unfounded demands. I have never
known the public pulse beat so full and in such universal union on any
subject since the declaration of independence, the House of
Representatives of the U. S. has manifested its disapprobation of the
treaty."
Newspapers sympathetic to the Jeffersonians, emboldened by the public controversy
surrounding the treaty with England, became increasingly critical of Washington
during his final two years in office.
One called him "Saint Washington"
another mockingly offered him a crown.
Opponents in the U.S. House of Representatives attempted to defeat the
appropriations bill being considered in the House considered necessary if the
provisions of the treaty were to be implemented within the United States.
7. How did President Washington respond to both the treaty as well as the public criticism
of it?
Although President George Washington was disappointed with the treaty’s
provisions, he felt it was the best hope to avert war with Great Britain and
submitted it to the Senate for approval.
Despite the public outcry, President Washington sent it to the Senate for formal
approval.
The president and his supporters argued that Jay had obtained the best possible
deal and that the nation could ill afford another war with Britain.
Despite its faults, Washington came to the conclusion that Jay's Treaty was
necessary in order to avoid war with Great Britain.
In a letter to Secretary of State Edmund Randolph dated July 22, 1795, Washington
wrote,
"My opinion respecting the treaty, is the same now that it was: namely, not
favorable to it, but that it is better to ratify it in the manner the Senate have
advised (and with the reservation already mentioned), than to suffer matters
to remain as they are, unsettled."
To Washington, popular disapproval was simply the price of peace with Great
Britain; a peace that gave the United States valuable time to consolidate and rearm
in the event of future conflict.
Washington responded to most of these protests with the same answer that he sent
to the Boston Selectmen on July 28, 1795.
Washington maintained his dignity, never responding publicly to the insults, and he
explained the Constitutional system by which the Senate provides advice and
consent for treaties
Washington made no move to shut down the vigorous public protest, thus
demonstrating his commitment to liberties such as speech, press, assembly and
petition.
To the President's considerable credit, he bore these attacks with dignity—not even
responding to them publicly.
Privately, he was deeply wounded by the attacks on his integrity, and toward the
end of his life, he ceased to have any contact with Thomas Jefferson.
8. By what margin did Jay’s Treaty pass when it was voted on June 24, 1795?
the exact 20-to-10 two-thirds majority necessary to approve
9. Describe at least 3 ways in which President Washington demonstrated that the President
is the key decision-maker regarding foreign affairs.
Washington’s insistence on neutrality in foreign quarrels set another key precedent,
as did his insistence that the power to make such a determination be lodged in the
presidency.
• Washington delegated the negotiation process to John Jay.
• He allowed public protest to run its course, and then took action based on the
advice and consent of the Senate.
• Washington declined to justify the Treaty to the House of Representatives by
providing the documents they demanded, explaining that only the Senate has the
Constitutional role of advice and consent.
• He ultimately gave his support to the treaty even though it was not all he had
hoped for, highlighting the responsibility of the President to settle foreign policy
questions through diplomacy.
10. What were the effects, outcomes, or consequences of Jay’s Treaty? Be specific.
differences in the way the treaty was received played a significant role in the
development of political parties
This was admitted by John Jay himself in a letter to General Henry Lee
dated July 11, 1795.
For the first time, members of the government openly criticized Washington and
the fledgling government chose partisan sides.
It was the first example of the partisan give-and-take that has been essential to the
survival of American democracy for over two centuries.
There was a single dreadful casualty.
Washington's advisers presented him with evidence that Edmund Randolph,
Jefferson's successor as secretary of state, had allegedly solicited a bribe
from a French envoy to oppose the treaty with England.
Although Randolph denied the charges, an angry Washington forced his old
friend to resign.
With this action, another important precedent was set:
The Constitution empowers the President to nominate his principal
officers with the advice and consent of the Senate; it says nothing,
however, about the chief executive's authority to dismiss appointees.
With Washington's dismissal of Randolph, the administrative system
of the federal government was firmly tied to the President.
In total, Washington dismissed three foreign ministers, two
consuls, eight collectors, and four surveyors of internal
revenue—all without seeking the advice or approval of
Congress.
Although debate over the flawed pact deepened the nation's political divisions and
destroyed relations with France, its ratification likely saved the still-fragile republic
from a potentially disastrous new war with Britain.
The treaty did accomplish the goal of maintaining peace between the two nations
and preserving U.S. neutrality.
John Jay's treaty with the British continued to have negative ramifications for the
remainder of Washington's administration.
France declared it in violation of agreements signed with America during the
Revolution and claimed that it comprised an alliance with their enemy,
Britain.
By 1796, the French were harassing American ships and threatening the U.S.
with punitive sanctions.
Diplomacy did little to solve the problem, and in later years, American and
French warships exchanged gunfire on several occasions.
Though the opposition was intense, it was also short lived.
By 1796, after the treaty had been ratified, America was enjoying a buoyant
prosperity as a result of its dominance of the Atlantic carrying trade while
European powers continued to wage war.
Moreover, with the removal of the British from their posts, Americans began
to pour into the Old Northwest to settle rich farm lands.
By 1796, then, many Americans had come to view the Jay Treaty as a significant
success.