Jay Treaty
1
Jay Treaty
The Jay Treaty, also known as Jay's Treaty, The British
Treaty, and the Treaty of London of 1794,[1] was a treaty
between the United States and Great Britain that is credited
with averting war,[2] resolving some issues remaining since
the Treaty of Paris of 1783, which ended the American
Revolution,[3] and facilitated ten years of peaceful trade
between the United States and Britain in the midst of the
French Revolutionary Wars that had begun in 1792.
The terms of Jay's Treaty were designed primarily by the
first Secretary of the Treasury, Alexander Hamilton,
strongly supported by the chief negotiator John Jay; and
support from President George Washington. Jay's Treaty
gained the primary American goals, which included the
withdrawal of units of the British Army from
pre-Revolutionary forts that it had failed to relinquish in
the Northwest Territory of the United States (the area west
of Pennsylvania). (This area the British had recognized as
American territory in the Treaty of Paris of 1783.) It was
also agreed that disputes over wartime debts and the
American-Canadian boundary were to be sent to
arbitration—one of the first major uses of arbitration in
diplomatic history. The Americans were also granted
limited rights to trade with British possessions in India and
colonies in the Caribbean in exchange for some limits on
the American export of cotton.
The Jay Treaty, negotiated in 1794 and ratified 1795; in effect
1795-1805.
The Jay Treaty was hotly contested by the Jeffersonians in each state. They feared that closer economic ties with
Britain would strengthen Hamilton's Federalist Party, promote aristocracy and undercut republicanism. In spite of the
opposition, Washington's announced support proved decisive and it was ratified by a 2/3 majority of the Senate in
November 1794. It was officially ratified by both countries and proclaimed to be in effect on February 29, 1796.
Jay's Treaty became a central issue of contention—leading to the formation of the "First Party System" in the United
States, with the Federalists favoring Britain and the Jeffersonian republicans favoring France. The treaty was for ten
years duration. Efforts to agree on a replacement treaty failed (in 1806) when Jefferson rejected the Monroe-Pinkney
Treaty as tensions escalated towards the War of 1812.[4]
Historian George Herring pointed to the "remarkable and fortuitous economic and diplomatic gains" produced by
the Jay Treaty.[5]
Issues
From the British perspective, its war with France made it imperative to improve relations with the United States in
order to keep the U.S. from falling into the French orbit. From the American viewpoint, the most pressing foreign
policy issues were normalizing the trade relations with Britain, America's leading trading partner, and resolving
issues that had been left over from the Treaty of Paris of 1783. As one observer explained, the British government
was "well disposed to America… They have made their arrangements upon a plan that comprehends the neutrality of
the United States, and are anxious that it should be preserved."[6]
Jay Treaty
In 1793–94, the British Navy had captured hundreds of neutral American merchant ships, and British officials in
Canada were also supporting Indian tribes fighting American settlers in the Ohio River Valley — territory that
Britain had explicitly ceded to the United States in the Treaty of Paris. Congress voted for a trade embargo against
Britain for two months. Hamilton and the Federalists favored Britain over France, and they sought to normalize
relations with Britain. Hamilton designed the plan for a treaty and President George Washington sent Chief Justice
Jay to London to negotiate a comprehensive treaty.
The American government had a number of issues it wanted dealt with:
• The British were still occupying a number of forts on U.S. territory in the Great Lakes region (the Northwest
Territory).
• The British were continually capturing and impressing American sailors into British service
• American merchants wanted compensation for 250 merchant ships that had been confiscated during 1793 through
1794.
• Southerners in the United States wanted monetary compensation for the slaves that the British Army had taken
away from them during the Revolutionary War.
• Merchants in both America and in the Caribbean wanted the British West Indies to be reopened to American
trade.
• The boundary with Canada was vague in many places, and needed to be delineated clearly.
• The British were believed to be aggravating Native-American attacks on settlers in the West.
Treaty terms
Both sides achieved many objectives. The British agreed to vacate the six western forts by June 1796 (which was
done), and to compensate American ship owners (the British paid $10,345,200 by 1802).[7] In return, the United
States gave most favored nation trading status to Britain, and acquiesced in British anti-French maritime policies.
The United States guaranteed the payment of private prewar debts owed by Americans to British merchants that
could not be collected in U.S. courts (the U.S. paid £600,000 in 1802). Two joint boundary commissions were set up
to establish correctly the boundary line in the northeast (it agreed on the Saint Croix River) and in the northwest (this
one never met).[8] Jay, a strong opponent of slavery, dropped the issue of compensation for slaves, which angered
Southern slaveowners. Jay was unsuccessful in negotiating an end to the impressment of American sailors into the
Royal Navy, which later became one of the key issues that led to the War of 1812.
Native American rights
Article III states "It is agreed, that it shall at all times be free to His Majesty's subjects, and to the citizens of the
United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass, by
land or inland navigation into the respective territories and countries of the two parties on the continent of America,
(the country within the limits of the Hudson Bay company only excepted) ... and freely carry on trade and commerce
with each other." Article III of the Jay Treaty declared the right of "Indians" ("Native Americans") as well as of
American citizens and Canadian subjects to trade and travel between the United States and Canada, which was then a
territory of Great Britain.[9] Over the years since, the United States has codified this obligation in the provisions of
Section 289 of the Immigration and Nationality Act of 1952, as amended. As a result of the Jay Treaty, "Native
Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study,
retirement, investing, and/or immigration".[10] Article III of the Jay Treaty is the cause of most Indian claims.[11]
2
Jay Treaty
Approval and dissent
Washington submitted the treaty to the United States Senate for its consent in June 1795; a two-thirds vote was
needed. The treaty was unpopular at first, and gave the Jeffersonians a platform to rally new supporters. As Paul
Varg explains, "The Jay Treaty was a reasonable give-and-take compromise of the issues between the two countries.
What rendered it so assailable was not the compromise spelled out between the two nations but the fact that it was
not a compromise between the two political parties at home. Embodying the views of the Federalists, the treaty
repudiated the foreign policy of the opposing party."[12] The Jeffersonians were opposed to Britain, preferring
support for France in the wars raging in Europe, and arguing the treaty with France from 1778 was still in effect.
They looked at Britain as the center of aristocracy and the main threat to America's republican values. Therefore they
denounced Hamilton and Jay (and even Washington) as monarchists who betrayed American values. They organized
public protests against Jay and his treaty; one of their rallying cries went: Damn John Jay! Damn everyone that won't
damn John Jay! Damn every one that won't put lights in his window and sit up all night damning John Jay![13]
Thomas Jefferson and James Madison strongly opposed the Treaty — they favored France — thus setting up foreign
policy as a major dispute between the new Federalist and Democratic-Republican parties; it became a core issue of
the First Party System. Furthermore they had a counterproposal designed to establish "a direct system of commercial
hostility with Great Britain," even at the risk of war. The Jeffersonians raised public opinion to fever pitch by
accusing the British of promoting Indian atrocities on the frontier.[14] The fierce debates over the Treaty in 1794–95,
according to one historian, "transformed the Republican movement into a Republican party." To fight the treaty the
Jeffersonians "established coordination in activity between leaders at the capital, and leaders, actives and popular
followings in the states, counties and towns."[15] Jay's failure to obtain compensation for "lost" slaves galvanized the
South into opposition.[16]
The Federalists fought back and Congress rejected the Jefferson-Madison counter-proposals. Washington threw his
enormous prestige behind the treaty, and Federalists rallied public opinion more effectively than the opponents.[17]
Hamilton convinced President Washington it was the best treaty that could be expected. Washington, who insisted
the U.S. must remain neutral in the European wars then raging, signed it and his prestige carried the day in Congress.
The Federalists made a strong, systematic appeal to public opinion which rallied their own supporters and shifted the
debate. Washington and Hamilton outmanoeuvred Madison as opposition leader.[18] Hamilton, now out of the
government, was the dominant figure who helped secure its approval by the needed 2/3 vote. The Senate passed a
resolution in June, advising the president to amend the treaty by suspending the 12th article, which concerned trade
between the U.S. and the West Indies. In mid-August, the Senate ratified the treaty 20-10, with the condition that the
treaty contain specific language regarding the June 24 resolution. President Washington signed it in late August. The
Treaty was proclaimed in effect on February 29, 1796 and in the series of close votes after another bitter fight the
House funded the Treaty in April 1796.[19]
James Madison, then a member of the House of Representatives, argued that the treaty could not, under
Constitutional law, take effect without approval of the House, since it regulated commerce and exercised legislative
powers granted to Congress. The debate which followed was an early example of originalism, in which Madison, the
"Father of the Constitution," ironically, lost.[20]
After defeat in Congress, the Jeffersonian Republicans fought and lost the 1796 presidential election on the issue.
When Jefferson became president in 1801 he did not repudiate the treaty, and instead kept the Federalist minister,
Rufus King, in London to negotiate a successful resolution to outstanding issues regarding cash payments and
boundaries. The amity broke down finally in 1805, as relations turned hostile, leading to the War of 1812. In 1815,
the Jay treaty was replaced by the Treaty of Ghent.
3
Jay Treaty
4
Evaluations
Elkins and McKitrick note that in conventional diplomatic terms, as a "piece of adversary bargaining", Jay "got
much the worst of the 'bargain'. Such a view has to a great degree persisted ever since."[21] They conclude that
although Jay got nowhere on the matter of neutral rights, he did get "his other sine qua nons [sic]"; he got none of
things that were "desirable, but not indispensable."[22] They add "Jay's record on the 'soft'[23] was open to many
objections; on the 'hard' side, it was a substantial success, which included the prevention of war with Great
Britain."[24]
Historian Marshall Smelser argues that the treaty effectively postponed war with Britain, or at least postponed it until
the country was strong enough to handle it.[25]
Bradford Perkins argued in 1955 that the treaty was the first establishment of a special relationship between Britain
and America, with a second installment under Lord Salisbury. In his view, the treaty worked for ten years to secure
peace between Britain and America: "The decade may be characterized as the period of "The First Rapprochement."
As Perkins concludes, "For about ten years there was peace on the frontier, joint recognition of the value of
commercial intercourse, and even, by comparison with both preceding and succeeding epochs, a muting of strife
over ship seizures and impressment. Two controversies with France… pushed the English-speaking powers even
more closely together."[26] Starting at swords' point in 1794 the Jay treaty reversed the tensions, Perkins concludes:
"Through a decade of world war and peace, successive governments on both sides of the Atlantic were able to bring
about and preserve a cordiality which often approached genuine friendship."[27]
Perkins suggests that (saving perhaps the opening of trade with British India), "Jay did fail to win anything the
Americans were not obviously entitled to, liberation of territory recognized as theirs since 1782, and compensation
for seizures that even Britain admitted were illegal." He also speculates that a "more astute negotiator than the Chief
Justice" would have gotten better terms than he did.[28] He also quoted the opinion of the "great historian" Henry
Adams that the treaty was a "bad one":
"No one would venture on its merits to defend it now. There has been no time since 1810 when the
United States would not prefer war to peace on such terms"
On the other hand Perkins gives more weight than other historians to valuable concessions regarding trade in India
and the concession on the West Indies trade. In addition, reports Perkins, the Royal Navy treated American
commerce with "relative leniency" during the wars, and many impressed seamen were returned to America.
Furthermore, Spain, seeing an informal British-American alliance shaping up, became more favorable regarding
American usage of the Mississippi River and signed Pinckney's Treaty which the Americans wanted. When Jefferson
took office he gained renewal of the commercial articles that had greatly benefited American shipping.[29]
Elkins and McKitrick find this more positive view open to "one big difficulty": it would require that the British have
negotiated in the same spirit. Unlike Perkins, they find "little indication of this"; preferring to view the British not as
future-oriented, but, having had no indication that America required attention, wishing to take it off the long list of
things that did.[30]
George Herring's 2008 history of US foreign policy states, in 1794, "the United States and Britain edged toward war"
and concludes, "The Jay Treaty brought the United States important concessions and served its interests well."[31]
Joseph Ellis finds the terms of the treaty "one-sided in Britain's favor", but asserts a consensus of historians that it
was[32]
"a shrewd bargain for the United States. It bet, in effect, on England rather than France as the hegemonic
European power of the future, which proved prophetic. It recognized the massive dependence of the
American economy on trade with England. In a sense it was a precocious preview of the Monroe
Doctrine (1823), for it linked American security and economic development to the British fleet, which
provided a protective shield of incalculable value throughout the nineteenth century. Mostly, it
postponed war with England until America was economically and politically more capable of fighting
Jay Treaty
5
one."
Notes
[1] James S. Olsen, ed (1991). Historical Dictionary of European Imperialism (http:/ / books. google. com/ books?id=uyqepNdgUWkC&
dq=isbn=0313262578). Greenwood Press. pp. 332. ISBN 0313262578. . Retrieved 2007-11-19.
[2] Jean Edward Smith, John Marshall: Definer of a Nation (1998) p. 177
[3] Todd Estes, The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Political Culture (2006) p. 15
[4] Marshall Smelser, The Democratic Republic: 1801–1815 (1968) pp. 139, 145, 155–56.
[5] George C. Herring, From colony to superpower: U.S. foreign relations since 1776 (2008) p. 80
[6] Gouverneur Morris quoted in Perkins (1955) p. 22; the British foreign minister felt, "this Country is anxious to keep the Americans in good
humour." ibid.
[7] Wayne S. Cole, An Interpretive History of American Foreign Relations, (1974) p. 55.
[8] The Treaty also allowed people to pass freely across the border to carry on trade and commerce.
[9] INA (http:/ / www. law. cornell. edu/ uscode/ search/ display. html?terms=indian& url=/ uscode/ html/ uscode08/
usc_sec_08_00001359----000-. html), Cornell.
[10] "First Nations and Native Americans" (http:/ / www. consular. canada. usembassy. gov/ first_nations_canada. asp). United States Embassy,
Consular Services Canada. . Retrieved 2009-03-03.
[11] Karl S. Hele, Lines Drawn upon the Water: First Nations and the Great Lakes Borders and Borderlands (2008) p. 127
[12] Varg, 1963 p. 95.
[13] William Weeks, Building the Continental Empire, p. 23.
[14] Elkins and McKitrick, p. 405.
[15] William Nisbet Chambers. Political Parties in a New Nation: The American Experience, 1776–1809 (1963), p. 80.
[16] Sean Wilentz, The Rise of American Democracy (2006) 67–68.
[17] Estes 2001.
[18] Estes pp. 398–99.
[19] Jay’s Treaty (http:/ / www. americanforeignrelations. com/ Im-Ju/ Jay-s-Treaty. html), American Foreign Relations.
[20] Rakove, pgs 355-365
[21] Elkins and McKitrick
[22] Elkins and McKitrick, p. 410.
[23] Term borrowed from Richard Hofstadter for matters important in principle or symbolism; contrast to "hard" for matters of immediate
material importance
[24] Elkins and McKitrick, p. 412.
[25] Marshall Smelser, The Democratic Republic, 1801–1815 (1968).
[26] Perkins p. vii
[27] Perkins p. 1.
[28] Perkins: The First Rapprochement p. 3.
[29] Perkins, Cambridge History of American Foreign Relations I: The Creation of a Republican Empire. (1995) pp. 99, 100, 124.
[30] Elkins and McKitrick, pp. 396–402.
[31] George Herring, From Colony to Superpower: U.S. Foreign Relations since 1776 (2008) p 73, 78
[32] Joseph Ellis, Founding Brothers: The Revolutionary Generation (2000) pp. 136–7.
References
• Bemis, Samuel Flagg. Jay's Treaty: A Study in Commerce and Diplomacy (1923) remains the standard narrative
of how treaty was written
• Charles, Joseph. "The Jay Treaty: The Origins of the American Party System," in William and Mary Quarterly,
3rd Ser., Vol. 12, No. 4. (Oct., 1955), pp. 581–630. in JSTOR (http://www.jstor.org/pss/1918627)
• Combs, Jerald. A. The Jay Treaty: Political Background of Founding Fathers (1970) (ISBN 0-520-01573-8)
Focusing on the domestic and ideological aspects, Combs dislikes Hamilton's quest for national power and a
"heroic state" dominating the Western Hemisphere, but concludes the Federalists "followed the proper policy"
because the treaty preserved peace with Britain
• Elkins, Stanley M. and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800.
(1994), ch. 9
• Estes, Todd, "The Art of Presidential Leadership: George Washington and the Jay Treaty," Virginia Magazine of
History and Biography, 2001, vol 109, no. 2.
Jay Treaty
• Estes, Todd, "Shaping the Politics of Public Opinion: Federalists and the Jay Treaty Debate." Journal of the Early
Republic (2000) 20(3): 393-422. ISSN in JSTOR (http://www.jstor.org/pss/3125063)
• Estes, Todd. The Jay Treaty Debate, Public Opinion, And the Evolution of Early American Political Culture
(2006)
• Farrell, James M. "Fisher Ames and Political Judgment: Reason, Passion, and Vehement Style in the Jay Treaty
Speech," Quarterly Journal of Speech 1990 76(4): 415-434.
• Fewster, Joseph M. "The Jay Treaty and British Ship Seizures: the Martinique Cases." William and Mary
Quarterly 1988 45(3): 426-452. in JSTOR (http://www.jstor.org/pss/1923643)
• Perkins, Bradford. The First Rapprochement: England and the United States, 1795–1805 1955.
• Perkins, Bradford. "Lord Hawkesbury and the Jay-Grenville Negotiations," The Mississippi Valley Historical
Review, Vol. 40, No. 2. (Sep., 1953), pp. 291–304. in JSTOR (http://www.jstor.org/stable/1888929)
• Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Alfred A. Knopf, New
York. 1997. ISBN 0-394-57858-9
• Varg, Paul A; Foreign Policies of the Founding Fathers. 1963.
External links
• Jay's Treaty and Related Resources at the Library of Congress (http://www.loc.gov/rr/program/bib/ourdocs/
jay.html)
• Avalon Project - Jay Treaty of 1794 (Relevant Documents) (http://www.yale.edu/lawweb/avalon/diplomacy/
britain/jaymenu.htm)
• "Native American Free Passage Rights Under the 1794 Jay Treaty: Survival Under United States Statutory Law
and Canadian Common Law" in Boston College International and Comparative Law Journal, Vol. 24:2, 2001,
pp. 313-340. (http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/24_2/04_TXT.htm)
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