Chapter 8
John Jay’s Divisive
Treaty, 1794-1795

ON FEBRUARY 22, 1794, the boom and clang of salutes and bells and the stamp of parading feet marked Washington’s birthday. The president was sixty-two, and nearing the end of his fifth year in office. The morning was spent in business as usual and included the formal reception of Joseph Fauchet, Genet’s successor as minister from France. In the afternoon the members of Congress called and were served cake and punch. The evening featured a ball in the First Citizen’s honor. Geniality reigned.

Sixty days later the country was in a full-dress war crisis with Great Britain and convulsed with internal debate on how to handle it.

It was the second hard year in succession for Washington’s second administration. His first had been warmed by the sunshine of expectation. This successor term, however, was shadowed by the realization of some of his worst fears. The country was splitting into violently partisan camps—and what was worse, each of the parties had allied itself with a foreign power. Two centuries later Americans would take it for granted that “politics stopped at the water’s edge” and that bipartisanship was the bedrock of foreign relations. Not so in the 1790s. The Genet affair had already exposed the raw divide separating friends of France from those of England. The 1794 clash with Britain drove the knife deeper into the prospects for national unity. It was resolved by a treaty which was not entirely a bad treaty but caused such bitterness that it tainted the election of 1796—the first without the harmonizing presence of Washington—and cursed unlucky winner John Adams with four years of near-disintegration of the still young and experimental Constitution.

Jay’s Treaty, named for its negotiator, was the dominating foreign-and-domestic policy event of 1794. The Whiskey Rebellion opened new partisan wounds and demonstrated federal muscle, but it was essentially a local story. On close scrutiny, there was less to it than met the eye. But Jay’s Treaty nearly tore the whole country apart. To make sense of the tempest it awakened requires a small excursion into the complicated feelings in the hearts of voting Americans toward England.

The French connection so warmly evoked but then so rudely shaken by Citizen Genet’s tour of duty was easier to explain. To America’s educated elite, France was the home of culture and the Enlightenment. Below their intellectual plateau was another level of pro-French thought after 1792, shared by “plain” Americans resentful of the influence of local aristocracies. They identified with the people of France who had toppled their own snobs and wealthy overlords. And then there were thousands of “Gallomen,” as the enemies of the Francophiles called them, who were automatically anti-British and therefore partisans of France by default.

But England, unlike France, was the mother country, and in Americans she evoked all the complicated feelings of dependence, resentment, fear, love, admiration, and anger that parenthood carried. On the one hand Americans high and low had good reason for attachment to the island nation to which, according to the 1790 census, the majority of them traced their roots. Up until the very moment of declaring independence the colonists had appealed to their rights as Englishmen. Even in rebellion most colonists thought they were imitating Great Britain’s Glorious Revolution of 1688-89, when Parliament threw out one king, picked another, and established itself as the true ruler of the realm. After America’s own revolution was won, conservatives like the Federalists felt free once more to openly admire the “unwritten” British constitution that seemed to keep the king, the aristocrats, and the middle class pulling so smoothly in harness. Even haters of Britannia could not escape the fact that they shared a language and a set of religious, legal, and business customs cast in English molds. It was one of the things that made it possible to create the United States.

But there was a reverse side to the coin. England was still the ex-oppressor, the parent whose yoke was cast off and from whom the respect due an adult was now demanded. And it was not forthcoming! High-handed British policies that treated the United States with a hard-boiled disdain for her obvious lack of power were infuriating. They seemed to send a message that American freedom was not yet real. To that resentment “agrarian” thinkers like Jefferson added another grievance. Too much taste for British imports (though he himself shared it) could breed imitation of British social divisions. The n what would happen to the Republican ideal of a nation of simple-living independent farmers?

Britain’s war against revolutionary France alternately stoked and cooled American Anglophobia in rhythm with the ups and downs of war. On one hand, the empire in mortal combat used its sea power more aggressively than ever against neutral traffic with her enemy. But by the same token there were moments when things went badly for British armies and fleets—and then London was inclined to offer sweeter deals. France, too, played friend or bully according to how the tides of battle turned, so a weak America lurched from crisis to crisis with both fighting giants, each fresh standoff having a strong impact on party politics. For all the sound and fury, however—and it was something that foreign diplomats had to learn—both parties put American interests first at the bargaining table. Neither “Anglomen” nor “Gallomen” seriously looked for status as a satellite of London or Paris—but neither trusted the other not to do so.

There were curious complications. One was that the group that seemed to suffer most harm from Britain’s noose on neutral shipping— that is, the mainly Federalist merchant class of the Northeast—was also the most reluctant to provoke war. The reason was not their pro-British sentiment but the news from their countinghouses. American commerce and shipbuilding were doing well, thanks to the wartime boom in foreign demand. Troublesome losses were incurred when English high-seas cruisers seized or delayed shipments intended eventually to reach French hands. But full-dress hostilities would bring a destructive total blockade, and a generous half loaf was much better than none. So Federalist policy toward the British asked much and settled for little. Republicans were more consistently warlike in their Anglophobia, but the wiser among them knew that peace alone kept prosperity shining on their farmer supporters who were providing the foodstuffs for foreign tables.

Another complication too easy for modern readers to forget was the time lag in communications in the age of sail that made trans-Atlantic diplomacy like a game of blind man’s buff. Each party reacted many weeks later to a “new” situation—which might already have changed. The wonder is that long-term policy could be made at all. It was still another thread woven into the controversies that rocked Congress and the country in the stormy two years—from early 1794 to the election springtime of 1796—that it took to negotiate, ratify, and guarantee funding for the implementation of Jay’s Treaty.

THE WINDING COURSE began with the unfinished business that Jefferson left on the desk for successor John Randolph when he left the State Department at 1793’s end. He and British minister George Hammond had been in a long wrestling match over the unresolved issues between their two countries, each of which blamed the other for not fully carrying out the terms of the 1783 treaty ending the Revolutionary War. For Hammond it had been especially discouraging. He was only twentyeight and eager to succeed when he arrived in October 1791 as the first minister sent by George III to the land of his revolted subjects. Oxfordeducated and rosy-faced, Hammond won the heart of an American girl (just as Citizen Genet was to do—there was something attractive about educated foreigners!) and married her early in his mission.

But his charm made no impression on the American secretary of state. Jefferson required that all communication between them be in writing and mandated a long, recriminatory exchange of notes debating which side was not acting in good faith. This lasted until May 1792, and when poor Hammond sent the whole correspondence back to London with a request for instructions, he was left to dangle for weary months without an answer. Neither the government behind him nor the government to which he was accredited seemed to care much for him, and he was a happy young husband when at last relieved in 1795. On the homeward-bound ship Mrs. Hammond wrote to her father that George’s “cold, formal manner... has been thrown off and everybody, observes how agreeable he is in company.”¹

The issues between the two nations were differently weighted. There were disagreements, partly based on simple geographical ignorance, about the actual boundary between the United States and Canada. The n there were dollars-and-cents matters. The treaty bound each side not to interfere with the efforts of the other’s creditors to collect prewar debts. Almost all of them were owed by the Americans to British suppliers, but American state courts had widely ignored the bargain and instead supported American debtors who contested payment. Another article engaged the United States government to use its best efforts to get fair recompense for Loyalists (Americans would have said Tories) whose properties had been confiscated during the war. That too, the British insisted, had been ignored. A monetary demand by the Americans was based on a violation of Article 7. It stipulated that British forces should evacuate all American soil “without causing any Destruction or carrying away any Negroes or other Property of the American Inhabitants.”² Some British-occupation commanders, however, had offered freedom to slaves who came into their lines to fight or work for them. They took these volunteers along when they sailed away, on the humane ground that otherwise they would be reenslaved. The owners wanted them back or at the very least to be paid for them—a point that Jefferson, the apostle of freedom, was perfectly agreeable to pushing hard with Hammond.

Beyond these bread-and-butter questions were two on which neither government could give ground without serious political damage at home. The British had not left all soil as promised but were holding on to some half-dozen garrisons on the American side of the Great Lakes. Their purpose was to protect and facilitate the profitable operations of Canadian fur traders working those areas. Violent objection to this cheating came not so much from American fur dealers as from American pioneer farmers. No other British action stung them into such fury. They knew that the traders were providing firearms as well as the usual axes, kettles, blankets, and knives to the Indians, and it was an article of faith among them that British officials incited attacks on American settlements.

The Indians, the unacknowledged third party in the conflict, needed no “stirring u p “and were not the unprovoked aggressors shown in the stereotypical (though truthful) woodcuts of burning cabins and tomahawked women. They were trying to hold on to lands that had been promised to them by treaty with Great Britain before the Revolution but then were given—without consulting them—to the United States, with whom they then had to renegotiate on very hard terms. The five nations of the Iroquois Confederation had been pushed out of their holdings in upper New York, and the United States was demanding big new cessions of land from Indian peoples to the west, in the area north of the Ohio River. When these were refused, a five-year campaign of subjugation began with the despatch of a U.S. expedition of some fifteen hundred men, mostly local militia, in 1790. They burned crops and villages—for some of Ohio’s Indian peoples were not the nomadic hunters of myth but settled cultivators—and these acts of an ongoing war were the counterparts of Indian “raids” on white properties. In 1791 Washington sent out a larger force of regulars and militia, six thousand strong, and the Indians thrashed it near present-day Fort Wayne, Indiana, leaving nine hundred Americans dead.

So the “savages,” who knew something of diplomacy as well as war, looked to the British in Canada for help. They were aware that Englishmen did not love them any more than Americans did, but British interest in collecting pelts was not inconsistent with leaving large areas of land in Indian control. The relatively few inhabitants of Canada did not need more acres to till. American policy, on the other hand, had behind it the explosive pressure of a multiplying agricultural population whose land hunger, it appeared, could be fed by nothing less than the total expulsion of the “redskins.” For their part, the royal governors in Quebec were glad to have Indian friends to help them hold off a tide of expansion-minded Yankees who had eyes on Canada. They did encourage Indian resistance to the Americans. All was fair in imminent war.

So the question of the fur posts was really one of getting the British to abandon their Indian clients engaged in a war against the United States. Americans were absolutely determined to win, because victory was the key to their future—to occupying the huge, resource-rich Northwest Territory that would in time become Ohio, Indiana, Illinois, Michigan, and Wisconsin. There was some domestic opposition to westward expansion from a minority of Federalists. But for a clear majority in America evacuation of the posts was a nonnegotiable demand.

On their side the British were equally locked in place on a commercial issue created when the Americans left the empire. That was their long-standing “mercantilist” policy of importing as little as possible, exporting as much as possible, and doing both in British ships only. With independence won, American ships—now “foreign”— could only bring homegrown products into British ports. That meant little because most of those products were foodstuffs, which were barred from sale in Britain to protect local growers. Americans were also forbidden to carry to British markets any goods they bought elsewhere, including the lucrative plantation crops of the nearby British West Indies. That door was firmly shut, and American shippers were desperate to get it reopened. But London’s policymakers rigidly believed that to do so would overturn 140 years’ worth of “navigation acts” under which the kingdom had gotten rich. Changing them was not to be thought of.

All the same, there were businessmen and politicians in Parliament and the cabinet who recognized that American customers couldn’t pay for British purchases unless they earned credits by selling to Britons, a good argument for some easing of the rules. So Hammond was authorized to explore a possible commercial treaty with the United States, but he never got that far. Resolutely anti-British, Jefferson preferred trade war in the form of retaliation. His choice was to kick rather than to talk the door open.

Hammond got some unofficial comfort from private conversations with Hamilton, whom he found to have a “just and liberal way of thinking.” Hamilton regretted the “intemperate violence of his colleague”³ in Jefferson’s notes denouncing British perfidy. He was sure it did not completely represent the opinion of either the president or his other advisers. He advised his young friend that new federal courts would eventually do justice to British creditors, and if Britain got out of the Northwest posts, fair arrangements could be made to protect Canadian interests. He especially hoped that the question of trade restrictions could be compromised, which would be easier if Hammond’s government showed a little flexibility on trade with the West Indies, his own boyhood home. In this back-door effort to soften Jefferson’s hard line, Hamilton was not simply getting at his detested enemy. Anticipating free trade arguments of the next two centuries, he wanted to lay the groundwork for increased Anglo-American commerce that would help everyone in both countries to make money.

The war of 1793 brutally intruded a whole new question—the neutral rights of the weak United States against the claims of Britain, ruler of the waves. The first impact of war seemed helpful to American shippers. The French government invited them to sail freely into its ports, including those in the previously closed French West Indies. That brought an immediate protest from London, because it broke a rule of international law, such as it was, which said that a belligerent could not, in wartime, open a trade closed during peace. The idea was to prevent a weak naval power from “cheating” a blockade by having neutrals carry its traffic. This “rule of 1756” carried the stamp of the expiring eighteenth century, when conflict between sovereigns was supposedly regulated as formally as a chess match. Other such rules of engagement, especially cherished by neutrals, were designed to protect private property on wartime oceans. One provided that neutral ships might freely carry cargoes of a belligerent power except for “contraband,” narrowly defined as military hardware. The shorthand phrase was “free ships make free goods.” Another would protect neutral noncontraband property even if bound for a belligerent port on a belligerent’s merchantman. If captured, it had to be allowed through, or at least paid for.

Using definitions like those, Americans expected neutrality to pay them handsomely as suppliers to the warriors.

But strong nations bent or broke these “laws” at will. And for Great Britain, the war on the Jacobins had gotten beyond a chess game. As Minister Hammond expressed it to Hamilton, “All the dearest interests of society were involved... [in] a contest between government and disorder, virtue and vice, and religion and impiety.”⁴ This was the language of total war, and in fact and fairness the French had already raised the curtain to it in the levee en masse, an emergency conscription decree crying that the entire nation-in-arms must resist foreign invaders and that everyone from children to graybeards would have a part to play. In that case, every citizen of the French Republic could be considered an enemy “soldier,” and so to starve a populace was a lawful act of combat. The British, anticipating modern times, were determined to expand “contraband” to include food and other civilian necessities. American forces in Ohio were following exactly the same principle in setting fire to Indian crops. But that did not keep Americans from believing that the battle for sweeping neutral rights was a struggle for their own commercial lives. The difference of opinion put the two nations on a direct collision course, and the British pressed on at full sail with a June 1793 “Order in Council”—that is, a king’s cabinet decision—that made it “lawful to stop and detain all vessels loaded wholly or in part with corn, flour or meal, bound to any port in France, o r... occupied by the armies of France.”⁵

The news reached American ears not long before the Third Congress convened in December, the members trickling nervously by twos and threes into a Philadelphia still mourning the dead of the summer’s yellow fever plague. Though party organizations had not yet crystallized or taken official names, more and more senators and representatives were by then consistently recognizable as Republicans or Federalists. (These were the names that came into common use, though in a few places enthusiasts for the French Revolution called themselves “Democratic-Republican” when running for office. Some historians attached that label to the whole Jefferson establishment, which allows the modern Democratic and Republican Parties each to claim him as an ancestor.)

The first order of business was to receive the president’s annual message. Jefferson, preparing to leave the government, had persuaded him to include a passage strongly criticizing Great Britain for the impasse over the 1783 treaty obligations. There were citations from Jefferson’s correspondence with Hammond, emphasizing his own arguments, suppressing Hammond’s, and generally putting the British case in the worst possible light. To expose ongoing foreign-policy exchanges to the public eye in that way was a break with custom bitterly resented by Hammond. And not Hammond alone. John Adams saw it as dirty politics and poor statesmanship. Writing to Abigail, he defended secret diplomacy. “How a government can go on publishing all their negotiations with foreign nations, I know not. To me it appears as dangerous and pernicious as it is novel.”⁶ But Washington was himself irritated with British policy, and this time he overrode the judgment of the rest of the cabinet to insert Jefferson’s charges in his text.

Jefferson followed up this victory with another parting shot. It was an open report to Congress on the state of commercial relations with France and Britain. It admitted but soft-pedaled any problems with the French but was strenuous in slamming British restrictions, which he implied were deliberately planned not so much to help England as to hurt America. In Hamilton’s angry words, Jefferson “threw this F I R E BRAND of discord into the midst of the representatives... and instantly decamped to Monticello.”⁷

After Jefferson left, Madison reopened the fight in the House for retaliatory taxes and duties to force the British to soften their “aggravated violations of our rights.”⁸ But American businessmen were not asking for his strong medicine. American flour, fish, and lumber were in fact reaching the British West Indies, sometimes in foreign bottoms and often in American, through a loophole that let royal governors of individual islands make “emergency” exceptions to the navigation laws. A rising tide of imports was getting financed somehow. Shipyards were busy. “Trade flourishes on our wharves, though it droops in speeches,”⁹ said Federalist representative Fisher Ames in debating Madison. He and William Loughton Smith, voicing the views of Boston and Charleston, blamed Jefferson’s stiff-necked attitude for the failure to reach agreement with the British. Swayed by the fear of war, House members stalled Madison’s proposals on the floor.

But then came fiery news from the Caribbean and Canada that made debates on economic pressure look pale and obsolete. In March 1794 Philadelphia learned that the previous November a new Order in Council had authorized the seizure of anything bound to or from the French West Indies, and that British captains were zealous in executing the blockade. Two hundred fifty American ships, some of them merely suspected of heading for French ports, had been stopped and forced at cannonpoint to trail their captors into British harbors. Of these, 150 had been condemned and confiscated. American owners were robbed of their investments. American officers and crews, left with nothing but the clothes on their backs, were stranded and hungry. At almost the same time, New York’s Governor Clinton relayed leaked information from the North. Governor Lord Dorchester had made a speech to a deputation of Indians in Quebec saying that he expected war with the United States within a year. If they helped him push Canada’s borders southward, Americans would be thrown out and the king would look kindly on Indian claims.

As it happened, the British had already limited the blockade and were considering some reparations in January. But boiling-mad Americans did not know that. Nor did they know or care that Dorchester’s speech was possibly unauthorized, and that Dorchester himself was worried about the intentions of a new and strengthened American force under General Anthony Wayne moving into the Northwest Territory. War fever raged throughout March and April. In secret session the House debated a total embargo on supplies to the British West Indies. That would be a piece of belligerency as valuable to the French as a Caribbean naval victory. Eventually it failed by just two votes. House members also considered “sequestration,” meaning the suspension of all debts owed by American citizens to British subjects until damages were paid for the seized property. Hamilton was horrified. If it passed, foreign bankers would think long and hard before lending another cent. Another bill gave the king a six-month ultimatum to surrender the fur posts and pay maritime damages or face a total suspension of commerce with the United States that would cost his own exporters millions. That one passed the House and was killed in the Senate only when Vice President Adams cast a tiebreaking “nay.”

The Republican press was raging, pouring out its vials of wrath in hyperbole strange to modern ears. “Our blood is in a flame.... The avenging arm of America once uplifted, should chastise and pursue a corrupt and base tyrant till his worthless life is terminated upon a scaffold.”¹⁰ Street crowds shouted insults at Hammond and his embassy clerks as they walked to their residence. Hammond found to his amazement that even Hamilton, in private conversation, spoke of American grievances “with some degree of heat.” Elevating his gentlemanly chin, Hammond answered that he was astonished to hear from his friend such ideas, only “entertained by the demagogues of the house of representatives, and by the uninformed mass of the American community,” but left in peace.”¹¹ He didn’t realize that the Federalists, too, had been pushed too far. Their spokesmen in Congress were asking an immediate increase of fifteen thousand in the size of the army, authorization to the states to raise eighty thousand militia, a start on a navy, and new supportive taxes. That caught the Republicans, who seemed hottest for war, in a bind, because all such politically irresistible measures violated their ideal of keeping government small, weak, and inexpensive.

However, the Federalists were also in a squeeze. A second Anglo-American war in eleven years, besides the other disasters it threatened, would help revolutionary France. That was the very last thing they wanted. In this crunch, Federalist leaders approached Washington with a modern proposal—a last-chance, edge-of-the-cliff negotiation through a special envoy, to emphasize how seriously the United States took the situation. They must have realized that it would bypass the regular American minister in London, former South Carolina governor Thomas Pinckney, but as a loyal Federalist he would understand and might receive later rewards. Washington thought the idea over for a while and eventually agreed, though he disliked the weak appearance of first shaking a fist at the British and then asking to talk things over. Who would the envoy be? Washington liked the idea of Jefferson, but he— or any other Republican—would hardly be acceptable to the British. Hamilton would be a good choice, but was too controversial to be sure of Senate confirmation. So the mantle fell on Chief Justice Jay. He was experienced—one of the draftsmen of the 1783 treaty, in fact—available from a Supreme Court with little to do, eager for some action after having been swindled out of the governorship of New York by Aaron Burr, and able to win approval in the Senate, where the Federalists had a majority. He got it, 20-8, on April 19.

It took political bravery or innocence for Jay to accept the mission. Much of the country disliked the whole idea, and if the chief justice came back with anything less than a triumph, he would suffer multiple slings and arrows. But a triumph was unlikely. Whatever the prowar tub thumpers might say, the United States was the weaker party, and so at a diplomatic disadvantage. Though his mission statement formally came from secretary of state Randolph, it was mainly drafted by Hamilton. In essence he was to do his best to get indemnification for seized cargoes, limitations on the definition of “contraband,” some concessions on the West India trade, and some sort of compromise on the unsettled issues of debts, recompenses, fur-trading rights, and boundaries. He boarded ship on May 12. Luckily, it was not until May 20 that another news item from Canada arrived in the capital. Still worrying about a U.S. invasion, Lord Dorchester had sent a force to occupy another fort well inside American territory, near today’s Toledo. Had word gotten to Congress ten days earlier, Jay’s mission might have been scuttled.

JAY WAS politely received on his arrival at the royal court, where his blue-ribbon lawyerlike style and Federalist politics made him highly acceptable. He spent four months in the peacemaker’s familiar rituals and sleepless drudgery of composing and exchanging drafts and memorandums. His case was helped by the progress of war in North America and Europe. On August 20, 1794, General Wayne’s army of pacification attacked and defeated a major Indian force on an Ohio field strewn with trees downed by a recent storm. News of the Battle of Fallen Timbers may have strongly suggested to foreign minister Lord Grenville that the Americans could not be held indefinitely at bay in the West. And during the autumn, French troops scored victories in Belgium and Holland, more bad news that inclined Grenville to put a slightly higher value on keeping America neutral. He worried about that, especially when he learned that the new United States minister to France, James Monroe, had received a “fraternal kiss” in mid-August from the president of the French Convention and returned the favor with lyrical remarks about sister republics. Unable to fathom why America’s president should send a Federalist envoy to London and a Francophile Republican minister to Paris, Grenville saw signs of a French tilt in United States policy that he may have tried to counteract by yielding slightly in negotiations with Jay.

But any “give” was very slight. The final draft, signed on November 19, was heavily loaded in England’s favor. The major concession to the Americans was on the fur posts. The British would pull out of them within a year and a half. But Canadian fur traders could still freely cross the border. However, neither party was supposed to supply Indians warring against the other. In an unusual breakthrough, Jay and Grenville agreed to “mixed commissions” of British and American representatives, to arbitrate disagreements about the exact location of the Canadian-American border, about how much Great Britain owed in damages for her recent “spoliations” at sea, and how much the United States would pay to compensate British creditors. What Jay gave up for these points, however, was considerable. British goods would be received in the United States on a most-favored-nation basis, meaning no charges could be imposed on them higher than those in the best deal offered to any other country. That killed off the cherished Republican idea of discriminatory retaliation. The British rules of sea war would not be challenged—cargoes belonging to belligerents could be taken from neutral ships, “contraband” was broadly defined, and a trade closed in peacetime could not be opened in war. These concessions worked heavily against France, and as an additional stick poked in her eye, Jay agreed that warships, privateers, and prizes of Britain’s enemies would be excluded from U.S. ports.

There was an almost insulting token prize for United States exporters. They could send American-produced items to the British West Indies in ships of no more than seventy tons “burthen,” a term for a vessel’s cargo-carrying capacity. For goods like foodstuffs, heavy in proportion to their size and value, this was trifling. And there was a price for this, too. The same Article 12 said that Americans could not carry any molasses, sugar, coffee, cocoa, or cotton anywhere in the world except home—shutting them out of the richest carrying trade they knew. Jay lamely defended that article as “breaking the ice” of the navigation acts, but it was a narrow crack in a huge floe.

The treaty said nothing about compensation to Americans for lost slaves (which could hardly have troubled Jay, who was an early abolitionist) and made no promises to restrict “impressment,” the practice by which shorthanded British naval commanders stopped American ships and plucked out English-speaking sailors who could not prove U.S. citizenship. In all, it seemed a sorry bargain. Yet it got much of what Hamilton’s instructions had asked for, and it made strategic and economic sense. The British opened the door to American expansion on the continent, and the Americans recognized Britain’s manufacturing, commercial, and maritime supremacy as at least temporary facts of life. The long run would favor a growing United States. What point was there in a 1795 challenge leading to war? “If there be a foreign power which sees with envy or ill-will our growing prosperity,” Hamilton wrote in a newspaper essay defending the treaty, “that power must discern that our infancy is the time for clipping our wings. We ought to be wise enough to see that this is not a time for trying our strength.”¹²

But thousands of Americans did not like reminders that they lived in an infant nation. When Jay brought the treaty home in March 1795 he was carrying dynamite. It would be safe for a few months, because the terms would remain secret until the treaty went before a special session of Congress called for June. In the interim, Jay was able to get himself elected governor of New York. That allowed him to quit the chief justice’s office before angry opponents could try to get even by impeaching him.

After months of rumor, the closed Senate debates were stormy. Even Federalists choked on Article 12, the one that would have, among other things, banned the sale of cotton abroad just as Whitney’s gin had switched on a sixty-five year boom in the crop. The treaty finally squeaked through on June 24 with the exact minimum two thirds needed, 20-10, on a straight party-line vote. But Article 12 was rejected. The president was authorized to ratify the whole treaty only if it were suspended or changed.

This made a new, precedent-setting dilemma for Washington. Here was another one of those situations not precisely covered by the Constitution, which said nothing about the Senate consenting to some but not all of a treaty. It was like sending a partially eaten dish back to the kitchen. Should he renegotiate a substitute version of Article 12? And if so, should he submit that to the Senate before putting it to the British? And if he did that, would it mean that all future treaties would need to be wrangled out clause by clause with the senators?

Washington mulled this over with the cabinet, missing the presence of Hamilton, who had quit in January to go back to private law practice and a decent income in New York, though he still freely gave advice by post. Oliver Wolcott took over at the Treasury, and there were two other new faces. Timothy Pickering of Massachusetts had replaced Knox as secretary of war, and a Pennsylvania judge, William Bradford, had become attorney general. Randolph, at State, was the last holdover from the first cabinet, the last link to the sunny, early days of promised unity. Now he kept stalling indecisively in giving Washington his opinion on ratification. The president was annoyed, and more so when two new developments shook his celebrated composure. The Royal Navy, under a new so-called “provision order,” had recently seized several American grain ships bound for France. It turned out to be a temporary policy and the cargoes were eventually paid for, but it looked like fresh evidence of British contempt. The n, although Jay’s Treaty was not yet supposed to be published, the inevitable happened. A senator leaked a copy to a Republican editor. Within two weeks, as fast as the mails could function, it had appeared in print throughout the United States and set off a firestorm.

Republican sympathizers raged that Jay had betrayed France, truckled to King George, and brought his own country into contempt. “To what state of degradation are we reduced,” ran a typical comment, “that we courts nation more perfidious than Savages.”¹³ Governor Jay himself later said that he could travel from one end of the country to the other by the light of his burning effigies. Private citizen Thomas Jefferson privately denounced the treaty as an “infamous act, which is nothing more than a treaty of alliance between England and Anglomen of this country against the legislature and people of the United States.”¹⁴

Neither British nor Republican behavior was making Washington’s decision any easier. He left the capital on July 15 to think matters over in the quiet of Mount Vernon. But within days the mailbag brought more bad news of a hot and angry summer. Protests were pouring in from every major city. In New York on July 18 Republicans called an open meeting of citizens to discuss the treaty. The crowd, gathered in Wall Street, yelled for a chairman and accepted William S. Smith, Vice President Adams’s son-in-law. But Smith could not keep control. Alexander Hamilton tried to speak and was shouted down. The n a shower of stones drove him, bleeding from a cut in the head, off the platform. Opponents of the treaty, some waving French flags, marched off to burn copies in front of Governor Jay’s residence on the Battery. Five days later there was a demonstration in Philadelphia itself, attended by respectable citizens like Stephen Girard, Chief Justice Alexander Dallas of the Pennsylvania Supreme Court, and ex-Speaker of the House Muhlenberg. There a prominent local Irish businessman waved a copy and bellowed: “What a damned treaty! I make a motion that every good citizen in this assembly kick this damned treaty to hell!” On that signal, a group stuck it on a pole, marched to Minister Hammond’s residence, set the paper ablaze, and shattered his windows.¹⁵ The experience undoubtedly increased Hammond’s gratitude at being recalled to London shortly thereafter. In these scenes Republicans saw democracy at work, while Federalists shuddered at the Jacobin frenzy and wondered if, the next time, heads instead of treaties would be carried on poles.

To ratify or not to ratify? Washington was eager to do what was in the national interest but unwilling to yield to pressure from the Senate, the British, or the “demagogues.” Delay might only bring more agitation. The n a disturbing letter arrived from secretary of war Pickering. “I feel extreme solicitude,” said the secretary, “and for a special reason which can be communicated to you only in person.”¹⁶ It was the final push that led Washington to cut his vacation short and start back to Philadelphia. When he got there on August 11 he was thrown into eight days of anguished private and political drama that finally produced his decision.

Fifty-year-old Timothy Pickering’s solicitude wasn’t easy to evaluate because his rigid convictions made his normal stance one of disapproval. Thin-faced and long-nosed, he looked like a caricature of a Puritan forced to live among sinners. Son of a Salem merchant who put him through Harvard, he had tried practicing law and dropped it, then had a fling at business and failed. But intelligence and industry won him public office. During the Revolution he served in the Quartermaster’s Department but somewhat to Washington’s displeasure showed more zeal in unearthing graft than in keeping the supply wagons full. He undertook farming in Pennsylvania afterward—unsuccessfully— and then got back into government, first as a negotiator with the Seneca Indians, then as postmaster general, and finally as head of the War Department, although he was not the first choice.

Washington got into town and sent word to Pickering to call on him at home. When Pickering arrived, the president was in amiable conference with Randolph, whose latest advice was that the president should hold up ratification until the British canceled the latest “provision order,” which meant starting a slow new round of diplomatic correspondence. Washington excused himself momentarily and stepped into an adjoining room with Pickering to find out what was on his mind. Pickering pointed a theatrical finger at the door behind which Randolph sat and announced: “That man is a traitor.”¹⁷ He gave Washington a packet of material for later study, and they politely returned to the unsuspecting secretary of state’s company.

What Washington read alone that night was an incomplete set of intercepted despatches, about a year old, from the French minister Fauchet to Paris. They had been taken from a ship captured by the British, delivered to the Foreign Office, sent from there to Hammond in Philadelphia, and through him finally reached Pickering. What they seemed to show at their worst interpretation was that Randolph had been in frequent intimate conversation with Fauchet, talked freely about secret matters, and suggested bribing some of the leaders of the Whiskey Rebellion to keep it going. Randolph himself, his friends, his biographers, and some later historians of the period argued vigorously that the Fauchet letters were possibly inauthentic or at least misread and twisted by his enemies to frame him.¹⁸

Whatever the elusive final truth, the material convinced Washington that his fellow Virginian was, if not an actual traitor, a dangerous and foolish pro-French saboteur in the heart of his official family. Now he understood why Randolph had been so insistent on further delay that would give opposition time to build. And so his mind was made up. At next morning’s scheduled cabinet meeting, he pronounced five simple words: “I will ratify the treaty.”¹⁹ He meant with Article 12 dropped altogether, which turned out to be no problem. For another week he continued to behave toward Randolph as if nothing had happened, while the official papers for Hammond to take to London were drawn up. The n he called Randolph to a morning conference with Pickering and Wolcott, who looked on frostily while Washington handed over one of the incriminating despatches and asked for an explanation. Randolph struggled for a while, then asked for and got leave to withdraw and compose a more considered written answer. Before the day was over he had resigned. Later on he published a long Vindication that bitterly attacked Washington as a tool of the British faction in America.

It was a sign of fast-changing times that Randolph had gone in just eight years from being the bright young star of nationalism at the Constitutional Convention to a disgraced casualty of partisan warfare. Pickering replaced him at the State Department, and between his influence and Wolcott’s the atmosphere of the cabinet was finally and unmistakably Federalist. Washington himself never officially admitted losing the hope he expressed in a letter to Hamilton, which referred to the Jay Treaty but might have been about any issue, “to learn from dispassionate men, who have knowledge of the subject... the genuine opinion they entertain... that I may see... ultimately, on which side the balance is to be found.”²⁰ But some time after Randolph was gone, Washington said that he could no longer appoint anyone to a major office “whose political tenets are adverse to the measures... [of] the general government... for this, in my opinion, would be a sort of political suicide.”²¹ He would not follow the ideal of impartiality over the edge of a cliff.

With the ratification decision made, the tempest surrounding the treaty did die down in the fall. But there was a last act still to play. In mid-March 1796, the trumpet call for a final Republican charge was sounded by the need for money to cover the costs of carrying out the treaty, such as the expenses and salaries of the mixed commissions. The first recognizable congressional party caucus ever was held when Republican members of the fourth House of Representatives, elected in 1794, gathered to plan a challenge. Appropriations had to originate in the House. If it was the job of the House to pay for a treaty, they decided, then the House as much as the Senate had to approve the entire agreement. A resolution was introduced and passed, calling on Washington to submit the executive documents relating to Jay’s mission. Wearily facing another hard excursion into the unknown territory of his exact powers, Washington refused. The Constitution made it clear, he answered, that treaties should be made by him and consented to by the Senate. That was done, the word of the United States was given, and the House had no right to meddle.

Politically, however, the president was boxed in. The healthy 62-37 margin by which the call for papers had passed showed that the votes were there to kill the treaty by fiscal starvation. Controlled as always, Washington held his tongue in public but fumed in a letter that the sponsors “resolved to... render the treaty-making power a nullity without their consent;... worse, to render it an absolute absurdity.” They had “not only brought the Constitution to the brink of a precipice but the peace, happiness and prosperity of the country into imminent danger.”²²

During April (which happened to be the month during which Washington sat for the famous, serene-looking Gilbert Stuart portrait) the battle surged back and forth in the House Chamber. Madison, who was the obvious expert on the Constitutional Convention, defended the claim of the House to a share in treatymaking but had to resort to a “broad construction” like that of his ex-friend, Hamilton, to make his case. He had help from a new member whose career as a Republican mainstay was just taking off. Geneva-born and French-educated Albert Gallatin came from frontier Pennsylvania, whose legislature had earlier named him to the Senate. That election was thrown out because he lacked the seven years’ residence requirement, but his admiring neighbors reacted by electing him a representative. Gallatin and Madison seemed to have marshaled enough votes to win, but powerful counterattacks were made by Federalist spokesmen. One came from an ill Fisher Ames. He tottered from his seat and begged the House to indulge his weak voice for a few moments, then spent a rousing hour and a half (at a time when a good speaker could still persuade a small legislature) vividly picturing the commercial and military disasters—especially on the Indian frontier—that would follow the rejection of the treaty.

Ames had the facts on his side. Republican treaty haters from the West were wavering. They were happy to see the British packing up to leave the fur posts in another few weeks. Besides that, two other agreements enormously pleasing to them were up for ratification. One was the Treaty of Greenville, made with the Indians whom Wayne had beaten. They had to give up most of Ohio. The other, the Treaty of San Lorenzo, was the work of Thomas Pinckney. After he was bypassed as chief negotiator with Great Britain, Pinckney caught a lucky break in an appointment as special envoy to Madrid to work out problems with Spain. The Spanish were far easier to handle in 1795. They were about to make peace with France, they were afraid that it would get them into a war with the British, and they were ready for any deal to keep the Americans from grabbing the chance to attack Spanish Louisiana. Pinckney got the westerners their cherished dream, a water outlet to markets. They could flatboat their corn, meat, lumber, and whiskey down the Mississippi through New Orleans or warehouse it there for up to three years, all without encumbrances or strangling fees. There was also an agreement favorable to the Americans on the location of the boundary with Spanish Florida. Pinckney’s treaty and the Treaty of Greenville between them opened the Northwest and the Southwest to floods of migration. They easily offset the supposed humiliation of Jay’s Treaty.

As for the maritime issues, prosperity cotinued to survive the British lion’s roar. Even the infamous ban on West Indian trade was lifted again and again by emergency exceptions. Other trades were opening to Yankee enterprise, and altogether the Columbian Centinel [sic] had it right: “The affairs of Europe rain riches upon us; and it is as much as we can do to find dishes to catch the golden shower.”²³ The golden shower put out the fire of resistance among enough House Republicans to change the balance. On April 29, a tie on a procedural vote to send to the floor an appropriation bill for the treaty was broken by Republican Muhlenberg’s vote in favor. The next day there was another defection and the money was voted 51-48. The precedent was set—thereafter the House of Representatives would not demand an equal share in approving pending treaties. President Washington had won a big but a very close victory. Only a two-vote swing could have given a different result and interpretation. And while hindsight makes the precedent look decisive, there was no guarantee in 1796 that it would be followed another time.

The major losers by Jay’s Treaty were the Indians abandoned by their British backers, and the French, whose 1778 alliance with the United States was now a dead letter. Among the people of the United States, the two-year crisis had produced practically nothing but winners. But the price was exorbitant. The savage debates had dug both parties into fortified positions from which they would hammer each other with hotter and hotter fire. Even Washington had lost his armor against criticism, and one Republican editor at least had accused him of “the supercilious distance of a tyrant” and “the insolence of an Emperor of Rome.”²⁴ He was happier than ever with his firm decision to leave office at his term’s end, though he was under no constitutional obligation whatever to quit. On the day that the House gave up its challenge he had been on the job for precisely seven years. And seven months were left until electors would gather in their state capitals to cast their votes for his successor. What would the first presidential election without him be like?