The Jay Papers III: The Trials Of Chief Justice Jay

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If there was any breach between the President and the Chief Justice as a result of die notoriety that Jay had gained in the Genêt affair, it was soon healed, for in April, 1794, Washington named Jay to go to Great Britain to negotiate a treaty settling outstanding grievances between the two nations, grievances intensified of late by British interference with neutral shipping and by impressment of American seamen, actions spurred by her involvement in the European war against France. The nomination had rough sledding in the Senate. For three days hostile senators debated the propriety of a Chief Justice doubling in a diplomatic post and objected to Jay’s well-known British predilections, but at last Jay was confirmed, eighteen to eight.

So much has been written about the shortcomings of Jay’s Treaty that little more need be said. On the positive side, the British agreed to withdraw from the forts in the American Northwest which they had continued to occupy in violation of the Treaty of 1783. The new treaty also provided for the referral to joint commissions of the issues of the pre-Revolutionary debts, the disputed northeast boundary between the United States and Canada, and the matter of compensation for illegal maritime seizures. The treaty placed British trade with the United States on a most-favored-nation basis, admitted U.S. vessels to British East Indian ports on a nondiscriminatory basis, and opened the West Indies trade to U.S. vessels not exceeding seventy tons’ burden, provided they did not take as cargo cotton, sugar, or molasses. But the treaty contained no reference to the hot issue of impressment, to control of the Indians, or to settlement of American claims for slaves removed by the departing British as the Revolution ended or of British counterclaims for the return of Loyalist property seized in America. Its meager concessions in the West Indies drew the ire of all sections of the country.

 

It is now known that the American negotiator was, without his knowledge, deprived of his ace-in-the-hole when Hamilton, in conversation with George Hammond, the British minister, gratuitously disclosed that the United States had no intention of going to war to enforce its demands on Great Britain. What is less evident, perhaps, is that Jay’s reluctance to take a tough stand in the negotiations stemmed in no small part from his legal and juristic training. Jay was a stickler for the letter of the law, and he believed that although the failure of the British to evacuate the frontier posts was a violation of the Treaty of Paris, it was not unprovoked. Americans had brought it on themselves by refusing to return Loyalist property confiscated during the war, and by not paying the prewar debts they owed to British merchants. In a hitherto unpublished memorandum which he drafted in London, he carefully set forth the sequence of treaty violations as he saw them.

August 5, 1794 The Provisional Articles were signed at Paris November goth 1782. They were to constitute the treaty of Peace to be concluded between Great Britain and the United States, but that Treaty was not to be concluded till terms of peace with France were settled. Even these Articles were not ratified in America till the 15th April 1783, several months before that Treaty was signed, and when even the Provisional Articles were not mutually ratified.

The Treaty of Peace was in fact not signed till September 3rd, 1783. It was not ratified in America till the 14th of January 1784; and that Ratification was not exchanged in Europe till the end of May 1784, nor received in London till the 28th of that Month.

Till that period, no order for evacuating the Forts could with propriety be sent from hence. … But in the intermediate time measures had been taken in America which are incontestible infractions of the Treaty; measures not merely resulting from the continuance of a Status Quo, agreeably to reason and to the practice of all Nations, during the suspension of hostilities, and till the final exchange of ratifications; but new Legislative Acts, adopted after the knowledge of the terms agreed upon, avowedly intended to defeat the execution of those terms when the treaty should be concluded and ratified, and in their operation necessarily producing that effect.

On the bare statement of these dates, there can be no doubt from which side the first violation of the Treaty proceeded, if that discussion were now necessary or useful.