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Jay’s Treaty was designed to clean up certain outstanding diplomatic matters left over from the Revolutionary War. It provided for the following:
- Inter alia, evacuation by the British from the so-called “border posts” (they were actually on US soil)
- American trade with the British East Indies
- American trade with Britain on the basis of “Reciprocal and perfect liberty of commerce and navigation…,"
- The admission of American ships of less than 70 tons carrying capacity to the West Indies trade.
- It also adjusted a set of outstanding financial claims that citizens of each country had against the citizens of the other.
Jay’s Treaty was the first treaty negotiated and ratified under the Constitution; some of the battles fought over it therefore had strong constitutional import. It was an early instance of what was to become a perennial issue in American politics and American law, the question of how strong the executive power should be in our scheme of governance. This paper attempts to discuss the Treaty in terms of George Washington’s behavior with respect to it and in terms of the constitutional arguments surrounding it.
This piece of foreign policy was both a strong assertion by George Washington of executive authority and, with respect to both substance and procedure, inherently controversial. The political controversy surrounding the Treaty had a certain ebb and flow. Public reaction to the Treaty was initially negative; it then, in 1796, turned around. Some of the controversy in both phases was of real constitutional significance; some of it was merely political rhetoric dressed up to look like honest concern for the Constitution.
Let us first look at that part of the substance that was the emotional focus of the controversy that ensued. Although Thomas Jefferson and his Republican allies did not at that time know the extent to which Hamilton had a hand in the treaty, they did recognize it as “Hamiltonian” in that it seemed to surrender so much to the British. These objections were not wholly partisan. Ferling notes that Washington himself, found it “…disconcertingly free of concessions to the United States…”. Jay’s Treaty became one of the first objects of contention arising out of a growing “spirit of faction” that was appearing in the country.