Jay was nominated as envoy extraordinary on April 16, 1794, and, after three days of violent debate, the appointment was confirmed by the Senate. The event did not moderate the rage of the House for immediate action. Some members urged that it was indelicate for the House to be passing reprisals at a time when the Executive was attempting friendly negotiations; but the reply was made that, if there was any indelicacy, it was on the part of the Executive, inasmuch as the House proceedings had been already begun when the President decided to nominate an envoy extraordinary. While Congress was fuming and wrangling, Jay was proceeding with his difficult task. He sailed on May 12, and on June 8 landed in England where he was hospitably received. Despite these personal attentions, the differences to be adjusted were so numerous and complicated that on the surface the situation looked almost hopeless. Conditions, however, were really more favorable than they appeared to be. A change, latent but influential, had taken place in the mental attitude of the governing class in England. There had been a notion that American independence would not last long and that the country would eventually be restored to the British Crown. The drift of events was rather in that direction until Hamilton's measures gave the ascendancy to the forces making for American national development. The practical statesmanship of Great Britain perhaps saw more clearly the significance of what was taking place than did that of America itself, and it was prepared to reckon with this new condition. Moreover, the European commotion resulting from the French Revolution had brought to the front a new set of interests and anxieties, for the free handling of which a settlement of differences with the United States might be advantageous. The effect of such considerations was at least to render the situation more manageable than might have been expected, and Jay improved his opportunities with admirable tact.
In pursuance of his principle of bringing "good-natured wisdom" to bear, Jay suggested to Lord Grenville, the British Secretary for Foreign Affairs, that they should dispense with written communications, and merely meet and converse informally "until there should appear a probability of coming to some amicable mutual understanding." Even after such understanding should be put into writing, it was not to be regarded as official or binding, but simply as an exchange of private memoranda. So strictly was this informal method adhered to that the regular force of secretaries and copyists had nothing to do with the proceedings until the treaty was almost ready for signing. Jay had been instructed to demand compensation for some three thousand slaves who had followed the British troops when they departed, but Lord Grenville stood firm on the principle that the slave, once under the British flag, became a free man, the property rights of the former owner thereupon becoming extinct and not forming a subject for compensation. Jay, who really held the same opinion, had to yield the point. It was agreed that the western posts should be evacuated by June 1, 1796, an arrangement which would allow the British government to retain them about two years longer. That government had already justified its retention of these posts by averring that the United States had not complied with the articles of the peace treaty relating to British debts. Jay was not in a position to argue the point with any force, for when he was Secretary of Foreign Affairs he had advised Congress that these articles "have been constantly violated on our part by legislative acts, then and still existing and operating"; and that Great Britain was therefore not to blame for retaining the posts. The British government was undoubtedly cognizant of this report, and Jay could not make any effective opposition to a proviso which in effect said to the United States, "before surrendering the posts we will wait and see whether you intend to fulfill your agreements." The root of the trouble—an evil often felt and still experienced in the United States—was defective sovereignty, an inability of the whole to control the behavior of its parts. Jay could not deny that the peace treaty had been violated by state legislation, and only by the humiliating means of an avowal of its impotence could he exonerate the national government from the imputation of bad faith. The matter was disposed of by provision for a joint commission to decide upon all cases in which it was alleged that unlawful impediments had been placed in the way of collection of debts due British subjects, and by the United States undertaking payment of the awards. A similar commission was to pass upon American claims for British violation of neutral rights. This arrangement was a concession whose practical value was eventually shown by the fact that as a result American merchants received some millions of dollars.
Jay displayed marked adroitness as a negotiator in dealing with the issues growing out of past differences, but he made an extraordinary slip in providing for commercial relations between the two countries. In their general tenor the articles displayed broad liberality. Between all British dominions in Europe and the territories of the United States there was to be "a reciprocal and perfect liberty of commerce and navigation." American vessels were to "be admitted and hospitably received" in the ports of East India, and, although participation in the coasting trade was prohibited, it was provided that this restriction should not prevent ships going from one port of discharge to another. The East Indian trade was not, however, so important as the nearer West Indian trade, and with respect to the latter the treaty provisions were narrow and exacting. American vessels were limited to seventy tons burden, and it was provided that "the United States will prohibit and restrain the carrying away of molasses, sugar, coffee, or cotton in American vessels, either for his Majesty's Islands or the United States, to any part of the world except the United States, reasonable sea-stores excepted." Jay, in a letter to Washington, excused his acceptance of this restraint on the ground that "the commercial part of the treaty may be terminated at the expiration of two years after the war, and in the meantime a state of things more auspicious to negotiation will probably arise, especially if the next session of Congress should not interpose fresh obstacles."
The treaty was silent on the subject of impressment, but Jay's failure on that point was just what was to have been expected in view of the unwillingness of the United States to defend its commerce. Impressment was not abandoned until many years afterwards, and then not through treaty stipulation but because the United States had a navy and could resist aggression on the seas. In its treatment of the subject of contraband, the treaty took positions in accord with the international law then received, but in one respect it made a distinct advance. Provision was made that war between the two countries should never become the pretext for confiscation of debts or annulment of contracts. This position involves the noble principle that war should never supersede justice but should be the servant of justice. Great practical advantage was experienced from it in the War of 1812, when the United States was a creditor nation.
On the whole, Jay's diplomacy was as enlightened as it was shrewd, but at the time it exposed him to furious denunciation which he disdained to notice. "I had read the history of Greece," he wrote to a friend, "and was apprised of the politics and proceedings of more recent date." The philosophic composure which he drew from his knowledge of history enabled him to behave with calm dignity while he was being burned in effigy, and while mob orators were heaping insult and calumny on his name. After a struggle that shook the Government, the treaty was ratified by the Senate on June 24, 1795, with the exception of the article about the West Indian trade, an omission to which Great Britain made no objection. The treaty was extremely unpopular, chiefly because unreasonable expectations of its provisions had been entertained. People had yet to learn that national independence has its defects as well as its advantages, and that the traditional intimacy between the West Indies and America was now on a footing of privilege and not of right. The great benefits conferred by the treaty were therefore not appreciated, and so violent was the fury its terms excited that it was perhaps fortunate that Jay did not resume his seat on the Supreme Bench. Before his return from England and before the details of the treaty had been made public, he had been elected governor of New York, and to accept this office he resigned the chief-justiceship.
CHAPTER VIII
PARTY VIOLENCE
When, in July, 1793, Jefferson notified the President of his wish to resign from the Cabinet, Hamilton's resignation had already been before the President for several weeks. Ever since the removal of Congress to Philadelphia, Hamilton's circumstances had become less and less able to endure the strain of maintaining his official position on a salary of $3500 a year. He had fully experienced the truth of the warnings he had received that, if he gave himself to the public service, he might spend his time and substance without receiving gratitude for his efforts or credit for his motives. His vocation for statesmanship, however, was too genuine and his courage too high for such results to dishearten him. He had now accomplished what he had set out to do in securing the adoption of the measures which established the new government, and he no longer regarded his administrative position as essential to the success of his policy. Meanwhile the need had become urgent that he should resume the practice of his profession to provide for his family. It was not in his nature, however, to leave the front when a battle was coming on, and, although he gave early notice of his intention so that Washington should have ample time to look about for his successor, the resignation was not to become effective until Congress had met and shown its temper. According to Jefferson, Washington once remarked to him that he supposed Hamilton "had fixed on the latter part of next session to give an opportunity to Congress to examine into his conduct." Although Hamilton had made up his mind to retire, he intended to march out with flying colors, as became the victor on a hard-fought field. So far, he had met and beaten all enemies who had dared to assail his honor; he meant to beat them again if they renewed the attack, and he had word that one encounter was coming more formidable than any before.
Hamilton's success in carrying his measures through Congress, by sheer dexterity of management when numbers were against him, added intense bitterness to the natural chagrin felt by the defeated faction. Men like Jefferson and Madison were subject to traditions of behavior that required them to maintain a certain style of public decorum no matter how they might rage in private. But new men with new manners were coming on the scene, and among them the opposition to Hamilton had found a new leader— William Branch Giles of Virginia. He was a Princeton graduate of the class of 1781, had studied for the bar, and had been admitted to practice in 1786. To the full legal equipment of the period he added an energy and an audacity that speedily brought him legal and political distinction. He was active and outspoken in advocating the adoption of the new Constitution, at a time when popular sentiment in Virginia was strongly inclined to be adverse. He had no hesitation about undertaking unpopular causes, and hence British debt cases became a marked feature of his practice. Virginia State law had suspended the recovery of debts due British subjects until reparation had been made for the loss of negro slaves taken away by the British during the war, and until the western posts had been surrendered. But the peace treaty of 1783 stipulated that creditors on neither side should meet with lawful impediment in the recovery of debts, and by the new Constitution treaties had become part of the law of the land. On the basis of a national jurisdiction in conflict with the Virginia statutes, Giles acted so energetically, that he himself related that by 1792 he had been employed in at least one hundred British debt cases, and was "as successful in collecting monies under judgments as is usually the case with citizens."
Comprehension of the true nature of the struggle in which Giles became conspicuous must start with the fact that the Constitution was reluctantly accepted and with great uneasiness as to possible consequences. In the Virginia convention of 1788, it was declared that the new Constitution was essentially a scheme of the military men to subject the people to their rule. This argument was not so much met as avoided by the declaration that there could be no tyranny while Washington lived. The rejoinder was obvious: what if he should not be able to withstand military influence? What if, in spite of him, the government should be given a dangerous character that would develop after he passed away? Jefferson had felt misgivings on this score from the first, and Madison experienced them as soon as differences on practical measures arose between himself and Hamilton. Jefferson and Madison wanted the government to be made respectable but not strong. Hamilton saw what they could not see—and indeed what few at that time could see—that a government cannot be made respectable without being made strong.