by Lynne Cheney
The Federalist Senate approved the treaty, the article about West Indian trade excepted, on June 24, 1795, by a vote that was exactly the two-thirds necessary: twenty senators in favor and ten opposed. The Senate voted not to release the treaty, but Virginia senator Stevens Thomson Mason decided the public deserved a look and sent a copy to Benjamin Franklin Bache’s Philadelphia newspaper, the Aurora. As Madison described it, from there “it flew with an electric velocity to every part of the Union.” Fourth of July crowds up and down the nation would probably not have reacted well to any treaty with Britain, but the taint of unfairness attaching to this one made them furious. On Bastille Day in Charleston, protesters dragged a Union Jack through the streets and set it afire. In Philadelphia, according to Vice President Adams, “an innumerable multitude” gathered at Washington’s house, “huzzaing, demanding war against England, cursing Washington, and crying success to the French patriots and virtuous Republicans.” In New York, when Hamilton tried a public defense of the treaty, someone threw a rock that struck him in the forehead. So many stuffed figures of Jay were set to the torch that it was said a person could travel from one end of the nation to the other by the light of his burning effigies.26
Madison noted that “addresses to the president against his ratification swarmed from all quarters,” but events behind the scenes were pushing Washington in the other direction. Not long after Senate passage of the treaty came news that the British had begun once more to seize American ships carrying grain to France, something they had not done while negotiations with Jay had been ongoing. Secretary of State Randolph recommended that the president hold off on ratification until the situation was better understood—and remedied. Washington agreed, and Randolph told the British minister George Hammond of the president’s intent. Perhaps Randolph, once described as “too Machiavellian and not Machiavellian enough,” exaggerated his role in delaying the treaty, because he soon became a British target. Hammond turned over a French dispatch that the British had intercepted at sea. Known as Number 10, it indicated that Randolph was conveying a decidedly Republican view of the administration to the French, portraying it as so bent on power that the Whiskey Rebellion had been exaggerated in order to justify raising an army. The dispatch also reported Randolph making an “overture,” which was not fully described, apparently having been detailed in another dispatch. It was possible, however, to draw the worst possible conclusion about it: namely, that Randolph had demanded a bribe.27
The members of Washington’s inner circle were prepared to believe the worst. Secretary of War Timothy Pickering, stern-faced and humorless, declared to the president at first opportunity that Randolph was a “traitor.” Whether the president believed that accusation isn’t clear, but certainly Randolph’s having advanced the views reported in Number 10 would have infuriated him. In order, so he said, to give Randolph a chance to explain, he surprised the secretary by springing the dispatch on him in front of the cabinet and observing his reaction. Randolph, confused, hurt, and insulted, resigned—which might have been exactly what Washington wanted his far too talkative secretary of state to do.28
In the middle of these events, Washington put his signature to the ratification document. The intercepted dispatch had nothing to do with the treaty, as Madison wrote to Monroe, and should have had no influence. But the president’s angry response to betrayal by the person who had been urging him to delay seemed to have been to stop delaying. As Bache’s Aurora described it, the ratification came “in a fit of bad humor occasioned by an enigmatical intercepted letter,” an assessment that does not seem far off the mark when one remembers that Washington’s approval of ratification came while the British were still seizing American ships.29
Randolph, having departed the cabinet, tried proving his innocence in a pamphlet he called Vindication. He obtained other dispatches that Number 10 had referred to and printed them. He got an affidavit from the former French minister to the United States exonerating him. But he buried important information in so much extraneous detail that his main point was lost. He was far too expansive in his Vindication, as he apparently had been with the French—not betraying state secrets, but spilling forth too much. After reading Randolph’s pamphlet, Madison wrote to Monroe, using code, “His greatest enemies will not easily persuade themselves that he was under a corrupt influence of France, and his best friend can’t save him from the self-condemnation of his political career as explained by himself.”30
Jefferson described the Jay Treaty as a political coup engineered by the executive and the Federalist Senate to circumvent the House, where the Republicans were strong. “A bolder party stroke was never struck,” he wrote to Madison. Hamilton was behind the whole thing, Jefferson believed, but neither he nor Madison had any idea of the extent of the New Yorker’s involvement. Hamilton had recommended that Washington send an envoy to London and, realizing that he himself was too much of a lightning rod for the assignment, suggested Jay. Hamilton had laid out the framework of Jay’s instructions in a letter to Washington and made private recommendations to Jay as well. Hamilton had even briefed the British minister to the United States and given him a clear indication of where Great Britain could hold fast in negotiations.31 One wonders: Could Washington possibly have known of this? Hamilton’s coaching the British was an indiscretion many times worse than Randolph’s loose talk with the French.
Hamilton, wanting to repair his family’s finances, had resigned from Treasury, but months later he remained influential. Watching him swing into action to defend the treaty, Jefferson could not help but be impressed. “Hamilton is really a colossus to the Antirepublican party,” he wrote. “Without numbers he is an host within himself.” Jefferson wanted Madison to answer the essays that Hamilton was publishing under the pseudonym Camillus, urging him as he had before: “For god’s sake take up your pen.” But Madison had had enough of warring with Hamilton from the isolation of Montpelier. Instead, he worked to involve the Virginia Assembly in efforts against the treaty and pondered what action he might take in Congress.32
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BY THE TIME Madison returned with his family to Philadelphia in late November 1795, it was clear that a majority of House members disapproved of the treaty, thus opening an avenue for undoing it. While the president had the right to make treaties with the advice and consent of the Senate, the House had to approve funding for them. But, Madison was asking himself, if the House refused to approve funds, thus killing the treaty, did that mean it was assuming treaty powers—which the Constitution had not authorized?33
Sooner than he had expected, Madison found himself having to take a stand on this question. A new and impatient member from New York, Edward Livingston, called upon the president to turn over Jay’s instructions and all other documents relating to the treaty to the House of Representatives so that members could ponder “important constitutional questions.” The result was to inject into the great controversy over the treaty an issue that lent itself to easy demagoguery. Republicans were soon defending themselves against charges that they were traitors, intent on “rebellion against the constituted authorities.”34
Madison tried to defuse the confrontational mood with analysis, presenting a number of ways that the House might interpret its powers. None was perfect, he admitted, but the most “rational, consistent, and satisfactory” was to recognize that the president and the Senate had the authority to make treaties and the legislature the authority to make laws. It was not usurpation for the House to carry through on its legislative authority. Indeed, if members accepted the principle that they could not, what checks would there then be on the Senate and the president acting in concert? What if they decided to conclude “a treaty of alliance with a nation at war,” thus making the United States a party to that war?35
The House passed the resolution demanding that the president turn over papers. Washington, with encouragement from Hamilton, refused and threw the entire weight of his reputation behind the rejection, saying i
n his message that the only constitutional reason for the House to request the documents was if members intended to impeach him. Both the substance and the combative tone of the president’s response came as a surprise to Madison but did not slow his response. In a caucus of Republican members—the first on record—Madison called for a stand on the principle that if a treaty required enabling legislation from Congress, “it is the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such a treaty into effect.”36 He won his point, 57 to 35.
Madison turned from his victory on the prerogatives of the House to the Jay Treaty itself, taking the floor on April 15 to note the treaty’s “want of real reciprocity.” The British gained commercial advantage from Jay’s negotiation, but the United States did not. He also took up the idea that war would follow if the treaty were not put into effect. Such a notion, advanced by treaty advocates, was “too visionary and incredible to be admitted into the question,” he said. There was no cause of war in a sovereign nation’s declining a treaty that was not in its self-interest, nor was Great Britain, “with all the dangers and embarrassments which are thickening upon her,” likely to seek war.37
Meanwhile, another treaty was complicating Madison’s life. President Washington had sent the U.S. minister to Britain, Thomas Pinckney, to Spain as an envoy, and he had negotiated an agreement that guaranteed the United States navigation of the Mississippi. Knowing how dear this goal was to western hearts, Madison’s opponents in the House had tried to combine appropriations for several treaties, including Pinckney’s and Jay’s, into a single resolution, thus forcing members who wanted any of the treaties to vote for all. Madison fended off that effort but was soon facing a similar move in the Senate.
“Vast exertions are on foot” not only within the House but outside it, Madison told Monroe, to get a positive vote on funds for the treaty. Commercial interests were organizing mass meetings and petition drives. “The banks, the British merchants, [and] insurance companies,” Madison wrote, were “sounding the tocsin of foreign war and domestic convulsions.” Opponents were also building support for the treaty in unexpected places, including Pennsylvania. Madison’s Princeton friend Hugh Brackenridge, now a judge in Pittsburgh, had become seized with the idea that without the Jay Treaty, which required the British to leave their western posts, the Pinckney Treaty opening up the Mississippi would be ineffective. Through a petition campaign and newspaper editorials based on this message, he whipped up western support.38
Toward the end of April, Madison watched with dismay as a bright young Philadelphia congressman presented pro-treaty petitions to the House. Albert Gallatin, born in Switzerland, had been firm in his defense of the right of the House to ask Washington for Jay documents, but like other Republicans he was under pressure from his constituents. Madison told Jefferson that the Republican strength that the Jay Treaty had helped create was dissipating fast. “The majority has melted by changes and absence to eight or nine votes,” he wrote. Three days later, Gallatin rose on the floor of the House to announce he would vote to fund the treaty. Two days after that, Edward Livingston, who had submitted the resolution demanding treaty papers, indicated that he, too, would be voting in support.39
Then a gaunt Fisher Ames rose to speak. Directly addressing families on the frontier, he predicted that they would be slaughtered by Indians unless the British left the western garrisons, as the Jay Treaty provided, and American troops moved in: “Your cruel dangers, your more cruel apprehensions are soon to be renewed; the wounds yet unhealed are to be torn open again; in the daytime your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. You are a father—the blood of your sons shall fatten your cornfield; you are a mother—the war whoop shall wake the sleep of the cradle.” As Ames pictured it, Congress stood with “one hand … held up to reject this treaty,” while “the other grasps a tomahawk.”40
Ames’s fearmongering would have been less effective had not he and everyone else thought he was dying. A debilitating illness had taken hold of him, and he used it for all it was worth. If the treaty were not ratified, he said at the end of his speech, “Even I, slender and almost broken as my hold upon life is, may outlive the government and Constitution of my country.” John Adams reported to Abigail that Ames’s speech left “not a dry eye” in the House, and it seems to have been particularly effective with Pennsylvania congressmen.41 Already worried that the treaty’s defeat would inhibit opening of the Mississippi, they were now being told that voting against the treaty would make them complicit in their constituents’ brutal deaths.
The portly, round-faced Frederick Muhlenberg of Pennsylvania chaired the committee of the whole when the House voted on appropriating funds for the treaty. He usually voted with the Republicans, who had elevated him to the speakership in the Third Congress, but when the vote on the Jay Treaty tied 49 to 49 in the committee of the whole, Muhlenberg joined the Federalists, saying that he did so in order that the treaty “go to the House and there be modified.” When it came before the House unmodified, however, he voted for it again. Another Pennsylvania congressman was conveniently absent. William Findley, a weathered farmer and usually dependable Republican, later claimed that he had been mailing a trunk at the time of the vote. Muhlenberg’s switch and Findley’s absence converted what would have been a tie to a victory for pro-treaty forces.42 Fifty-one members voted to fund the treaty, and forty-eight opposed.
Muhlenberg might not have read his constituents as well as he thought he had. He would never be elected to Congress again—and that wasn’t the worst of his troubles. His stand so enraged his Republican brother-in-law that a few days afterward, he stabbed Muhlenberg, nearly killing him. Findley’s disappearing tactic, on the other hand, worked. There was some caustic commentary at his expense; the Pittsburgh Gazette wished that the trunk had been Findley’s coffin. But he would have such a long career in Congress that he would become known as “the venerable Findley” for his length of service.43
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THE RATIFICATION and implementation of the Jay Treaty, the most controversial in the nation’s history, have been praised by many, who argue as the Federalists did that although it was unpalatable, it was necessary for peace. But there is reason to doubt that war with Britain would have followed on the heels of the treaty’s failure. Madison made a crucial point in his April 15 speech when he noted that it would be “madness” for the British, in the middle of war with France, to take on the United States as well. It had its navy fully employed in the fight against the French. It needed the resources gained from trade with the United States, its biggest customer, to underwrite that navy and subsidize allies on the Continent. Matters were soon to grow even worse as a twenty-six-year-old general named Napoleon Bonaparte began to roll up one military triumph after another. Meanwhile, Britain had domestic troubles. A series of bad harvests had spiked the price of wheat and threatened mass starvation. Bread riots had already broken out across England.44 The argument that the treaty was necessary for peace is a weak one, made weaker still by the indisputable fact that it would soon lead the United States into an undeclared war with France.
Madison took the treaty loss hard, telling Jefferson that “the progress of this business throughout has to me been the most worrying and vexatious that I ever encountered, and the more so as the causes lay in the unsteadiness, the follies, the perverseness, and the defections among our friends more than in the strength or dexterity or malice of our opponents.” The Republican cause was now “in a very crippled condition,” he wrote, citing elections in New York and Massachusetts, “where the prospects were favorable, [but] have taken a wrong turn under the impressions of the moment.”45 Republican strength mattered for many reasons, including the presidential election of 1796, which Madison and Jefferson had been discussing since before debate on the Jay Treaty had begun.
Jefferson had broache
d the topic by hinting in the spring of 1795 that he wanted Madison to be Washington’s successor, a suggestion that prompted a strong response. “Reasons of every kind,” Madison wrote, “and some of them of the most insuperable as well as obvious kind, shut my mind against the admission of any idea such as you seem to glance at.” Madison might have been thinking of his need to spend more time at Montpelier, but his emphasis on the reasons being “insuperable” suggests that he might also have had his sudden attacks in mind. To anyone who knew about them, as Jefferson surely did, they were an “obvious” impediment.46
It was clear to Madison that for all Jefferson’s talk about how much he loved retirement—he had said he would not trade it “for the empire of the universe”—he was the one who should carry the Republican standard. “You ought to be preparing yourself … to hear truths, which no inflexibility will be able to withstand,” he wrote. Madison likely delivered these truths during visits to Monticello in the summer and fall of 1795, but Jefferson continued to resist. Early in 1796, Madison wrote to Monroe that Republicans, realizing that Jefferson was their only hope for success, were pushing his candidacy forward. There was no formal process for choosing a nominee at this early stage of party politics. Party leaders, with Madison first among them, simply reached a consensus, and they had decided Jefferson was their man. Madison was concerned, however, that Jefferson might “mar the project and ensure the adverse election by a peremptory and public protest.”47 A presidential candidate in the early republic did not have to say yes, but he could derail his candidacy by saying no.