Treaties and Agreements

Recent events are straining the global watercourse governance system. Countries need to articulate and abide by universal norms and standards on sustainable and equitable water resource use to secure safe access to water.

President Trump reached a deal with Canada and Mexico to restructure the North American Free Trade Agreement, hoping a new trilateral accord will reinvigorate the U.S. manufacturing sector.  

Today marks the 225th anniversary of the Senate vote to approve the Jay Treaty, or more formally the Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America. You’re forgiven if you don’t have the date marked down in your calendar. Chances are your high school U.S. history class didn’t make much of the Jay Treaty. But to the Americans of the time it was as controversial and consequential, if not more so, as the vote on Treaty of Versailles would be 124 years later. The Jay Treaty didn’t just set precedents that have governed executive-legislative relations on foreign policy for more than two centuries. It also showed that even early on, politics didn’t stop at the water’s edge. It helped spur the formation of America’s first political parties, the Federalists and the Republicans, and it created an irreparable rift between the man who wrote the Declaration of Independence and the man who won the War of Independence.  To understand the Jay Treaty, some context is necessary. The United States in 1795 was a long way from the superpower it would become. It had overthrown British rule, but it was a weak country, lacking both a standing army and significant naval forces. Its first attempt at self-government—the Articles of Confederation—had been so disastrous it was scrapped after less than a decade. Its replacement had been operating for just six years at the time of the Jay Treaty debate. Many Americans still wondered whether the new government would be any more successful than its predecessor.   Making matters worse, Europe was at war. The French Revolution had triggered a series of military conflicts across the continent. The most important for U.S. interests came in February 1793 when France declared war on Britain. The French declaration put President George Washington in a difficult position. The United States had won its independence in good part because of its military alliance with France. But alliances run both ways. The French now expected Americans to return the favor. Secretary of State Thomas Jefferson urged Washington to do just that, arguing that fulfilling the alliance obligation was a matter of honor and interest. Secretary of the Treasury Alexander Hamilton countered that going to war with Britain would be suicide for the young nation. Not only was Britain America’s largest trading partner, war would bring British attacks on American shipping, a possible invasion from Canada, and raids across the northwestern frontier by Native American tribes allied with Britain. Washington sided with Hamilton and opted for neutrality. The decision hardened the emerging dividing line in American politics between Federalists, who favored a stronger national government and reconciliation with Great Britain, and Republicans, who feared centralized national power and saw the French Revolution as fulfilling the promise of the American experiment. (Those Republicans were the antecedents of today’s Democratic Party; the modern Republican Party was founded in 1854.) Tempers might have cooled if neutrality had enabled the United States to avoid the fight between the two great powers. But Washington's decision at best postponed outright war rather than prevented it. British warships soon began seizing American merchant ships entering or leaving French ports in the West Indies, violating the traditional norm that neutral ships were allowed free passage provided they were not carrying munitions. The British navy also began stopping American merchant ships and carrying off, or impressing, sailors judged to be British deserters.   Fearful that the country was being dragged into a war it did not want and could not afford, a small group of Federalist senators approached Washington with a proposal to send an envoy to London. They hoped diplomacy could end the attacks on American shipping and settle a range of other disputes that roiled relations between the two countries. They quickly won over the president, showing that senatorial influence does not always come through floor votes.   Washington initially wanted to send Hamilton to London to negotiate. The practice at the time, and one that would not last much beyond Washington’s presidency, was for the Senate to confirm the president’s choice of an envoy. That consent would not be easy to come by in Hamilton’s case, even though Federalists dominated the Senate. The Treasury secretary’s efforts to build a stronger national government had made him a lightning rod American politics, and his pro-British views guaranteed that critics would question any agreement he negotiated. Hamilton made things easier for Washington by reading the room and asking not to be considered for the post. It would not be the last time an administration changed course on policy or personnel because of judgments about the traffic Congress would bear.  The job of special envoy went instead to John Jay, the chief justice of the Supreme Court and the coauthor, along with Hamilton and James Madison, of The Federalist Papers. Jay had impeccable credentials for the position. He had been a president of the Continental Congress, served as a U.S. minister to Spain, and spent five years as secretary of foreign affairs under the Articles of Confederation. His nomination nonetheless sparked its own controversy, in part because he intended to continue as chief justice. (The Supreme Court in the 1790s had neither the importance nor the workload it has today.) Critics reasonably questioned the propriety of a justice negotiating an agreement he might one day be asked to rule on. The deeper issue, though, was that Jay, like Hamilton, favored Britain over France. Republican senators feared that Jay would sell out America’s interests to the British crown.   Just as important as who the envoy would be was what negotiating instructions he would be given. The framers of the Constitution had envisioned the Senate as an advisory council to the president on treaty-making, offering not just consent at the end of the process but advice at the beginning. Washington, who had chaired the Constitutional Convention, had put that idea into practice in his first term by formally asking the Senate to approve negotiating instructions. But the divisions within the Senate (and the country more broadly) over what could and should be gotten from Britain meant that a debate over negotiating instructions would trigger a political donnybrook. “From the Difficulty of passing particular instructions in the Senate,” a leading Federalist senator concluded, “it seems to me the most suitable that the Pr. sh. instruct, and that the Treaty sh. be concluded subject to the approbation of the Senate.” So when Republican senators moved that “the President of the United States be requested to inform the Senate of the whole business with which the proposed Envoy is to be charged,” Federalist senators voted the resolution down. In solving their immediate political problem, though, they unwittingly ceded a power the institution would never reclaim. No future president would feel compelled, as a matter of principle as opposed to expediency, to formally solicit the Senate’s collective views before opening diplomatic negotiations.  Jay sailed for London on May 12, 1794. By November he had struck a deal. Given the dangers of mid-winter crossings of the North Atlantic, the official version of the treaty did not reach Philadelphia—then the capital of the United States—until March 7, 1795. Whether Hamilton or anyone else could have struck a better bargain is debatable. What isn’t debatable is that Jay’s deal left even his supporters disappointed. He had reduced the tension between the two countries, and with it the chance of war. And he had persuaded the British to finally fulfill their earlier pledge to dismantle forts in the Northwest Territories and to agree to arbitrate claims left over from the Revolutionary War. Beyond that, however, Jay had seemingly given up a lot in exchange for little. He had failed to persuade London to respect neutral trading rights or to end the practice of impressment. Worse yet for the Federalists, for whom merchants were a major constituency, the treaty’s Article 12 denied American shipping full access to the lucrative trade with the British West Indies.   Fearing public reaction, Washington kept the terms of the treaty secret, while waiting for the Senate to reconvene for a special session in early June. (Congress had adjourned just days before the ship carrying the treaty arrived.) When the Senate debate eventually began, critics first moved to force publication of the treaty’s terms. They calculated—for the same reasons Washington had—that making the terms public would derail Jay’s handiwork. After that move was defeated, the debate turned to Article 12. Aaron Burr—yes, that Aaron Burr—proposed shelving the treaty and directing Washington to renegotiate its terms. It was a pivotal moment. Had Burr’s motion passed, the treaty-making process might look quite different today. As one scholar summarized it:  Washington might well have considered such an act as notice that, in the future, the Senate would expect to participate in the determination of the conditions under which a proposed treaty would be signed; at the very least it would have suggested forcibly the expediency of always consulting them before opening negotiations. It might also have led the Senate to expect such consultation and thus have made it easier for Senators or groups of Senators to demand it. Burr’s motion lost twenty to ten on what today would be called a party-line vote. A related effort by Southern senators to direct Washington to reopen negotiations with Britain to demand compensation for slave-owners whose enslaved peoples had been freed by the British during the Revolutionary War fared only marginally better.   With the idea of shelving the treaty itself shelved, the Senate turned to the position that Federalist senators favored: conditional approval. The Senate voted—again by a margin of twenty to ten, the minimum support needed—to approve the treaty, provided that Article 12 was amended to address its concerns. It was a novel, and perhaps even presumptuous, move. Under the practice at the time, treaties were binding on countries unless it could be shown that their negotiators had strayed materially from their negotiating instructions. Here the Senate was throwing tradition aside, inserting in its place what would become the American practice of the Senate modifying treaties through reservations, understandings, and declarations.   The Constitution, however, said nothing about conditional approval of treaties. So a question immediately arose: Would the revised treaty, if one could be had, need to be resubmitted to the Senate? Republicans certainly thought so. That would give them another opportunity to defeat a treaty they detested, or as Jefferson, who had stepped down as secretary of state at the end of 1793, put it, “give the majority an opportunity of correcting the error into which their exclusion of public light has led them.” However, the decision wasn’t Jefferson’s to make but Washington’s. After consulting with his Cabinet, Washington concluded that resubmission was unnecessary.   As Washington was sounding out his cabinet he was faced with a more immediate political problem: the terms of the Jay Treaty had become public. Senator Stevens Thomson Mason of Virginia, convinced of the “importance that the People should possess a full and accurate knowledge of the subject to which their attention may be drawn, and which I think has already been improperly withheld from them,” leaked the treaty to the editor of the Aurora, a pro-Republican Philadelphia newspaper, which published it on July 1. Protests erupted “like an electric velocity” hitting “every part of the Union.” Washington’s house was “surrounded by an innumerable multitude from day to day, buzzing, demanding war against England,” while some Republicans called for a “speedy death to General Washington” and newspapers ran political cartoons showing him being taken to the guillotine. Jay, who had just stepped down as chief justice to become governor of New York, was burned in effigy in so many towns and cities that “he said he could have walked the length of America by the glow from his own flaming figure.” Hamilton was heckled, jeered, and then struck in the forehead with a rock when he publicly defended the treaty in New York City.   Washington returned to Mount Vernon to decide whether to ratify the treaty. (While it is common to talk about the Senate ratifying treaties because it votes on resolutions of ratification, ratification is the step presidents take after the Senate provides its consent. And yes, presidents can and have declined to ratify treaties the Senate has approved.) Noah Webster, a Federalist and the man who gave Americans their own dictionary, described Washington’s political dilemma:  The peace of our Country stands almost committed in either event. A rejection of the Treaty leaves all the causes of hostility, unadjusted, with the double exasperation of temper. A ratification threatens evil commotions, at least in the Southern States. A rejection sacrifices Mr. Jay & perhaps many of his friends, a ratification threatens the popularity of the President, whose personal influence is now more essential than ever to our Union.  In mid-August, Washington made his decision: he would ratify the treaty and seek Britain’s consent to the changes the Senate had directed. He calculated that for all its flaws, the treaty would buy what the United States needed most—time. As he subsequently explained it:   Twenty years peace, with such an increase of population and resources as we have a right to expect; added to our remote situation from the jarring powers, will in all probability enable us in a just cause to bid defiance to any power on earth. Why then should we—prematurely embarrass (for the attainment of trifles comparatively speaking) in hostilities. the issue of which is never  certain—always expensive—& beneficial to a few only (the least deserving perhaps) whilst it [must] be distressing & ruinous to the great mass of our Citizens.   Perhaps to Washington’s surprise, the British readily agreed to the Senate’s changes. On February 29, 1796, Washington proclaimed the treaty publicly. Neither the Senate nor individual senators protested the decision not to resubmit the treaty to the Senate. A vigorous public relations campaign by Hamilton no doubt played a role. Over the course of the previous seven months he had written twenty-eight essays under the pen name “Camillus” defending the treaty. This industry prompted Jefferson to complain that “Hamilton is really a colossus to the antirepublican party. Without numbers, he is an host within himself. They have got themselves into a defile, where they might be finished; but too much security on the Republican part, will give time to his talents & indefatigableness to extricate them.”  Washington’s proclamation should have ended the debate over the Jay Treaty. It didn’t. That spring, House Republicans, led by Madison, made a final run at derailing the agreement. They first called for Washington to provide the House with Jay’s negotiating instructions. In doing so, Madison asserted that the House had the right to a say in the Jay Treaty because its provisions affected the House’s role in regulating commerce with foreign nations. This ran counter to the position Madison had argued for at the Constitutional Convention. Knowing full well what the framers had discussed nine years earlier in  Philadelphia, Washington believed that providing the documents would “render the Treaty making power a nullity without” the House’s consent. He denied the request, noting that the Constitution had not given the House a role in treaty-making: “To admit … a right in the House of Representatives to demand to have as a matter of course all the papers respecting a negotiation with a foreign policy would be to establish a dangerous precedent." Washington’s refusal set the ground for the modern concept of executive privilege, though as he himself noted, the requested papers had been shared with the Senate pursuant to the discharge of its constitutional duties.  Madison and his supporters then turned their efforts to denying the funds needed to implement the Jay Treaty. The move exploited a silence in the Constitution: Could a treaty approved by only the Senate obligate Congress to appropriate funds? Oliver Ellsworth, the new chief justice of the Supreme Court, issued an advisory opinion—a practice the modern Supreme Court steadfastly avoids—saying it could and did because a treaty is an “organized & perfect compact which binds the Nation & its Representatives." But Ellsworth’s option counted for far less than how House members voted. On April 30, 1796, they sided with Washington by just three votes. A diplomatic, as well as constitutional crisis, was averted.  More than two centuries of hindsight has vindicated the Jay Treaty. As the historian Joseph Ellis has put it:  While the specific terms of the treaty were decidedly one-sided in England’s favor, the consensus reached by most historians who have studied the subject is that Jay’s Treaty was a shrewd bargain for the United States. It bet, in effect, on England rather than France as the hegemonic European power of the future, which proved prophetic. It recognized the massive dependence of the American economy on trade with England [and] linked American security and economic development to the British fleet, which provided a protective shield of incalculable value throughout the nineteenth century. Mostly,  it postponed war with England until America was economically and politically more capable of fighting one.   Whether you accept the historians’ consensus or not, the Jay Treaty debate clearly established the outlines of the treaty-making process we know today, just as it hardened the divisions between Federalists and Republicans. It also produced a lasting break between Washington and his fellow Virginians, Jefferson and Madison. Washington never forgave Jefferson for encouraging his allies in the Republican press to vilify his character and to dismiss him as Hamilton’s pawn because of his support for the treaty. When Martha Washington later called Jefferson “most detestable,” she likely was reflecting her husband’s views. Washington’s anger at Madison, who had once been one of his closest aides, went perhaps even deeper. Washington dug up the secret minutes of the Constitutional Convention to show Madison’s duplicity in claiming a role for the House in treaty-making. America’s first president never spoke to his former aide again.   Noah Mulligan and Anna Shortridge assisted in the preparation of this post. 

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