Mr. President (30 page)

On the surface, the treaty appeared to have accomplished some goals. Britain agreed to withdraw its posts south of the Canadian border and submit border disputes to arbitration. Further, Britain promised to repay American merchants for recently seized ships and merchandise, but there was a price. The treaty established a process to arbitrate the claims of British merchants for unpaid debts, which Americans worried would allow Loyalists to be compensated for property confiscated during the war. There was an intangible price as well. Citizens of neither the United States nor Britain would be permitted to join the services of a nation at war with the other, nor could one nation harbor, supply, or trade with privateers from an enemy nation. So much for attempts by private American citizens to aid the French cause.

The central thrust of the treaty, though, was to normalize trade relations between the two nations, excellent news for pro-British merchants in the United States. The nuts and bolts of the twenty-eight provisions ensured that importers and exporters on both sides would not suffer from any disagreements between the two governments. Trade restrictions were eased or lifted. Merchants, even privateers, were guaranteed safe haven in each other’s ports, and no goods could be confiscated without due process. Article 10 stipulated that in the event of war between Britain and the United States, no money deposited in any bank could be sequestered, “it being unjust and impolitick that debts and engagements contracted and made by individuals having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority, on account of national differences and discontents.” Article 26 struck a similar chord: “If at any time a rupture should take place (which God forbid) between His Majesty and the United States, the merchants and others of each of the
two nations, residing in the dominions of the other, shall have the privilege of remaining and continuing their trade so long as they behave peaceably and commit no offence against the laws.”
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The favors and securities offered to merchants pleased one group of Americans but angered others, who argued that the treaty violated the spirit of neutrality by favoring Britain over France. It prohibited the United States from honoring the 1778 “perpetual” alliance with France, they noted. Further, while it ensured that merchants would be paid for seized ships, it failed to return the actual seamen, nor did it promise that seamen would not be taken and impressed into British service in the future. Finally, one additional group focused on what the treaty did
not
accomplish: slave owners were upset that Jay, who opposed slavery, failed to obtain payment for the enslaved men and women who had escaped or been carried away during the Revolutionary War.

Opponents of the treaty started to mobilize even before the precise terms were known, and as they did, they raised several procedural and constitutional issues:

It is difficult to determine whether these complaints contributed significantly to the treaty’s unpopularity or were simply used as arguing points to justify a position taken on other grounds, but in either case constitutional issues were raised, and treaty opponents in the nation’s largest state acted on them. The Virginia legislature proposed four constitutional amendments it wished its representatives and senators to present in Congress. The first stipulated that any treaty “containing any stipulation upon the subject of the powers vested in Congress by the eighth section of the first article” of the Constitution—including, of course, the regulation of commerce—must gain the approval of
both
houses of Congress before taking effect. The next two weakened the influence of senators, one by lessening their terms from six to three years, the other by taking away their power to try impeachments, thereby preventing any collusion between the Senate and the president. Finally, the Virginia legislature demanded that federal judges be forbidden to hold “any other office or appointment whatever.” These were the sorts of amendments that had been proposed during the ratification debates, and they met the same fate. No state legislature other than Virginia’s was willing to challenge the very structure of the fledgling Constitution so directly at this time.
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Still, even after Jay’s Treaty was ratified by the Senate and signed by the president, opponents continued to fight against it. The arbitration commissions established by the treaty required funding, so the agreement could not take effect until the House appropriated some money. That meant the House needed first to approve the
purpose
of the appropriations, and with this in mind it began to address the merits of Jay’s Treaty. What did it intend? How was it negotiated? Seeking answers, it requisitioned the instructions given to Jay and other relevant documents from President Washington. Claiming what we now call executive privilege, Washington immediately and forcefully refused to deliver any papers.

Two arms of government were at an impasse, and the Supreme Court, which today we would expect to decide the matter, had not yet asserted its authority to step in. Possession being nine-tenths of the law, Washington held on to the documents. Still, the House continued to debate whether to fund the treaty, and the outcome was not predetermined. The key vote in the Committee of the Whole resulted in a dead heat, 49 to 49; Chairman Frederick Muhlenberg, who had formerly been allied with the treaty’s opponents, then broke the tie and voted
for funding. A few days later Muhlenberg was stabbed by his brother, a fierce foe of the treaty.
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The Federalist victory over Jay’s Treaty completed a clean sweep for Washington and the powers of the presidency. First, Congress conceded that the president could remove executive officers on his own accord, without congressional approval. Then one of Washington’s key appointees, Secretary of the Treasury Hamilton, took the lead in domestic legislation, and when Congress approved Hamilton’s measures, which included strengthening the central government by the assumption of state debts, the nation’s credit was salvaged—a key item on the president’s agenda. When westerners resisted central authority and even flirted with secession, Washington quelled the disturbances with a show of military force. With his proclamation of 1793 he established a lead role for the presidency in shaping foreign policy; then, using his constitutional power of appointment, he dispatched an envoy to Britain to normalize commercial relations and keep war at bay. The resultant treaty was confirmed by a two-thirds vote of the Senate, exactly as specified in the Constitution. When House members tried to assert authority that Washington believed was not covered by the Constitution—demanding executive documents and withholding funds from a legal treaty—they failed. Every contested power was decided in the president’s favor. In the waning days of the Federal Convention, at Gouverneur Morris’s instigation, the executive office had begun to expand, and that trajectory continued on the ground during the first eight years of the early Republic. By the time Washington left office, it seemed clear that the president was no longer Congress’s junior partner.

Yet politically, Washington failed to accomplish one of his overarching goals: unite the nation. Although the Bill of Rights had gone a long way toward healing old wounds, Hamilton’s financial plan and the disputes over foreign policy opened new ones. By the mid-1790s, patriotic Americans of opposing persuasions were celebrating the Fourth of July with parallel parades and competitive street theater, complete with burning effigies. As the political field polarized, rhetoric became more extreme, and in the closing years of Washington’s second term the president himself became an object of scorn. Some critics even called for his impeachment.
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Accustomed to nearly universal acclaim, Washington viewed criticism
as attacks on government itself. Political foes were not simply wrong or mistaken but malevolent destroyers of the nation, some even bent on leading it into foreign (French) hands. Such thoughts, and the statements and policies they produced, belied his avowed intention to unify.

Meanwhile, Jefferson and other opponents of Hamilton’s financial plan and Jay’s Treaty were beginning to see themselves as a defined political force with coherent policies, a “party.” While Washington continued to use the term “party” with the traditionally negative connotation, Jefferson, who had come to oppose anything and everything Federalist, was starting to embrace it. “Were parties here divided merely by a greediness for office, as in England, to take a part with either [party] would be unworthy of a reasonable or moral man,” he wrote on the last day of 1795. “But where the principle of difference is as substantial and as strongly pronounced as between republicans & the Monocrats of our country, I hold it as honorable to take a firm & decided part, and as immoral to pursue a middle line, as between the parties of honest men, & rogues, into which every country is divided.” Note the appellations: “republicans” and “Monocrats.” Unlike the old Anti-Federalists, who were named by their opponents, Jefferson and this group managed to commandeer a positive label that endured.
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So there they were, two parties, Republicans and Federalists (to give each party a name of its own choosing). Political scientists argue whether these were proto-parties, with defined sets of political beliefs and strategies but lacking organization, or true parties, but the argument is academic. Political life in America was already polarized, notwithstanding Washington’s desire to keep it from becoming so, and institutions would soon evolve to represent this. In fact, Washington’s decision not to seek a third term facilitated and accelerated the process.

Washington had wanted to return to private life at the close of his first term, but divisions stemming from Hamilton’s financial plan threatened unity, and leaders from both sides leaned on him to continue. This time he could not be dissuaded. Although political differences were more pronounced than ever, personal criticism had certainly exacted a toll, and he was tiring. To justify his retirement, Washington convinced himself that the nation was now on more solid footing and could get by without him. Federal authority had been affirmed by the suppression of the Pennsylvania rebellion. Attachment to France
and war with Britain had been avoided. An important treaty had been negotiated and ratified according to constitutional procedures. Presidential precedents and powers had been established. It was time for a new leader to take over.

Even so, the retiring chief executive worried for the nation’s future and wanted to offer some parting words of advice. Four years earlier, when he thought he would retire, he had asked Madison to draft a farewell address, but now Madison was firmly in the opposition camp, and he leaned on Hamilton instead. Personally this made sense. Washington and Hamilton had been in a trusting, professional relationship for two decades. They both believed in a strong central government and “vigorous” executive leadership, and even though Hamilton had recently resigned as secretary of the Treasury, he had shaped the policies of Washington’s administration, not only on the domestic front, but with respect to international diplomacy as well. Politically the two were wedded, and they passed drafts of the address back and forth until Washington settled upon a final version.
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Even so, Hamilton was a strange ally for a president who viewed himself as a unifier. Shortly after leaving his cabinet post, during the height of the controversy over Jay’s Treaty, he had attended a so-called town meeting in the open space by New York’s Federal Hall and tried to command the attention of some five thousand people. Promptly at noon, when the event was supposed to commence, he took the podium and “attempted to harangue the people.” He was shouted down. Later he tried again, but as he addressed the crowd, “very few sentences could be heard, on account of hissings, coughings, and hootings.” That’s how a Republican newspaper described the incident; a Federalist observer added, “Stones were thrown at Mr. Hamilton, one of which grazed his head.” Rebuffed by the anti-treaty crowd, Hamilton engaged in personal altercations and wound up challenging two different antagonists to duels. This was the man President Washington chose to write his Farewell Address, his last opportunity as a public official to bring the nation together.
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Was the address that Hamilton and Washington jointly wrote and Washington released to the press in September 1796 an inspirational appeal for unity or a defense of Federalist policies? Logically, it could not be both. Or could it? Washington hoped his address would accomplish two tasks at once. He started by championing the “unity of government,”
urging “respect for its authority, compliance with its laws, [and] acquiescence in its measures,” and declaring the Constitution “sacredly obligatory upon all.” Yet unity, he warned, was threatened by “internal and external enemies” of legitimate government who acted “often covertly and insidiously” to tear the nation apart. Particularly dangerous were extralegal organizations that challenged existing authority: