The Founders at Home: The Building of America, 1735-1817

by Myron Magnet

  Jay found France similarly a hindrance in his negotiations with the British. When Lord Shelburne became prime minister in July 1782 and fired the pro-American foreign secretary Charles James Fox, he sent a gifted young friend, Benjamin Vaughan, to Paris as an unofficial envoy to assuage American anxiety. Vaughan showed Jay and Franklin a document stating that George III, “to give a striking proof of his royal magnanimity and disinterested wish for the restoration of peace,” had commanded the new foreign secretary to acknowledge America’s independence unconditionally, in advance of a general treaty. Perfect, said Jay; but when he exchanged credentials with the official British negotiator, Richard Oswald, a well-connected seventy-seven-year-old merchant and former slave trader who’d lived in America for six years, he found with disappointment and “disapprobation” that Oswald’s commission authorized him to treat with representatives of the American “colonies.” If the king really meant what Vaughan’s documents stated, why didn’t he commission Oswald to negotiate with the independent United States of America? Vergennes told Jay he was being silly, that he “was expecting the effect before the cause,” and Franklin agreed that Oswald’s commission “would do.”85

  From mid-August, while he was still trying to negotiate with Aranda, to mid-September, Jay patiently explained to Oswald what Vergennes was up to. The French, as Jay summed up his analysis in his official report, “are interested in separating us from Great Britain” and planting “Seeds of Jealousy, Discontent, and Discord” that will prevent “Cordiality and mutual Confidence” between the two English-speaking nations. Vergennes wants a treaty that will “render Britain formidible in our Neighbourhood” and will “leave us as few resources of wealth and power as possible,” so that we must “perpetually keep our Eyes fixed on France for Security.” The longer the French keep the war going, the more chance they will have to accomplish their goals, while a forthright British acknowledgment of American independence will end the war promptly and stymie them. Vergennes strengthened Jay’s argument about French deviousness by having a top-secret document purloined from Oswald’s locked writing desk.86 The now-experienced Jay told Oswald not to worry: the paper would be back in place when Vergennes had finished reading it—as it was.87

  Jay’s larger argument was that it would benefit Britain to treat America as magnanimously as George III had promised. Treaties are just words, he told Oswald, and he “would not give a farthing for any Parchment security whatever. They had never signified any thing since the World began, when any Prince or State of either Side, found it convenient to break through them.” What Jay proposed was “that the Peace should be lasting,” framed so that “it should not be the Interest of either party to break it.” At first, the worry-prone Oswald blanched at Jay’s expression, a lasting peace. Did it have some dark connotation of forceful imposition? Did Jay have some deep-laid scheme to make the United States the arbiter of the European balance of power? Franklin set his anxious mind at ease with an anecdote from Roman history: a peace whose terms and conditions are fair, he patiently explained, will be lasting. A relieved Oswald said in that case he thought he had the authority to recognize America’s independence and would just check with Lord Shelburne to make sure.88

  And now a race to London took place between envoys from Jay and Vergennes. On September 7, Vergennes dispatched Rayneval across the Channel, which Jay learned on the tenth—the same day he got an intercepted letter to Vergennes from France’s American envoy, boasting that Congress would leave the French king “Master of the Terms of the Treaty of Peace” and plotting to split the Newfoundland fishery between France and Britain.89 Rayneval’s mission, Jay guessed, must be to tell Shelburne that France endorsed neither America’s demand for quick recognition of its independence nor its claim to navigate the Mississippi, and to see if England would divide the fishery with France and the land east of the Mississippi with Spain.90 Clearly, Jay guessed right. When Shelburne told Rayneval he’d decided to grant America immediate independence, the Frenchman’s whole tone to him changed: “the point of independence once settled,” the prime minister wrote George III, Rayneval “appears rather Jealous than partial to America upon other points, as well as that of the Fishery.”91

  To counter Vergennes, Jay asked young Vaughan to rush to London that day and lay out a rosy vision for postwar Anglo-American relations. Since America had plainly won the war, and “as every Idea of Conquest had become absurd, nothing remained for Britain to do, but to make friends of those whom she could not subdue, . . . by leaving us nothing to complain of,” Jay asked Vaughan to tell Shelburne. After all, Britain had much more to gain by a treaty with America than “a mere suspension of hostilities.” It could gain “Cordiality, Confidence and Commerce”—along with the “extensive and lucrative Commerce” that a commercial power naturally wants. If America ended up with the lands east of the Mississippi and the navigation of the river, said Jay, its population would explode westward, and the two English-speaking nations could share an inland waterway carrying “from the Gulph of St. Lawrence to that of Mexico . . . an immense and growing Trade” that on the European side “would be in a manner, monopolized by Great Britain.” If, by contrast, Britain excluded America from the Mississippi and the fishery, and seized the land north of the Ohio, she would end up with “vast tracts of wilderness” that she wouldn’t be able to settle or supply, and she would “sow the Seeds of future War in the very treaty of Peace.” With such great advantages in prospect, the British would do well to win America’s confidence—and America holds the acknowledgment of her independence “as the touchstone of British Sincerity.”92 Without it, as Jay had told Vaughan a couple of weeks earlier, “he would rather the war should go on to his grandsons.”93

  Shelburne agreed, and on September 27 Oswald’s new commission arrived, authorizing him to treat with the United States of America. During the first week of October, Oswald and Jay hammered out a preliminary treaty, giving Jay most of what he wanted—a much bigger country than otherwise would have emerged, with everything it needed to become powerful, rich, and independent. When a scandalized Vergennes, whom Jay had kept out of the loop during these negotiations, saw the draft, he was shocked by the extent of territory America had won and by the defeat of his plans for a dependent client state in the New World. Aranda, tapping Jay on the shoulder, murmured, “Eh bien, mon ami, vous avez très bien fait”—well done, my friend.94

  ALSO SCANDALIZED was American secretary for foreign affairs Robert Livingston, Jay’s old friend and law partner. Along with his many pro-French colleagues in Congress, he condemned Jay’s “separate and secret manner” toward Vergennes, which flagrantly disobeyed Congress’s instructions to consult and defer to the count.95 Jay stoutly rebuffed his former friend’s “doubts respecting the propriety of our conduct.” As Vergennes opposed America on all key points, Jay argued, he “ceased to be entitled to . . . confidence”; as he wanted a very different treaty than would most benefit America, it would have been imprudent to let him shape it. As to Jay’s not following Congress’s instructions: “The object of that instruction was the supposed interest of America, and not of France.” They are not the same. “So far and in such matters as this Court may think it in their Interest to support us, they certainly will; but no farther,” Jay wrote from Paris. Moreover, he had to seize the moment (a point he emphasized later in Federalist 64). Because Shelburne needed to make peace quickly, before a war-weary Britain pushed him out of office, he and Oswald “became less tenacious on certain points, than they would otherwise have been,” and Jay got a great treaty by acting fast and pressing hard—and not because Britain had “either Wisdom, Virtue or Magnanimity enough to adopt a perfect and liberal System of Conciliation. If they again thought they could conquer us they would again attempt it.”96

  Nevertheless, between the two great European powers, Jay had already made his choice and committed his country, though it was the opposite of Congress’s choice. America had fought a war with a French ally against a
British enemy, but in the peace negotiations and for the rest of his public career, Jay, often on his own initiative and against much resistance from his colleagues and countrymen, led the way in building the foundation of future U.S. foreign policy, the special relationship between the two English-speaking peoples. And why? “Not being of British Descent,” Jay explained years later, “I cannot be influenced by . . . that Partiality . . . , which might otherwise be supposed not to be unnatural.” But in Europe he came to loathe “arbitrary Governments,” which “debase and corrupt their Subjects,” even subjects as talented and accomplished as the French (as his Huguenot ancestors had found, he well knew). Very different is Britain’s political culture and therefore its national character. “It certainly is chiefly owing to Institutions Laws and Principles of Policy & Government, originally derived to us as British colonists, that with the favor of Heaven the People of this Country are what they are.” Hence his “sentiments of esteem” for the British nation.97

  On September 3, 1783, Jay and Franklin signed the final Treaty of Paris, along with their co-commissioner John Adams, who joined the tail end of the negotiations. Oswald’s successor, David Hartley (son and namesake of the philosopher), signed for Britain. “The peace, which exceeds in the goodness of its terms the expectations of the most sanguine, does the highest honour to those who made it,” Hamilton wrote Jay, who at this moment in American history had been the indispensable man. “The New-England people talk of making you an annual fish-offering, as an acknowledgment of your exertions for the participation of the fisheries.”98 Jefferson echoed the sentiment: “The terms obtained for us,” he wrote, “are indeed great.”99

  Later that month, the Montgolfier brothers made the first manned balloon flight over Paris, which Sally Jay watched from her terrace, and which fired the whole world’s imagination with ideas, Jay wrote, that “Travellers may hereafter litterally pass from Country to Country on the Wings of the wind.”100 “Don’t you begin to think of taking yr. passage next spring in a Ballon?” Sally asked him.101 But instead they set out for New York on an ordinary sailing ship on June 1, 1784, and arrived home—without incident this time—on July 24.

  IT IS ONE THING to sign a treaty but quite another to get it carried out, as Jay discovered on his return, when he learned he’d been named secretary for foreign affairs while still at sea. He knew before he left for Europe that America needed a strong central government sovereign over the states; now, finding himself the key official of a government too weak to carry out promises he himself had made, he felt that need acutely. According to the treaty, America would void state laws that barred British creditors from suing U.S. citizens for prewar debts, and British troops would leave U.S. territory. When America’s London envoy, John Adams, remonstrated with the British for keeping their frontier forts, they replied that they intended to honor the treaty—as soon as America held up its end of the deal. Secretary Jay, echoing his opinion in the 1775 sloop Active case, pronounced that the Articles of Confederation gave Congress alone the right to make a treaty, which “immediately becomes binding on the whole nation,” so Congress told the states to repeal the offending laws—but had no power to make them do so.102 And they temporized, protecting powerful citizens who owed big sums, and the British soldiers stayed put. “The federal government,” Jay fumed, “is rather paternal and persuasive than coercive and efficient.”103

  Less than a year into his job, Jay started pushing to make the United States “one Great Nation, . . . divided into different States merely for more convenient Government, . . . just as our several States are divided into Counties and Townships for the like purposes.”104 Moreover, since the faction-ridden Congress, which held both legislative and executive power, couldn’t make timely decisions, Jay also sought to “divide Sovereignty into its proper Departments. Let Congress legislate—let others execute—let others judge”—for efficiency rather than for checks and balances.105 He was quick to support a convention to correct the “errors in our national Government,” but when the Constitutional Convention met, his duties as secretary kept him from attending.106 Once the conclave produced its great document, though, he eagerly joined Madison and Hamilton in writing The Federalist to defend it—until a rock thrown in yet another New York riot sidelined him for a long convalescence.107

  Of the five Federalist papers he wrote, four are what you’d expect from a minister without the power to execute his decisions and a diplomat who’d learned from experience that “to be constantly prepared for War is the only Way to have Peace.”108 Federalist Numbers 2 through 5 argue that Americans, forged by the Revolution into a “band of bretheren,” need to form a single, powerful union that can make good on its treaties, ensure security against foreign threats, and avoid the constant skirmishing inevitable if the states, as some anti-Federalists suggested, broke into several separate confederations.

  BUT HIS FIFTH Federalist paper, Number 64—which supports the Constitution’s plan of having the president elected not directly but by “select assemblies . . . of the most enlightened and respectable citizens,” and the senators appointed by the state legislatures, to ensure leaders of “abilities and virtue”—raises a large issue that Jay’s letters and speeches fully developed and that remains as pertinent as ever. Jay liked to quote Gouverneur Morris’s maxim, “What is, is,” and he often told his friends and children that “To see things as they are—to estimate them aright—and to act accordingly, is to be wise.”109 No wishful thinking for this realist: “To look at Objects through our Passions is like seeing through colored Glass, which always paints what we view, in its own, and not in the true Color,” he cautioned.110 Instead, “we must take men and Things as they are.”111 And since his whole experience had taught him, above all, that “the mass of men are neither wise nor good,” he was bound to ask how government by the people can yield leaders of distinction.112

  “The Rulers in democratic Republics are generally men of more Talents than morals,” history shows; “there can be but little connection between Cunning and Virtue, and therefore . . . our affairs will commonly be managed by political Intrigues,” and “a succession of Demagogues must be expected.”113 In democracies, after all—and especially in one that prizes opportunity and social mobility as America’s does—men on the make will see politics as a bonanza: these “political Mountebankes” will be “less solicitous about the Health of the credulous Crowd, than abt. making the most of their Nostrums and Prescriptions.”114

  Since their fortunes depend on public opinion, they will mold and manipulate it. Because the “Knaves and Fools of this World are forever in Alliance,” Jay wrote Jefferson, “they who either officially or from Choice fabricate opinions for other Peoples use, will always find many to receive and be influenced by them. Thus Errors proceeding from the Invention of designing Men, are very frequently adopted and cherished by others who mistake them for Truths.”115 Worse, “actuated by Envy ambition or avarice,” these politicians and pundits “will always be hostile to merit, because merit will always stand in their way.”116

  Democracy is a magnificent idea: “Without a portion of it there can be no free Government,” Jay was certain.117 But “pure Democracy, like pure Rum, easily produces Intoxication, and with it a thousand mad Pranks and Fooleries,”118 he thought, so he wanted to mix it with other elements, with an eye to the British constitution’s system of checks and balances, poising the magnates against the commons. That’s why he favored the existing property qualifications for electors and officials: “they who own the Country,” he thought, “are the most fit Persons to participate in the Govermt. of it.”119 Such men, he expected, would share his horror of redistributive taxation, which his favorite author, Cicero, identified as the demagogue’s vote-getting “kind of liberality which involves robbing one man to give to another,” rather than taxing everyone proportionally to his wealth or income only for common purposes, like defense.120 But above all, he took it for granted that the propertied would include those “enlig
htened and respectable citizens” whom he thought best capable of choosing leaders with abilities and virtue.

  SUCH LEADERS, despite all human nature’s failings, were there for the finding. Men such as George Washington, “who ascended to the Temple of Honor through the Temple of Virtue,” had absorbed the “maxims and precepts of sound Policy, which enable Legislators and Rulers to manage and govern public affairs wisely and justly,” Jay noted.121 By studying the accumulated thought and experience of the wisest of mankind about human nature and the social order, coupled with reflection on his own experience, a leader can learn wisdom. But to have virtue, Jay believed, he also needs religion. The most devout of the Founders, he once told an atheist “that if there was no God, there could be no moral obligations, and I did not see how Society could subsist without them.” When his acquaintance replied that “society would find a Substitute for them in enlightened self Interest,” Jay impatiently changed the subject.122

  His own life movingly exemplified the link between religion and virtue. “I have done nothing but serve my Country for these six Years past and that most faithfully,” he wrote in 1780. “But I confess that I did it . . . because I thought & think it my Duty, without doing which I know I cannot please my Maker & go to Heaven—provided he is satisfied with my Conduct, the mistaken Opinions of others cannot deprive me of Happiness.”123 In this spirit he calmly met George Clinton’s squalid theft of the 1792 New York gubernatorial election from him: “A few years more will put us all in the dust,” he wrote Sally; “and it will then be of more importance to me to have governed myself than to have governed the State.”124 And early in the war, when he wrote Sally from “a hot little Room” full of “Bugs & Fleas” in “Poghkeepsy,” where Congress had fled before the British onslaught, he told her that he kept up his spirits with the “Pre-Sentiment that we shall yet enjoy many good Days together.” But if this fantasy “be a Delusion” that will “like a Bubble vanish into Air,” he wrote, “a firm Persuasion of after Bliss give[s] me Consolation. Then my dear Wife shall we fear no Tyrants Power, neither shall we know Anxiety any more, and if , I cant fill up the blank, we shall again join Hands and Hearts & continue our virtuous Connection forever.”125