The Warning in an Old Letter

John Clopton, the Jay Treaty, and the Unfinished Question of

Who Governs America 

More than two hundred years ago, an American congressman sat down in Philadelphia and put into words a fear that sounds remarkably familiar today. His concern was larger than a treaty. It was larger than political parties. It was a question about the Republic itself:

What happens when power begins moving away from the people and toward institutions and interests that the people cannot effectively control?

The congressman was John Clopton of Virginia, my ancestor and the father of Maria Louisa Adelaide Mylliotte Ste. de Croix Gernon Clopton, my 3X grandmother. In the spring of 1796, he was serving in the United States House of Representatives while the young nation was being consumed by controversy over the Jay Treaty with Great Britain.  She was born just a few years later.^[1]

Among the Clopton family papers preserved at Duke University's David M. Rubenstein Rare Book & Manuscript Library are handwritten drafts of letters Clopton wrote from Philadelphia during that controversy. Reading them 230 years later is unsettling, not because the political circumstances of 1796 and 2026 are identical. They certainly are not.

It is unsettling because the ^[2]questions are still ours, We the People.

On April 4, 1796, Clopton described a constitutional struggle taking place inside the House. Representatives had requested that President George Washington provide Congress with John Jay's instructions, correspondence, and other documents relating to the negotiation of the treaty. Clopton wrote that the debate had already consumed nearly three weeks.

His objection was not simply that he disliked the treaty. He believed a constitutional principle was at stake. According to Clopton, proponents of a strong treaty power were asserting that treaties negotiated by the President and Senate could take precedence over ordinary acts of Congress and could even supersede previously enacted laws.

Clopton recoiled at the implications. He wrote that such a principle could “destroy the most essential properties of our Republic.” Then he asked the question at the heart of his argument: “to what purpose do the House of Representatives meet and cooperate in passing laws” if laws enacted with the participation of the people's representatives could subsequently be nullified through the actions of the other branches?

And then came his most striking question: “Will it not be to reduce the immediate representatives of the People to mere Ciphers in the Government?” His reasoning culminated in a principle that should be familiar to every American: “the People are acknowledged to be the source of all power.” These words are not a modern interpretation of Clopton's beliefs. They are preserved in the April 4 manuscript itself.^[3]

The historical record confirms the controversy Clopton described. The Senate had approved the Jay Treaty on June 24, 1795. The vote was 20–10—exactly the two-thirds majority required for ratification. The treaty provoked enormous public opposition. Senators who supported it were denounced, burned in effigy, and in at least one case subjected to stones thrown by an angry crowd.^[4]

After Washington proclaimed the ratified treaty on February 29, 1796, Representative Edward Livingston introduced a resolution asking the President for Jay's instructions and correspondence. The ensuing debate was precisely the one Clopton described in his April letter. James Madison made an argument strikingly similar to Clopton's. Madison said that sovereignty resided in the people, that the Constitution expressed their will, and that every branch had a responsibility both to respect the powers of the others and to defend its own constitutional authority against encroachment.^[5]

Washington disagreed. He concluded that the Constitution did not give the House a role in making treaties and refused the House's demand for the negotiating papers. His private correspondence shows that this was deliberate: Washington wrote that he had resolved to resist the constitutional principle he believed the House was attempting to establish.^[6]

This is important because history becomes distorted if we turn this into a story with heroes on one side and villains on the other. Both sides believed they were defending the Constitution. That was the problem. The Constitution distributed power, but human beings still had to determine where the boundaries of that power lay. And they disagreed.

There was another complication. Treaties could be negotiated by the President and ratified with the consent of the Senate—but the House controlled appropriations. That meant implementing portions of the Jay Treaty required the participation of the very chamber excluded from treaty ratification. The confrontation therefore became a fundamental question of constitutional power: could the President and Senate effectively obligate the House to appropriate money?

Clopton believed the House retained discretion. He opposed the appropriation. And then something happened that deserves particular attention today.  In his May 8 letter, Clopton wrote that he had expected the appropriation to fail. Then the vote occurred. He concluded that “the bug-a-bear of war had a material effect on the minds of some.” And he went further: “That alarm-bell had been rung with great industry so as to excite the fears of the people” throughout the United States.

He believed that fear of another war with Britain had been used to generate public pressure for implementation of the treaty. Petitions poured into Congress supporting the appropriation. Whether Clopton correctly understood every motivation behind those petitions is impossible to establish from his letter alone. But we can establish that he believed fear was influencing political judgment, and the final vote demonstrates just how consequential a handful of changed minds could be. On April 30, 1796, the House approved funding for the treaty. The vote was 51–48. The treaty survived. But Clopton's warning survived with it.^[7]

The next subject in this correspondence may be even more relevant to the present. In the continuation preserved as document 0284, Clopton turned from the treaty to what he called a “curious affair” involving Robert Randall and Charles Whitney. Randall had approached members of Congress concerning an enormous western land venture. The inducement was financial. Clopton wrote that overtures had been made to legislators with the apparent intention of interesting them in a land grant “by the offer of shares.” 

The official history of the House confirms the essential facts. Randall, a land speculator, attempted to obtain congressional support for the purchase of a vast area of western land and proposed sharing the financial proceeds with members who helped secure the transaction. The affair became an early assertion of congressional investigative, subpoena, and contempt authority.^[8]

Think about what Clopton was confronting within this short period: Government power. Private money. Political influence. Public fear. Secrecy. Constitutional authority. These were not problems that appeared after centuries of American decline. They appeared almost immediately.

Clopton did not respond to attempted influence by demanding unlimited governmental power. He thought Randall's conduct was insulting. He recognized the danger of legislators being influenced by personal financial interest. Yet he also worried that Congress might respond by expanding its own authority too far.

If merely attempting to persuade a representative could be defined too broadly as a violation of congressional privilege, Clopton feared that innocent citizens petitioning their representatives might eventually be punished. That distinction matters enormously. ^[9]He opposed corruption without embracing unchecked government power as the cure for corruption. That may be the most important lesson in these papers.

The Jay Treaty did not create America's modern political system. It would be historically irresponsible to claim that one treaty in 1795 directly caused the governmental and corporate problems Americans confront in 2026. But the controversy exposed something much deeper. The Constitution created a remarkable structure for republican government. It did not—and could not—eliminate the human struggle for power.

The founders distributed governmental authority among institutions because they understood that power needed restraint. But institutions themselves are occupied by people, and people remain susceptible to ambition, fear, money, loyalty, self-interest and influence. The Randall affair demonstrated that private economic interests would seek access to public power almost immediately.

The Jay Treaty controversy demonstrated that executive authority and representative authority would compete over constitutional boundaries almost immediately. My ancestor’s “bug-a-bear of war” demonstrated his belief that fear could be mobilized to influence public opinion almost immediately. And the fight over the treaty papers demonstrated that government transparency and executive confidentiality would come into conflict almost immediately.

These were not defects discovered centuries after the Constitution. They were tensions present in constitutional government from its beginning. What has changed is scale. Today, influencing government is supported by an enormous professional infrastructure: registered lobbyists, trade associations, political consultants, corporate government-affairs offices, campaign organizations, advocacy groups, political action committees and Super PACs.^[10]

Not all of that activity is corrupt but much of it is. Indeed, petitioning government is itself a constitutional right, and Clopton's letter demonstrates that he was deeply concerned about protecting legitimate attempts to influence representatives. That distinction is essential. Influence is not automatically corruption. The danger comes when citizens can no longer tell where legitimate advocacy ends and purchased access, undisclosed conflicts, institutional dependency, or self-interest begins.

That is remarkably close to the problem Clopton was wrestling with in 1796. How do we protect the people's right to petition government while protecting their representatives from corruption? How do we give government enough authority to punish actual corruption without giving government so much authority that it can suppress legitimate opposition? How do we permit executive confidentiality where national interests genuinely require it without allowing secrecy to become insulation from accountability? And how do representatives exercise independent judgment without becoming disconnected from the people whose authority they exercise?

There are no easy answers. There weren't any in 1796 either.

Perhaps we have misunderstood what it means to preserve the Constitution. Preserving it cannot simply mean preserving the document. It means preserving the relationship between power and accountability upon which the document depends.  Retaining the founding principles and not allowing the forces of evil to take over.

John Clopton did not know what America would look like 230 years later. He could not have imagined multinational corporations, billion-dollar election cycles, twenty-four-hour media, social networks, modern lobbying organizations or the enormous administrative state. But he understood the underlying question: Who possesses the power? And who possesses the power to hold them accountable?

His answer was unequivocal: “the People are acknowledged to be the source of all power.”^[11]

That statement should not belong to one political party. It should make Republicans uncomfortable when Republican officials evade accountability. It should make Democrats uncomfortable when Democratic officials evade accountability. It should make corporations uncomfortable when economic power purchases disproportionate political access. And it should make citizens uncomfortable when fear persuades us to surrender scrutiny simply because someone tells us catastrophe will follow if we do not.

The warning contained in these fragile pages from 1796 is therefore not that America once possessed a perfect government and somehow lost it. The historical record tells us something more sobering. The struggle began almost as soon as the Republic did.

The Constitution did not promise that powerful people would never seek more power, that private interests would never attempt to influence legislators, or that fear would never be used politically. It gave Americans a structure through which those forces could be resisted. That structure depends upon divided power, transparency, accountability, constitutional restraint—and citizens willing to pay attention.

John Clopton was paying attention in 1796. Two hundred and thirty years later, perhaps the old letter has reached exactly the generation that needs to read it,

for such a time as this...

clm*

gracecoloredglasses.com/blood-trail-in-our-tree/

Bibliography

Primary Sources

Clopton, John. Draft letter concerning the Jay Treaty. Philadelphia, April 4, 1796. Clopton Family Papers, Image 0285. David M. Rubenstein Rare Book & Manuscript Library, Duke University. Manuscript image and transcription preserved in the Blood Trail Project Master Research Archive. https://library.duke.edu/rubenstein

Clopton, John. Draft letter concerning appropriations for the Jay Treaty. Philadelphia, May 8, 1796. Clopton Family Papers, Image 0287. David M. Rubenstein Rare Book & Manuscript Library, Duke University. Manuscript image and transcription preserved in the Blood Trail Project Master Research Archive. https://library.duke.edu/rubenstein

Clopton, John. Continuation of draft letter concerning the Jay Treaty and the Randall–Whitney affair. Philadelphia, May 1796. Clopton Family Papers, Image 0284. David M. Rubenstein Rare Book & Manuscript Library, Duke University. Manuscript image and transcription preserved in the Blood Trail Project Master Research Archive. https://library.duke.edu/rubenstein

Madison, James. “Jay’s Treaty, [7 March] 1796.” Founders Online, National Archives. https://founders.archives.gov/documents/Madison/01-16-02-0173

Madison, James. “Jay’s Treaty, [10 March] 1796.” Founders Online, National Archives. https://founders.archives.gov/documents/Madison/01-16-02-0174

Washington, George. “George Washington to the U.S. House of Representatives, 30 March 1796.” Founders Online, National Archives. https://founders.archives.gov/documents/Washington/05-19-02-0513

Washington, George. “George Washington to Alexander Hamilton, 31 March 1796.” Founders Online, National Archives. https://founders.archives.gov/documents/Washington/05-19-02-0515

Government and Institutional Sources

U.S. House of Representatives, History, Art & Archives. “CLOPTON, John.” https://history.house.gov/People/Listing/C/CLOPTON,-John-(C000531)/

U.S. House of Representatives, History, Art & Archives. “The House Appropriated Funds for Jay’s Treaty.” April 30, 1796. https://history.house.gov/HistoricalHighlight/Detail/35424

U.S. House of Representatives, History, Art & Archives. “A Breach of Privileges.” January 1, 1796. https://history.house.gov/Historical-Highlights/1700s/A-Breach-of-Privileges/

U.S. Senate Historical Office. “About Treaties: Historical Overview.” https://www.senate.gov/about/powers-procedures/treaties/overview.htm

U.S. Senate Historical Office. “Uproar Over Senate Approval of Jay Treaty.” https://www.senate.gov/about/powers-procedures/treaties/jay-treaty-approval.htm

Congress.gov, Constitution Annotated. “U.S. Constitution—First Amendment.” https://constitution.congress.gov/constitution/amendment-1/

Congress.gov, Constitution Annotated. “Lobbying.” https://constitution.congress.gov/browse/essay/amdt1-7-13-5/ALDE_00013494/

[1]U.S. House of Representatives, History, Art & Archives, “CLOPTON, John,” confirming Clopton represented Virginia in the Fourth Congress (1795–1797).

[2]John Clopton manuscripts, Clopton Family Papers, David M. Rubenstein Rare Book & Manuscript Library, Duke University; manuscript images 0284, 0285, and 0287, as preserved in the Blood Trail Project Master Research Archive.

[3]John Clopton, draft letter, Philadelphia, April 4, 1796, Image 0285, Clopton Family Papers, David M. Rubenstein Rare Book & Manuscript Library, Duke University.

[4]U.S. Senate Historical Office, “Uproar Over Senate Approval of Jay Treaty” and “About Treaties: Historical Overview.” The Senate approved the treaty June 24, 1795, by the exact 20–10 two-thirds majority required.

[5]James Madison, “Jay’s Treaty, [7 March] 1796” and “Jay’s Treaty, [10 March] 1796,” Founders Online, National Archives.

[6]George Washington to the U.S. House of Representatives, March 30, 1796, and George Washington to Alexander Hamilton, March 31, 1796, Founders Online, National Archives.

[7]John Clopton, draft letter, Philadelphia, May 8, 1796, Image 0287, Clopton Family Papers; U.S. House of Representatives, History, Art & Archives, “The House Appropriated Funds for Jay’s Treaty,” recording the April 30, 1796 vote of 51–48.

[8]John Clopton, continuation of draft letter, May 1796, Image 0284, Clopton Family Papers; U.S. House of Representatives, History, Art & Archives, “A Breach of Privileges.” The manuscript itself names “Randall and Whitney”; official House proceedings identify Whitney as Charles Whitney.

[9]John Clopton, continuation of draft letter, May 1796, Image 0284, Clopton Family Papers; see also U.S. Constitution, First Amendment, protecting the right “to petition the Government for a redress of grievances.”

[10]Congress.gov, Constitution Annotated, “Lobbying,” explaining lobbying as a form of petitioning government and discussing permissible registration, disclosure, and reporting requirements.

[11]John Clopton, draft letter, Philadelphia, April 4, 1796, Image 0285, Clopton Family Papers, David M. Rubenstein Rare Book & Manuscript Library, Duke University.