Friday, August 18, 2017

The Adulterer, Part I: Context

            Moved by recent events – too many, I think, to name specifically – and not a little bit inspired by what I consider to be a fairly successful deviation from the accustomed focus of these posts witnessed of these months just passed, I’ve decided to once again follow my present whimsy in what is, for me, a rather unusual direction. For the next several weeks, I’m not going to be discussing a treaty, a constitution, a public address, or a statute. Nor am I going to spend what is most assuredly an inordinate amount of time alternately picking apart or rhapsodizing the polemic scribblings of men who have been dead for longer than the nation in which I was born and reside has existed. I will, of course, return to such things in due time. My particular neurosis, you see, is incurable, though I may from time to time succeed in holding it at bay. This present moment is one of those times, as it happens. And so, with your indulgence, dear reader, I’d like to discuss something which on the surface would appear almost entirely out of place in an orthodox discussion of the documentary history of the American Founding. I’d like to talk about a piece of art – a play, in fact – that was created by a woman.

            Here I shall pause for effect.

            Pausing…pausing…

            Very good.

            Yes, a play. It is, in fairness, a drama whose political overtones are painfully obvious, so you see I have not wholly taken leave of my senses. Its author has also already been a subject of this series, though it was in her role as a political commentator and polemicist. I speak, of course, of one Mercy Otis Warren. Having done so, however, I feel compelled to admit that it is something of a shame that the only women whose work has been heretofore discussed in this forum shall be forced to remain so for the present. I would so like to explore the written efforts of other members of her sex, provided they are in some way relevant to the American Founding, but ready examples are not always so easy to find. I will, rest assured, continue my periodic search for such things. For the moment, however, we shall remain in the capable hands of Mrs. Warren. Hardly a consolation prize, I think – rather more a privilege – for the article to be examined henceforth is a rare and valuable thing.

            First published in 1773, The Adulterer was a compact, five-act drama intended as a send-up of Massachusetts Governor Thomas Hutchinson (1711-1780) and an encomium to the virtue, the fortitude, and the prudence of her fellow citizens of Massachusetts. Granted, she did not portray these things quite as plainly as that. As per the customs of contemporary satire, all subjects and settings under discussion were given false names. Massachusetts was “Upper Servia” and Hutchinson portrayed as “Rapatio” – because people in the 18th century, it turns out, liked bad wordplay as much as the creators of Rocky & Bullwinkle.  Rapatio’s various hangers-on, meanwhile, were given foolish-sounding names like “Hazelrod,” “Dupe,” and “Gripeall” and the good people of Servia granted noble Roman monikers like “Brutus,” “Junius,” and “Portius.” Subtlety, in short, was not much in evidence. And yet, in the bold strokes with which Warren painted her heroes and her villains it is possible to discern something of the popular mood in colonial Massachusetts on the very eve of the Revolutionary War. Hutchinson was not the tyrant Rapatio, and the colony he governed not the benighted land of Servia. In 1773, however, this mattered but little.

            While treatises and broadsides like John Dickinson’s Letters from a Farmer in Pennsylvania (1767-1768) or Thomas Jefferson’s A Summary View of the Rights of British America (1774) explained at length what certain American colonists thought about British attempts to subvert their accustomed prerogatives, examples of artistic expression like The Adulterer seemed more interested in attempting to articulate how the crisis then unfolding made the citizens of British American feel. If her fellow citizens responded to Warren’s portrait of their plight – and indeed they did – it was no doubt because it felt to them like the truth. Or perhaps it was a matter of aspiration. The ancient Roman past that Warren was so keen to allude to in her dramatic recasting of the plight of Massachusetts was never as noble as 18th century commentators made it seem. Orators and statesmen like Cato the Younger (95BC – 46BC) and Cicero (106BC – 43BC) may well have been good, honest, noble men who were truly worthy of admiration, but the society from which they emerged was often plagued by corruption, civil war, and a latent quality of authoritarianism. By the same token, colonial Massachusetts could hardly have been considered a bastion of 18th century Enlightenment thought. Culturally conservative and staid, censorious, and equally characterized by a self-interested merchant class and a petty governing elite, the country of Warren’s birth did not favorably compare to the contemporary ideal of the balanced and virtuous Roman Republic.

            Warren’s intention, therefore, by portraying contemporary Massachusetts using decidedly Roman cultural markers, was perchance not to draw a literal comparison between the two societies. Rather, by using the image of ancient Rome that had come to exist within the discourse of the philosophical Enlightenment – with its self-sacrificing statesmen, carefully-constructed government, and lionization of public service – as a kind of costume for her like-minded countrymen, she perhaps sought to inspire and channel their better impulses towards a useful end. And just as 18th century students of ancient Rome needed figures like Julius Caesar (100BC – 44BC), Sulla (138BC – 78BC), and Catiline (108BC – 62BC) to represent the forces of corruption, avarice, and the betrayal of republicans ideals, Warren needed her Rapatio to take on the role of traitor and autocrat against which the citizens of Servia could set themselves as defenders of all that was good, and virtuous, and rational. Thus, as good satire often does, The Adulterer portrayed a heightened version of reality that bent the facts to suit its author’s intentions without twisting them so as to appear wholly unrecognizable. The people of Massachusetts, therefore, saw in the good people of Servia a version of themselves to which they might conceivably have aspired. And in Rapatio they saw a version of Governor Hutchinson which many of them doubtless expected was far too near at hand.
Ah, but we’re getting ahead of ourselves. First, as always, let’s have a word or two on some of our principle players, and then several more on the times in which they lived and worked.

            As Warren’s biography was presented upon her first appearance in these pages some months ago, what follows will naturally be somewhat abridged. Of her birth and upbringing, it will suffice to say that she was born in 1732 in Barnstable, Massachusetts, that she was the third of thirteen children born to James Otis, Sr. (1702-1778) and Mary Allyne (1702-1774), that her father was a prominent lawyer and statesman, and that Mercy was accordingly raised in a household that prized literacy and tended towards a high degree of political engagement. Between studying under family tutor Johnathan Russell and aiding her brother James Jr. (1725-1783) with his graduate readings at Harvard, she managed to acquire an education of uncommon depth for a woman in 18th century Massachusetts. She subsequently put this intellectual cultivation to use, after having married Plymouth lawyer and merchant James Warren (1726-1808), as a fervent supporter, correspondent, and counsellor to a number of local political organizations – the infamous Sons of Liberty chief among them – as they became increasingly concerned by the emerging crisis between Great Britain and its American colonies. In consequence, over the course of the 1760s and early 1770s, Warren maintained regular contact with such soon-to-be-prominent figures as John (1735-1826) and Abigail (1744-1818), and Samuel (1722-1803) Adams, hosted political meetings in her Plymouth home, and even began to put her budding literary prowess to public use with the publication of several highly satirical plays. The first of these, The Adulterer, was published anonymously in preview on March 22nd, 1772 in the Massachusetts Spy, with a completed edition available the following year.  

            As mentioned above, the antagonist of Warren’s Adulterer, the tyrannical Rapatio, was intended as a pastiche of one Thomas Hutchinson, then Governor of the Province of Massachusetts Bay. Since Hutchinson’s life has likewise been related in these pages – in the final entry on one of Benjamin Franklin’s own satirical efforts – the following chronicle will once again strive for brevity.
          
            Born in 1711 to a prominent merchant family in the North End of Boston, Hutchinson graduated from Harvard at age sixteen, became established in business at age twenty-one, and entered politics at age twenty-six. Serving first as a Boston Selectman, he was thereafter elected to the colonial legislature in 1728, lost his seat in 1739 because of his opposition to the use of paper currency, was re-elected in 1742, and defeated again in 1749. These recurrent setbacks notwithstanding, Hutchinson was thereafter appointed to the Massachusetts Legislative Council, granted a seat on the Court of Common Pleas, and became Lieutenant-Governor in 1758 and Chief Justice of the Superior Court of Judicature – in spite of the post having been earlier promised to James Otis Sr. – in 1760. Despite – or perhaps because of – this steady rise within the ranks of the colonial elite, however, the pinnacle of Hutchinson’s professional success proved also to herald the most trying years of his life. Between 1760 and his recall from the governorship in 1774, his every official action seemed to meet with accusations of tyranny and corruption by the increasingly belligerent – and increasingly organized – opposition to the colony’s traditional elite.

            In spite of his personal opposition to the passage and implementation of the Stamp Act (1765), for instance, his efforts to promote a moderate response by the colonial legislature earned him the epithet of traitor among his countrymen. This perception was hardly allayed by his first official act as Governor in 1771. Commensurate with instructions from London, the colonial legislature was to be relocated from Boston to Cambridge – away from the influence of the former city’s radicals. This met with yet another firestorm of criticism, which in turn evolved into a lengthy and passionate public debate between Hutchinson and his opponents over issues of executive authority, taxation, and parliamentary supremacy. The results were effectively twofold. First, Hutchinson’s ardently Tory-leaning positions left him increasingly isolated from his fellow countrymen in Massachusetts. Second, by effectively tying his own personal unpopularity to the efforts of Parliament to assert its sovereignty over the colonies, British colonial authorities observed that their chosen magistrate seemed only to have succeeded in further radicalizing elements of the colonial population who were otherwise moderate in their views. When a packet of latter written by Hutchinson to a correspondent in Britain – in which he expressed opinions unfavorable to the Massachusetts radical position and promoted increased executive authority at the behest of the colonial legislature – subsequently found their way into print, it didn’t take long for the colonial legislature to begin drafting a request for his immediate recall. This request was eventually granted in the aftermath of the so-called “Boston Tea Party” of December, 1773, and Hutchinson sailed for London in June, 1774.

            At this point it perhaps also bears remembering – to some degree of detail – that much of what transpired in the lives of Warren and Hutchinson that is of particular interest to the forthcoming discussion took place against a backdrop of political tension and civil unrest. From where these condition arose is – I hope – well-known at this point. Nevertheless, a brief overview of events in the Thirteen Colonies through 1773:

            By the conclusion of the Seven Years War (1754-1763), Great Britain’s national debt had risen to a new and entirely unprecedented extreme at the same time that its military establishment had also grown tremendously. Eager to both retire the staggering obligations they had accrued and see to the continued employment of hundreds of army officers from well-connected families, the government of Prime Minister George Grenville (1712-1770) hit upon a controversial solution. Revenue was to be raised from Britain’s possessions in America through legislation like the Sugar Act (1764) and the Stamp Act (1765), the stated purpose of which would be to fund the continued defense of said possessions by the surplus officers and their respective commands. While these measures effectively side-stepped the issue of either raising taxes in Britain itself or establishing a standing army in a nation whose political culture was violently opposed to the very idea, the response from Britain’s subjects in America was far from sanguine. A tax on sugar or on revenue stamps notwithstanding, it was the apparent violation of their accustomed rights that the colonists took particular issue with. Inculcated with many of the same core political and cultural values as their cousins in Britain, Americans from Massachusetts to Georgia vociferously objected both to the stationing of military personal in their home countries during a time of peace and to the levying of taxes by a legislature in which not one of them enjoyed direct representation. The Grenville Ministry, though otherwise willing to grant the primacy of these convictions, meanwhile reacted poorly to what they perceived as a challenge to the supremacy of Parliament and the loyalty it felt British subjects in America owed to the Crown. The result, in the immediate, was something of an impasse.

            For their part, colonial governments in America agreed amongst themselves to the need for a collective response to British intransigence. The resulting Stamp Act Congress of 1765 – during which delegations from nine colonies met in New York City for the purpose of crafting a strategy of resistance – generated a series of joint petitions intended to convey the shared objections of Britain’s American subjects to both Parliament and King George III (1738-1820), as well as plans for a non-importation agreement intended to secure the repeal of the hated statutes. While British authorities were alarmed by the decidedly unauthorized nature of the New York meeting, the complaints of British merchants which resulted from a total American boycott of their manufactured goods eventually succeeded in pressuring the vulnerable government of the Marquess of Rockingham (1730-1782) into replacing the Sugar Act and nullifying the Stamp Act. That this latter action was accompanied by a formal declaration by Parliament that it nevertheless possessed the unequivocal right to make law for the colonies in all cases, however, did not appear to bode well for the colonies. The subsequent passage of the Townshend Acts (1767) – a series of taxes on goods like paper, paint, and lead – seemed amply to bear this out. Colonists again widely rejected the premise of being taxed by a legislature in which they did not enjoy representation, and found additional fault in the notoriously corrupt Board of Customs Commissioners established in Boston to see the taxes collected and the heavy-handed tactics of the Admiralty Courts assigned to prosecute alleged violators. Smuggling became rampant, riots more and more common, and the attitudes of both sides seemed daily to harden.

            In the midst of these tensions, newly-appointed Secretary of State for the Colonies Lord Hillsborough (1718-1793) made the arguably fatal decision to deploy military force as a means of ensuring colonial cooperation. First, the warship HMS Romney was stationed in Boston Harbor as a means of countering continued attempts to circumvent customs duties via the smuggling of taxed goods. Second, in response to the harassment regularly suffered by customs officials and the popular ire generated by the attempted prosecution of local residents accused of violating the Townshend duties, four regiments of the British Army under General Thomas Gage (1719-1787) were garrisoned in Boston beginning in October of 1768. While two of these regiments were removed shortly thereafter in 1769, the two that remained proved more than capable of arousing the suspicion and resentment of the city’s civilian population all on their own. The events of March 5, 1770 paid fatal heed to this conviction. Following an altercation between an apprentice wigmaker and a British sentry outside the Custom House on State Street, a confrontation between a growing mob of incensed Bostonians and a hastily-assembled patrol of British regulars ended in bloodshed when the soldiers fired into the crowd. Three people were killed instantly, one died the next morning, and another passed away two weeks later. Thomas Hutchinson, then acting-Governor of Massachusetts, arrived on the scene shortly thereafter and struggled to reassert order. Eventually the crowd was dispersed, the British soldiers arrested, and charges of murder drawn against them. The trial that followed – one of the most closely-watched in the history of Massachusetts, and during which Boston lawyer John Adams acted for the defence – ended in acquittal for six of the eight accused and guilty verdicts on charges of manslaughter for the remaining two.     

            The already tenuous relationship between the people and government of Massachusetts and the Crown and Parliament of Britain took on an increasingly volatile aspect in the years that followed what quickly became known – thanks in no small part to the agitations of Boston radicals like Samuel Adams – as the Boston Massacre. While, soon after his ascension to the post of Prime Minister in 1770, Lord North (1732-1792) oversaw the repeal of most of the import taxes that had so aroused the anger of Britain’s American subjects, his government’s conviction that a tax on tea should remain – and that Parliament still possessed the inherent right to levy taxes upon the colonies of British America – did little to avert this potentially fatal trajectory. Indeed, it was the continuation and expansion of duties on tea that precipitated the next major episode in the series of events leading to outright war between the Thirteen Colonies and the Kingdom of Great Britain. Eager to aid the financially-struggling East India Company, and desirous of colonial recognition of its claimed right to tax, the North Ministry devised the Tea Act (1773) as a means of accomplishing both objectives simultaneously. Under its terms, Company tea could be exported from British warehouses duty free, shipped directly to ports in North America, offloaded by authorized co-signees in the colonies, and sold at a price deemed low enough to undercut the cost of smuggled Dutch tea. As the established Townshend duty on tea would remain in force, the relative savings compared to the contraband product would theoretically ensure the tacit public acceptance of Parliament’s acclaimed right of taxation.   
  
            In point of fact, however, the residents of the various British American colonies were not so easily distracted by the lure of a good bargain. Conscious of the political implications of the Tea Act, associations of merchants – whose business as importers of legal goods was being undercut – and smugglers – whose role as supplier of untaxed goods was similarly threatened – organized to harass Company co-signees and prevent the Company product from being offloaded or sold in American ports. In some cases this campaign resulted in tea being returned by ship to Britain, while in others it simply meant that the offending product was left to rot on ships anchored in American ports. Thomas Hutchinson, now fully the Governor of Massachusetts, sought to avoid the former outcome by order Company ships to remain anchored in Boston Harbor while prevailing upon local merchants to see reason. On December 16th, 1773, a small group of Bostonians took matters into their own hands. Disguised as Native Americans, a contingent of men boarded the Company ships and threw over three hundred chests of tea – the entire shipment – into the harbor. This “Boston Tea Party” subsequently inspired similar acts of defiance in other American ports where Company tea remained unloaded, enjoyed a full-throated defence from radicals like Samuel Adams, and brought about the harshest reprisals yet seen from a British Parliament now utterly convinced that America was on the verge of insurrection.

Friday, August 11, 2017

The Jay Treaty, Part XIII: Meta-text

            Looking back, I don’t suppose that I anticipated the present series on the Jay Treaty to carry on quite so long as it did. I don’t suppose that you did either, dearest readers, so in that sense we’ve both been taken by surprise. Initially, all that I really wanted to do was explore the meaning and significance of what I believed was a seminal document in the history of the American First Party system. I believe I said as much in the first entry. The Jay Treaty seemed to me to crystalize what was in practice a fairly mutable political dichotomy between the contemporary Federalist and Republican factions. It thus appeared a fruitful proposition to attempt an exploration of the thing itself. Its various articles and clauses, I believed, might well communicate a great deal about the kind of country the United States was in 1795, how it saw itself within the world of Great Power diplomacy, and the kinds of priorities its citizens felt it ought to pursue. As it happened, however, understanding the significance of the Jay Treaty within the context of the First Party System required paying heed to more than just that single document. I suppose I knew that. Depth of context has always been a major focus of my writing here, and there was really no reason for me to think that this particular project would require anything less.

The thing of it is, though, this series has turned out to require the exploration of a great deal more context than just about any I’ve yet attempted. Because, as it turns out, you can’t really talk about the significance of the Jay Treaty within the American First Party system without delving into the Republican polemic response. That topic in itself might easily occupy an entire series of essays, of even greater length and depth than those presented here. Bearing that in mind, I tried, out of a sense of consideration for the patience of my audience, to confine my attention to the work of only two of the Jay Treaty’s Republican critics. Robert Livingston and Alexander Dallas each represent a different avenue of attack against the efforts of Jay, Hamilton, and their fellow Federalists to seal a substantial diplomatic agreement between the United States and Great Britain, though they were hardly alone in their efforts. Other of their fellow partisans offered different kinds of critiques, based on different assumptions and targeting different aspects of the final draft of the treaty. Granting that there was almost certainly a sense of broad agreement amongst them all as to core principles, this diversity of ideas and approaches is best not forgotten. Easy though it may be to conceive of the 18th century Republican faction as chiefly a mouthpiece for the ideological proclivities of one Thomas Jefferson, in was in fact about as united at any given moment as any American political party has ever been – that is to say, more in name and general direction than in terms of policy or platform specifics.

And of course, having sought out some of the various contemporary critiques of the Jay Treaty, a reasonably complete exploration of said document’s significance to the First Party System must of necessity also include a discussion of the Federalist response to the Republican response. Thus we find, as ever, the bullish, methodical, and oft-as-not exhausting rhetoric of Alexander Hamilton. Having helped to convince Washington that a final diplomatic entreaty was necessary before enacting retaliatory measures against Great Britain, and having in large part drafted the instructions that subsequently guided his friend and ally Jay in his endeavors in London, the by-then former Secretary of the Treasury had what might fairly be described as a vested interest in the success of any agreement subsequently reached between the United States and Great Britain. His ensuing response to criticism of the Jay Treaty, in the form of his and Rufus King’s The Defence, might consequently be said to have sprung from a place of personal conviction as well as official sanction. He was, after all, the de facto leader of the contemporary Federalist faction. And while his and King’s arguments were very much their own, Hamilton’s status as leader would seem to suggest that The Defence more or less represents the Federalist party line as he was then actively defining it. Indeed, it might fairly be argued that The Defence is nothing less than one of the principle documents by which the Federalists defined themselves as an organization, or a political movement, or simply a group of men with similar ideas.        

            In short, this project turned out to be much larger than I even intended it to be. And while I certainly enjoyed where the sources I dug up determined to take me, I do apologize if anyone out there in my audience was turned off by the mounting scale of the thing. I do hope that those of you who stuck it out have learned something, or been encouraged to learn something. And if you haven’t, well, I suppose I should offer some manner of conclusion myself.

            So…

            Let’s think for a moment. Why is the Jay Treaty at all important to living, breathing human here at the dawn of the 21st century? Perhaps it isn’t. The specifics of the treaty – who was permitted to cross this or that boundary, bearing which goods, under what circumstances – are certainly of interest to people like me, but they don’t really offer much in the way of penetrating insight into the origins and history of the American party system. For most people alive right now, it might simply suffice to say that the Jay Treaty was an agreement between the United States and Great Britain, that it mainly had to do with trade, and that it resulted in a fifteen year period of peace and stability. The contemporary reactions to the Jay Treaty on the part of the Federalist and Republican factions are, I would argue, or far great significance. That is to say, it wasn’t what was being argued about in 1795 that modern observers would do well to take note of, but rather how it was being discussed.

            Consider, once more, the commentaries offered by Republicans Robert Livingston and Alexander Dallas. Differences in approach and tone aside, both men seemed to ground their arguments against the Jay Treaty and its author in what they believed to be right, and moral, and adherent to the principles of republican government. In their eyes, it seemed, a treaty between the United States and Great Britain – or indeed between the United States and any foreign entity – could only be considered valid if it respected the core values upon which that nation had so recently been founded. Articulated thusly, the legitimacy of the Jay Treaty became a question of independence and identity rather than a simple measure of convenience or usefulness. The United States of America, Livingston and Dallas seemed keen to assert, was a sovereign nation. It was not to be dictated to by foreign authorities – in the form of regulations that, say, limited its ability to make whatever alliances it pleased, or prevented its citizens from offering aid and resources to foreign states – and its national priorities – the recognition of its territorial boundaries, the inviolability of its citizens’ property rights, etc. – were to be esteemed and considered by its diplomatic partners.

Within the context of Anglo-American relations at the end of the 18th century, this amounted to a fairly aggressive – if not outright belligerent – posture. Not only were Dallas and Livingston keen to denounce the very notion that the United States ought to have recognized certain British priorities, but they seemed to simultaneously demand that Great Britain acknowledge the rightness of the American position, cease attempting to restrict or constrain the actions of the individual American citizens, and endeavor to make amends via a lengthy list of concessions and reparations. Granting once again that the stated opinions of two men do not a comprehensive overview make, it nevertheless seems a reasonable supposition that the faction to whom Dallas and Livingston belonged was similarly inclined. In consequence, allowing for a certain margin of error, it would seem fair to conclude that the Republicans of the middle 1790s tended to be ideologically-minded, fairly rigid in their adherence to law as written,  highly sensitive of their nation’s sovereignty, and given to ascribing moral significance to the issues and policies placed before them. If the writings of the two cited representatives are any indication, it would also appear that the contemporary Republican faction was far more eager to assert its nation’s priorities upon the world at large than bend to the status quo.

            Do please stop me if you’ve heard this before.

            Turning to the previously-cited works of Hamilton and King, a very different understanding of diplomacy, statecraft, and political economy presents itself. Between the arguments put forth in No. XXXVII and No. III of The Defence, for instance, Hamilton demonstrated a strong affinity for pragmatism, utilitarianism, and a very broad style of legal interpretation. No. XXXVII gave evidence of these sensibilities in the context of countering accusations that the Jay Treaty was somehow inherently unconstitutional. Having freely admitted that a great many of the individual articles of said treaty explicitly invaded the prerogatives of the legislative branch of the federal government, Hamilton nevertheless avowed that the grant of treaty-making power to the federal executive in the text of the Constitution essentially justified all such evident invasions. The Framers, he asserted, had clearly been of a mind that the United States of America would occasionally be required to seek out and seal diplomatic agreements with foreign nations. And since that same Constitution had given no greater authority to Congress in that area than the right of the Senate to provide “Advice and Consent,” the only logical conclusion appeared to be that the treaty-making power of the Chief Executive was intended to function outside the remit of Congress.

By making this claim, Hamilton essentially expanded upon the meaning of the Constitution without changing a single word of it or denying what was written. Unlike the aforementioned Republican critics of the Jay Treaty, who pointed to the plain text of certain statutes, or constitutional provisions, or other treaties as evidence of contradiction and illegitimacy, Hamilton summoned the unwritten rationale which he perceived to be operating behind and amidst the various articles and subsections. One could not simply depend upon the words to explain themselves, he seemed eager to assert. Rather, the meaning of a given legal instrument – a law, a treaty, or even a constitution – could only be understood in full by situating its explicit meaning within the context in which it originated and in which it was intended to operate. In this sense, Hamilton’s particular style of legal interpretation seemed far more descriptive than it was prescriptive. That is to say, while his Republican opponents tended to read statutes, or treaties, or constitutional provisions fairly rigidly, with the apparent understanding that maintaining an adherence to the text was of itself a valuable exercise, Hamilton preferred instead to understand written law as mainly a tool by which to accomplish a desired end. Interpretations that aided that end were thus inherently valid, while those that frustrated it were not.

This tendency towards functionalism and interpretive flexibility was also in evidence in No. III of The Defence, wherein Hamilton attempted to dismantle the claims put forward by various critics of the Jay Treaty and its namesake. Jay had erred, certain of his detractors had asserted, in part because he failed to secure recognition of and reparation for the many slaves that had been taken into British custody during the late Revolutionary War. The manifest unwillingness of the American envoy to pursue this cause on behalf of his fellow citizens – many of whom claimed economic disadvantage as a result of their lost property – was consequently held as an example of Jay’s inadequacy as a diplomat, the willingness of the Washington Administration to sacrifice American interests to British priorities, and the general defectiveness of the treaty as a whole. To these claims, Hamilton offered a series of arguments intended to demonstrate that the American position vis-à-vis the absconded slaves was not nearly as strong as that nurtured by Great Britain. The laws of war, he wrote, ensured that the British military was well within its right to confiscate and redistribute all such personal property as had come into its possession. The laws of the various slaveholding states, meanwhile, declared that enslaved peoples possessed the legal status of personal property. Their capture by the British military having nullified their status as property of particular American citizens, therefore, any clauses of the Treaty of Paris that referred to American property could not be said to apply to the disputed slaves. And since treaties could not rightly be interpreted so as to cause something either “odious or immoral” to occur, it was simply not possible that the aforementioned Treaty of Paris had intended to cause thousands of former slaves to once more be sent back into servitude.

While each of these points, along with several others that Hamilton offered, had some basis in fact or precedent upon which his opponents might have agreed, his effort to weave them together into a comprehensive denial of their position presented any number of implications that were not otherwise obvious. As stated previously, American legislators responsible for codifying the property status of slaves doubtless didn’t intended for that status to interact with certain unwritten customs of European warfare in a way that actually aided in securing the freedom of thousands of those same enslaved persons. They fashioned their laws to be read and to have effect in isolation, just as Jay’s aforementioned critics seemed to read the relevant provisions of the Treaty of Paris in isolation and – if they thought it at all – conceive of the laws of war and their impact on British behavior in the United States of America in isolation. Hamilton’s thinking seemed to tend toward the opposite. The true significance of these laws, and customs, and treaties, he tacitly urged, lay not in what each of them said on their own, but in the way that they interacted and informed one another within a larger context.        
                     
            Fellow Federalist Rufus King seemed to agree with Hamilton’s emphasis on context as meaning, though he appeared to prefer to direct his attention to the larger world in which the United States of America operated than the statutes and treaties that shaped its internal dynamics. His arguments in No. XXV of The Defence gave particular evidence of this sensibility in the way that they attempted to characterize success in diplomacy and commerce as measured against what it was possible to achieve rather than what it might have been desirable to achieve. Whereas Republican critics like Livingston and Dallas roundly objected to the apparent deference that the Jay Treaty appeared to show to British commercial and strategic priorities on the grounds that such blatant kowtowing was unwarranted, undignified, or unnecessary, King seemed far more concerned with whether or not the agreement between the United States and Great Britain adequately served the particular ends for which it had originally been commissioned. There were, to be certain, points of contention he nurtured against the final product of Mr. Jay’s efforts. As No. XXV of the Defence made clear, he felt that a number of the trade restrictions contained within Article XII of the treaty were unnecessarily severe. Britain could fairly admit American vessels of greater than seventy tons in its West Indian ports, he asserted, and a total ban on American cotton exports was simply not acceptable. That being said, King was far more willing than his Republican counterparts to situate Jay’s decisions – and calibrate his own expectations – within the context of contemporary British economic and diplomatic priorities.

After all, Great Britain was almost certainly one of the most powerful nations in existence at the end of the 18th century, and most definitely the world’s dominant naval power. In consequence, King seemed willing to admit, the United States could not simply demand – out of a sense of self-righteousness or moral certitude – that Britain wholly abolish its deeply-entrenched colonial trade policies. Rather, he avowed, progress to such a lofty end must be made slowly, persistently, and always with a due respect for what, at any given moment, it was possible to achieve. The war between Great Britain and the French Republic, for instance, had done much to hamper the former’s ability to extract the expected profits from its colonial possessions in the West Indies. This presented an opportunity for American merchants to insert themselves into the West Indies trade as a temporary replacement for the British merchants whose presence in the Caribbean had become increasingly endangered. British commercial authorities could sense this opportunity, and the circumstances that led to it, as well as anyone, but King cautioned his fellow countrymen that the result was bound to be far less revolutionary than the most liberal-minded among them might have hoped. It was a British world in 1795, he time and again admitted, and the United States was in no position to make demands upon so formidable an entity as the British Empire. In asserting this point, King appeared far more accepting of the possibility that the United States would at times be compelled by necessity to bow to the enforcement of certain foreign priorities if it wished to achieve even a relatively small portion of its desired objectives.

The perfect, he essentially argued, must not be made the enemy of the good. The Jay Treaty certainly wasn’t perfect, but King asserted that its namesake author’s ability to gauge what it was possible to achieve and seek out advantage where he could made the product of his labors in London good enough, at the very least, and hardly the execrable failure that certain Republican critics declared it. In so doing, King arguably demonstrated another potential aspect of contemporary Federalist thinking. As Hamilton, in No. XXXVII and No. III, made the case that the meaning and significance of statutes, treaties, and even the United States Constitution was in large part determined by context, King asserted in No. XXV that the difference between good policy and bad policy – that which was advisable or inadvisable – was similarly sensitive to circumstance. Also worth noting is the core rationale – the chief measure of worth – that Hamilton and King seemed to hold in common. Whether evaluating a particular interpretation of a provision of the Constitution or holding forth upon the value of a given article of a trade agreement, both men seemed to agree that merit sprang first and foremost from utility. The ability to achieve a desired end, in short, made something valuable; failing to achieve that end made it worthless. Admitting again (again, again, again) that the expressed views of Hamilton and King should not be taken as a substitute for the many and diverse opinions nurtured by their various fellow Federalists, it nevertheless appears a fair construction that contemporary Federalism was in no small part built upon the opinions and ideology of its more vocal members. Thus, allowing for some degree of personal divergence, it appear reasonable to characterize the Federalist faction of the mid-1790s as policy-minded, favoring a flexible model of legal interpretation, comparatively unconcerned with outward perceptions of American prestige, and willing to seek accommodation and compromise in diplomatic relations.    

            …and?

            Well, bearing all of what has just been stated in mind about the Republicans and the Federalists at the time of the ratification of the Jay Treaty, I’d like to ask you to consider whether or not the characterizations offered here of those two factions sound at all familiar. If they do not, then I heartily apologize for wasting your time. I understand there are many other corners of the Internet which you might wish to seek out in order to salve the frustration you must now be feeling. By all means, do so now. If, on the other hand, you perceived in what was described of the Republicans and Federalists of 1795 an eerie similarity to the matched set of party organization currently waging war upon each other across the length and breadth of American public discourse, I invite to consider what the implication of this similarity might be. In spite of all that has transpired in the last two hundred years, and notwithstanding the many and various issues that have captured the public’s attention and become flashpoints for conflict, or change, or retrenchment, it may just be that American political culture hasn’t changed quite so much since its inception as it sometimes appears.

Granted, the defining issue of public life in the United States is (arguably) no longer slavery. Congressmen don’t blather on about Manifest Destiny like they used to, and currency reform has long since ceased to be an issue upon which presidential elections pivot. That being said, the contours of many of the arguments that were historically articulated on either side of these issues – and those that have risen to prominence in the decades and centuries since – seemed to have followed a strikingly consistent pattern. Whether they call themselves Democrats or Federalists, Republicans or…Republicans…there always seems to be a voice for ideological purity and a voice for political pragmatism; aggressive foreign policy and reactive foreign policy; delineated power and assumed power. Bearing this in mind, it would seem that the basic framework of American political culture may have been set long ago, amidst the very founding of the United States of America. Of course there have been realignments and break downs, moments of explosive change and devastating decay. And yet, two centuries past the ratification of the Jay Treaty and the politically-charged public discourse that ensued, the basic division then in evidence has more or less reappeared. Each side had been augmented or diminished, by Supreme Court rulings, constitutional amendments, legislative milestones, or general shifts in popular opinion, but they nevertheless remain largely extant. The American republic, it seems, is as American now as it have ever been.

The implications of this evident changelessness at the core of American political culture are, in my opinion, several. On one hand, the gulf that so often seems to exist in the popular mindset between the experiences and understanding of the average American and those of the Founding Generation would appear far less intimidating – if not wholly nonexistent – in light of the existence of demonstrable parallels between the political assumptions of the late 18th century and the present day. Certainly the United States of American is not the country now that it was when George Washington, Thomas Jefferson, Alexander Hamilton, and John Adams held high office. A great many assumptions – some as basic as the meaning and origin of citizenship – have changed drastically since then, and the current cultural makeup of the American republic alone would doubtless be enough to boggle the minds of those cited worthies. Nevertheless, being able to acknowledge that the Founders of the United States nurtured many of the same core ideological convictions as their 21st century successors would seem to provide a tremendous opportunity for a far deeper understanding on the part of contemporary Americans as to how and why they nation looks and behaves the way that it does.

Seeing their own concerns and convictions reflected in the words and deeds of the Founders may also aid in promoting a greater sense of perspective among contemporary citizens of the United States. Rather than understand the present split in their political discourse – the differences in approach to jurisprudence, diplomacy, trade, etc. – as a problem that needs to be solved, they may yet come to appreciate that the American republic is in many ways more an ongoing conversation than it is some great puzzle that it is possible to decipher. Issues, crises, even civil wars – these things rise and fall in importance; come and go, threaten, and are dealt with. But the fact of debate, that Americans don’t agree on certain basic concepts – the proper way to read the Constitution or the preeminence of principle or utility – is seemingly eternal. As dour as this may sound, however, the revelation may yet contain a seed of hope. If the knowledge that American political discourse has historically been defined by the same basic ideological cleavages since the late 18th century makes it possible for contemporary citizens of that country to more fully and actively engage with the literature and personalities of the Founding Era, it also offers the existence of viable solutions to any number of political conflicts. After all, though the Founders were as capable of fundamentally disagreeing with each other upon core principles of law, diplomacy, and political economy as their various successors have every shown themselves, they also managed to construct and to govern a functioning republic. Clearly they found ways to work around their differences, or work through them, or simply came to understand that sometimes it was better to get half of what they wanted than nothing at all. These are exceedingly valuable lessons, and freely available to any capable of appreciating the innate correspondence between the founding of American political culture and its current incarnation.

Examining the Jay Treaty, and the public debate that followed its ratification, is not the only way one might achieve this appreciation. But it is certainly one way.

To that end, the text of the Jay Treaty may be found here, The Defence is here, Livingston's Cato is here, and Features of Mr. Jay’s Treaty is right over here.

Friday, August 4, 2017

The Jay Treaty, Part XII: Subtext, contd.

            While willing to grant Britain the right to protect its monopoly on West Indian produce by arresting the ability of American merchants to re-export the coffee, sugar, molasses, and cocoa they purchased in the Caribbean, Rufus King held that such restrictions against the sale of cotton constituted an unjustifiable intrusion upon the commercial prospects of the American republic. Unlike the other products enumerated by the treaty, he declared in No. XXV of The Defence, it was possible to successfully cultivate cotton in certain regions of the United States. And while such cultivation had not yet achieved the status of staple industry in any state or territory as of 1795, King avowed that, “The recent Invention of an ingenious, & simple, Machine, for ginning Cotton,” would very shortly make it possible for cotton agriculture to be greatly expanded,

So that not only our own Domestic manufactures may be relieved from a Dependence on foreign Supply, but the catalogue of our valuable Exports inriched by the addition of this inestimable production.

Very likely, King allowed, there were a number of reasons that this impending expansion of American cotton production was not accounted for by the provisions of Article XII. The theretofore limited nature of cotton cultivation in the United States, for instance, had likely caused negotiators Jay and Grenville to discount the impact of a blanket restriction on American export. While entirely understandable, however, this reasoning did not justify said restriction being permitted to come into force. With Article XII intended to remain in effect for a full twelve years, “Computed from the Day on which the Ratifications of this Treaty shall be exchanged,” too much American profit stood to be sacrificed to British notions of economic imperialism.    

            It may also have been the case, King further admitted, that cotton was enumerated by Article XII of the Jay Treaty because it was felt to be next to impossible to distinguish – for the purpose of customs enforcement – between the product of the West Indies and that of the United States. This belief in turn likely led to an apprehension on the part of British commercial authorities that, “The prohibition to reexport [West Indies cotton] would be easily evaded, and illusory, while [American cotton] remained free.” Thus able to masquerade cotton purchased in the British Caribbean as the product of the American South, it was presumably feared, American merchants would be permitted to destabilize the British cotton market and drive up prices on all but the product that they themselves supplied. While at its heart, King had earlier conceded, this was a fairly reasonable concern, he asserted that in this case it was not strictly warranted. “On a minute examination of the subject,” he wrote,

It will be found, that our Laws […] can be made sufficiently to discriminate, and identify […] all such articles of the Growth of the British Islands as may be within our Country, and that they will afford the same security, for a faithful, and exact, execution of the prohibition to reexport such articles, as that on which our own Government relies against Frauds upon the Revenue.

Thus, King reaffirmed, there remained no legitimate cause for Britain to insist upon the inclusion of a ban on American cotton export within the text of Article XII of the Jay Treaty. If British authorities were concerned about loopholes or ambiguities that appeared to threaten the integrity of their commercial empire, they need only make the appropriate petition during a renegotiation of the relevant provisions. “The application of these laws,” No. XXV of The Defence accordingly declared, “With the requisite additions and sanctions may be secured by a precise stipulation for that purpose […] in such manner as would afford an adequate guard against material evasions.” 

            Having thus identified certain of the flaws that Article XII of the Jay Treaty in particular possessed, and having explicitly recommend renegotiation of the relevant provisions, King nevertheless stressed the soundness of fellow Federalist Jay’s judgement in affixing his name to the treaty itself. “There were not wanting reasons of real weight,” he accordingly affirmed, “to induce our negotiator to agree to it as it stands.” This was so, he went on to explain, because of what even the meagre concessions embodied by Article XII represented within the context of Britain’s historical attitude towards global commerce. For over a century, the Navigation Acts (1660, 1663, 1673, 1696) had attempted to restrict the ability of foreign merchants to compete with their British counterparts in shipping luxury commodities from the East Indies and the West Indies to Britain proper. Under the terms of these statutes, foreign products bound for any of Britain’s various colonial possesses had to be landed and taxed in Britain prior to being shipped on to their final destination, with the same being true of certain products of Britain’s colonial empire that were bound for foreign ports. While the intention of these protocols was to ensure that the wealth of the British West Indies or British India flowed into London rather than Amsterdam, Paris, or Madrid, the short-term results were decidedly mixed. On one hand, the cost of a number of imported goods notably increased for residents of Britain’s various colonial possessions. On the other hand, colonial shipping benefited from the same protections afforded to the British merchant fleet, and colonial merchants enjoyed exclusive access to the markets and products of Britain’s yearly-expanding global empire.

            The United States of America, though no longer an integral part of this empire as of 1795, nevertheless sought a place for itself within the British commercial sphere somewhere between colonial dependency and foreign competitor. The American economy had, during the colonial era, become accustomed to a strong connection with British consumers, British manufacturing, and British colonial markets. In consequence, a stable means of preserving this connection was much sought after by successive governments of the nascent American republic. That being said, there formally existed no such middle ground within the commercial framework established by the Navigation Acts. Britain and its colonies were on the inside, and foreign nations were on the outside. This, King claimed, is what made the very existence of Article XII so significant. By allowing American merchants to purchase lucrative commodities like sugar, coffee, molasses, and cotton directly from the West Indies islands that produced them, instead of from the British agents who otherwise regulated trade between the British Caribbean and the wider world, the aforementioned provisions of the Jay Treaty opened a hole in the previously unassailable bulwark of the Navigation Act regime. Thus breached, King argued, it would only be a matter of time and further negotiation before the whole edifice could be pulled down and an “entire freedom of trade” be erected in its place. The key, it seemed, was precedent.

            The reason that the Navigation Acts remained in force, King elaborated, for so long after the circumstances from which they arose – the trade-focused Anglo-Dutch Wars of the middle 17th century – had ceased to greatly affect the commercial prospects of the British Empire was chiefly one of inertia. By the 1790s, the relevant restrictions upon commercial intercourse between Britain’s colonial empire and foreign nations had been in place for so long that their inviolability had become, “A kind of axiom incorporated in the habits of thinking of the British government and nation.”  And the strength of this axiom, it seemed, was wholly bound to that principle so pivotal to British ideology, jurisprudence, and national identity: precedent. “There is perhaps no country,” King claimed, “In which [this notion] has greater force than that of Great Britain,” and so it was accordingly against the tremendous weight of British culture itself that American envoy Jay would have had to array himself to see Britain’s entire commercial system reformed to the satisfaction of no small segment of his countrymen. Obviously, such an achievement was not possible in the short term – not at a single stroke, by the terms of a single treaty. What was possible, however, and what King avowed that Jay had indeed accomplished, was the recognition on Britain’s part of a small, carefully-worded and narrowly-applicable concession to American merchants. The Navigation Acts would otherwise remain in force, British agents would maintain their role as the only source of West Indies luxury goods to the world at large, and traders from the United States would gain access to the goods and markets of the British Caribbean, seventy tons at a time. 

            In addition to providing American merchants and agriculturalists with what they wanted – direct access to the British West Indies – King maintained this concession provided a basis for future negotiations wholly superior to what Jay had faced himself. “The precedent of a serious and unequivocal innovation upon the system of the navigation act,” he wrote, “Dissolved as it were the spell, by which the Public prejudices had been chained to it.” Whereas Jay had been confronted in his efforts by Britain’s seemingly impregnable cultural affinity for tradition and consistency, his successors would instead be permitted to use the precedent of Jay’s hard-won concessions to their own distinct advantage. Not only that, but the effect of allowing the United States of America to insert itself into the previously protected West Indies market effectively, “Served to strip the question of every thing that was artificial and to bring it to the simple test of real national interest, to be decided by that best of all arbiters, experience.” If Article XII of the Jay Treaty was arrived at in answer to British questions as to what best served their economic needs, it was only natural that future American efforts in that direction would embrace – and enjoy the benefit – of this same plain and explicable logic. Thus, King declared, “The precedent of the privilege gained was of more importance than its immediate extent [.]” Jay did not achieve all that certain of his fellow Americans hoped he might, but his achievement of this selfsame precedent might well, “Incline candid men to view the motives that governed our negotiator in this particular, with favor, and the opinion to which he yielded with respect.”

            Let us pause here to make a number of observations as to the nature of the cited arguments that King sought to deploy in No. XXV of The Defence. It might first be noted the abiding pragmatism with which he sought to explain the nature of the task placed before American envoy Jay in his attempting to secure a treaty with Great Britain upon anything approaching equitable terms. Whereas Hamilton, in the previously-discussed No. III, sought to dismantle certain of the accusations aimed at Jay by demonstrating the weakness of the accusers’ position – through reference to state law, international custom, the flexibility of relevant treaty language, etc. – King directed his gaze outward at the obstacles that stood in Jay’s path. It wasn’t, he asserted in No. XXV, an inherently unreasonable desire that the American republic enter into a commercial relationship with Great Britain that bypassed existing restrictions on trade between Britain’s colonial possessions and a given foreign nation. The economic benefit to both parties of permitting American staple crops like rice and wheat to be exchanged for British West Indies sugar, coffee, and molasses was reasonably obvious, and the utility of Britain’s existing trade protocols was beginning to wane in the absence of formal British regulation of the American market. It was unreasonable, however, to expect this selfsame desire to be fulfilled overnight. By King’s reckoning, the issue was with Britain itself, and the conventions, prejudices, and expectations of its governing class.

            For imperial nations like Great Britain, the purpose of seeking, establishing, and maintaining colonies was in large part to deny the resources therein – and the profits to be earned from their sale – to potential rivals. By the logic of this position, therefore, permitting the United States to freely purchase exceedingly lucrative trade goods like sugar and coffee directly from the British West Indies was tantamount to enriching one of Britain’s potential foes by throwing away the profits that in some cases centuries of diplomatic maneuvering and costly wars had made it possible to collect. However much Britain stood to gain by pursuing this path regardless, precedent and predisposition were very much on the side of maintaining what was familiar. In consequence, King explained, it would not do to expect one man to be able to fundamentally reform the economic basis of the British Empire by way of a single document. Jay had to play the cards he was dealt, and to make of them the best hand that he could. If it was not possible to achieve a complete British repudiation of the principle behind the Navigation Acts, then some space might at least be carved out for a small and somewhat restricted trade between the West Indies and the United States.

            The resulting trade policy was flawed, King admitted without hesitation. The tonnage limit on American vessels operating in West Indies ports was too severe. And while a complete removal of any such constraint was about as unreasonable a hope as expecting Britain to throw open its Caribbean ports to limitless American trade, the author of No. XXV maintained that some manner of increase could be reasonably expected upon renegotiation. Just so, he asserted, was the limitation that Article XII of the Jay Treaty placed upon American cotton exports. Britain either did not account for the latent potential of the United States to produce profitable quantities of saleable cotton, or did not believe that customs regulations could be made specific enough to differentiate between West Indies cotton and its American equivalent. Both were fairly reasonable explanations, King admitted, as to why the contemporary British government might endeavor to restrict the commercial activities of American merchants. Cotton was an increasingly lucrative export commodity at the end of the 18th century, and it stood to reason that Britain would seek to protect what it believed to be a monopoly on its production in the Western Hemisphere. That it was explicable, however, did not mean that Article XII’s ban on American cotton sales was justifiable.

            The American republic, King avowed, was on the verge of a tremendous boom in cotton production, the benefits of which would be all but totally quashed by a strict adherence to the aforementioned provisions of the final draft of the Jay Treaty. The solution, again, was renegotiation. Regulations could be fashioned, King asserted, that sufficiently differentiated between the cotton harvests of the United States and of the British West Indies. Britain need only make the request, during future discussions, and a policy might well be fashioned that accommodated the needs of American merchants and agriculturalists while also acknowledging the right of the British government to maintain most of the monopolies it had taken such pains to erect in the Caribbean export market. Granted, the end result – an open market on American cotton and a closed market on West Indian sugar, coffee, molasses, and cocoa – might not have satisfied every critic of the Jay Treaty who in 1795 accused its American author of spinelessly capitulating to British commercial priorities. But it was reasonable, it stood to benefit the United States, and it was more likely to meet with approval from British negotiators than an insistence on complete freedom of trade between the American republic and the West Indies. It was, in short, possible to achieve, and so King seemed to think that it was worth the attempt.