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 17^th 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 18^th 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.