The Jay Treaty, Part XI: Subtext, contd.

Before moving along to the overarching conclusion of this present series – implications and legacy of the Jay Treaty, things of that nature – it would seem prudent to once more revisit the previously explored pragmatism evinced by the text of

The Defence. The reasons for this are twofold, one fairly straightforward and the other fairly subtle. On one hand, I would feel as though I were behaving unjustly if only Hamilton’s contribution to that selfsame series of essays were explored herein. Former Congressman, signer of the Constitution, and Federalist Senator from New York Rufus King (1755-1827) contributed ten of thirty eight entries, and it would seem a wasted opportunity to forego a reading of at least one of them. And on the other hand, I do believe there was another side to the pragmatism that so keenly came to characterize the Federalist faction than that which was noted in Hamilton’s No. III. Whereas that particular entry arguably demonstrated a tendency on the part of the Federalists to strive for a fair and dispassionate an understanding of their nation’s strengths and weaknesses, others appear to turn that sense of realism outward in an attempt to assess the true nature of the American republic’s place in the world. As No. XXV of The Defence speaks to both of these concerns – authored, as it was, by King, and concerned, as it was, with the nature of the Anglo-American commercial relationship – a relatively brief overview of the same would seem very much in order.

First, however, let us lavish a word or two on the man himself.

A native of what was then Scarborough, Massachusetts – what is now Scarborough, Maine – Rufus King was born into moderate wealth in 1755 to farmer, merchant, and lumberman Richard King. Owing to the jealousy aroused by the elder King’s financial success, the family home was twice attacked and partially destroyed during riots spurred by the passage of the Stamp Act in 1765 and the social tensions unleashed as a result. In spite of these setbacks, however, and the socio-political upheaval they portended, the younger King nevertheless enjoyed an education and early career quite typical of the lesser elite of the Revolutionary Era. A graduate of the preparatory Dummer Academy and of Harvard College, King read the law under Massachusetts lawyer Theophilus Parsons (1750-1813) beginning in 1777, volunteered for militia duty in 1778, was admitted to the bar in 1780, and was elected to the lower house of the state legislature in 1783. He served in that same body until 1785, overlapping with his term as a delegate to the Continental Congress between 1784 and 1787. The last year of his service in Congress also saw him dispatched by the Massachusetts General Court to Philadelphia as one of that state’s delegates to the Constitutional Convention. During the months that followed in Pennsylvania, King managed to distinguish himself as a talented orator and also underwent an ideological transformation from cautious supporter of the Articles of Confederation to ardent nationalist in favor of a centralised federal government. And while his ensuing attempts to convince his countrymen in Massachusetts that the proposed constitution stood to benefit their lives and livelihoods ultimately met with success, his endeavor to be chosen as one of the Bay State’s first Senators did not. Thus, at the urging of friend and ally Alexander Hamilton, King migrated to New York City, secured election to that state’s legislature in 1789, and swiftly achieved his sought-after appointment to the United States Senate. Re-election followed in 1795, and in that same year he partnered with Hamilton to write and edit a series of essays in favor of – and in answer to the various critiques that had been leveled against – the recently ratified treaty between Great Britain and the United States. King’s contributions encompassed numbers XXIII through XXX, XXXIV and XXXV of that thirty-eight part volume.

A few key points might perhaps be surmised from this brief biographical sketch. While the two may have no connection whatsoever, it would seem worth noting that King bore early witness to the injustice of mob rule – during his family’s encounter with jealous neighbors amid the Stamp Act crisis in 1765 – and later became a member of the faction of American political life that valued order and stability over what its members characterized as “excessive” democracy. Without attempting to engage in something like historical psychoanalysis, the notion that his personal politics were in some part derived from first-hand exposure to an extreme expression of the stated position of the rival Republican faction is nevertheless an intriguing one. It is also worth noting – in relation to the backlash incurred by his family’s socio-economic status – that Rufus King nonetheless lived a fairly comfortable existence. The schools he attended were some of the best in British America, his training as a lawyer was interrupted by a voluntary stint as a militia officer – during which he served as an aide to General John Sullivan – and his political career experienced only a single, brief interruption between 1783 and 1795. In consequence, he was an unlikely sort of person to experience much sympathy for – or for that matter possess much understanding of – the hardscrabble homesteaders then eking out a living in Western Pennsylvania or Tennessee, the workingmen and “mechanics” of New York City or Boston, or the economically marginalized yeoman farmers of Virginia, North Carolina, or Maryland. He was a New England man, of moderate wealth and a good education. He knew the law, had made it his trade, and sought out politics as most young lawyers did. And when the politics of his home state appeared to turn against him – by refusing him the honor of a Senate seat – he picked up his life and tried again in New York. That this final turn succeeded – or indeed that King believed it a viable next step – perhaps speaks to something in his character; a stoic, sensible frame of mind that tended to seize what opportunities were available rather than dwell on what could not be.

Of this ostensibly reasonable fellow’s third contribution to his and ally Hamilton’s pro-Jay Treaty essay series, a few brief points ought first to be laid down. Concerned almost exclusively with confronting the objections raised against the provisions of that agreement which pertained to commercial intercourse between the United States and the various territories of the British Empire, No. XXV sought to explain – with evident calm, and without resorting to the kinds of invective that Hamilton seemed unable to resist – precisely why the state of affairs arrived at by Mr. Jay had come to pass. In so doing, King seemed less concerned with enumerating the various benefits that the United States stood to extract from its newly-clarified trading relationship with Great Britain than with simply attempting to explain to his fellow countrymen that hoping for very much more than had been obtained by Jay was almost wholly unrealistic. No. XXV was thus not overly approving of the Jay Treaty, or particularly keen to brush aside or gloss over the areas in which it appeared to fall short. Jay had performed admirably, King patiently asserted, by managing to secure as many concessions as the final agreement contained. The resulting treaty was far from perfect – indeed, certain of its articles were likely in need of renegotiation. But as the product of diplomacy between perhaps the single greatest commercial power in the 18^th century world and a comparatively small and impoverished nation whose origins lay in living memory, it was hardly the failure that so many of its critics claimed. To see this clearly, King coolly and persistently asserted, one need only endeavor to separate what was from what ought to have been.

Taking the twelfth article of the Jay Treaty – perhaps the most controversial of all – as his first subject on this head, King proceeded to explain to his audience how the American envoy managed to arrive at a set of provisions that seemed to fall so far from what certain of his fellow countrymen felt that their nation deserved. Thus, to the assertion that the United States ought to have secured access to British ports in the West Indies on the same basis of Great Britain herself, King offered a sobering rebuke. “That Great Britain,” he wrote,

Will consent to place our Trade with her west India Colonies, upon an equally advantageous footing with her own, is improbable. This would be doing what none of the great colonizing Nations has done, or is likely to do.

Indeed, he continued, such a policy would seem to defeat the very purpose of establishing and defending colonies to begin with. The reason that imperial nations like Great Britain, or France, or Spain spent such tidy sums guarding and expanding their possessions in the Americas, or the East Indies, or Africa – over tremendous distances and despite major logistical challenges – was so that the wealth they extracted from these regions would flow exclusively into their respective coffers. For the Pitt Ministry to abandon this framework, King accordingly warned,

Would be equivalent to making her Islands in the west Indies, the common Property of Great Britain & America for all commercial, & profitable, purposes; and exclusively her own, in the Burthen of Support & Defence.

However much the merchants of Boston or New York – or indeed the plantation farmers of Virginia or North Carolina – might have desired unfettered market access to Jamaica, or the Bahamas, or Barbados, to buy lucrative luxuries like sugar and coffee and sell much-needed staples like rice and wheat, it simply wasn’t reasonable to expect Britain to

As Hamilton had earlier pointed out in No. III of The Defence, this was an important realization. What could not be achieved, he asserted, was not worth pursuing. Americans ought to have expected their chosen envoy to be able to identify these insurmountable obstacles, and to act accordingly in search of some alternative. Mr. Jay, he urged, had done exactly that. Having ascertained, “By a preliminary discussion, the impossibility of bringing the other party to concede the point” – in this case, the professed right of the United States to freely access the British West Indies – he next sought to determine what he could realistically obtain instead. The result was Article XII of the Jay Treaty. And while the provisions thereof, King explained, where perhaps more restrictive than was absolutely necessary – thus requiring their renegotiation – they were not as worthy of outrage as certain critics of the agreement vehemently proclaimed. Indeed, the very notion that Britain was prepared to offer the United States access to the West Indies on any terms at all was quite remarkable, and represented a far more significant diplomatic achievement than Jay was generally credited with achieving. These assertions King advanced methodically, patiently, and with a degree of equanimity that belied the controversy that the topic at hand had aroused among his countrymen.  

Speaking first to the flaws which he felt that Article XII of the Jay Treaty possessed, King drew particular attention to the tonnage restrictions imposed on American shipping and the limitations placed upon precisely which goods native to Britain’s West Indian colonies could be subsequently re-exported from the United States. As to the former, the Jay Treaty stated explicitly that American vessels would be permitted to carry to and from, “His Majesty’s Islands and Ports […] any Goods or Merchandizes being of the Growth, Manufacture, or Produce [,]” of either the United States or the island in question, provided that the American vessels in question were not, “above the burthen of Seventy Tons [.]” This type of condition, King admitted, was, “Less liberal than we might with reason expect,” and he accordingly approve the judgement of the Senate to that effect. “The exclusion of all vessels above the Burthen of Seventy Tons,” he continued,

Would diminish the Benifits, and value, of this Trade; and tho we cannot calculate upon obtaining, by future negotiation, a total removal of a Limitation on this Subject, it is not altogether improbable that a Tonnage something larger may be procured.

This evaluation was very much in keeping with King’s earlier statements – if not also the general approach of his fellow Federalists – as to the nature of Britain’s commercial empire and its relationship with the United States.

A seventy ton ceiling on vessels trading with the West Indies was indeed, for the period, quite low. By the late 1780s a British merchant vessel rated at slightly over two hundred tons was considered fairly small, and many ship-owners in major merchant towns like Bristol tended towards vessels with an average capacity of two hundred and fifty tons or more. It was, therefore, quite reasonable for America merchants, circa 1795, and their elected representatives to express some degree of frustration at Britain’s evident attempt to limit the ability of the United States to extract some measure of wealth from the former’s Caribbean dependencies. That being said, King was also wise to caution his countrymen not to expect a complete removal upon petition of any manner of tonnage regulation. As he earlier pointed out, Britain stood to gain nothing by permitting American vessels to trade with its West Indian ports on the same basis as British vessels. Indeed, it rather stood to lose the commercial monopoly it had spent time, blood, and treasure endeavoring to erect. The object of a commercial treaty between the United States and Great Britain, therefore, should not have been the total elimination of any British advantage. Rather, the object of American negotiators – John Jay and his potential successors included – should have been simply to secure an accommodation for American shipping within the British imperial economy that obtained the best possible conditions for American merchants while simultaneously failing to do harm to Britain’s accustomed preeminence. Article XII failed to achieve this end, though its renegotiation could only be expected to lessen certain restrictions rather than remove them outright.       

            King said much the same of the aforementioned limitations that the Jay Treaty placed upon which ostensibly West Indian products could be re-exported from the United States of America. Under the terms of the previously-cited Article XII, American vessels were prohibited from carrying, “Any Melesses, Sugar, Coffee, Cocoa or Cotton […] either from His Majesty’s Islands or from the United States, to any part of the world, except the United States, reasonable Sea Stores excepted.” In theory, King avowed, this was an entirely reasonable – or at least understandable – condition. “The cause of this Restraint,” he declared, “ is found in that commercial Jealousy, and Spirit of monopoly, which have so long reigned over the Trade of the Colonies [.]” Britain was no different than most other contemporary European powers in this respect, and it would have been irrational for the merchant interests in the United States to demand that the former simply look the other way while its monopoly was effectively shattered. Coffee, molasses, and sugar were exceedingly valuable trade goods, and while Britain was willing to part with some of what was produced in its West Indian dependencies, it was hardly surprising that this accommodation was accompanied by the caveat that American merchants be prohibited from undercutting British market control. Indeed, King affirmed,

An entire Freedom of Trade with the British west Indies, might at Times materially raise the Price of west India productions on the British consumers, the supply of whom is essentially a monopoly in the Hands of the British Planters [.]

Anyone willing to confront this reality, he continued, would accordingly be forced to concede the improbability of Great Britain ever agreeing to establish wholly free trade between its West Indian possessions and any nation in the world.

That being said, Britain had already been exceptionally generous with what it was willing to allow American vessels to carry away from its West Indian colonies. Under the terms of the Treaty of Amity and Commerce (1778) between the United States of America and the Kingdom of France, American merchants were forbidden from removing sugar, cotton, coffee, and cocoa from French colonies in the Caribbean, with rum and molasses the only permissible trade goods. The terms of the Jay Treaty, by allowing American vessels to carry away all of the products cited above, was comparatively quite liberal, though Britain had as much reason to protect its West Indies monopoly in 1795 as had France in 1778. And while this beneficence had only been extended to the United States because, “Great Britain,” King explained, “Has seen it, to be compatible with her Interests, to admit us to share more extensively in the Productions of her Islands [,]” the fact of it was worth noting all the same. Britain had granted privileges to the American republic that the former nation’s closest ally had opted to reserve. It was an unexpected turn of events, and one whose significance was not to be discounted. Generous or not, however, there remained aspects of Britain’s proposed commercial protocol with the United States – as embodied by the terms of Article XII of the Jay Treaty – that nevertheless struck King as unacceptable.

The Jay Treaty, Part X: Subtext, contd.

            Among the most troubling accusations leveled at John Jay upon the receipt of his namesake treaty in the United States – from a modern perspective, if not that of the late 18^th century – concerned his evident unwillingness to hold Great Britain to account for the former American slaves it had carried off at the conclusion of the Revolutionary War. Thousands of these formerly subjugated persons had been transported out of the nascent American republic during the British evacuations in 1783 – having either been liberated during various British campaigns or enlisted in British military service – in evident violation of Article 7 of the Treaty of Paris. And as the perceived offense seemed to attack both the roots of plantation agriculture and the notion of private property, it was both particularly galling to southern Republicans and formed a large part of what they expected any treaty with Great Britain to address. That Jay’s treaty had entirely failed to attend to this issue consequently shaped much of the resulting Republican criticism. The agreement was an instrument of faction, Alexander Dallas had accordingly declared, because it prejudiced expanding trade – the favored industry of the North, where the Federalists were strongest – over the satisfaction of injuries done to American planters – the economic elites of the South, where the Republicans largely held sway. If Jay, it thus followed,  had truly been intent on serving the interests of the whole of his nation, he would have sought compensation from Britain for the seized slaves as zealously as he had appeared to pursue access to British ports in the East and West Indies.    

            To this manner of critique, Hamilton offered a characteristically verbose response in No. III of The Defence that was both exhaustively thorough and broadly assumptive. The core of the issue at hand, he first proposed, were in fact the mutually exclusive interpretations of the aforementioned seventh article of the Treaty of Paris supported by Great Britain and the United States, respectively. “His Britannic Majesty shall [,]” Hamilton accordingly quoted from the aforementioned peace agreement, “with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American Inhabitants withdraw all his armies garrisons and fleets from the U States.” Whereas the United States of America contended that this passage was meant to convey, “That no negroes or other articles which had been American property should be carried away,” Great Britain held that its intention was to ensure, “That no new destruction was to be committed and that negroes or other articles which at the time of the cessation of hostilities continued to be the property of the American inhabitants […] should be foreborne to [be] carried away.” The key difference, it seemed, lay in the significance of the word “property” and in the manner that it applied to the formerly enslaved persons at the time of their evacuation from the United States. They were either still the chattel of American planters or they were free persons; thus, either Article 7 applied to them specifically or it was meant to refer to those still in a state of enslavement at the time of the British evacuation.

            The latter construction – that supported by Great Britain – was by Hamilton’s reckoning the correct one. The reasons for this were hardly simple, though his characterizations of the same seemed to treat them as though they were. First, he argued, the laws of war – in the late 18^th century little more than a loose code of behavior – awards to an enemy, “The use and enjoyment […] of all real property […] and the absolute ownership of all personal property which falls into his hands.” The distinction between these two species of property was on the level of moveable and immovable – i.e. land and any associated buildings and improvements versus personal items like furniture, documents, art objects, livestock, or tools. Second, he affirmed that the laws of the American states in which slavery was legal – in 1795, ten of sixteen – treated enslaved persons as personal property, “Like horses, cattle and other moveables [.]” In consequence, upon their coming into possession of an enemy during wartime – in this case the British Army during the Revolutionary War – they became the property of that enemy on the same terms as had any other personal effects. It thereafter became the indisputable right of the relevant British military authorities to dispose of their newfound property as they saw fit, by transporting said slaves to another part of the British Empire, or by setting them free, or both, or neither. And in the event that liberty was granted, that grant was irrevocable, as “Nothing in the laws of Nations or in those of Great Britain will authorise the resumption of liberty once granted to a human being [.]”

            Third, while admitting that the British policy of offering to American slaves their freedom in exchange for a period of enlistment in the British Army was perhaps “an illiberal species of warfare [,]” Hamilton asserted that said policy nevertheless did not represent a violation of the rules of war as they were then understood. In consequence, it could likewise not be claimed by disgruntled American plantation owners that the arguably dishonorable quality of the practice itself in any way altered the fact that their property – i.e. their slaves – had indeed changed hands. Fourth, because the article in question makes explicit reference to “negroes or other property,” it stood to reason that slaves were to be effected in the same manner by the terms therein as any other piece of chattel. And in turn the attribution of said property to “the American inhabitants” suggested to Hamilton that, “Whatever had lost that character could not be the object of the stipulation [.]” Bearing these two assertions in mind, then, it seemed to him inconceivable that any American should claim the return of a slave – or an equivalent compensation – without also laying the same requirement upon every other piece of personal property that the British Army had seized and taken away. Nevertheless, this was precisely what any number of aggrieved former slave owners had effected to do. While clamoring to be reimbursed for their captured slaves – which they universally regarded as personal property – they made no such demands of whatever horses, or oxen, or other personal effects that had been likewise carried off. “And yet,” Hamilton avowed, “The demand for a horse or an ox or a piece of furniture would have been as completely within the terms “negroes and other property” as a negro.” By accepting the transfer of ownership of their less valuable personal goods, therefore, former slave owners had tacitly endorsed the loss of their human property as well.

            The fifth point Hamilton offered in favor of the above-cited British interpretation of Article 7 of the Treaty of Paris shifted the debate from the legal status of the relevant American slaves to the moral implications of their eventual fate. “In the interpretation of Treaties,” he first explained, “things odious or immoral are not to be presumed.” And as causing, “Negroes, who had been induced to quit their Masters on the faith of Official proclamations promising them liberty, to fall again under the yoke of their masters and into slavery is as odious and immoral a thing as can be conceived,” it would not have become any subsequent party to assume that such was the intention of the authors of the Treaty of Paris. Not only would pursuing such a course of action have run counter to what Hamilton described – in a fit of righteousness likely not shared by some of his Southern critics – as, “The general interests of humanity [,]” but it would have imposed, “An act of perfidy on one of the contracting parties [.]” The latter was doubtless understood as a matter of particular sensitivity, though it may not seem so to a modern observer. During the course of the Revolutionary War, Great Britain had indeed promised freedom and protection – through proclamations issued by the likes of Virginia’s Royal Governor Lord Dunmore (1730-1809) and General Sir Henry Clinton (1730-1795) – to all slaves then held in bondage in the rebellious American colonies. Bearing this promise in mind, and the reigning 18^th century preoccupation with honor and integrity in public affairs, it evidently struck Hamilton as fairly unlikely that the British negotiators of the Treaty of Paris would have willingly invalidated such a clearly stated obligation. And if indeed it had not been the intention of Great Britain to revoke its pledge to the American slaves taken under its care during the Revolutionary War, then there was no basis for anyone in the United States to read Article 7 as having done so.

            The sixth – and thankfully last – reason put forward by Hamilton in No. III of The Defence for the validity of the British position as to the former slaves they had taken under their protection was perhaps the most subtle and the most difficult to follow. This was particularly the case because Hamilton chose to frame it less as a positive explanation than a series of refutations and counterproposals. The specific object of contention was the aforementioned provision embedded within the seventh article of the Treaty of Paris – i.e. that the British would evacuate “without causing any destruction, or carrying away any Negroes or other property of the American inhabitants [.]” Whereas Hamilton appeared to understand the two clauses therein as being linked – that no new destruction would be committed by the evacuating British personnel, including the further seizure of personal property like slaves – he attributed to certain critics of the Jay Treaty a desire to separate the two and characterize the former as superfluous. Because, “the stipulation to surrender implied of itself that it was to be done without depredation [,]” they were to have claimed, there would have been no need for the authors of the Treaty of Paris to anticipate further violence. In consequence, as the first clause was essentially meaningless, the second would be presumed to refer to all slaves taken into British custody rather than those seized solely during the aforesaid evacuation.

            This hypothetical reading of the seventh article of the Treaty of Paris, Hamilton avowed, was fundamentally incorrect. The fact that British and American negotiators had inserted a clause intended to prevent further depredations clearly indicated that they nurtured some specific fear that further destruction was likely to be wrought upon American property during the evacuation of British military personnel. The clause “without causing any destruction” was therefore purposeful rather than superfluous. And as, “It must have such a sense in one part authorises the conclusion that the remainder of the clause has a similar sense [,]” the following clause, “or carrying away any Negroes or other property of the American inhabitants [,]” must therefore have drawn its significance from the former. Granted, the significance of this conclusion – and its phrasing in particular – is far from obvious. Judging from the context in which it was proposed, what Hamilton appeared keen to communicate was the connection he perceived between of the destruction that the British had promised to forego upon their evacuation and their pledge to avoid carrying away any of the slaves they had seized. Inferring that the former was included in the final text of the Treaty of Paris for the specific purpose of protecting the further seizure of American property, he thereafter concluded that the latter was intended as an attendant consequence. The British, he essentially believed, had promised not to do any more harm on their way out the door, including taking custody of any further slaves. This necessarily ran counter to the contention of certain critics of the Jay Treaty – i.e. that British military authorities would refrain from causing further destruction during the course of their departure and would endeavor to return the slaves they had seized over the course of the war – and in fact invalidated it.    

The reason that Hamilton offered these varied and various justifications – beyond the certain pleasure he took in holding forth on a given topic – was as he had stated above, “To ascertain by a preliminary discussion, the impossibility of bringing the other party to concede the point.” In this case, the point was the apparent unwillingness of American envoy John Jay to insist upon either the return of former slaves seized during the late Revolutionary War or seek appropriate compensation for the same. Jay had not approached the topic, Hamilton effected to argue, for these reasons, the combined result of which was presumably to convince him that the matter was not worth pursuing. Whether or not this was a convincing mode of argument is something of an open question, but one that need not be entertained. Of consequence to the present discussion are rather the ideological implications of Hamilton’s method. Tasked – by his own appointment – with defending what he and his fellow Federalists considered to be one of the premiere policy achievements of the contemporary United States government, the kinds of arguments he saw fit to deploy were almost certainly of a piece with the principles and perspective of that selfsame political faction. Bearing this in mind, the characteristic that would most immediately suggest itself as indicative of a particularly Federalist mindset from among the six cited validations is the evident willingness with which Hamilton freely and broadly interpreted the meaning and significance of certain phrases, concepts, and principles. 

      

            Recall, to that end, the first and second arguments Hamilton offered in favor of Britain’s interpretation of the relevant provision of the Treaty of Paris. On one hand he claimed that the laws of war permitted an enemy to make use of whatever real property came into his possession and claim ownership of whatever moveable property he could seize. And on the other he asserted that the laws of the various slave-holding states qualified enslaved persons as personal property, therefore rendering them as vulnerable as any horse, hatchet, or handcart to such wartime confiscations. The end result: American slaves were not stolen by the British occupiers of the United States, but rather passed to their ownership as would any other piece of personal property during a time of war. As presented by Hamilton it was a convincing argument, though also a rather presumptuous one.

            The laws of war, for instance, were far from a well-defined codex. As of 1795 – and indeed until at least the middle of the 19^th century – there were no written treaties or pacts establishing the standards and conventions of warfare between European states. Conduct in war was instead defined by tradition, precedent, and culture, entirely unaccompanied by any mechanism of oversight or enforcement. Granted, certain landmark diplomatic agreements – like the Peace of Westphalia, which ended the Thirty Years’ War (1618-1648) – had gone some way towards establishing notions of political sovereignty and religious obligation. But warfare itself essentially remained the province of gentlemen-soldiers whose turn of mind tended to be more honor-bound than legalistic. In consequence, while customs as to the treatment of prisoners, or the status of private property, or the rules of parlay were widely recognized among European combatants at the time Hamilton penned The Defence, they were almost entirely unwritten, and so their application in a given context could not be formally checked, confirmed, or invalidated. His invocation of the established norms of property use and possession during armed conflict accordingly constituted a species of logic that was both communally sanctioned and exceedingly flexible. His principle audience would doubtless have recognized the customs he invoked, understood them as possessing a foundation in the long history of Western warfare, and accorded them some degree of credence as a result. And yet, if they happened to disagree with Hamilton’s particular characterization, there existed no higher authority or primary text to which they could refer. He had quoted a custom rather than a law, and could not easily be held to account for misinterpreting what was not written.

            Where this notion – that the unwritten laws of war were as weighty was they were malleable – becomes particularly interesting is in the way Hamilton proceeded to apply the received understanding of property and warfare to the codified laws of the certain American states. As he scrupulously pointed out, the statutes then in force in the slave-holding jurisdictions of the United States gave enslaved persons the legal status of private property. In consequence, all other laws or constitutional provisions which applied to private property applied equally to slaves within the confines of the relevant states. For example, the article of the North Carolina Declaration of Rights which stated, “That in all controversies at law, respecting property, the ancient mode of trial, by jury […] ought to remain sacred and inviolable” interacted with the cited laws to ensure that trials concerning the ownership of slaves would be conducted in the presence of a jury. To this same effect, Hamilton asserted that the cited laws of war affecting the seizure and use of private property by an enemy combatant likewise also encompassed slaves. While this was an eminently logical deduction, it also almost certainly fell outside the intentions of the relevant state legislatures. In codifying the legal status of enslaved persons, lawmakers in Virginia, and Georgia, and indeed North Carolina were doubtless aiming to preserve, promote, streamline, or clarify an institution that formed the very foundation of their economic well-being. The laws of war and their application to enslaved peoples was likely very far from their minds, and they surely did not mean to provide a legal opportunity for the private property of hundreds of slave owners to be seized and transported out of the United States. 

            And yet, as stated above, Hamilton’s reasoning was outwardly sound. By the standards and customs of the late 18^th century, private property could indeed be appropriated by enemy combatants during war. And by the laws of the slave-holding states within the contemporary American republic, enslaved persons were considered private property. It hardly constituted a logical leap, therefore, for Hamilton – or Jay, or the relevant British authorities – to claim that all those American slaves that had been transported out of the United States during the British military evacuation had ceased to be the property of their former American owners at the time that they entered into British custody. That no one had previously intended this as a possible reading of state property laws or military customs made no difference. What mattered is that it was possible to interpret the appropriate sources that way, and that the resulting interpretation enjoyed the support of a body or institution powerful enough or influential enough to enforce it.

            In this case, Hamilton’s stated characterization of property, slavery, and warfare in the context of the American Revolution aligned with the understanding of the same nurtured by the contemporary British government. Thus, for all intents and purposes, his position was an entirely valid one, cobbled together though it may have been. And thus, as time would continue to prove, was perhaps the greatest strength of the Federalist faction. Far from being solely bound by the letter and intention of the law like their Republican counterparts – who held that a national bank was unconstitutional because the Constitution said nothing about it, or believed that Britain owed compensation to the United States because the former had violated certain provisions of the Treaty of Paris – the followers of Hamilton time and again showed their willingness to explore every possible meaning of the law in search of what they held to be the most effective government possible. The ratification of the Jay Treaty in 1795, and the resulting public debate, provided just such an opportunity for the Federalists to once again test this favored doctrine of legal interpretation, with Hamilton’s The Defense as the ideal laboratory.

The Jay Treaty, Part IX: Subtext, contd.

            From the abstract and existential – i.e. the constitutionality of the Jay Treaty, if not the very nature of the relationship between Congress and the President – the present examination of Alexander Hamilton’s polemic response to the critics of the Jay Treaty – titled, again, The Defence – will now proceed to a discussion of the specific and the minute. And a lengthy discussion it will no doubt be. Compared to Hamilton’s exploration of the fundamental justifications he perceived in the United States Constitution for the Jay Treaty in particular and the treaty-making power in general (which fell entirely within the bounds of a single essay), his prosecutorial interrogation of the complaints lobbed at the various provisions of that agreement was exceedingly – one might perhaps say exhaustively – thorough. Ironically, the principle scribe of The Defence stated in an early entry that this was rather the opposite of his intention. “While nothing, which is colorable, will remain unattended to,” Hamilton noted in the third entry in the series with characteristic hauteur,

It were endless to attempt a distinct refutation of all the wild and absurd things which are and will be said. It is vain to combat the vagaries of diseased imaginations. The monsters they engender are no sooner destroyed, than new legions supply their places. 

With this dryly caustic caveat, The Defence thus supplied itself with a standard of examination and a durable excuse for any ostensible act of oversight – only reasonable objections were examined herein; all those excluded were not worth the author’s time to consider. Bearing this reasoning in mind, it would seem fair to conclude that the complaints or criticisms aimed at the Jay Treaty which Hamilton deigned to take up either fell within the Federalist definition of reasonable debate or constituted a potential threat too great to be left unaddressed. By in turn examining these complaints, it may thus be possible to discern and explore contemporary Federalist priorities, assumptions, fears, and ambitions.      

            Within that sphere, consider the first specific grievance Hamilton sought to address in the text of the aforementioned third entry in The Defence. In an apparent acknowledgement of one of the major criticisms offered by the likes of Robert Livingston in his aforementioned Cato essays, Hamilton therein admitted that, “An objection meets the treaty at the threshold.” The objection in question, he explained, pivoted upon the apparent willingness with which Mr. Jay, “Abandoned the ground which our government had uniformly held, and with it our rights and interests as a nation,” by agreeing in the preamble of the treaty with Great Britain that the two nations should endeavor to conclude their disagreements, “Without reference to the merits of their respective complaints and pretentions [.]” Where this ostensible inclination to let bygones be bygones appeared to grind against the sensibilities of certain of Hamilton’s countrymen – and to which the cited Cato essays gave vehement voice – was in the forgiveness they seemed to offer Great Britain for acts by which the United States had every reason to feel aggrieved and seek redress. Britain, the critics of the Jay Treaty alleged, breached the terms of the Treaty of Paris (1783) in two particularly significant instances, both of which visited injury upon the sovereignty of the nascent American republic.

First, in defiance of a request made by Congress and conveyed by the Commander-in-Chief of the Continental Army to the British forced then in the process of evacuating New York City, Great Britain then and thereafter refused to surrender any and all escaped American slaves living under their protection or enlisted in their service. And second, regardless of the fact that, “Early and repeated applications were also made for the surrender of the Western Posts,” this demand was not only ignored, “but it is proved by the circumstances, that orders were not given for it according to the true intent of the treaty [.]” As it had remained American policy to hold Britain to account for these infractions as late as 1792 – per the April, 29^th missive of Secretary of States Jefferson to British Ambassador Hammond – Mr. Jay’s apparent willingness to negotiate with his British counterpart as though nothing had happened understandably struck many of the American envoy’s fellow citizens as a sudden and unwarranted abandonment of the moral and diplomatic high ground. Livingston had earlier asserted as much while simultaneously offering a host of demands – monetary compensation, the removal of certain British officials, etc. – all of which he evidently felt his government had every right to pursue. The task before Hamilton as he penned this early entry in The Defence was thus a manifestly delicate one. In short, while granting that the United States had indeed been wronged by Great Britain in the manner specified by critics like Livingston, his support for the Jay Treaty and its sponsors – i.e. the Federalists – required him to concurrently assert that the provisions therein were based in something more valuable to the prospects of the American republic than maintaining a sense of moral superiority.

Hamilton accomplished this task in a characteristically pragmatic and nuanced fashion. First, he freely admitted, “That our government has constantly charged as breaches of the treaty by Great Britain, the two particulars which have been stated [.]” Doubtless the former Secretary of the Treasury was aware that far too much had been made publicly of Britain’s perceived abuses to claim otherwise. Where he differed from so many of his fellow citizens, however, was in his interpretation of what those abuses actually signified. Because the United States, he explained, was not as free from sin as men like Robert Livingston or Thomas Jefferson might have claimed. Britain had indeed breached a number of the provisions of the Treaty of Paris, but so had a number of American jurisdictions. States that had passed acts for the confiscation and resale of Loyalist property during the late Revolution widely refused to return the disputed holdings when pressed by Britain – in violation of Article 5 of the Treaty of Paris – continued to seize further assets in the 1780s and 1790s – in violation of Article 6 – and in some cases also refused to cooperate with the repayment of debts owed by their citizens to subjects of the British Crown – in violation of Article 4. So severe and so widespread were these transgressions, Hamilton avowed, that Congress – then operating under the terms of the Articles of Confederation – was compelled to take up the matter in an address to the various states published on April 13th, 1787. Despite whatever, “Justification or extenuation” might have been derived from Britain’s actions or stated intentions, the memorandum allegedly decreed, it was preferable that the states obey the letter of the treaty of peace and repeal the various statutes that clearly abrogated the same. 

While he elaborated no further – neither quoting directly nor expanding upon the significance of the cited address by Congress – Hamilton’s intent seems clear enough. Granting that the terms of the Treaty of Paris in many cases could not have been fully implemented until a span of years had passed from the time of their ratification in 1783, it therefore was next to impossible to determine when exactly Britain or the American republic could have been said to be in violation of the same. Article 7 of that selfsame agreement, which mandated the removal of all British, “Armies, garrisons, and fleets from the said United States [,]” made no mention of any deadlines or timetables. The articles cited above governing American recognition of British or Loyalist properties and debts were similarly open-ended. Bearing these facts in mind, it was accordingly more a matter of interpretation than exactitude precisely when the relevant parties to the Treaty of Paris could claim aggrieved status. Was 1785 too soon to expect a complete British withdrawal from the West, or late enough for the United States to claim injury? If certain American states refused to return seized Loyalist property or cease further confiscations after 1786, was that time enough for Britain to assert that the treaty of peace had been violated?

There were almost certainly no definitive answers to these questions, and in turn no way to determine if Britain had been the first to violate the terms of the Treaty of Paris or whether that honor fell instead to the United States of America. And while Hamilton’s citation of the relevant address by Congress to the states might seem on the surface to shed some light on this subject, in truth it only served to further expose the ambiguity at its heart. By the evidence provided, its appears as though the national government of the United States was willing to admit in 1787 that it was indeed in violation of the treaty of peace with Great Britain. And while Congress also apparently acknowledged at this time that many of the states were proceeding from a conviction that British abuses had preceded their own, no judgement was evidently rendered as to the validity of this position. Likely this was because there could realistically be no such judgement. Great Britain had violated the terms of the Treaty of Paris, and so had the United States. Much more than that – beyond which specific articles had been abrogated and by what means – could not be said. Bandying about phrases like “aggrieved status” and "first breaches” was therefore almost wholly moot. There were no dates attached to the terms of the treaty, therefore there could be no exact determination when one party or another become the first to breach the same, therefore the entire question was of no consequence.

Having thus dismissed out of hand the notion that the American envoy had surrendered something precious when he agreed with his British counterpart to abandon the dynamic of aggrieved/aggressor, Hamilton then naturally proceeded to explain why Mr. Jay’s decision would still have been a valid one even if the contentions of men like Robert Livingston had in fact been proven to be true. While this might seem a rather odd decision on Hamilton’s part – prove that an opponent’s premise is invalid, and then entertain that premise anyway – it was very much in keeping with his rhetorical style. Never one simply to rest upon being right, the 1^st Secretary of the Treasury tended in his written works towards a preference for exhaustive comprehensiveness. And while it might, in most cases, fall beyond the bounds of necessity to indulge any such predilection for meticulous erudition on the part of a historical subject, the further explanations that Hamilton offered in No. III of The Defence are simply too revealing of contemporary Federalist convictions to simply gloss over. Consider, to that end, the following.

Even if it could be proved, Hamilton proceeded to hypothesize, that Great Britain had indeed been the first to breach the terms of the Treaty of Paris, it would still have been of little profit to the United States to pursue a zealous policy of restitution. In disputes between any two nations, be they diplomatic or commercial, he explained, one side or both was bound to accuse the other of having committed the first breach of their mutual compact. And while sometimes these recriminations flowed from a sincere sense of injury, just as often they were the product of, “Pride or policy.” Bearing that in mind, and recalling that conflicts wherein neither party was in the obviously inferior position were unlikely to result in the peaceful surrender of one or the other, it appeared to Hamilton that, “The natural retreat for both is in a compromise, which waves the question of first aggression or delinquency.” This was especially the case in instances of what he described as “mutual delinquency,” wherein both parties are legitimately at fault and, “The question of the first default is frequently attended with real difficulty and doubt.” In such instances, both parties could claim an equal right to have their position respected and their honor satisfied and both would likely feel equally disinclined to back down. The potential results of this manner of confrontation, Hamilton attested, were in almost all cases only two: “War, or a waver of the point [.]” Knowing that, he pressed, “What sensible man, what humane man will deny that a compromise, which secures substantially the objects of interest, is almost always preferable to war on so punctilious and unmanageable a point?”

Having thus established what he doubtless believed to be a comprehensive basis upon which to structure the logical satisfaction of differences between nations, Hamilton then proceeded in No. III of The Defence to apply said formula to the relevant disputes between Great Britain and the United States. To that end, and bearing in mind his stated conviction that the British and American governments were at once equally guilty of violating the terms of the Treaty of Paris and equally desirous of claiming that the other was the first to do so, it accordingly struck him that war or mutual compromise were indeed the only options open to the relevant parties. “The question,” he avowed, “who was the first delinquent, would have been an eternal bar to accommodation.” Doubtless Mr. Jay realized this not long after the commencement of negotiations, and judged accordingly that attempting to extract an admission of guilt from his British counterpart would have proven entirely fruitless. This was, the Robert Livingstons of the world notwithstanding, an eminently sensible course of action, for, “Had our envoy permitted the negotiation to be arrested by obstinacy on this head,” Hamilton avowed, “he would have shewn himself to be the diplomatic pedant, rather than the able negotiator, and would have been justly chargeable with sacrificing to punctilio, the peace of his country.” And since peace was the stated aim of the Washington Administration in sending an envoy to London to begin with, it appeared that compromise was the only course that would have satisfied the commission under which Jay had been dispatched.

Let us pause here for a moment to consider some of the implications of Hamilton’s stated doctrine of conflict resolution. It would appear, on a cursory evaluation, that the de facto leader of the emerging Federalist faction was inclined to preference pragmatism over principle in his nation’s dealings with the wider 18^th century world. Whereas contemporary Republicans like Robert Livingston and Alexander Dallas appeared to believe that American foreign policy ought to have been dictated by notions of honor and morality – what was proper, right, deserved, owed, etc. – Hamilton conversely seemed to hold that useful outcomes were more important than the means by which they were achieved. No stranger to the need to defend the honor of oneself or one’s country – having been, at various points in his life, a duelist and a soldier – he doubtless would have preferred to extract reparations from Britain in the event that it could be proved such reparations were due. By his accounting, however, such things could not be verified in the case presently facing the American republic. And as a further pursuit of the requisite evidence would have, to his thinking, inevitably proven a fruitless, frustrating distraction, the only logical conclusion was to seek the most beneficial outcome possible regardless of whose honor was ostensibly sacrificed. In consequence of this evident difference of opinion, it would seem a fair construction to characterize the Republican faction, circa 1795, as tending toward rationalism, strict adherence to established forms, and moral exactitude while the contemporary Federalists favored empiricism, doctrinal flexibility, and a fairly broad interpretation of national values.

Bearing these (admittedly abstract) characterizations in mind, Hamilton’s further attempts in No. III of The Defence to justify the behavior and decisions of American negotiator Jay appear especially coherent. As to why, for instance, Mr. Jay so readily abandoned the sense of moral outrage that certain Republic critics of the completed treaty invested with such importance, Hamilton asserted that, “It was enough for him, as he did, to ascertain by a preliminary discussion, the impossibility of bringing the other party to concede the point.” As with the specific passages cited and discussed above, this explication of Jay’s decision-making process reveals a distinctly pragmatic understanding of diplomacy. Unable to obtain what may indeed have been his country’s right and due, and yet desirous also of coming to some manner of understanding with his opposite number Mr. Grenville, Hamilton alleged that the American envoy – a fellow Federalist, incidentally – instead attempted to determine what good he could realistically achieve on behalf of the nation he was sworn to serve. This evident embrace of individual discretion – i.e. attempting to interpret instructions rather than strictly adhere to them – and willingness to compromise correctness for utility were prime examples of what was rapidly becoming a central dogma of the Federalist faction and among the essential fault-lines of the emerging party system in the American republic. No less so were the explanations Hamilton further offered for Jay’s abandonment of aggrieved status.  

The Jay Treaty, Part VIII: Subtext, contd.

Having thus far discussed some of the accusations and concerns voiced by Republican critics of the Jay Treaty in the immediate aftermath of its ratification on June 25^th, 1795, it remains now to explore what certain of that document’s supporters had to say on the subject at that same point in time. And just as the previous weeks’ discussion helped to reveal some of political and philosophical values then operating at the centre of the opposition Republican faction, the proceeding will endeavor to undertake a similar investigation of the relevant ideals and convictions of the administration Federalists. To that end, what follows will be an exploration of a series of pro-treaty essays collectively titled The Defence.  Published between July, 1795 and January, 1796 in the New York Argus and the New York Herald under the pen-name Camillus, this thirty-eight part series was in fact written by former Treasury Secretary Alexander Hamilton and New York Senator Rufus King (1755-1827). An exceptionally thorough and systematic vindication of the Jay Treaty – as per Hamilton’s rhetorical penchant for verbosity – The Defence attempted to achieve a number of fairly specific objectives. First, it endeavoured to refute any claims levelled by Republicans critics that the document itself was somehow unconstitutional. Second, it sought to demonstrate, article by article, that the terms of the Jay Treaty stood to benefit the United States of America rather than visit upon it any substantive harm. And third, The Defence set out to address a number of specific accusations levelled by certain Republican polemic publications, up to and including Robert Livingston’s Cato essays and Alexander Dallas’ Features of Mr. Jay’s Treaty. Each of these three sections will be explored over the course of the next several weeks, with a particular focus on the ways in which The Defence exemplified the emerging philosophical dogmas of the contemporary Federalist political faction. 

            While noted first above, and of seemingly fundamental importance to the validity of the Jay Treaty as a whole, The Defence did not substantively approach the topic of whether or not the agreement at hand jived with the Constitution until the thirty-seventh entry therein. Evidently it was a greater importance to Hamilton and King that they demonstrate the utility of the various provisions of the agreement than establish the overall legitimacy of the treaty-making process itself. Be that as it may, this series will approach the latter topic before diving into the former. The authors of The Defence doubtless had their reasons for structuring things the way that they did, but it would seem almost entirely moot to argue on behalf of the text of a treaty whose existence had yet to be proven legally sound. To that end, consider The Defence No. XXXVII, published on January 6^th, 1796.

            There were, Hamilton granted at the very beginning of that essay, any number of areas in which the terms of the treaty negotiated by Mr. Jay plainly interfered with the stated prerogatives of Congress as described in the Constitution of the United States. The sole authority of that body to levy taxes, for example, was hampered by treaty provisions which prevented the laying of duties or tariffs on certain items (Articles 3, 11, 12, and 13), or which were applied to British goods in excess of those imported from other nations (Article 15), or which sought to ameliorate the cost difference between goods transported on British vessels versus American vessels (Article 15). Among other things, the Jay Treaty also patently contravened the right of Congress to, “Define and punish Piracies and Felonies committed on the high Seas” (as per Article I, Section 8 of the Constitution), regulate the territory of the United States, establish rules of naturalization, and regulate trade. Indeed, Hamilton accordingly admitted, of the twenty-eight articles of which the Jay Treaty was comprised, a full seventeen directly violated the constitutional responsibilities of the United States Congress. And of those eleven that remained, he felt it likely that all but two – Articles 1 and 10 – still managed to invade the authority of the national legislature in an indirect but measurable manner. Indeed, Hamilton subsequently asserted, there was almost certainly no species of treaty of any use to a nation like the United States of America which would not inevitably intrude upon the stated prerogatives of Congress, or the national judiciary, or the various states.

Of the three basic types of agreements most commonly negotiated between nations – denoted in the text of No. XXXVII as treaties of commerce, treaties of alliance, and treaties of peace – Hamilton affirmed at length that all were bound to contain provisions or terms intended to purposefully restrict the ability of the national legislature of the American republic to carry out certain of its sovereign responsibilities, or the national courts to render certain judgements, or the states to transact some portion their day-to-day affairs. Treaties of commerce, being of essence, “A system of rules devised to regulate and govern the Trade between Contracting Nations [,]” directly invaded, “the exclusive power of regulating Trade which is attributed to Congress.” Treaties of alliance, because they would bind the United States to enter a state of war upon the arrival of certain conditions, violated, “That clause of the constitution which gives to Congress the power of declaring war.” And treaties of peace, because they almost always involved, “Restitutions or cessions of territory on one side or on the other […] regulations of boundary, restitutions & confirmations of property [and] pecuniary indemnifications for injuries or expences [,]” stood in opposition to the “The right of Congress to dispose of and make all needful rules and regulations concerning the territory and property of the U States” and its sole responsibility to authorize appropriations from the Treasury. Pursuant to the objections offered by a segment of the critics of the Jay Treaty, it therefore appeared as though the United States of America was wholly unable to partake in just about any agreement with a foreign power that was at once beneficial to that nation and reconcilable to its paramount governing charter.

Such a construction, Hamilton proceeded to argue in No. XXXVII of The Defence, was patently ridiculous, and entirely failed to grasp the essential purpose of the United States Constitution. The, “principle object of the institution of a General Government” within the auspices of the United States of America, he explained, was fundamentally, “The convenient management of our external concerns [.]” As wholesale reform of the American republic had been deemed necessary in the late 1780s in large part because the administration thereof – under the terms of the Articles of Confederation – had become exceedingly inconvenient, this assertion stood very much to reason. Particularly in terms of foreign relations and commerce, the United States government under the Articles had been almost completely inadequate to the task of enforcing uniform practices across the various states. Commercial treaties drafted under the authority of the United States of America were often flouted by states whose governments disagreed with their terms, and it was next to impossible for Congress to prevent any one state from attempting to cultivate diplomatic relationships independent of the nominal central government. The United States Constitution was drafted with the intention of remedying this situation, with Article II, Section 2 and Article VI as the mechanisms thereof. The criticisms of the Jay Treaty that took the supposed unconstitutionality of the agreement as their core complaint – Features of Mr. Jay’s Treaty, for example – were therefore of no account because they sought to disqualify or discount this central fact. The Constitution had been drafted precisely – though not exclusively – so that the American republic could successfully enter into diplomatic agreements like the Jay Treaty. To argue otherwise, Hamilton declared, was utterly senseless, and “Cannot but be rejected by every discerning man who will examine and pronounce with sincerity.”

In addition to defying the foundational logic of the existence of the Constitution, Hamilton further asserted in No. XXXVII of The Defence that protests as to the illegitimacy of the Jay Treaty on constitutional grounds wholly failed to account for what he described as “The principles of sound construction.” By this phrase was meant the quality of logic or common sense that undergirds any frame of government or plan of administration whose architects intend for it to avoid internal contradiction or structural collapse while simultaneously serving a useful purpose. The implications of some of the claims against the Jay Treaty violated this ideal because of the relationships they appeared to describe between the legislative and executive branches of the United States government as well as between the American republic and the larger world. If the logic offered against the treaty-making power of the President and the Senate was valid – if that power was always bound to yield to the authority of Congress – then that treaty-making power was essentially null and void. The Framers, therefore, were evidently guilty of writing into the Constitution a set of explicit provisions which were almost totally incapable of being exercised. Not only was this a distressing prospect to have to confront on its own – that the architects of the United States Constitution should have been so short-sighted – but it appeared to render the American republic entirely cut-off from the world of diplomacy and trade. The reason for this was both simple and inescapable.

As there were no further clauses of the Constitution “which authorises either the Legislative or Judiciary Department to make a Treaty with a foreign Nation [,]” the result would have appeared to be government wholly incapable of making treaties of trade, or alliance, or peace with foreign nations. Not only did this run counter to the “principle of sound construction” – in that it created a government which was incapable of accomplishing one of the fundamental responsibilities of government – but it once again called into question the intentions – if not the sanity – of the Framers. If the treaty-making power of the President and the Senate was never intended to interfere with the legislative power of Congress, why did the Constitution so explicitly provide for the former? Why, in short, would the Framers have taken the time to draft whole clauses of the Constitution if they were never intended to be used? If certain of the Jay Treaty’s critics were accurate in their assessments, there could seemingly be no answer to questions like these. Such a result, Hamilton avowed, was, “As inadmissible as it is absurd [.]” To his thinking, the relationship between the legislative authority of Congress and the diplomatic authority of the President was so obvious as to be nearly self-evident.

What followed, across what remained of No. XXXVII of The Defence, was a rather lengthy enumeration of the various responsibilities that Congress possessed but which Hamilton argued also fell within the purview of the treaty-making power of the President. While it would not do to account for every one of them here, a few key points are certainly worth discussing. First among them was Hamilton’s apparent attempt to remind his readers that the executive branch of the United States government was not fundamentally alien to the legislative branch of the same. Unlike the British Crown, whose authority stemmed from an alternate source to that of the British Parliament, the President of the United States and the Congress of the United States were both derived from and accountable to the American people. In this sense, Hamilton opined, “The Nation is the constituent [and] the Executive within its sphere is no less the organ of its will than the Legislature.” Claims that the Jay Treaty – or, in fact, any treaty – represented an invasion of the legislative prerogative seemed to misunderstand this fact by holding the actions and responsibilities of Congress in greater regard than those of the President. The agreement with Great Britain, however, could not be rendered invalid simply because some of its terms appeared to overlap with responsibilities otherwise allocated to Congress. The Jay Treaty had been negotiated under the authority of the President and ratified under the authority of the Senate. Both of these bodies drew their legitimacy from the American people, they were designated by the Constitution to negotiate and approve treaties on behalf of the United States, and those treaties were declared by that same document to be, “The supreme Law of the Land [.]” As Congress derived its authority and responsibilities from these same sources, no injury to its prerogatives could possibly be claimed.

Hamilton sought to demonstrate the validity of this point – his belief in the inherent harmony of the legislative and treaty-making authority within the Constitution – by way of certain specific examples. Consider, of those, the following. Congress was unquestionably empowered by the Constitution to regulate the commerce of the United States of America. As per the terms of Article I, Section 8, this included any and all trade, “With foreign Nations, and among the several States, and with the Indian Tribes.” Said document, however, did not reserve this authority to Congress alone. As a result, Hamilton argued, “Regulations of Trade may also be made by Treaty, and where other nations are to be bound by them must be made by Treaty.” The distinction between these separately-derived applications of what would appear to be the same sovereign power was on the order of internal versus external, domestic versus foreign. Congress, Hamilton argued, was responsible for, “The establishment of rules for our own nation and those foreigners who come within our jurisdiction.”  As the effects of trade fell within this sphere, so the regulation thereof fell to Congress. That being said, because it was simultaneously the responsibility of the executive branch to determine, “Those rules of mutual intercourse and connection between us and foreign nations which require their consent as well as our own [,]” the ability to regulate commerce between the United States and foreign powers must also, to some degree, devolve upon the President and their chosen officers. So long as the former allowed the latter,

The latitude necessary for this purpose, a harmonious agreement is preserved between the different powers of the Government—that to make laws and that to make treaties between the authority of the Legislative & the authority of the Executive department. 

Inherent to this formulation, it seemed, was an element of trust. The legislative branch of the federal government was required to trust the executive branch – to give it “the latitude necessary” – to exercise it treaty-making authority. And at the same time, the executive was required to trust the legislature not to interfere with or invalidate the good faith attempts of the former to seek out potentially useful diplomatic agreements with foreign nations.    

            This quality of trust – or, one might say, mutual dependence – extended also to Hamilton’s characterization of the power of appropriations. Whereas certain critics of the Jay Treaty asserted that the provisions therein authorizing the payment of indemnities to subjects of the Great Britain directly conflicted with the indisputable right of Congress alone to allocate money from the United States Treasury, No. XXXVII of The Defence countered by pointing out that authorizing and appropriating were not one and the same thing. “The cause of an expenditure,” Hamilton avowed, “or the contract which incurs it, is a distinct thing from the appropriation for satisfying it [.]” Whereas Congress may pass a that augments the salary of a public official, the action of allocating the resulting increase would naturally be accomplished by a separate piece of legislation. The former constituted expenditure, the latter appropriation. By way of comparison, the Jay Treaty, “Only stipulates what may be a cause of Expenditure. An appropriation by law will still be requisite for actual payment.” While in a certain light this may seem like something of a dodge, Hamilton’s stated intention was anything but. As with his characterization of commerce regulations, the relationship he attributed to the legislative and executive branches of the United States government was, at its heart, cooperative. The President could not make appropriations by treaty – indeed, that right belonged solely to the House of Representatives. That being said, the President could authorize the drafting of treaties, and treaties could arrange for certain expenditures. And so, because the lower house of Congress and the Presidency were both constituent elements of the same government, it devolved upon them to reach some manner of accommodation. Trust naturally entered into this process by conditioning the manner in which each entity received the proposals of the other, considered their intentions, and showed deference to their respective authority.  

A great deal may be surmised from the preceding examination of even just this one entry in a series intended to defend the soundness of the Jay Treaty – about the contemporary ideology of the Federalists in general and of Alexander Hamilton in particular. It should go without saying that Hamilton was in favor of the Jay Treaty; as much has been said already. It should likewise be taken as a given that he tended to assign less importance to the legislative branch of the United States government than his Republican opponents. Accustomed to the exercise of executive authority – whether as a member of General Washington’s wartime staff or of President Washington’s inaugural cabinet – he never seemed to invest the House of Representatives with the moral significance that so characterized the public statements of men like Thomas Jefferson or James Madison. No. XXXVII of The Defence would seem to confirm this outlook by the way that it characterized the authority of the legislative and executive branches of the United States government as fundamentally co-equal, and by holding their respective powers and responsibilities in like regard. One could not simply bow to the other, as certain critics of the Jay Treaty seemed keen to argue. Rather, and in keeping with the intended designs of the Framers, each constituent element of the federal government was bound to recognize the limits of its constitutional mandate while also jealously guarding its particular rights and prerogatives. In so doing, the various branches and departments might just manage to produce, from among the ambitions and jealousies of their officers and the duties mandated to them by the Constitution, a stable and effective form of republican government.    

            In addition to this paean to the virtues of balanced government, No. XXXVII of The Defence also spoke quite powerfully to another of Hamilton’s core ideological values – namely, the existence of certain “implied powers” within the often vague and open-ended wording of the United States Constitution. Granted, Hamilton’s belief in this fundamental principle of constitutional interpretation was never really made explicit within the text of the cited essay. Reference was not at any point made to the Necessary and Proper Clause or the General Welfare Clause – often the cornerstones of any argument in favor of an implied power of the federal government – and the very notion that Constitution might bestow certain capabilities without explicitly saying so was left wholly unstated. That being said, No. XXXVIII contained more than enough suggestions or assumptions in that direction to indicate the general trend of Hamilton’s constitutional thought. Consider, for example, the basic contours of his argument in favor of the treaty-making power of the President. In order to succeed as a nation, he posited, the United States would need to be able to negotiate useful agreements – treaties of commerce, or alliance, or peace – with other nations. Accordingly, the Framers had ensured that the President possessed the authority to commission such agreements and that the Senate possessed the authority to review, reject, or approve them. True though the latter assertion may have been, however, the former represented little else but a logical supposition. Certainly it was a sound hypothesis that the Framers intended the United States to be able to sign treaties, and that certain powers bestowed by the Constitution were a direct result of that intention. But the document in question made no such assertion. By thus positing his own assumption as to the why and wherefore, Hamilton effectively put a gloss on the significance of certain aspects of the Constitution without necessarily overthrowing the obvious meaning of the text therein.  

Additional assertions made by Hamilton in No. XXXVIII along these same lines further advanced his unspoken case in favor of a wide-ranging interpretation of the United States Constitution. First, he argued that the status of the President as the principle organ of foreign policy within the federal government gave a treaty commissioned under the authority of that office the same status as any other mechanism of American foreign policy. Treaties could not possibly interfere with the responsibilities or prerogatives of Congress, therefore, because the powers of Congress fell almost exclusively within the sphere of domestic policy. Thus, no matter how plainly a given treaty appeared to impose upon responsibilities that were normally reserved to the legislative branch of the United States government – i.e. taxes, commerce, naturalization, etc. – it remained a valid agreement so long as it received the approval of the United States Senate. Granting that this assessment of the fundamentally separate spheres of responsibility of the legislative and executive branches of the federal government also generally accorded with the text of the Constitution, Hamilton once again seemed inclined to insert into his reading of the document a vital assumption as to the Framers’ intentions.

All that the Constitution of the United States had to say on the subject of treaties was that the President, “Shall have Power, by and with the Advice and Consent of the Senate, to make [them], provided two thirds of the Senators present concur [,]” that they would fall under the jurisdiction of the federal courts, and that they would constitute the supreme law of the land. Nowhere was it stated what kinds of terms treaties could and could not contain in order to be considered valid under the auspices of the United States of America. And nowhere was it made explicit that treaties were protected from Congressional oversight if they touched upon areas of Congressional responsibility. It was Hamilton who made the relevant assumptions – who surmised that the products of the executive branch, like treaties, fell as far outside the legislative prerogative as appropriations fell outside the purview of the President. Doubtless this seemed to him to be entirely logical. Doubtless many of his colleagues in the emerging Federalist faction agreed with him. And yet, it was an assumption. His assertion that taxation, commerce, and naturalization – among other responsibilities – were not the exclusive remit of Congress was likewise. Because the Constitution did not clearly state that no other body within the federal government enjoyed the right to, “Lay and collect Taxes” or “Borrow Money on the credit of the United States [,]” Hamilton determined that the Framers – of which, it bears recalling, he was one – must not have intended for the legislative branch to claim the exclusive possession thereof. That this lack of exclusivity was deliberate – that it was supposed to allow the executive branch to claim co-equal rights within the realm of treaty negotiations – represented yet another assumption, and by which Hamilton was able to confidently justify the validity of the Jay Treaty and the wrongheadedness of its some portion of its critics. 

It must here be admitted that No. XXXVII of The Defence did not represent the first attempt by Alexander Hamilton and his Federalist allies to formulate a doctrine of implied powers as a means of justifying a portion of their party program. That honor must instead be awarded to the debate surrounding the charter of the 1^st Bank of the United States. In that earlier instance, Hamilton successfully argued that the ends to which the United States Constitution dedicated the federal government mandated the use of certain means that the Framers, being unable to exhaustively anticipate the evolving needs of the American people, might not have been in a position to explicitly name. The document that this cohort managed to produce was thus necessarily incomplete, and it accordingly fell to the officers of the government that it created to determine precisely what tools they required in order to abide by their enumerated responsibilities. In 1791, the tool in question was a national bank, and the responsibility cited by Hamilton was that which bound Congress to, “Provide for the common Defence and general Welfare of the United States [.]” The reasoning was surely the same in 1795, though the mechanism in dispute – which Hamilton thought essential and his opponents thought abhorrent – was now a treaty between the United States and Great Britain. That being said, the fact that Hamilton and the Federalists had already utilized the doctrine of implied powers to successfully charter a national bank – and thus appeared to have precedent on their side – should not be seen to lessen the significance of its later deployment in service of justifying the ratification of the Jay Treaty. 1791 may have introduced a potentially useful legal strategy into the arsenal of the Federalist faction, but the ratification of the Jay Treaty and the popular response thereto seemed to show that it had become something more by 1795 – not just a way to solve a particular problem, but a way of thinking about power, and law, and the source from which they both derive. 

With all due respect to the foresight and the legal acumen of Alexander Hamilton, it is doubtful that he had nurtured any particular conception of the doctrine of implied powers while attending the Philadelphia Convention in the waning months of 1787. The draft constitution that he and his colleagues among the Framer’s created was the product of a series of often agonizing compromises, and its vagaries were almost certainly the product of attempted accommodations more than they were the intended tools of future machinations. In consequence, though Hamilton later successfully managed to enlarge the theoretical scope of the federal government by reconstructing the meaning of certain provisions of the Constitution, this likely represented a passing stroke of ingenuity rather than the culmination of any long-term plan on his part. No. XXXVII of The Defence seemed to demonstrate, however, that a stroke of genius – or possibly desperation – in 1791 very likely acted as the seed for an increasingly comprehensive model of constitutional interpretation. From arguing that Congress could undertake a specific action that the Constitution did not make explicit, Hamilton and his Federalist allies had progressed by 1795 to asserting that the same set of powers could be exercised by different elements of the same government in different spheres of action. From exploiting the vagaries of certain specific phrases, they now attempted to derive meaning from the absence of contrary language – i.e. the lack of an explicit prohibition as a tacit authorization – and even from the structure of the Constitution itself. In four years, it seemed, the Federalist understanding of the Constitution had widened, broadened, and become increasingly flexible. No. XXXVII of The Defence is the evidence of this, and the debate over the Jay Treaty was the context from which that document emerged.