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.