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.