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.