The Jay Treaty, Part IV: Text, contd.

Moving on to the second theme under which the various articles of the Jay Treaty might fairly be organized – existing grievances – the nature of the settlement appears on the whole somewhat more balanced. Rather than generally defer to British priorities in pursuit of certain key concessions, American negotiator Jay seemed to have arrived at a series of agreements with his British counterpart Grenville that required each of their respective nations to sacrifice and to gain in equal measure. Take, for instance, the terms of Article 2. While the text thereof began by plainly stating the intention of George III (1738-1820) to, “Withdraw all His Troops and Garrisons from all Posts and Places within the Boundary Lines assigned by the Treaty of Paris to the United States” – thus resolving a major sticking point in Anglo-American relations that had persisted since 1783 – the terms that followed showed that this long-overdue retreat was to be far from unconditional. In exchange for Britain’s removal of any military presence from the disputed territory, the text went on to say, all British settlers or traders, 

Within the Precincts or Jurisdiction of said Posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their Effects; and it shall also be free to them to sell their Lands, Houses, or Effects, or to retain the property thereof, at their discretion [.]

While this may have appeared to a given segment of the contemporary American population as an overly generous response to the final ending of an illegal military occupation – more on that later – the essence of the exchange was very much in the nature of give and take. Britain had agreed to well and truly vacate a series of military posts in what it acknowledged was American territory, to the likely detriment of resident traders and settlers and the Native inhabitants of the surrounding region. In recognition of the potentially awkward position that the former group may then have found themselves in – and perhaps as a general show of good faith – the United States agreed in turn to respect the property and citizenship of all existing residents of the relevant territories. Thus, both sides were asked to make sacrifices – the United States agreed to recognize the property claims of foreign citizens while Britain lost formal access to a series of strategically-placed outposts – and both stood to gain – the United States gained final recognition of its territorial sovereignty and Britain ensured that its subjects in the relevant territories would be free from molestation – in roughly equal measure.

This same spirit of reciprocity reappeared – and was arguably expanded upon – in articles 4, 5, 6, and 7. Each of these sections applied different forms of joint arbitration to a series of issues that had been cause for tension between the United States and Great Britain since the conclusion of the Revolutionary War. Article 4, for example, after first admitting that the text of the Treaty of Paris (1783) had attempted to establish a western boundary between the American republic and British North America upon impracticable terms – i.e. by a line drawn due west from the northernmost corner of Lake-of-the-Woods to the Mississippi River that had since proven geographically impossible – determined to leave the final definition of the relevant border to a process of joint negotiation. “Measures shall be taken,” the text accordingly proposed, “in Concert between His Majesty’s Government in America, and the Government of the United States, for making a joint Survey of the said River [.]” In the event that the applicable terms of the Treaty of Paris were indeed found to be invalid, “The two Parties [would] thereupon proceed by amicable negotiation to regulate the Boundary Line in that quarter […] according to Justice and mutual Convenience [.]” Therefore, without knowing precisely which of them in the final measure stood to benefit and which stood to lose, the United States and Great Britain agreed to work together towards the resolution of an issue that had troubled them both. 

Article 5 of the Jay Treaty then proceeded to apply this same basic principle to another ambiguity in the terms that defined the eastern border of the relevant parties in North America. Whereas the aforementioned Treaty of Paris had defined the border between the United States and British Nova Scotia as following a line, “Drawn due north from the source of St. Croix River to the highlands [,]” Article 5 confessed that neither party was entirely certain which water channel, “Was truly intended under the name of the River st Croix [.]” In consequence, said article referred the final decision on this disputed point to a joint commission of American and British investigators. One commissioner each was to be chosen by the British monarch and the President of the United States, with the third selected by the mutual agreement of the other two. The three Commissioners were then to be, “Sworn impartially to examine and decide the said question according to such Evidence as shall respectively be laid before Them on the part of the British Government and of the United States.” Once they arrived at their decision, after conducting whatever investigation they felt best satisfied the inquiry at hand, the said Commissioners were to sign and seal a declaration to that effect and submit it, along with their accounts and journals, to the appropriate authorities. At that point, in accordance with the text of Article 5, both the United States and Great Britain were bound, “To consider such decision as final and conclusive, so as that the same shall never thereafter be called into question [.]”

Articles 6 and 7 further expanded upon this framework of shared resolution by applying a slightly enlarged form of the aforementioned joint commission to the task of resolving key disputes over private property. Specifically, the former sought to address the repayment of losses suffered by such British merchants or subjects as were in possession of debts owed to them since before 1783 by citizens of the United States, while the latter aimed at assessing losses and awarding damages to those merchants and citizens of the United States and Great Britain as had suffered their property to be confiscated, “during the course of the War in which Hi Majesty is now engaged [.]” In both cases, the adjudicating body was to be comprised of two representatives each chosen by the British Crown and the American President, with the fifth appointed by the mutual agreement of the other four. Members of both investigatory bodies were to be bound by a common oath to, “Honestly, diligently, impartially, and carefully [,]” examine and decide all complaints referred to them, and were to recuse themselves from cases in which they had a personal stake. The respective commissions were to operate for a full eighteen months from the time of their first formal meeting, with the possibility of a single extension not exceeding a further six months. Damages awarded were to be final, with the sums to be paid in hard currency – i.e. gold or silver – to the relevant creditor or claimant no sooner than twelve months from the time of the Jay Treaty’s final ratification.

Articles 9 and 10 of the Jay Treaty, while they dispensed with the mechanism of conflict resolution that the preceding provisions had taken pains to establish, their combined terms nonetheless demonstrated the same “give-and-take” approach to addressing certain grievances that had persistently troubled the Anglo-American relationship. Consider, to that end, the terms of the former. All British subjects, Article 9 declared, “Who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty, shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein [.]” In fairness, this may not have been wholly intended to be a mutual concession. The number of Americans that held land and title in contemporary British America or Britain proper was significantly smaller than the still sizeable quantity of either American-born Loyalists that had been forced to flee during the Revolutionary War or British subjects that had purchased land in the United States in the years after 1783. In consequence, British subjects almost certainly stood to benefit from this clause to a far greater extent than did citizens of the American republic. That being said, nothing in this selfsame article indicated that the British government was interested in seeing the return of those Loyalist properties or estates that had already been seized and sold by certain state governments during the Revolution. The chief concern, rather, seemed to be with preventing similar incidents from occurring in the future. In this, the United States was included – its citizens were to be protected on the same basis as their British counterparts – thus maintaining at least the principle of equality between the two nations.  

The terms of Article 10 were similarly preventative, rather than punitive. “Neither the Debts from Individuals of the one Nation, to Individuals of the other,” it read, “nor shares nor monies, which they may have in public Funds, or in the public or private Banks shall ever, in any Event of war, or national differences, be sequestered, or confiscated [.]” Doubtless this provision owed both to the prior abrogation of certain personal obligations on the part of American debtors during the Revolutionary War – addressed in specific in the aforementioned Article 6 – as well as to the fact that British subjects owned a far from insignificant number of shares in the newly-minted Bank of the United States. In spite of this seemingly one-sided impetus, however, the admonition at the core of Article 10 was still one of principally mutual significance. Regardless of the facts of the middle 1790s – who owed what to whom, in which form, in what amount – it remained a matter of agreement in both the United States and Great Britain that harmonious commercial relations between the two held great potential worth. In pursuit of this common goal, therefore, it behooved the relevant parties to ensure the creation and growth of trans-Atlantic personal and financial partnerships and promote confidence in their respective markets. And while there were a great many mechanisms that might have aided these efforts, perhaps the most fundamental was a consensual guarantee that the sanctity of private debts, shares, and other types of investments would be unconditionally respected, in time of peace, mutual discontent, or even declared war.       

While one may reasonably interpret the recurrent resort to joint arbitration or mutual exchange embodied by articles 4 through 10 of the Jay Treaty as a sign that neither Britain nor the United States felt that they possessed leverage enough in the relevant policy areas to dictate terms to the other, they may also stand in evidence of a shared legal and cultural understanding. Though grievances and suspicions between the Great Britain and the United States had naturally lingered long after peace had been established in 1783, the fact of the Jay Treaty itself would seem to indicate that both parties believed that a mutually satisfactory resolution of their myriad complaints was at least possible. And while the contemporary British government seemed willing to quite strongly – and successfully – pursue American adherence to its own commercial priorities, Jay and Grenville’s evident faith in the efficacy of joint arbitration and mutual exchange would seem to point to their shared perception of a degree of socio-cultural kinship between the nations they respectively represented. In spite of the injuries that had been caused by American disregard for debts held by British subjects, or by British interdiction of American maritime trade, Great Britain and the United States of America did share certain common legal, cultural, and philosophical sensibilities. Common Law jurisprudence, natural rights, the importance of free and frequent elections, and a suspicion of standing armies – these shared principles, and numerous others, bound together the American republic and its former colonial overlord in a way that was effectively beyond compare for any other pair of nations in the 18^th century world. In consequence, though the immediate priorities of the United States and Great Britain may have differed significantly in 1794 – to the point, at times, of coming into conflict – there remained always a sound basis for mutual understanding embedded in the core socio-cultural assumptions nurtured by each.

The Jay Treaty, Part III: Text

            The treaty that John Jay presented to his countrymen upon his return from London in June, 1795 was arguably not what either the Federalist or Republican political factions hoped it would be. While, if ratified, it stood a very good chance of averting armed hostilities between the United States and Great Britain, it hardly represented a diplomatic coup on the part of the American republic. Upon reviewing its terms, Jefferson and his partisans decried it as a rank capitulation to British interests and Jay a traitor who had sold the independence of the United States to Great Britain in order to preserve the commercial interests of his merchant allies in New York and New England. While Hamilton and his Federalists allies in large part disagreed with this characterization, they too found fault with the document that Jay had helped craft. The accord, the Secretary of the Treasury privately confided, was “execrable” and “an old woman’s treaty,” though he also opined that its rejection, “Would greatly shock and stagnate pecuniary plans and operations in general.” Indeed, it seemed that almost no one in the contemporary United States was particularly pleased with the settlement that their chosen envoy had managed to secure. It was too generous to Britain, some said, and not generous enough to the American republic; it represented an unpardonable injury to American national honor, and stood to visit great harm upon American commerce. Granting that there was some truth to all of these allegations – and that the various public and private expressions thereof will be discussed at length in weeks to come  – it will remain for the present to address a far simpler enquiry.

            What was it that the Jay Treaty actually said?

            Across twenty-eight articles, the Treaty of Amity and Commerce focused on and returned to a number of key themes or policy areas of particular significance to the Anglo-American relationship. For the purpose of summary, these in turn might fairly be condensed down to three basic headings: trade, standing grievances, and the exigencies of war. The first concerned matters of private business, travel, taxation, and commercial access – who was required to pay import duties, on which goods, in which ports, under what circumstances, etc. The second dealt with issues of sovereignty, security, and property that had either persisted since the ratification of the Treaty of Paris (1783) or arisen in the years that followed – the continued British occupation of American territory and seizure of American merchant ships, the American non-payment of British-held debts, and so forth. The third, and perhaps the most immediately significant, concerned the pressures that the ongoing war in Europe exerted on both the United States and Great Britain and need to prevent those pressures from transforming a simple misunderstanding into a formal armed conflict – the needs of the British war effort as balanced against the dignity and independence of the United States. With a few minor exceptions, every article of the Jay Treaty can be slotted into one of these three categories. For that reason, they will form the basis of the synopsis that follows.

            And so…   

    

Under the heading of trade, the Jay Treaty had a great deal to say. Given the sheer volume of commerce conducted between the two signatories – Great Britain and the United States of America – at the end of the 18^th century, this should come as little surprise. Though the late Revolution had severed formal political ties between the mother country and its former colonial dependency, Britain remained the largest single purchaser of American produce into the 1790s, and the United States one of the largest customers for British manufactured goods. In order to ensure that the resulting commercial relationship – and the wealth that it generated on both sides of the Atlantic – remained on a stable footing for the foreseeable future, it only made sense for both parties to develop a clear understanding of what each expected of the other, their respective priorities, and the privileges they were willing to extend. Article 3 first attempted to accomplish this by defining precisely who and under what circumstances persons could travel and transact business between the United States and Britain’s remaining territory in North America. Subjects of the British Crown and citizens of the United States alike – as well as “the Indians dwelling on either side of the said Boundary Line” – were accordingly granted the right, “Freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America [.]” This permission was further augmented by allowing the concerned parties, “To navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other [,]” though not extending to their respective, “Sea Ports, Harbours, Bays, or Creeks [.]”  Combined, these regulations would seem to indicate that Great Britain was prepared to allow the United States to carry on an overland trade with its North American colonies while reserving the ocean trade with the same to its own merchants. 

            As to the goods that were to be transported between British North America and the United States, Article 3 further specified that all merchandize not otherwise prohibited could be carried into or out of either territory, by residents of either territory, and on an equal basis. In so doing, American merchants transporting goods into British North America would be subject to, “No higher or other Duties” than would be owed by British merchants engaged in the same trade, and vice versa. In addition, duties would not be levied on furs brought into either territory, and the native inhabitants thereof would be permitted to pass from one side of the boundary line to the other, free form any imposts or taxes so long as they only carried, “their own proper Goods and Effects of whatever nature [.]” This duty exemption was also extended to all those goods, “Which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places.” In light of recent commercial tensions – the seizure of American merchant vessels by the British Navy, resultant threats of an American embargo on British goods, etc. – provisions such as these were doubtless expected and welcomed by both of the relevant parties. British North America represented an obvious source of potential customers for American products, and access to markets in the United States presented an obvious goal for British merchants operating in what were then Upper Canada and Lower Canada. A high degree of clarity, efficiency, and cooperation thus stood to benefit all involved. 

Passing over Article 11 – which was nothing more or less than a brief preamble for what followed – the twelfth through the sixteenth articles of the Jay Treaty further expanded upon the initial clarification of trade priorities, concessions, permissions, and exemptions embodied by Article 3. To that end, Article 12 set about defining trade relations between the United States and the British West Indies. In so doing, the text made careful note of the size of vessels permitted to enter British ports in the Caribbean (no more than seventy tons), the kinds of goods allowed to be transported to the same (only those, “Being of the Growth, Manufacture, or Produce of the said States”), the import charges to be paid on such goods (“No other or higher […] than shall be payable by British Vessels, in the Ports of the United States”), and the manner of products permitted to be carried away on American ships (all those considered to be of the, “Growth, Manufacture or Produce of the said Islands”). Article 13, which conversely endeavored to regulate American seaborne trade with the British East Indies, was only slightly less explicit in its terms and conditions. American vessels, it stated, would pay the same duties as would British vessels in American ports, were permitted to purchased and remove, “All articles of which the Importation or Exportation […] shall not be entirely prohibited [,]” and could only export cargoes purchased in the East Indies to, “Some Port or Place in America [.]”

Article 14 then proceeded to clarify the notably more generous terms applied to trade between the United States and Britain proper. The American republic and Great Britain, it rather vaguely declared, were to enjoy, “A reciprocal and perfect liberty of Commerce and Navigation.” The subjects and citizens of each nation could pass back and forth from one to the other, “Without hindrance and molestation,” land their ships at whatever port, or city, or river they cared to, take up residence, rent warehouses to store their property, and generally enjoy, “The most complete protection and Security for their Commerce [.]” This batch of territorial trade regulations – articles 12, 13, and 14, referring respectively to the West Indies, the East Indies, and Britain itself – was then followed by a rather dense summation of all remaining tariffs and duties to be charged and collected by the relevant parties. In the form of Article 15, this passage described the imposts that would be laid upon certain goods arriving in or departing from British or American ports, what relation these duties would have to those laid upon articles imported or exported from any other nation or nations, and the various potential exceptions to these regulations that Britain in particular felt it necessary to reserve. Article 16 then proceeded to acknowledge the right of both parties to appoint Consuls for the purpose of protecting and monitoring their respective commercial interests in the each other’s territory, with the caveat that either the United States or Great Britain, “May except from the residence of Consuls such particular Places, as such party shall judge proper to be excepted.” 

It is worth noting, before advancing to the second topic heading under which the various articles of the Jay Treaty arguably fall, the evident presence of a unifying rationale across the sections just now discussed. Granting that the document in question represents a bilateral agreement between two distinct – and theoretically equal – parties, the density, specificity, and structure of the relevant commercial regulations would seem rather strongly to indicate the ascendancy of British priorities over American. Take, by way of evidence, the descending severity of trade terms applied to American merchants in the West Indies, the East Indies, and Britain proper. American traders, eager to carve out a place for themselves in a global economy dominated in the late 18^th century by established European powers, would doubtless have preferred to access every corner of the British Empire on the same generous conditions as spelled out in Article 14. From the perspective of competitive, monopolist Britain, of course, such an concession to a potential rival was wholly unacceptable. The economy of its globe-spanning empire was vast, complex, and precisely balanced. Increasing taxes here was meant to increase revenues there, and fund military expenditures, and decrease demand for certain commodities, and so on, and so forth. In consequence, though the government of Prime Minister William Pitt was, circa 1794, willing to grant the United States access to certain markets within the larger British imperial economy, this access was bound to be accompanied by a great many restrictions, regulations, and precisely-worded caveats.      

 To that end, recollect once more the terms of articles 12, 13, and 14 of the Jay Treaty. The first, concerning the West Indies, placed the most specific restrictions upon American trade in any region of the British Empire. There was, in point of fact, a very good reason for this. As sugar-producing islands like Jamaica and Saint Kitts represented the figurative jewels of the contemporary British imperial economy, British trade ministers had every reason to desire to protect their nation’s ability to successfully extract the wealth thereof. And as that these same cash-crop islands required foodstuffs to be brought in by ship, and as the United States represented the closest and largest source of the same, permitting unfettered American access to local markets posed a serious possible threat. If merchants from the United States, free to come and go as they pleased, simply traded their staple provisions for molasses, coffee, or cacao which they then sold in European markets, Britain might quickly have found itself economically displaced. Instead of representing a costly venture – in terms of defense and provisioning – that paid off only if properly attended to, the West Indies might thereafter have become a lodestone around Britain’s neck that filled the coffers of American merchant cartels while demanding nothing in the way of expenses from the American government. Permitting American vessels operating in the Caribbean to purchase and transport certain commodities only if they were bound for American ports – thus forfeiting the profits of some portion of the sugar and coffee that British trade policies had endeavored to produce – accordingly represented a concession that still managed to preserve the core of Britain’s commercial interests.

Articles 13 and 14 appear similarly representative of mid-18 century Britain’s highly complex and carefully calculated approach to commerce. That the former placed less specific – though in some cases more broad – restrictions upon American trade in the East Indies than Article 12 did for the West Indies speaks to the position then enjoyed by British merchant cartels in the contemporary Indian Subcontinent. While the British East India Company was a major player in only a handful of territories, worked in large part through native intermediaries, and was in the midst of an often bloody competition with its French counterpart, the British government was doubtless still quite keen on heading off any potential disruption of the monopoly that British traders were attempting to construct. The United States of America most assuredly represented just such a potential disruptive influence. If American merchants managed to find ways to work cheaper, for instance, or secured favorable agreements with certain native princes or potentates eager to offset East India Company influence, Great Britain could potentially have found itself priced out or forced out of the East Indies market. Attempting to regulate American trade with the Indian states – by allowing American vessels to trade in the East Indies only so long as they sold their cargoes in the United States – therefore accordingly represented a means of preserving the sphere of control British traders were attempting to erect in contemporary South Asia.

Much the same logic – i.e. holding American trade priorities second to the commercial needs of the larger British Empire – might be seen to explain the substance of Article 14. As the contemporary United States wholly lacked a manufacturing sector that could compete with Great Britain’s emerging industrial might, there was simply no need to protect British factory owners from overseas competition by erecting tariff barriers against the United States of America. The American republic was a nation of farmers in the middle 1790s, and British trade ministers were doubtless entirely confident that their nation could afford to purchase the (much-needed) produce of the United States while still reaping a profit by selling luxury goods, farming implements, and textiles back across the Atlantic. In the event that this proved not to be the case – if, say, the United States attempted to tweak the balance of trade between itself and Great Britain by putting forth certain regulatory measures of its own – Article 15 provided a combined preventative measure and potential solution. The British government, it read, would retain the right to impose further duties on American vessels, “As may be adequate to countervail the difference […] now payable on the importation of European and Asiatic Goods when imported into the United States in British or American vessels.” What this meant, in essence, was that Britain could effectively raise the cost of imported American goods in order to offset any harmful price difference between cargoes being brought to the United States in American vessels versus British vessels. Article 15 also prohibited the government of the United States from assigning additional duties of its own on British imports that would further increase this selfsame price difference. Combined with the aforementioned twelfth, thirteenth, and fourteenth articles, this attempt at effectively slotting the United States of America into the larger British imperial economy stands in evidence both of contemporary British commercial expectations – i.e. that regulating trade was a complex business, and that all those eager to participate would need to observe that complexity – and the willingness of the Washington Administration to submit to the same in exchange for access to certain high-value markets.

The Jay Treaty, Part II: Context

            In addition to the specific issues or grievances that the Treaty of Paris (1783) had failed to address, there were – as previously discussed – a number of disputes that had arisen between the ratification of that document and the middle of the 1790s that further served to poison relations between the United States of America and Great Britain. Mainly diplomatic and commercial in nature, these various conflicts almost all stemmed from the same central cause – to wit, the French Revolution (1789-1799). Triggered by the summoning of the Estates-General – the equivalent of a parliament – for the first time in one hundred and seventy-three years, the Revolution witnessed the collapse of the Kingdom of France and the emergence of a radical republic in its place in 1792/93. This in turn set in motion a series of devastating wars that would rage across Europe for the better part of twenty years. Neighboring European powers like Great Britain, the Holy Roman Empire, and Spain saw much to fear in the social and ideological forces that the French Revolutionaries had violently unleashed, and sought to preserve the reigning political order and prevent their own potential collapse by taking up arms against the nascent French Republic. The subsequent War of the First Coalition (1792-1797) pitted France against a cabal of reactionary kingdoms and states, witnessed the overthrow of several, and concluded with a largely unexpected French victory. 

      

            On the far side of the Atlantic, Americans observed this revolutionary turmoil with a mixture of jubilation and unease. While many citizens of the United States heralded the collapse of the French monarchy as the beginning of the end of the “ancient tyrannies of Europe,” others were not quite so sanguine. On one hand, a number of prominent figures within the French Revolutionary movement – notably including the Marquis de Lafayette (1757-1834), George Washington’s former aide-de-camp – pointed to the experience of the United States as inspiration. On the other, the relationships that the American republic had respectively nurtured in the 1780s with Great Britain and with France placed them in a somewhat awkward position once war was declared between the two. French army and naval officers had shed blood for the cause of American independence, and France had been the first nation in the world to recognize the sovereignty of the United States of America. In addition, the fact that the French Revolution was an ostensibly republican one caused many Americans to emotionally and philosophically identify the overthrow of Louis XVI (1754-1793) with their own experience of violently casting off the rule of George III. At the same time, however, Great Britain represented the USA’s single largest trading partner, its neighbor in North America, and a nation with whom many American citizens still maintained strong personal and business connections. In short, it seemed that the United States of America was torn – perhaps fatally – between ideology and ambition; principle and pragmatism.

Though in large part cognizant of the competing motivations acting upon contemporary American foreign policy, British authorities during the early 1790s nonetheless wasted little time in placing their country on a firm wartime footing. To that end, the British Navy began to very aggressively pursue and capture French merchant vessels in an attempt to cut off their enemy from access to trade goods and military supplies. This focus on attacking French commerce resulted in several significant outcomes within the sphere of Anglo-American relations. First, it created a tremendous opportunity for American ship-masters and merchants to drastically expand their area of influence. As the risk of putting to sea for the French merchant fleet increased, vessels flying the flag of an ostensibly neutral nation like the United States were able to absorb the trade routes that their European counterparts were forced to abandon. The immediate result was a period of heightened demand and rising profits for American shipbuilders, merchants, and sailors alike. Between 1792 and 1796, American ship-masters managed to increase their average revenues by a factor of three, while carpenters and laborers in port cities like Philadelphia in some cases saw their wages double during this same period. By 1794, the United States was the dominant trading nation in the West Indies, and its shipping industry was generating hundreds of thousands to several million dollars every year. Unfortunately, this unprecedented shipping boom – referred to at the time as the “carrying trade” – was frustrated in the long term by two further consequences of the British Navy’s focus on attacking the commerce of its enemies.

In sudden and dire need of a steady stream of manpower to keep its increasingly active fleet fully staffed, the Royal Navy began an aggressive campaign to seek out and apprehend deserters and impress – i.e. kidnap – as many able-bodied men as ship captains deemed necessary. While no one considered to be the subject of a foreign nation or sovereign was theoretically subject to such coerced service, American citizens represented something of an exception. In spite of Britain’s ratification of the Treaty of Paris and its formal recognition of American independence, British law failed to acknowledge the existence of naturalised American citizenship. In practical terms, this meant that the contemporary British government considered those of its subjects who had settled in the United States of America after 1783 and attained citizenship to in fact still be subjects of the British Crown. In addition, there existed no information infrastructure – passports, sophisticated record keeping, etc. – that would have otherwise prevented actual British Navy deserters from simply claiming American citizenship in order to avoid re-capture. In consequence, and despite repeated petitions by the government of the United States, British “press gangs” captured and forced into service several thousand sailors over the course of the 1790s who claimed – truthfully or otherwise – to be American citizens.

            At the same time, Britain’s interdiction of enemy sea-bound trade and the resulting expansion of American shipping into markets formerly dominated by the French also had the effect of making American merchant vessels an increasingly common target of Royal Navy aggression. In spite of American protestations that “free ships make free goods” – i.e. that in time of war, the cargo of a neutral vessel, even if it was bound for a belligerent nation, should be safe from seizure – British authorities subscribed to the theory that any goods bound for the ports of their enemies was fair game for capture. The logic of this position doubtless appeared particularly obvious in the case of American vessels carrying sugar from French colonies in the West Indies to French ports. As far as contemporary British naval and political authorities were concerned, this was simply French trade being conducted under an American flag. Such vessels, they argued, were thus legitimate targets for confiscation. And while Britain did not follow through on this interpretation of diplomatic norms for the first several years of its war with France – perhaps out of consideration for its economic relationship with the United States – it was only a matter of time before circumstances forced their hand.

Granting that the commercial and naval policies cited above do seem to present the British government as the chief instigator of diplomatic tensions within the Anglo-American relationship in the mid-1790s, it bears acknowledging that contemporary events in the United States had done much to cast suspicion on American intentions. On April 8^th, 1793, the first ambassador from the French Republic to the United States of American arrived in Charleston, South Carolina. Edmond Charles Genêt (1763-1834), who took to styling himself “Citizen Genêt,” subsequently behaved in a manner very unlike the courtly dignitary that his office customarily called for, and quickly found himself alternately embraced and held at arm’s length by the American people and their government. Brash, charming, and bombastic, Genêt carried with him both a series of requests to be formally presented to the Washington Administration and a series of clandestine instructions in case an affirmative response was slow in coming. Under the former heading, he asked that the United States government extend a sizable loan to the French Republic and agree to provide ample produce and military supplies to the same. And under the latter category, he was authorized to recruit armed expeditions for the purpose of striking British and Spanish possessions in North America and carried with him the necessary paperwork to commission the captains of private merchant vessels as privateers in service of the French Republic. These duly-authorized vessels would then proceed to target British shipping while at the same time seeking shelter in the ostensibly neutral ports along the American coast.  

Over the course of the next several months – April to August of 1793 – the United States of America was subsequently wracked by a series of partisan convulsions, became entangled in its first major crisis of foreign policy, and began the long and difficult process of defining its role in the international order. Perhaps the single defining cause of all of these occurrences was a fairly simple piece of news that had accompanied Ambassador Genêt across the Atlantic. War had broken out between Great Britain and the French Republic, and it remained for the Washington Administration to determine how best to position the United States of America vis-à-vis the European belligerents. The subsequent cabinet meetings – held between April 8^th and May 16^th, 1793 – produced agreement on the need for American neutrality, though the specifics thereof were argued at length by Secretary of State Jefferson and Secretary of the Treasury Hamilton. While noted Francophile Jefferson argued in favor of leveraging a formal declaration of neutrality in order to extract favors from the concerned parties in Europe, Hamilton meanwhile urged his cabinet colleagues that American foreign policy should be based on sound principles rather than the whims of whichever foreign power was willing to offer the best deal in exchange. President Washington – ever a man of prudence and steady temperament – ultimately agree with his former aid-de-camp, adding further that any delay in declaring American neutrality would only increase the risk of the fragile young republic being drawn into the struggle against the will and the best interests of its citizens.

In consequence, President Washington issued a proclamation under his own hand on April 22^nd, 1793 that made it abundantly clear where the United States of American stood in relation to the armed conflict then raging in Europe. Owing to the ongoing state of war between various nations on the European continent, it read, “The duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers [.] This impartiality encompassed both official policy – i.e. the actions of the federal and state governments and any officers thereof – as well as the activities of private citizens. To that end, Washington specifically declared that,   

Whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations by committing, aiding, or abetting hostilities against any of the said powers […] will not receive the protection of the United States against such punishment or forfeiture; and further, that I have given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall […] violate the law of nations with respect to the powers at war, or any of them.

Jefferson and his allies were understandably crestfallen – by the increasing influence that Hamilton and his partisan seemed to exert over the Washington Administration and by the harm that they believed such an unequivocal policy statement would do to their ideological compatriots in France. Hamilton was conversely triumphant, though only in part. While he had managed to secure a formal, unconditional proclamation of neutrality, and had successfully argued that the 1778 Treaty of Amity and Commerce between the United States and the Kingdom of France had been nullified by the execution of Louis XVI, the Treasury Secretary nonetheless failed to convince his cabinet colleagues or President Washington that the latter ought to refuse to receive and accredit the newly named French ambassador.

If Hamilton`s rationale for rebuffing Genêt failed to carry the day in cabinet in April, 1793, it soon became apparent exactly what he had wished to avoid upon the latter`s arrival in Philadelphia. While the envoy’s more outwardly alarming efforts amounted to very little in the long run – his planned expedition to conquer the Spanish colony of Louisiana failed to materialize, and his efforts to enlist American sailors as privateers in French service produced only minimal injury to British shipping – his disregard for protocol and his revolutionary rhetoric sparked any number of controversies that the Washington Administration then hastened to quench. Feted upon his arrival on May 16^th, 1793 – toasted, hosted, and made the centre of attention at numerous receptions and banquets – Genêt did not hesitate to bring this public confidence to bear against Washington’s newly declared policy of non-interference. At times this subversive behavior took the form of enlisting prominent American statesmen to the cause of the French Republic – Thomas Jefferson notably provided Genêt with letters of introduction during the latter’s failed excursion against Spanish Louisiana, and Pennsylvania Governor Thomas Mifflin (1744-1800) was at one point heard to offer a public toast in Genêt’s honor to, “The ruling powers in France. May the United States of America, in alliance with them, declare war against England.” Worse yet, however, was Genêt’s uncanny ability to elicit mass demonstrations of revolutionary enthusiasm from among the general population. During his stay in the nation`s capital, French and American flags waved side-by-side across the city and verses of the revolutionary anthem La Marseillaise echoed in the streets. Meanwhile in the cities and towns that he visited since his arrival, political societies sprang to life that claimed to promote the shared values of the French and American Revolutions.

 These ad-hoc societies – dubbed either “Democratic” or “Republican” – appeared particularly sinister to American proponents of non-interference. While their members claimed that a defeat for the French Republic would allow the newly-empowered monarchies of Europe to extend their reactionary campaign across the Atlantic, opponents perceived in them far too many similarities to the political clubs that had fueled the most destructive aspects of the ongoing revolution in France. Secretary of State Hamilton in particular saw in their rhetoric and their structure a distressing potential for insurrection, and endeavored to monitor their activities for any hint of treasonous behavior. Meanwhile, resulting from the emergence of these proto-party organizations, Genêt’s patronage thereof, and the tensions arising from the enforcement of Washington’s declaration of neutrality, the political press began churning out editorials, essays, broadsides, and polemics, alternately in favor of or opposed to Britain, France, President Washington, the French Ambassador, or the federal government in general. Pro-administration publications like The Gazette of the United States and The American Daily Advertiser were countered by the likes of the anti-administration National Gazette, each with its stable of statesmen disguised by pseudonyms – Hamilton, for instance, wrote a series of essays under the name “Pacificus,” while Congressman James Madison (1751-1836) contributed a run of responses as “Helvidius.” Each side regularly accused the other of treason, conspiracy, and betraying the principles of ’76 while leaving little room in their stated positions for compromise, conciliation, or complexity.

By July of 1793, public opinion in the United States was arguably as inflamed as it had ever been during the years leading up to the American Revolution. Citizen Genêt continued to brazenly flaunt the admonitions of the Washington Administration, and the political press daily churned out editorials viciously denouncing the President, or the Democratic/Republican societies, or the supporters of either. Jefferson, doubtless still smarting from his defeat in the debate over American neutrality, actively provided cover from within the federal government for Genêt’s more indiscreet declarations to members thereof. Hamilton, meanwhile, took pains to preserve the policy of non-interference that he had lobbied so successfully for while at the same time quietly providing assurances to certain foreign dignitaries who had reason to doubt American intentions. George Hammond (1763-1853), British minister to the United States of America, was chief among these interested parties. Faced with Washington’s proclamation on one hand and the public popularity of Ambassador Genêt on the other, Hammond had every reason to be confused. Was the President merely playing the statesman in public while simultaneously giving private assurances that Americans found to be offering material aid to France would not face formal prosecution? Hamilton, for his part, endeavored to convince the British ambassador that he would do all that was in his power to counter the efforts of both Genêt and his American supporters. While Hammond expressed his faith in Hamilton’s pledge in dispatches to his superiors, it nonetheless remained an open question in British ministerial circles whether or not the heartfelt promises of one man would be enough to stem the tide of pro-French sentiment sweeping across the American republic in that turbulent summer of 1793.

While Genêt’s continued intemperance soon resulted in a request to the government of the French Republic for his immediate recall, the departure of the renegade ambassador from the domestic political scene provided the beleaguered Washington Administration with only a brief reprieve. The government of Prime Minister William Pitt, whose ambassador to the United States had, as aforementioned, witnessed the full extent of the “Genêt Affair,” remained unconvinced either by substance of Washington’s June 22^nd proclamation of neutrality or by the ability of the United States government to enforce its terms. As Genêt’s efforts had made quite clear, countless American citizens were willing and able to defy the authority of the President and evade the various resources at his disposal. American-crewed privateers in French service had seized a number of British merchant vessels, and public support for the French Republic – in the form of newspaper editorials, pamphlets, and the growth of pro-revolutionary political societies – showed little sign of abating. Some manner of response was called for, in order to both arrest the ability of France to continue benefiting from American neutral shipping as well as to make clear that Great Britain would not tolerate duplicity in its diplomatic relations. To that end, the government of Prime Minister Pitt accordingly decreed in an order in council dated to November, 1793, that the Royal Navy would henceforth,

Stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and shall bring the same, with their cargoes, to legal adjudication in our Courts of Admiralty.

Two hundred and fifty captured American merchant ships later, the supporters of Hamilton – increasingly known as “Federalists” – and the devotees of Jefferson – often referred to as “Republicans” – found themselves in a shared state of shock and outrage. While both factions responded in January of 1794 by promoting – unsuccessfully – some form of commercial reprisal against British trade, it was the Federalist proposal to send an envoy to Britain that was ultimately set in motion. Though concerns abounded as to whom Washington would commission for the task – Jefferson suspected Hamilton would seize the opportunity to personally establish stronger ties with British officialdom, and several Republicans echoed his objection in letters to the President – Chief Justice John Jay was ultimately selected in April, 1794. As head of the judicial branch of the federal government, Jay enjoyed a position of authority and trust that was relatively untouched by the roiling partisanship then plaguing American public life. He was also widely known to be a man of honor, integrity, and restraint. While not quite the Republicans’ preferred choice – some regarded him as a Federalist at heart – he nevertheless secured the approval of the United States Senate and made ready to depart on May 12, 1794. He carried with him to London the confidence – though in some cases only nominal – of both major factions in contemporary American politics, a series of instructions from his government, and the ardent hopes of his fellow countrymen.

The Jay Treaty, Part I: Context

            Now, as is my custom from time to time, I’d like to try something a little different.

            I’ve lately had cause to think a little about some of the issues that had served to define particular political eras in the history of the United States of America. Slavery – to seize upon what is undoubtedly the most obvious and far-reaching example – was the core social, ideological, and economic concern for an entire generation of Americans. Between the 1830s and the 1860s, no other single issue consumed as much energy or occupied as much attention in the national consciousness. In consequence, the shape of the United States as we know it was moulded through attempting to confront exactly what role the so-called “peculiar institution” was to play in the nation’s future or alternately by taking pains to avoid any such reckoning. And while no other single question of policy ever exerted quite the same gravitational pull, there have been a number of other such pressure points across the history of the American republic that effectively served as moments of national self-reflection, crisis, and renewal. The end of the 19^th century and the beginning of what became known as the Progressive Era, for instance, was most certainly one of those key moments. Forced to confront the apparent contradictions between the American national credo – “all men are created equal” – and the increasingly inequitable effects of laissez-faire capitalism, prominent reformers transformed and realigned the political culture of the United States in a way that better reflected the technological and social changes wrought by the Civil War (1861-1865) and its aftermath. The era of the Vietnam War (1964-1973) reflects another such crisis point, during which the nation engaged in an often chaotic process of introspection and assumptions about the role of government and civil society were challenged and redefined.

Moments like these litter the timeline of American history, and studying them can yield tremendous insight into the way that Americans have understood the meaning of their nationality as well as provide valuable context for a great many of the assumptions ingrained into American culture. America at its worst, one might therefore cynically remark, has historically also been America at its most American. Bearing all of this in mind, and nurturing a personal interest in exploring one of these defining moments alongside my faithful readers, I have determined to take the next several weeks to examine just such a crisis point that falls quite neatly within the era of American history that I long ago staked out as my own to master. Thus, I introduce to you the Jay Treaty, the First Party System, and one of the first great era-defining public debates of the post-constitutional United States.     

            What, I inexplicably hear you ask, is the Jay Treaty? In short, it was a bilateral international agreement negotiated and ratified by the United States of America and the Kingdom of Great Britain in the middle years of the 1790s. Formally titled the Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty; and the United States of America, by Their President, with the advice and consent of Their Senate, its purpose was to settle a number of grievances between the relevant parties that had either persisted since the conclusion of the Revolutionary War in 1783 or arisen since then. It was drafted and signed in London on November 19^th, 1794 by John Jay (1745-1829), on a break from his duties as Chief Justice of the Supreme Court, and William Grenville (1759-1834), 1^st Baron Grenville and Secretary of State for Foreign Affairs. Without going into more detail than that – there will be time for that later – it will for the moment suffice to add that said treaty, upon the arrival of the completed text in the United States of America in the summer of 1795, touched off nothing short of a firestorm of controversy and partisan tension. Heralded by some as a pragmatic compromise between economic necessity and ideological conviction, it was simultaneously decried by others as symbolic of a rank capitulation to monarchist Britain and an abhorrent betrayal of republican principle. Its foes pledged themselves to defeat its ratification by the United States Senate, and even its supporters frequently expressed dissatisfaction and disdain for certain of its provisions.

Leaked to the public in July, 1795 – President Washington had earlier decreed that the text be distributed only to officers of the federal government – their response was no less extreme. An avalanche of pamphlets for and against flooded the country, raucous public demonstrations erupted in towns and cities, and the inexorable crystallization of a two-party political alignment – which had been simmering since the ratification of the Constitution six years prior – was finally and fully realized. And yet, in spite of everything that was said against it, the aspersions cast upon its author, the President of the United States, and its supporters in the press, and the far from inconsiderable efforts of Thomas Jefferson and James Madison in particular to see it well and truly defeated, the Jay Treaty did ultimately become law. The Senate ratified it, twenty votes to ten, on June 24^th, 1795, and Washington signed it into law that August. Its provisions requiring funding were thereafter backed by the House of Representatives, and it finally took effect on February 29, 1796. Those of you still following along might at this point fairly have cause to wonder how this was possible – how it was, in spite of the controversy and chaos that it spawned, that the Jay Treaty managed to become the law of the land. This line of thought is most certainly worth pursuing. Understanding how the Jay Treaty came to pass and the passions that it aroused may yet reveal a great deal about the United States of America as it existed in the end of the 18^th century, the domestic and foreign policy priorities of its citizens and statesman, and the vision(s) that they collectively nurtured of its future.

To that end, what follows will be an exploration of  the text of the Jay Treaty, the various ways that it served either to benefit or to harm certain aspects of economy, security, and national reputation of the United States of America, the contemporary responses of its supporters and critics, and the political significance of its eventual ratification. Before delving into any of that, however, there must first commence a discussion of the conditions on the ground that made the negotiation of a treaty necessary to begin with and which conditioned how the resulting draft document was finally received.  

While it is usually customary at this point to offer some insight into the background of the author of whichever document is under examination, the following paragraphs will, for reasons shortly to be explained, forego any such assessment. First, the life, career, and inclinations of John Jay have been discussed at length already in this series; to repeat them here would therefore appear largely unnecessary. Second, there is little of interest to say about William Grenville – at least not as of 1794/95. He was still fairly new to the political scene, having first entered the House of Common in 1782, and in short order had become a close ally of his first cousin, Prime Minister William Pitt (1759-1806). He was well-educated, had served in the government since 1784, and acted as Home Secretary (1789-1791) prior to being assigned to the Foreign Affairs portfolio. By all indications he was a typical government minister of his era, and promoted the agenda of his party and his nation to a high degree of competency. The third reason for saying little more about Grenville or Jay than that has to do with the nature of the document itself – an international treaty touching upon a number of high-level and potentially sensitive subjects – which more or less demanded that its authors adhere to the linguistic and structural norms of contemporary diplomacy. There was, in short, little latitude for either man to express or insert any aspect of their individual political or philosophical proclivities. Knowing full well that the language they ultimately arrived at would need to be scrutinized and approved before it could come into force, Jay and Grenville therefore doubtless understood that a distinctly measured, non-partisan tone was the most likely to meet with mutual acceptance.   

           

Having thus acknowledged that Jay and Grenville will not be the stars of this particular show, it thus remains to devote the majority of the discussion that follows to an explanation of the specific political and economic conditions that gave rise to the Jay Treaty. And boy howdy – as the saying goes – is there a hell of a lot to talk about.  

Although the immediate aftermath of the ratification of the Treaty of Paris (1783) witnessed a general return to peaceful and mutually profitable relations between the Kingdom of Great Britain and the newly-independent United States of America, a number of key issues were – as aforementioned – either left unaddressed by the terms thereof or arose in the interim to sow animosity between the parties involved. Examples of the former generally touched upon matters of territory or property and spoke to the effects of lingering animosity, pride, and arrogance on both sides of the Atlantic. Article Two of the Treaty of Paris, for example, while intended to settle the territorial boundaries between the nascent United States and Britain’s remaining possessions in North America, proved particularly difficult to implement. The actual text of the article in question was somewhat vaguely worded – describing a line running from the westernmost point of Lake of the Woods to the Mississippi River as the international border – and left uncertain exactly where American sovereignty ended and Britain’s began. The result was an area in the far west of the American republic’s declared territory that potentially overlapped with British claims in the Province of Quebec. As neither party was particularly willing to concede to the other – Britain, still smarting over the loss of the Thirteen Colonies, wished to maintain a check on American expansion in the Great Lakes region, while the United States was eager to press it claims to the same territory and the resources it contained – disputes over resources, settlement, and the application of domestic law were more or less inevitable.

            The most visible manifestation of this overlapping sovereignty took the form of a series of forts on the western frontier of what the Treaty of Paris had fairly clearly acknowledged to be American territory. Most of these permanent garrisons – including but not limited to Fort Detroit and Fort Mackinac in what became the Northwest Territory, and Fort Niagara and Fort Ontario in New York State – had been built by the British during the Seven Years War (1754-1763), had remained in British hands throughout the late Revolutionary War (1775-1783), and had been officially ceded to American control by the terms of the peace in 1783. Article 7 of the accordant treaty specifically stated that George III (1738-1820), on behalf of his government, agreed to remove, “All his armies, garrisons, and fleets from the said United States, and from every post, place, and harbor within the same [.]” In spite of this written assurance, however, British military personnel retained control of these selfsame fortifications, and the hinterlands surrounding them, well into the 1790s. Not only that, but British military authorities also ordered the construction of a further garrison, Forth Miami, in the Maumee River valley in 1794 –  in territory that fell well within the American claim and long after the Treaty of Paris had been signed and ratified.

Britain’s rationale, for continuing to occupy these existing garrisons, and for constructing a new one, was essentially twofold. First, it gave British authorities the ability to apply pressure to the United States government as a means of compelling the latter to fulfil what Britain claimed were its own largely unheeded obligations under the Treaty of Paris – namely, the restoration or restitution of Loyalist property and the repayment of debts owed to British subjects. Second, it allowed Britain to maintain commercial and political relations with the Native inhabitants of the Great Lakes region. Actively servicing these bonds – established over the course of the 17^th and 18^th centuries through trade, military cooperation, and diplomatic exchange – provided Britain with access to trade goods, information, and the ability to generally frustrate or slow the expansion of American settlement into what are now the states of Ohio, Michigan, Illinois, and Indiana. The indigenous peoples of these disputed territories – the Wyandot, the Shawnee, the Lenape, and the Miami, among others – meanwhile took ample advantage of Britain’s evident intention to stymie the growth of its former colonial subject by seeking to bend their European ally’s North American strategy towards the promotion and preservation of their own particular interests. On the ground, this relationship and its outcomes took the form of terror-inspiring Native raids on American settlements, occasional British military aide during engagements with the United States armed forces – such as their ultimately futile participation in the Battle of Fallen Timbers in August, 1794 – and the overall umbrella of protection offered by the continued physical presence of British soldiers, traders, and administrators in ostensibly American territory.

            A further inadequacy of the Treaty of Paris – from the American perspective, at least – also lay in its failure to provide financial restitution for thousands of slaves who fled their American masters and received freedom and transportation from British authorities during the late Revolutionary War. These runaways had responded to the efforts of British officials like Virginia’s Royal Governor John Murray, 4^th Earl of Dunmore (1730-1809), to stymie the American war effort by bleeding away the labor supply of the rebellious provinces. A number of these former slaves subsequently served in specially-formed regiments of the British army in combat and non-combat roles alike. In return for their service, and for abandoning their masters, upwards of six thousand newly-freed men, women, and children were transported from what had been formally recognized as the United States of America to British territories in Nova Scotia, Florida, the Caribbean, and even Britain proper. While this truthfully represented a small percentage of the overall slave population of the former Thirteen Colonies, the Revolutionary governments of the various Southern states in particular – whose economic wellbeing depended on access to slave labor – fully expected that the terms of the peace between the nascent American republic and Great Britain would include a clause that mandated the return or restitution of what they considered to be seized Patriot property. That the Treaty of Paris entirely failed to achieve this goal while at the same time requesting American compensation for seized Loyalist property and estates struck a portion of the political classes in the United States as manifestly unjust, and consequently remained a sticking point within the diplomatic realm of the Anglo-American relationship.

Federalist No. 78, Part VIII: Implication, contd.

            In addition to hinting at the tactical significance of the state ratifying conventions within the broader debate over the proposed constitution, certain passages of Federalist No. 78 also seem to draw attention to an element of the judicial review process with which its author, Alexander Hamilton, appeared at least mildly uncomfortable. Specifically, by addressing the role to be played by federal courts in assessing the conformity of statute with the text of the Constitution, comments rendered in paragraphs eleven, thirteen, and fourteen arguably indicate a degree of unease or an effort on Hamilton’s part to avoid discussing the interpretive aspect of judicial review – likely because he felt it would ultimately do harm to his argument in its favor. Whereas it cannot be denied that federal justices, in the course of their duties, must at times seek to interpret the meaning of certain passages of the Constitution whose significance or application are not otherwise clear, the relevant sections of No. 78 seemed to describe this same process in broadly simplistic and unambiguous terms. Reflecting upon the controversy which has long since attended certain Supreme Court rulings, and the recurrent questions which have arisen in public discussion over the seemingly outsized role individual justices seem to play in shaping the laws of the United States, Hamilton’s evident sense of discretion might be forgiven (or at least understood). That being said, it remains noteworthy that anxiety over this interpretive aspect of judicial review has evidently been an element of American public discourse since the inception of the Constitution. It is also rather striking that Hamilton, in attempting to argue in favor of even the concept of judicial review, was evidently able to foresee the clamour that would arise and took steps to avoid stoking it. 

            Returning to specifics for the moment, consider the passage from the eleventh paragraph of Federalist No. 78 which asserted that, “The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain it meaning [.]” This plain declaration would seem to gloss over certain complicating elements of the process it described. If, as Hamilton here seemed to assert, it was set to form a key part of the duties of the federal courts to ascertain the meaning of the Constitution, at least two significant implications would seem to arise. First, Hamilton’s admission that the Constitution would at times be in need of clarification or interpretation would appear to indicate that the plain text of it was not necessarily clear enough or comprehensive enough to function purely as written. In fairness, it would indeed be unrealistic to expect any codified governing document to be wide-ranging enough to confront every possible eventuality without its officers occasionally resorting to some degree of re-articulation. Nevertheless, contemporary critics of political centralization – i.e. the Anti-Federalists – would doubtless have seized upon an admission of the same as evidence of their opponents’ desire to seed the proposed constitution with enough vagaries and loopholes so as to afford a re-configured national government the ability to grant itself whatever powers its proponents desired. Without making any claims as to precisely what Hamilton himself desired on this score, he at least appeared conscious that support for the Constitution would best be drummed up by avoiding undue discussion of such substantive ambiguities.

            The second implication that would seem to arise from the cited passage of the eleventh paragraph of Federalist No. 78 – and which appeared to be echoed and reinforced by sections of paragraphs thirteen and fourteen – concerns the particular role to be played by the various officers of the federal courts. If, as Hamilton stated, federal judges would be solely responsible among the judiciary of the United States for declaring the definitive meaning of a given section or clause of the Constitution, it would seem to follow that the legal significance and practical application of said document would depend in large part upon the individual perspective of the judges in question. In addition to professional experience and knowledge of the law, therefore, the particular ideology, philosophy, education, or even personality of a federal justice would all seem set to weigh on how certain passages of the Constitution were read and the manner in which they were applied. It would, once again, be impossible to deny that this is in fact the case. In the history of the United States Supreme Court, there have been liberal Justices and conservative Justices, and within these broad categories strict constructionists, loose constructionists, originalists, and purposivists. Indeed, contrary to what any one of these schools of thought would claim, there has never been any single legitimate lens through which to view the Constitution. And while public discontent can and does arise in response to particular readings or verdicts, the authority of the Supreme Court to interpret said document – by whatever means its individual members determine – has never been substantially challenged.

            That being said, and once again perhaps in fear of the furor he believed would arise if he openly acknowledged the role individual personality had to play in the operation of the proposed constitution, Hamilton seemed determined in the text of No. 78 to characterize the interpretive role of the federal courts in very broad terms. In the event that two statutes, he accordingly explained in paragraph thirteen, each possessing the force of law were found in any way to conflict or negate one another,

It is the province of the Courts to liquidate and fix their meanings and operation; so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other.

Hamilton’s purpose in citing this legal principle was quite clearly to draw a comparison between the customary role of the judicial establishment within the Anglo-American tradition and the expanded role he envisioned for them under the proposed constitution. As, in the normal course of events, it fell to the courts to reconcile conflicting statutes, so would it fall to the federal judiciary to reconcile a given statute with the text of the Constitution when the two appeared to be at odds. Once again, however, Hamilton’s evident attempt to put a straightforward gloss on the inherent complexity of judicial review arguably raised more questions than it settled. What, for instance, did he mean by the term “fair construction?” Surely he must have been aware that what seemed a fair reconciliation of a given law with the Constitution to one group of observers would appear manifestly unfair to another. And how is it that “reason and law” can conspire to dictate that such and such a thing should be done? People reason differently, and perceive the purpose and significance of law differently. Granting that the Constitution was intended to operate as an ideologically neutral and non-partisan governing framework, it would seem the height of either naiveté or short-sightedness to imagine that a clear consensus would ever exist as to how and why its various sections and clauses ought to operate.

            It further seems worth questioning what Hamilton meant when he wrote that the reconciliation of conflicting statutes – and of a statute that conflicted with the proposed constitution – would sometimes be impracticable, and that in such instances it was “a matter of necessity” that one give way to the other. Who, for want of any indication on that score, would decide in this context what was impracticable and what was necessary? By what measure would these determinations be made? As with his invocation of “reason and law,” Hamilton here seemed determined to strip his characterization of the role of the judiciary of any hint of individual discretion. Rather than admit that a judge – a frail, flawed human being whose legal expertise arguably could not be separated from their personal inclinations – would be responsible for deciding what was possible, what was necessary, what law and reason dictated, and what constituted a fair construction, he instead took rhetorical refuge in inactive phrases which seemed to treat the process of judicial review as though it involved little more than acknowledging the primacy of some objective truth.

An additional passage from No. 78 would seem to confirm this. Having discussed in paragraph thirteen the supposedly self-evident logic in newer statutes taking precedence over older statutes when the two were to be found in conflict, Hamilton countered in paragraph fourteen by stating that the relationship between ordinary law and the proposed constitution would by necessity function in the opposite manner. Whereas newer statutes would presumably represent the most accurate and up-to-date summation of the popular will, the supreme governing document under whose auspices said statutes were issued would always remain superior in its claim to the approbation of the people and the support of their institutions. To that end, Hamilton wrote that, “The nature and reason of the thing indicate the converse of that rule as proper to be followed.” As with the passage cited above, this outwardly simply clause seems to deny the complexity of the relationship it endeavored to describe. Not only did it fail to explain precisely what “the nature and reason” of a potential conflict between a given statute and the proposed constitution was meant to refer to, but it also neglected to mention to whom such matters would ultimately be indicated. Thus phrased, however, Hamilton could conceivably avoid having to delve into what was perhaps the most frightening aspect of judicial review: individual discretion. Justices, after all, would be responsible for determining whether the terms of a statute warranted review, and would furthermore decide precisely what said review would entail.

In fairness to Alexander Hamilton, and to the members of his audience whose sensibilities he was presumably endeavoring not to offend, the power that the practice of judicial review has bestowed upon Supreme Court Justices is in concept more than slightly alarming. The ideological inclinations of certain members of the court have, over the centuries, led to readings of the Constitution, and of statutes under consideration, which have variously resulted in African-Americans being denied the right to citizenship (1857), the disestablishment of racially-segregated public education (1954), the increased ability of corporations to donate large sums of money to political parties or individual candidates (2010), and the nationwide legalisation of same-sex marriage (2015). While some of the verdicts in these cases were acclaimed by a majority of the sitting members of the Court, others were carried by a much slimmer margin – Obergefell v. Hodges (2015), in fact, saw the plaintiff’s case confirmed by a single vote. However one feels, emotionally or ideologically, about any of these cited decisions, it would seem fair to characterize the ability of a single person within an institution of the United States government to uphold or overturn state or federal law as at least appearing to be somewhat at odds with the core principles of representative democracy. If the will of “the People” is the only true font of legitimacy within the political and legal framework of the United States of America, then presumably the will of any single person ought never to be capable of setting a binding standard of practice not otherwise alterable. Hamilton, in short, may be forgiven for his reticence, if indeed this was an outcome he possessed foresight enough to recognize.        

            And yet, Hamilton’s possibly justified anxiety notwithstanding, the right of individual members of the federal judiciary to interpret the Constitution by whatever means they deem appropriate or necessary has since become an accepted aspect of judicial review in the United States. Granting that nearly every major decision handed down by the federal courts, and in particular those with margins as close as Obergefell v. Hodges, meets with some degree of hemming and hawing from the discontented, the American people have largely come to trust the judges appointed by their public servants to exercise tact, prudence, and integrity when performing their duties. This quality of public confidence – and with it a tacit acceptance that personality is an unavoidable element of any example of public decision making – has effectively sustained the authority of the judicial branch in spite of widespread opposition to certain controversial verdicts, and fully normalized its role as the sole legitimate arbiter of the United States Constitution. Rather than fatally and finally recoil at the audacity of the claimed right of unelected jurists to dismiss legislation that was drafted and approved by their own elected representatives, the American people have evidently come to acknowledge that disagreement with a given verdict handed down by the federal courts does not necessarily entail rejecting the discretionary right of the same. That is to say, however much some citizens of the United States might disagree with the substance or implications of a Supreme Court ruling, very, very few of them would honestly argue that the authority of the Court itself is invalid.

            In spite of Hamilton’s evident fear of public distress over the interpretive aspects of judicial review – if his rather mechanistic portrayal of the same in No. 78 is any indication – he nonetheless appeared to understand on some level that widespread acceptance of federal court decisions would be a likely consequence of that same institution’s particular weakness. As discussed in a previous entry in this series, this weakness was one of the reasons Hamilton believed that the judicial branch of the proposed federal government posed no real threat to either its legislative or executive counterparts. “The Judiciary” he wrote to that effect in paragraph six, “has no influence over either the sword or the purse; no direction over the strength or the wealth of the society; and can take no active resolution whatever.” In subsequent sections of No. 78 – while occasionally, as noted, appearing to work at cross-purposes – he went on to explain that this manifest lack of agency would permit the federal courts to play its co-equal counterparts against one another, buttress the system of checks and balances built into the structure of the Constitution, and generally help promote a sense of equilibrium and balance within the newly-reconstituted national government. What Hamilton conversely did not say, but what was substantially implied, is that this highly dynamic relationship may also have had the potential to secure the acceptance of the federal judiciary far more effectively than if it could take what he described as “active resolution.”

            Consider, to that end, a federal judiciary which combined the power of judgement with the power of enforcement – say, by allowing the courts to wield some form of policing. Because this would render the federal courts an authority unto themselves, their substantially – but necessarily – undemocratic nature would doubtless be highlighted every time they handed down a ruling that met with wide-ranging public discontent. Unable to point to the cooperation of either houses of Congress, the Presidency, or the various states – and indeed very likely to be opposed by the same – this theoretically assertive federal judiciary would likely find itself widely distrusted, under constant attack, or rendered moot by means of constitutional amendment. As discussed above, the discretion possessed by individual justices – combined with their status as appointed officials – rendered their authority all too easy to call into question. Turning reasoned judgement into judicial fiat would likely have pushed the envelope of public acceptance just far enough to make plain what Hamilton seemed to fear; that is, a federal judiciary whose members were seen as aloof, dictatorial, and – shudder – perhaps even aristocratic.   

            Forcing the federal courts to rely on the legislative and executive branches of the national government comparatively offered the judicial branch the chance to effectively build its legitimacy upon a platform of association. Whereas a judiciary with law enforcement authority might very easily alienate itself by claiming a mandate from the Constitution rather than from “the People” or their elected representatives, a weak judiciary that, as Hamilton wrote in paragraph six of No. 78, “Must ultimately rely upon the aid of the Executive arm even for the efficacy of its judgements [,]” would comparatively find great advantage in allowing its every judgement to become an opportunity for institutional cooperation. On occasions when Congress opposed a particular verdict, this would mean relying upon the Presidency and the various institutions within the executive branch to enforce the terms thereof. Conversely, whenever the federal executive chose to set itself against a given ruling, the judiciary would be forced to depend on the aid of Congress and the numerous mechanisms at its disposal. In either case, while building stronger bonds with one institution or another, the end result for the federal courts would presumably be the same: every judgement it handed down would carry with it the approbation and material support of a more democratic branch of government.

            What this means in a practical sense is that every Supreme Court ruling that had been rendered throughout the history of that body represents, in its effects and its lasting significance, a collaborative effort on the part of any number of state and federal institutions. The Court has always needed the cooperation of the Department of Justice, or Congress, or state police agencies, or state courts to ensure that its verdicts are carried out, and in the process has attained a degree of public acceptance that seems to belie the controversy its activities can often generate. And while presidents, congressional majorities, and state governments have not always agreed with the letter or spirit of every Brown v. Board of Education or Roe v. Wade, the default position of all of these institutions has become one of at least formal acceptance. Rather than attempt to dismiss out of hand verdicts deemed undesirable or invalid, critics – individual or institutional – instead resolve to seek recourse through the judiciary itself. This “wait and see” approach is arguably a viable one because, as Hamilton asserted in No. 78, the federal courts are not a force unto themselves. The American people elect a President and a Senate who nominate and confirm judicial candidates, respectively, and who cooperate with other state and federal institutions in ensuring that the verdicts handed down by the courts are respected and enforced. Critics, therefore, are poorly equipped to decry what they perceive as the arbitrary nature of federal court rulings because every Supreme Court ruling represents a communal effort. Whether a single justice cast the deciding vote or the decision was unanimous, the overall process is by design shaped, guided, and conditioned by any number of institutional expressions of the popular will.    

            Think of it like this. A person might celebrate a Supreme Court ruling one day because it aligns with their personal ideology or moral code, and disagree with a verdict laid down by the same body a week later for the same basic reasons. They are, of course, entitled to react however they care to, however their perspective and personality inclines them to, and to make known their displeasure or support by whatever legal means at their disposal. What they should not do, however, if they don’t want to call into question the legitimacy of verdicts they approve of, is attack the integrity the Court or of specific justices simply because a ruling has been handed down that they find to be offensive. The fundamentally cooperative nature of Supreme Court verdicts – every single one of them – grinds against any such “pick and choose” approach. Either one accepts the legitimacy of the federal courts or one does not. And while the former may fundamentally amount to a strategic consideration – people respect rulings they disagree with because they want their opponents to follow suit – the Court and the American people have stood to benefit all the same. Supreme Court rulings thus possess the power of constitutional law because they are supported by other institutions of government, and because the citizens of the United States accept that they do. While the emergence of this status quo doubtless seemed uncertain at the time Hamilton penned Federalist No. 78 at the tail end of the 18^th century, certain aspects of the text therein do appear to suggest that such was indeed his unexpressed hope.   

            Anyway, that’ll do me. Check it out for yourself, why not?