Friday, 21 July 2017

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 18th 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 18th 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 18th 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 19th 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 18th 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.

Friday, 14 July 2017

The Jay Treaty, Part IX: Subtext, contd.

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 7 July 2017

The Jay Treaty, Part VIII: Subtext, contd.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 30 June 2017

The Jay Treaty, Part VII: Subtext, contd.

The aforementioned Alexander Dallas offered criticisms not dissimilar to those of his Republicans colleague Robert Livingston, though they were accompanied by a great many more complex and substantive complaints. Published in Dunlap and Claypoole's American Daily Advertiser in July, 1795, the Pennsylvania lawyer’s Features of Mr. Jay’s Treaty was lengthy, highly-structured, and quite broad in its approach. Across eight parts, and within those an average of six subsections each, Dallas made a detailed and well-documented case that the offending treaty – among other things – was poorly executed, settled little between Great Britain and the United States, gave only the illusion of reciprocity, chiefly served the interests of the Federalists and their allies, and violated the very essence of the United States Constitution. While it would not do to examine his every complaint – there are so many, and they cover so much ground between them – several appear of particular significance to the discussion at hand.

Consider, for instance, Part I, sections 3, 4, and 5. Therein, before even beginning to delve into the finer points of the treaty itself, Dallas offered a series of criticisms of the very manner in which that document was commissioned, drafted, and submitted for ratification. The dispatch of Jay to London for the purpose of securing a treaty, Section 3 first explained, came at the expense of Congress, whose members were then in the midst of offering a series of responses to Britain’s recent aggressive disregard of American maritime neutrality. These efforts, helmed by Republicans – like James Madison – and Federalists – like Jonathan Dayton and Abraham Clark – were, as Dallas put it, “Suspended, or rather annihilated, by the interposition of the executive authority [.]” If this passage makes it sounds as if the author of Features took some particular issue with the treaty-making authority that the United States Constitution granted to the Chief Executive, there is good reason for it. Part VIII of the same treatise asserted at length the fear and suspicion Dallas nurtured of the ability of the President and the Senate, in cooperation with a foreign power, to subvert the rightful responsibilities of the House of Representatives or even alter the very nature of the Constitution itself. Bearing this in mind, it would seem a fair reading of the cited text of Part I, Section 3 of Features to conclude that Dallas believed the very existence of the Jay Treaty to represent a usurpation of the legislative authority of the United States government.

The evident disdain harbored by Dallas for the process by which the Jay Treaty was crafted found echoes and elaborations in the aforementioned sections 4 and 5. In the former, the Pennsylvania lawyer called into question the disagreeable circumstances of Jay’s dealings with his British counterpart Grenville and the unfortunate consequences thereof. As with Livingston’s complaints in his Cato essays, this line of enquiry inevitably involved casting aspersions upon the character and the competence of the American envoy. During the length of his commission in London, Dallas opined, Mr. Jay, “Enveloped by a dangerous confidence in the intuitive faculties of his own mind, or the inexhaustible fund of his diplomatic information, neither possessed nor wished for external aid [.]” Grenville, meanwhile, was willing and able to bring to bear, “The auxiliary sagacity of his brother ministers [and] all the practical knowledge of the most, enlightened merchants of a commercial nation.” This imbalance, so described by Dallas, was seemingly Jay’s doing – burdened by overconfidence, he had allowed a better-armed opponent to outmaneuver him. That being said, and which Dallas also seems to admit, the circumstances under which Jay had been asked to work were hardly ideal. Alone, separated from the resources of his government by a vast ocean, and faced with an opposite number whose diplomatic assets were close at hand and nearly limitless, Jay was arguably doomed by the conditions of his assignment to work from a position of comparative weakness. In consequence of all of these various conditions, Part I, Section 4 of Features went on to explain, “Mr. Jay was driven from the ground of an injured, to the ground of an agressing, party; he made atonement for imaginary wrongs, before he was allowed justice for real ones [.]” Thus, in addition to the very notion of a treaty with Great Britain representing a potential invasion of the legislative authority, Dallas appeared to believe that the act of its negotiation had been poorly conducted by an arrogant, ill-equipped, and outclassed envoy.

  The diverse deficiencies which Dallas perceived in the processes by which the Jay Treaty was accomplished, Part I, Section 5 of Features went on to explain, found their final expression in the manner by which the offending document was ultimately ratified. Contrary to the virtues of, “Principle, argument, and decorum [,]” which most contemporary Americans doubtless agreed ought to have guided every action and intention of their national government, Dallas asserted that the debate and ratification of the Jay Treaty were conducted under highly irregular and improper conditions. “The first resolution taken by the senate,” he explained, was to, “Stop the lips and ears of its members against every possibility of giving or receiving information [.]” This action – undertaken with the belief that undue public clamor was best avoided until after a decision had been made – thereafter had the regrettable consequence of placing every member of the Senate in what Dallas described as a parallel condition to that which Jay had suffered in London. “Presumed to be inspired,” Senators were left without that pivotal resource required for them to perform their assigned duties – i.e. the input of their constituents – and made to substitute their own understanding for that of their fellow countrymen. Closing off opportunities for pubic consultation doubtless also had the effect of shortening the length of the debate, thus limiting the potential for periods of reflection and re-evaluation between sessions.  

Having accomplished this initial coup, the proponents of the Jay Treaty appeared all too ready to resort to similarly questionable tactics whenever its fate seemed in doubt. Among these, Dallas explicitly noted,  “The danger of exposing to odium and disgrace the distinguished American characters, who would be affected by a total rejection of the treaty,” and, “The feeble, but operative, vote of a member transported from the languor and imbecility of a sick room [.]” Whereas the dubiousness of the latter would appear more or less self-explanatory, the former charge likely warrants some explanation. The phrase “distinguished American characters” was likely intended as a reference to Revolutionary War hero, lauded Patriot, and sitting President George Washington (1732-1799). Undoubtedly the single most popular man in the United States during the latter half of his lifetime, the stability and effectiveness of the early federal government were often and openly attributed by contemporaries to his uncanny ability to command the loyalty and affection of his fellow Americans. To damage Washington, therefore, by exposure of incompetence, or neglect, or poor judgement, was accordingly to risk damaging the prospects – if not the very existence – of the American republic itself. Bearing this in mind, Dallas’ intimation would seem to have been that Washington’s connection with the Jay Treaty – he had commissioned it personally, was solely responsible for Jay’s conduct during the length of this commission, and had endorsed it prior to its introduction in the Senate – had been pointed up by that document’s supporters as cause to vote for ratification. Allow the treaty to go down to defeat, the threat would seem to follow, and risk disgracing the President, injuring his ability to hold the nation together, and potentially bringing about the dissolution of the United States of America.

Not all of the condemnations that Dallas offered in his Features were quite as abstract or fundamental as those explored above. Part III, for example, by posing a number of queries in response to various cited articles of the Jay Treaty, sought to expose some of the practical disadvantages that were embedded in its terms. Consider, to that end, Section 2. Referring to the clause of the third article of the Jay Treaty that permitted Great Britain and the United States to access the, “Ports of either party, on the eastern banks of the Mississippi [,]” Dallas asked a very simple, but highly significant, question. “What ports,” he wrote, “has Great Britain on the eastern banks of the Mississippi?” The answer, as of 1795, was none. Following the cession of West Florida – a strip of territory on the Gulf of Mexico between the Florida panhandle and Louisiana – to Spain in 1783, no portion of any British territory or colony in North America abutted the Mississippi River. The United States of America, by comparison, could claim sovereignty over almost the entire eastern shore of that most vital of inland passages, from its source in what was then the Northwest Territory to just short of its outflow into the Gulf of Mexico. By asking the aforementioned question, Dallas plainly intended to draw attention to this fact and prompt recognition in his audience of the true nature of British reciprocity. By Mr. Jay’s hand, the United States had given British vessels the right to land at any of its ports along the vast reaches of the Mississippi River. And Britain, while appearing to extend the same courtesy, had in fact surrendered nothing in exchange.     

Part III, Section 5 of Features drew attention to another evident imbalance within the terms of the Jay Treaty, in this case having to do with the official recognition of private property. Acknowledging that the ninth article of the latter document stipulated that the citizens of the United States and the subjects of Great Britain who then held land within the territory of the other, “Shall hold the lands in the same manner as natives do,” Dallas again posed a very simple question. “What is the relative proportion of lands so held?” he asked. As mentioned previously, the answer was not likely to offer comfort to those citizens of the American republic for whom Britain remained a source of suspicion and distrust. Far more British subjects owned land within the confined of the United States than did American citizens in any British territories. And while a number of declared Loyalists had suffered their properties to be appropriated and resold by the various state governments, many so-called “Tories” remained in possession of their American assets well into the 1790s. No doubt bearing this fact in mind, Dallas offered two further queries as to the purpose of Article 9 of the Jay Treaty. What, he asked, would be the effect, “To revive the claims of British subjects, who, either as traitors or aliens, have forfeited their property within the respective states?” And also, he asked, what effect would likely result from,

The operation of such a compact on the internal policy of the union, combined with the solemn recognition of a colony of British subjects, professing and owing allegiance to the British crown, though settled within the acknowledged territory of the United States, by virtue of the second article?

While, as before, he offered no answers, Dallas’ purpose was plain enough. In spite of appearing to treat the United States and Great Britain as equals by offering a series of mutual concessions, it was his evident estimation that the terms of the Jay Treaty bowed to British priorities by overvaluing what little that Britain was willing to give up and undervaluing what the United States was being asked to surrender.       

This was, at least in part, a matter of opinion. As with the essays that Robert Livingston published under the pen-name Cato, the criticisms of the Jay Treaty offered in Features by one Alexander J. Dallas constituted both a substantive, probing critique of the relevant agreement between the United States and Great Britain as well as an example of politically-motivated invective. The manner in which Dallas questioned the seeming liberality of the British position within certain articles of the treaty, for instance, was undeniably warranted. Much of what Grenville had agreed to give up was worthless next to what Jay had agreed to part with in exchange. And as the results of these various exchanges were bound to exert some manner of effect on the domestic economy, or state politics, or border relations in the frontier west, Dallas had the right – nay, the responsibility – to publicly question how and why they had been arrived at. His suspicion of the secretive manner in which the Jay Treaty was debated – and ultimately ratified – in the Senate seemed to derive from a similar attitude of concern. Regardless of whether the Washington Administration supported the terms of the Jay Treaty or not, the many and various results of its adoption were too far-reaching for the relevant approval process to be conducted beneath what Dallas fairly described as “a veil of secrecy.” The Treaty of Amity, Commerce, and Navigation stood to affect far too many Americans in too many ways for its particulars to be shrouded from the American public until after the thing had been debated and endorsed.

Then again, much of what Dallas wrote in his Features of Mr. Jay’s Treaty represented little more than a personal attack on the character and capabilities of Mr. Jay himself. And whether John Jay was an arrogant man, whether he was overly confident in his abilities as a diplomat, or whether he allowed his pride to direct the course of his negotiations with William Grenville were fundamentally immaterial to the quality of the agreement that his efforts had produced. A man possessed of all of these negative attributes could have orchestrated the most stunning diplomatic coup in American history, and a man of evident virtue, probity, and poise could have found himself at the centre of an equally embarrassing diplomatic rout. Whether the Jay Treaty represented one or the other was largely subjective. And so, in large part, were the qualities that Dallas attributed to Jay himself. Were the defects apparent in the Jay Treaty a reflection of whatever personal or professional deficiencies its namesake may have possessed? It was practically impossible to say so for certain in 1795 – as it remains so in 2017 – just as it was Mr. Jay’s province alone to state which thoughts were foremost in his mind as he sat opposite Mr. Grenville. What can be taken for granted as fact is this: Jay was a Federalist and Dallas – like Livingston – was a Republican. And from this fact derives a reasonable conclusion: Dallas, by party inclination, was likely to oppose the efforts of John Jay and his allies regardless of what results their labours produced. Federalist were haughty, arrogant, aristocratic, and self-interested, or so the Republican party line steadfastly held. Their attempts to concentrate power in the hands of the federal government and cultivate friendly relations with Great Britain confirmed it, and their affirmations of loyalty to the principles of the late Revolution could not belie it. For Dallas to have believed otherwise would have marked him out as an exception among his peers, any proof of which is simply in evidence. 

All that being said – and as with the aforementioned Livingston/Cato essays – the accuracy of the claims and criticisms Dallas offered in his anti-Jay Treaty diatribe are less relevant to understanding the significance of that document than the mere fact that Dallas believed and articulated them. He was, after all, a rising power in the Republican faction, and it can be taken for granted that he spoke for a number of his fellow partisans when he penned his aforementioned anti-establishment polemic. And while his characterization of Jay himself as a supercilious diplomatic incompetent who too easily allowed himself to be manipulated by a better-informed and more prudent opponent were par for the course among contemporary Republicans – and is thus fairly uninformative – his disapproval of the process by which the Jay Treaty was commissioned, drafted, and ratified provides potentially invaluable insight into the evolving ideological doctrine of the Republican political organization. As discussed above, Dallas seemed to regard the very existence of a formal agreement between Great Britain and the United States – commissioned by the President and ratified by the Senate – as something of an imposition upon the prerogative of the federal legislature. The preliminary efforts of the House of Representatives to respond to mounting British intransigence – to quote once again from a particularly striking passage – were, “Suspended, or rather annihilated, by the interposition of the executive authority [.]” Combined with the concerns Dallas also voiced in Features as to the potential dangers that he perceived in the treaty-making power of the President, it would seem reasonable to conclude that some portion of the still-evolving Republican faction to which Dallas belonged were as concerned by what the Jay Treaty represented in the abstract as by its actual contents.

It bears recalling, at this stage, how little time had passed between the ratification of the United States Constitution in 1788 and the drafting and passage of the Jay Treaty in 1794/95. Though the national government formed by the Constitution had so far successfully overseen the creation of a national bank, the allocation of a national debt, and the entry into the union of two additional states, many of its specific powers and responsibilities remained essentially untested. In consequence, critics of a strong federal government – many of whom had voted or campaigned against ratifying the draft constitution – still had much to be concerned about by the time John Jay departed for London in 1794. The aforementioned treaty-making authority – located in Article II, Section 2 – was almost certainly at the top of any such list. Specifically, it was the accompanying clause of Article VI that appeared the most troubling in its implications. “All Treaties made, or which shall be made, under the Authority of the United States [,]” it stated, were by right to supersede, “Any Thing in the Constitution or Laws of any state [.]” In consequence, it seemed, the President and 2/3 of the Senate effectively possessed the ability to write laws in cooperation with foreign powers which neither the House of Representatives nor the individual states could in any way impact or resist. A more terrifying threat to the republican prerogative critics of the Constitution would surely have been hard-pressed to imagine, and it was doubtless only the absence of a need for any international agreements between 1789 and 1794 that allowed other issues – sovereign immunity, say, or freedom of the press, or protection from unreasonable search and seizure – to take hold of the ongoing public debate.    

The events of 1793 obviously changed all that. Relations with Britain had soured to the extent that a formal rapprochement was deemed necessary, and by the summer of 1795 the first international treaty negotiated by the United States under the auspices of the Constitution lay before the American people. And while most of the discussion that followed revolved around the terms and implications of the treaty itself, certain of its critics did not hesitate to question the validity of the process by which the agreement had been made. Alexander Dallas keenly articulated a number of concerns on that head, doubtless held in common with a number of his Republican colleagues. Was it appropriate for the President of the United States to be able to effectively invalidate the authority of Congress by the use of the treaty-making power? Of yet more pressing concern, was it conceivable that the Chief Executive and the upper house of Congress could conspire with a foreign power to make alterations to the Constitution itself, absent the otherwise mandated authority of the lower house and the state legislatures? While in reality these questions did not have easy answers, Alexander Dallas was evidently convinced to the contrary. The tone of Features, the subjects he chose to draw attention to, and the authorities he cited all point to a strong antipathy – if not a mortal concern – on his part for what the process of drafting and ratifying the Jay Treaty signified for republican government in America. Accept this procedure as the norm, he seemed keen to affirm, and there was no telling what contortions the United States would come to suffer.

Friday, 23 June 2017

The Jay Treaty, Part VI: Subtext

            To return to a discussion begun some weeks ago, the Jay Treaty was received with something less than universal approbation upon the arrival of the completed text on American shores in May, 1795. The Republican faction, led by former Secretary of States Thomas Jefferson and Congressman James Madison, reacted as though Jay had acted solely on behalf of the merchant elite of the United States, bound the American republic once more in servitude to the British Crown, and thereby helped to extinguish the “flame of liberty” that the late Revolution had initially sparked. The Federalists, led in the main by former Treasury Secretary Alexander Hamilton, were conversely supportive of Jay’s efforts and eager to see the draft ratified, though they, too, nurtured their share of misgivings. Article 12 – whereby American merchant vessels were permitted access to ports in the British West Indies on very restrictive terms – was more than slightly insulting, they admitted, and was best either discarded or modified. When presented to the Senate for debate in June, this core disagreement was buttressed by yet more objections from John Jay’s growing chorus of critics. Upwards of ten separate articles, Senate Republicans asserted, were unfit for ratification, and several further omissions on Jay’s part were in need of explanation. Why, they asked, had the American envoy failed to address the impressment – or kidnapping, as indeed it was – of American sailors by British Navy personnel? And why, their Southern cohort was particularly eager to know, did the treaty entirely neglect to arrange for the repayment of slave owners whose property had been illegally carried off during the British retreat in 1783?

With twenty Federalists in attendance to ten Republicans, these enquiries did not necessarily require answers. The Federalists controlled the chamber and the treaty had the backing – if not the wholehearted approval – of President Washington. Thus, while the majority Federalists agreed with their crossbench colleagues that the aforementioned Article 12 would be partially suspended pending renegotiation, the remainder of Republican objections were summarily dismissed. The Jay Treaty was accordingly ratified by a party-line vote on June 24th, 1795, signed by the president in late August of that year, and subsequently came into force on February 29, 1796. In the interim, however, is when the real battle commenced. Because the Senate deliberations had been conducted under a veil of secrecy – so ordered by President Washington for fear of a possible public backlash – the treaty only entered the forum of public opinion after its various provisions had been legally approved. And while it did so at the hands of chastened Republicans desirous of drumming up popular opposition to their Federalist rivals, there were those among even that latter faction who understood – to borrow a turn of phrase from a much later era in American history – that sunlight was indeed the best disinfectant. Among his Federalist colleagues, Hamilton in particular was eager to see the treaty made public, and for his opponent’s inevitable exaggerations to be confronted by the truth. Thus, it seemed, the leadership of both factions then vying for control of American public life were similarly keen to enter the next – and undeniably the most politically and culturally impactful – phase of what was set to become one of the first great public debates in the history of the American republic.   
            On the Republican side neither Jefferson nor Madison deigned to lead the charge against the Jay Treaty in the political press, though they were the ostensible leaders of that faction. Instead, the likes of New Yorker jurists Robert R. Livingston (1746-1813) and Henry Brockholst Livingston (1757-1823), and Pennsylvania attorney Alexander J. Dallas (1759-1817) took up the task from behind a series of Roman – i.e. classically republican – pseudonyms like Cato, Cinna, and Decius. By and large, these published critiques tended towards attacking Jay personally – his political predilections, professional qualifications, etc. – drawing attention to the injuries committed by Great Britain that the treaty did not address – impressment and slave reimbursement chief among them – and generally portraying the drafted agreement as one which unnecessarily prostrated the interests of the United States of America before Britain’s commercial and military priorities. Robert Livingston’s Cato essays, published in the New York Argus, focused specifically on this third point, though to ultimately questionable effect. Jay’s willingness to capitulate to his opposite number on so many issues was wholly unnecessary, Livingston/Cato asserted, because Great Britain had in fact been teetering on the brink of disaster at the time Jay arrived in London in 1794.

This was the case, he further explained, because the French and British fleets were theretofore holding each other in check to the point that America’s entry into the war on the side of the French Republic would have utterly devastated British shipping and crippled the British economy. This being so, Jay should have made use of the resulting leverage to rightfully assert his nation’s aggrieved status. Britain, after all, had violated the terms of the Treaty of Paris by continuing to occupy American territory in the West, had injured American trade in the region, and had instigated Native raids against American settlers. In response, Jay should have demanded that a British evacuation – which the Jay Treaty did accomplish – be accompanied by,

Reparation for the loss of trade – a compensation for the expense of the war the British had exited with the Indians – a public punishment of the British subjects who had personally appeared in arms against us, [and] the removal from office of Lord Dorchester, who had, in his address to the Indians, encouraged them to violate the treaty of peace.

Granting that Livingston’s portrayal of British desperation circa 1794 was generally uniformed and inaccurate, his assertion of America’s status as the injured party in certain of its disputes with Great Britain was substantially true. Successive British governments had indeed violated the terms of the Treaty of Paris. American settlement and trade had been hampered by the continued British military presence in the region of the Great Lakes, and the Native inhabitants of the same had been encouraged – often quite openly – by British officials to make war upon the newcomers who were so intent on invading their ancestral homeland. What Livingston failed – or declined – to recognize, however, was that there were other forces acting upon the Anglo-American relationship than what solely transpired in the North American wilderness.

However justified Jay might have been – morally or legally – in seeking the fulfilment of all or part of Livingston’s various concessions, it was another matter entirely whether or not Great Britain was in any way inclined to respond. British North America – at that time composed of what is now central and eastern Canada – was but one outpost of a very large and very complicated global empire, and far from the most lucrative or strategically important. In consequence, though the government of the United States had every reason to regard the presence of British military personnel in American territory as an existential threat, the contemporary British government was conversely more apt to be concerned by the stability and prosperity of its holdings in the Caribbean or the East Indies. In addition, notwithstanding Livingston’s assertions to the contrary, Great Britain was very nearly at the apex of its historic power and influence at the end of the 18th century. Even if offered proof positive of its own misdeeds in North America’s frontier west, few forces under the sun could have compelled the contemporary British government to act in a way contrary to what it perceived as its own best interests. Accordingly faced with complaints – well-founded or otherwise – rendered by a minor power and in a relatively unimportant portion of his nation’s imperial holdings, British negotiator William Grenville had no reason to respond to the kind of violent indignation that Livingston seemed to favor, and every reason to seek a resolution that gave away only as much as was absolutely necessary.

Another of Livingston/Cato’s complaints worth noting – for the same reasons as those detailed above – was his assertion that the terms of Article 3 of the Jay Treaty effectively surrendered control of the North American fur trade to British commercial interests. An examination of the relevant text once more reveals the truth at the core of the Republican’s complaint, though not to the effect that he surely intended. The terms of Article 3 did permit both citizens of the United States and subjects of Great Britain, along with, “The Indians dwelling on either side of the said Boundary Line” to travel and trade by water or overland navigation between, “The respective Territories and Countries of the Two Parties on the Continent of America [.]” Because the contemporary fur trade was conducted with the invaluable assistance of the Native inhabitants of the North American interior, and because Article 3 also made an exception of, “The Country within the Limits of the Hudson’s Bay Company” for the purposes of the aforementioned freedom of movement, this clause would necessarily have affected the direction in which that trade flowed.

Rupert’s Land – corresponding to large portions of the Canadian Arctic, Northern Quebec, Manitoba, and Saskatchewan – was the formal designation of the cited territory under Hudson’s Bay Company administration. Over one million square miles in size, it represented some of the richest fur trapping prospects on the continent, and following the loss of the Thirteen Colonies was likely the single greatest incentive for a sustained British presence in North America. Blessed with unchallenged sovereignty over this lucrative region, and possessed of a vast potential Native and mixed-race workforce, Great Britain could accordingly claim in 1794 to be the sole dominant power in the global market for luxury furs. Bearing this in mind, the aforementioned terms of Article 3 make a fair deal of sense. Rather than countenance any threat to their supremacy in this quarter – by, say, opening prime trapping grounds to potential rivals – the contemporary British government opted to reassert their sole access to Rupert’s Land while also securing the free movement of Hudson’s Bay Company agents within the borders of the United States. Thus, while American fur traders – be they Native or otherwise – were forbidden from accessing the most fertile trapping territory in North America, no region being worked by American agents within the confines of that country was closed to employees of the much larger and wealthier British cartel. Britain, therefore, offered little and gained much. America, conversely, offered all it had and gained nothing.

At any rate, this is doubtless how Livingston would have characterized the exchange. Another way to think of it – a wide angle lens, if you will – would be to understand the concessions that the Jay Treaty appeared to make to British interests in the context of the relative power of the United States and Great Britain and the nature of their respective economic needs. Britain was by far the superior military, diplomatic, and commercial actor. Its navy was unparallelled in the 18th century world, its prestige was considerable, and its economy was a finely-tuned machine that turned Jamaican coffee, Indian spices, and Canadian fur into British gold. Comparatively, the United States was small, weak, unimpressive, and impoverished. An experienced diplomat like John Jay could not have been ignorant of these facts, and would have set his expectations and priorities accordingly. The United States could not threaten Britain into abandoning its own best interest, or overawe its government, or offer economic reprisals in return for noncompliance. Prime Minister Pitt needed the wealth of the British world to continue to flow into London, and he would have it notwithstanding American warnings to the contrary. Accommodation was the only answer, or surely seemed so to Jay. Let Britain have its empire, its trade regulations, and its monopolies. The growth and prosperity of the United States of America wasn’t threatened by any of these things. All that it needed – not wanted, or desired, or pined for – was reliable access to British markets on terms that at least managed to avoid causing insult. This, Jay could accomplish – and did accomplish – at a minimal cost to his fellow countrymen.

And yet, the fact that Livingston believed what he wrote in the Cato essays – and we shall assume, for want of evidence to the contrary, that he did believe it – is of surpassing importance to the present discussion. Regardless of how the facts may have appeared to John Jay, his opposite number William Grenville, President Washington, Alexander Hamilton, or the Federalist members of the Senate who voted to ratify the treaty, Robert Livingston believed that the United States had given too much too readily to Great Britain. He located his displeasure chiefly in what he perceived as Jay’s kowtowing to British priorities, and he asserted that the American republic was in a much stronger position vis-à-vis it former colonial master than had his nation’s chosen envoy. The likelihood that a fair number of Livingston’s fellow Republicans agreed with this view of the matter makes such a public position terribly important to understanding the nature of the Jay Treaty debate. However they had arrived at that point, some portion of the main anti-establishment faction in contemporary American politics believed that the logic which essentially underpinned the Jay Treaty – that the United States was in an inferior position to Great Britain, and so had to seek compromise – was faulty. In their minds, it seemed, the logistical difficulties inherent in attempting to extract concessions from one of the most powerful nations on earth were meaningless next to the weight of American moral indignation, and the power of post-revolutionary political idealism. Practical evidence to the contrary, Livingston believed that the United States of America was a great nation, and Great Britain had no right to treat with it as though it were anything less.