Friday, August 11, 2017

The Jay Treaty, Part XIII: Meta-text

            Looking back, I don’t suppose that I anticipated the present series on the Jay Treaty to carry on quite so long as it did. I don’t suppose that you did either, dearest readers, so in that sense we’ve both been taken by surprise. Initially, all that I really wanted to do was explore the meaning and significance of what I believed was a seminal document in the history of the American First Party system. I believe I said as much in the first entry. The Jay Treaty seemed to me to crystalize what was in practice a fairly mutable political dichotomy between the contemporary Federalist and Republican factions. It thus appeared a fruitful proposition to attempt an exploration of the thing itself. Its various articles and clauses, I believed, might well communicate a great deal about the kind of country the United States was in 1795, how it saw itself within the world of Great Power diplomacy, and the kinds of priorities its citizens felt it ought to pursue. As it happened, however, understanding the significance of the Jay Treaty within the context of the First Party System required paying heed to more than just that single document. I suppose I knew that. Depth of context has always been a major focus of my writing here, and there was really no reason for me to think that this particular project would require anything less.

The thing of it is, though, this series has turned out to require the exploration of a great deal more context than just about any I’ve yet attempted. Because, as it turns out, you can’t really talk about the significance of the Jay Treaty within the American First Party system without delving into the Republican polemic response. That topic in itself might easily occupy an entire series of essays, of even greater length and depth than those presented here. Bearing that in mind, I tried, out of a sense of consideration for the patience of my audience, to confine my attention to the work of only two of the Jay Treaty’s Republican critics. Robert Livingston and Alexander Dallas each represent a different avenue of attack against the efforts of Jay, Hamilton, and their fellow Federalists to seal a substantial diplomatic agreement between the United States and Great Britain, though they were hardly alone in their efforts. Other of their fellow partisans offered different kinds of critiques, based on different assumptions and targeting different aspects of the final draft of the treaty. Granting that there was almost certainly a sense of broad agreement amongst them all as to core principles, this diversity of ideas and approaches is best not forgotten. Easy though it may be to conceive of the 18th century Republican faction as chiefly a mouthpiece for the ideological proclivities of one Thomas Jefferson, in was in fact about as united at any given moment as any American political party has ever been – that is to say, more in name and general direction than in terms of policy or platform specifics.

And of course, having sought out some of the various contemporary critiques of the Jay Treaty, a reasonably complete exploration of said document’s significance to the First Party System must of necessity also include a discussion of the Federalist response to the Republican response. Thus we find, as ever, the bullish, methodical, and oft-as-not exhausting rhetoric of Alexander Hamilton. Having helped to convince Washington that a final diplomatic entreaty was necessary before enacting retaliatory measures against Great Britain, and having in large part drafted the instructions that subsequently guided his friend and ally Jay in his endeavors in London, the by-then former Secretary of the Treasury had what might fairly be described as a vested interest in the success of any agreement subsequently reached between the United States and Great Britain. His ensuing response to criticism of the Jay Treaty, in the form of his and Rufus King’s The Defence, might consequently be said to have sprung from a place of personal conviction as well as official sanction. He was, after all, the de facto leader of the contemporary Federalist faction. And while his and King’s arguments were very much their own, Hamilton’s status as leader would seem to suggest that The Defence more or less represents the Federalist party line as he was then actively defining it. Indeed, it might fairly be argued that The Defence is nothing less than one of the principle documents by which the Federalists defined themselves as an organization, or a political movement, or simply a group of men with similar ideas.        

            In short, this project turned out to be much larger than I even intended it to be. And while I certainly enjoyed where the sources I dug up determined to take me, I do apologize if anyone out there in my audience was turned off by the mounting scale of the thing. I do hope that those of you who stuck it out have learned something, or been encouraged to learn something. And if you haven’t, well, I suppose I should offer some manner of conclusion myself.

            So…

            Let’s think for a moment. Why is the Jay Treaty at all important to living, breathing human here at the dawn of the 21st century? Perhaps it isn’t. The specifics of the treaty – who was permitted to cross this or that boundary, bearing which goods, under what circumstances – are certainly of interest to people like me, but they don’t really offer much in the way of penetrating insight into the origins and history of the American party system. For most people alive right now, it might simply suffice to say that the Jay Treaty was an agreement between the United States and Great Britain, that it mainly had to do with trade, and that it resulted in a fifteen year period of peace and stability. The contemporary reactions to the Jay Treaty on the part of the Federalist and Republican factions are, I would argue, or far great significance. That is to say, it wasn’t what was being argued about in 1795 that modern observers would do well to take note of, but rather how it was being discussed.

            Consider, once more, the commentaries offered by Republicans Robert Livingston and Alexander Dallas. Differences in approach and tone aside, both men seemed to ground their arguments against the Jay Treaty and its author in what they believed to be right, and moral, and adherent to the principles of republican government. In their eyes, it seemed, a treaty between the United States and Great Britain – or indeed between the United States and any foreign entity – could only be considered valid if it respected the core values upon which that nation had so recently been founded. Articulated thusly, the legitimacy of the Jay Treaty became a question of independence and identity rather than a simple measure of convenience or usefulness. The United States of America, Livingston and Dallas seemed keen to assert, was a sovereign nation. It was not to be dictated to by foreign authorities – in the form of regulations that, say, limited its ability to make whatever alliances it pleased, or prevented its citizens from offering aid and resources to foreign states – and its national priorities – the recognition of its territorial boundaries, the inviolability of its citizens’ property rights, etc. – were to be esteemed and considered by its diplomatic partners.

Within the context of Anglo-American relations at the end of the 18th century, this amounted to a fairly aggressive – if not outright belligerent – posture. Not only were Dallas and Livingston keen to denounce the very notion that the United States ought to have recognized certain British priorities, but they seemed to simultaneously demand that Great Britain acknowledge the rightness of the American position, cease attempting to restrict or constrain the actions of the individual American citizens, and endeavor to make amends via a lengthy list of concessions and reparations. Granting once again that the stated opinions of two men do not a comprehensive overview make, it nevertheless seems a reasonable supposition that the faction to whom Dallas and Livingston belonged was similarly inclined. In consequence, allowing for a certain margin of error, it would seem fair to conclude that the Republicans of the middle 1790s tended to be ideologically-minded, fairly rigid in their adherence to law as written,  highly sensitive of their nation’s sovereignty, and given to ascribing moral significance to the issues and policies placed before them. If the writings of the two cited representatives are any indication, it would also appear that the contemporary Republican faction was far more eager to assert its nation’s priorities upon the world at large than bend to the status quo.

            Do please stop me if you’ve heard this before.

            Turning to the previously-cited works of Hamilton and King, a very different understanding of diplomacy, statecraft, and political economy presents itself. Between the arguments put forth in No. XXXVII and No. III of The Defence, for instance, Hamilton demonstrated a strong affinity for pragmatism, utilitarianism, and a very broad style of legal interpretation. No. XXXVII gave evidence of these sensibilities in the context of countering accusations that the Jay Treaty was somehow inherently unconstitutional. Having freely admitted that a great many of the individual articles of said treaty explicitly invaded the prerogatives of the legislative branch of the federal government, Hamilton nevertheless avowed that the grant of treaty-making power to the federal executive in the text of the Constitution essentially justified all such evident invasions. The Framers, he asserted, had clearly been of a mind that the United States of America would occasionally be required to seek out and seal diplomatic agreements with foreign nations. And since that same Constitution had given no greater authority to Congress in that area than the right of the Senate to provide “Advice and Consent,” the only logical conclusion appeared to be that the treaty-making power of the Chief Executive was intended to function outside the remit of Congress.

By making this claim, Hamilton essentially expanded upon the meaning of the Constitution without changing a single word of it or denying what was written. Unlike the aforementioned Republican critics of the Jay Treaty, who pointed to the plain text of certain statutes, or constitutional provisions, or other treaties as evidence of contradiction and illegitimacy, Hamilton summoned the unwritten rationale which he perceived to be operating behind and amidst the various articles and subsections. One could not simply depend upon the words to explain themselves, he seemed eager to assert. Rather, the meaning of a given legal instrument – a law, a treaty, or even a constitution – could only be understood in full by situating its explicit meaning within the context in which it originated and in which it was intended to operate. In this sense, Hamilton’s particular style of legal interpretation seemed far more descriptive than it was prescriptive. That is to say, while his Republican opponents tended to read statutes, or treaties, or constitutional provisions fairly rigidly, with the apparent understanding that maintaining an adherence to the text was of itself a valuable exercise, Hamilton preferred instead to understand written law as mainly a tool by which to accomplish a desired end. Interpretations that aided that end were thus inherently valid, while those that frustrated it were not.

This tendency towards functionalism and interpretive flexibility was also in evidence in No. III of The Defence, wherein Hamilton attempted to dismantle the claims put forward by various critics of the Jay Treaty and its namesake. Jay had erred, certain of his detractors had asserted, in part because he failed to secure recognition of and reparation for the many slaves that had been taken into British custody during the late Revolutionary War. The manifest unwillingness of the American envoy to pursue this cause on behalf of his fellow citizens – many of whom claimed economic disadvantage as a result of their lost property – was consequently held as an example of Jay’s inadequacy as a diplomat, the willingness of the Washington Administration to sacrifice American interests to British priorities, and the general defectiveness of the treaty as a whole. To these claims, Hamilton offered a series of arguments intended to demonstrate that the American position vis-à-vis the absconded slaves was not nearly as strong as that nurtured by Great Britain. The laws of war, he wrote, ensured that the British military was well within its right to confiscate and redistribute all such personal property as had come into its possession. The laws of the various slaveholding states, meanwhile, declared that enslaved peoples possessed the legal status of personal property. Their capture by the British military having nullified their status as property of particular American citizens, therefore, any clauses of the Treaty of Paris that referred to American property could not be said to apply to the disputed slaves. And since treaties could not rightly be interpreted so as to cause something either “odious or immoral” to occur, it was simply not possible that the aforementioned Treaty of Paris had intended to cause thousands of former slaves to once more be sent back into servitude.

While each of these points, along with several others that Hamilton offered, had some basis in fact or precedent upon which his opponents might have agreed, his effort to weave them together into a comprehensive denial of their position presented any number of implications that were not otherwise obvious. As stated previously, American legislators responsible for codifying the property status of slaves doubtless didn’t intended for that status to interact with certain unwritten customs of European warfare in a way that actually aided in securing the freedom of thousands of those same enslaved persons. They fashioned their laws to be read and to have effect in isolation, just as Jay’s aforementioned critics seemed to read the relevant provisions of the Treaty of Paris in isolation and – if they thought it at all – conceive of the laws of war and their impact on British behavior in the United States of America in isolation. Hamilton’s thinking seemed to tend toward the opposite. The true significance of these laws, and customs, and treaties, he tacitly urged, lay not in what each of them said on their own, but in the way that they interacted and informed one another within a larger context.        
                     
            Fellow Federalist Rufus King seemed to agree with Hamilton’s emphasis on context as meaning, though he appeared to prefer to direct his attention to the larger world in which the United States of America operated than the statutes and treaties that shaped its internal dynamics. His arguments in No. XXV of The Defence gave particular evidence of this sensibility in the way that they attempted to characterize success in diplomacy and commerce as measured against what it was possible to achieve rather than what it might have been desirable to achieve. Whereas Republican critics like Livingston and Dallas roundly objected to the apparent deference that the Jay Treaty appeared to show to British commercial and strategic priorities on the grounds that such blatant kowtowing was unwarranted, undignified, or unnecessary, King seemed far more concerned with whether or not the agreement between the United States and Great Britain adequately served the particular ends for which it had originally been commissioned. There were, to be certain, points of contention he nurtured against the final product of Mr. Jay’s efforts. As No. XXV of the Defence made clear, he felt that a number of the trade restrictions contained within Article XII of the treaty were unnecessarily severe. Britain could fairly admit American vessels of greater than seventy tons in its West Indian ports, he asserted, and a total ban on American cotton exports was simply not acceptable. That being said, King was far more willing than his Republican counterparts to situate Jay’s decisions – and calibrate his own expectations – within the context of contemporary British economic and diplomatic priorities.

After all, Great Britain was almost certainly one of the most powerful nations in existence at the end of the 18th century, and most definitely the world’s dominant naval power. In consequence, King seemed willing to admit, the United States could not simply demand – out of a sense of self-righteousness or moral certitude – that Britain wholly abolish its deeply-entrenched colonial trade policies. Rather, he avowed, progress to such a lofty end must be made slowly, persistently, and always with a due respect for what, at any given moment, it was possible to achieve. The war between Great Britain and the French Republic, for instance, had done much to hamper the former’s ability to extract the expected profits from its colonial possessions in the West Indies. This presented an opportunity for American merchants to insert themselves into the West Indies trade as a temporary replacement for the British merchants whose presence in the Caribbean had become increasingly endangered. British commercial authorities could sense this opportunity, and the circumstances that led to it, as well as anyone, but King cautioned his fellow countrymen that the result was bound to be far less revolutionary than the most liberal-minded among them might have hoped. It was a British world in 1795, he time and again admitted, and the United States was in no position to make demands upon so formidable an entity as the British Empire. In asserting this point, King appeared far more accepting of the possibility that the United States would at times be compelled by necessity to bow to the enforcement of certain foreign priorities if it wished to achieve even a relatively small portion of its desired objectives.

The perfect, he essentially argued, must not be made the enemy of the good. The Jay Treaty certainly wasn’t perfect, but King asserted that its namesake author’s ability to gauge what it was possible to achieve and seek out advantage where he could made the product of his labors in London good enough, at the very least, and hardly the execrable failure that certain Republican critics declared it. In so doing, King arguably demonstrated another potential aspect of contemporary Federalist thinking. As Hamilton, in No. XXXVII and No. III, made the case that the meaning and significance of statutes, treaties, and even the United States Constitution was in large part determined by context, King asserted in No. XXV that the difference between good policy and bad policy – that which was advisable or inadvisable – was similarly sensitive to circumstance. Also worth noting is the core rationale – the chief measure of worth – that Hamilton and King seemed to hold in common. Whether evaluating a particular interpretation of a provision of the Constitution or holding forth upon the value of a given article of a trade agreement, both men seemed to agree that merit sprang first and foremost from utility. The ability to achieve a desired end, in short, made something valuable; failing to achieve that end made it worthless. Admitting again (again, again, again) that the expressed views of Hamilton and King should not be taken as a substitute for the many and diverse opinions nurtured by their various fellow Federalists, it nevertheless appears a fair construction that contemporary Federalism was in no small part built upon the opinions and ideology of its more vocal members. Thus, allowing for some degree of personal divergence, it appear reasonable to characterize the Federalist faction of the mid-1790s as policy-minded, favoring a flexible model of legal interpretation, comparatively unconcerned with outward perceptions of American prestige, and willing to seek accommodation and compromise in diplomatic relations.    

            …and?

            Well, bearing all of what has just been stated in mind about the Republicans and the Federalists at the time of the ratification of the Jay Treaty, I’d like to ask you to consider whether or not the characterizations offered here of those two factions sound at all familiar. If they do not, then I heartily apologize for wasting your time. I understand there are many other corners of the Internet which you might wish to seek out in order to salve the frustration you must now be feeling. By all means, do so now. If, on the other hand, you perceived in what was described of the Republicans and Federalists of 1795 an eerie similarity to the matched set of party organization currently waging war upon each other across the length and breadth of American public discourse, I invite to consider what the implication of this similarity might be. In spite of all that has transpired in the last two hundred years, and notwithstanding the many and various issues that have captured the public’s attention and become flashpoints for conflict, or change, or retrenchment, it may just be that American political culture hasn’t changed quite so much since its inception as it sometimes appears.

Granted, the defining issue of public life in the United States is (arguably) no longer slavery. Congressmen don’t blather on about Manifest Destiny like they used to, and currency reform has long since ceased to be an issue upon which presidential elections pivot. That being said, the contours of many of the arguments that were historically articulated on either side of these issues – and those that have risen to prominence in the decades and centuries since – seemed to have followed a strikingly consistent pattern. Whether they call themselves Democrats or Federalists, Republicans or…Republicans…there always seems to be a voice for ideological purity and a voice for political pragmatism; aggressive foreign policy and reactive foreign policy; delineated power and assumed power. Bearing this in mind, it would seem that the basic framework of American political culture may have been set long ago, amidst the very founding of the United States of America. Of course there have been realignments and break downs, moments of explosive change and devastating decay. And yet, two centuries past the ratification of the Jay Treaty and the politically-charged public discourse that ensued, the basic division then in evidence has more or less reappeared. Each side had been augmented or diminished, by Supreme Court rulings, constitutional amendments, legislative milestones, or general shifts in popular opinion, but they nevertheless remain largely extant. The American republic, it seems, is as American now as it have ever been.

The implications of this evident changelessness at the core of American political culture are, in my opinion, several. On one hand, the gulf that so often seems to exist in the popular mindset between the experiences and understanding of the average American and those of the Founding Generation would appear far less intimidating – if not wholly nonexistent – in light of the existence of demonstrable parallels between the political assumptions of the late 18th century and the present day. Certainly the United States of American is not the country now that it was when George Washington, Thomas Jefferson, Alexander Hamilton, and John Adams held high office. A great many assumptions – some as basic as the meaning and origin of citizenship – have changed drastically since then, and the current cultural makeup of the American republic alone would doubtless be enough to boggle the minds of those cited worthies. Nevertheless, being able to acknowledge that the Founders of the United States nurtured many of the same core ideological convictions as their 21st century successors would seem to provide a tremendous opportunity for a far deeper understanding on the part of contemporary Americans as to how and why they nation looks and behaves the way that it does.

Seeing their own concerns and convictions reflected in the words and deeds of the Founders may also aid in promoting a greater sense of perspective among contemporary citizens of the United States. Rather than understand the present split in their political discourse – the differences in approach to jurisprudence, diplomacy, trade, etc. – as a problem that needs to be solved, they may yet come to appreciate that the American republic is in many ways more an ongoing conversation than it is some great puzzle that it is possible to decipher. Issues, crises, even civil wars – these things rise and fall in importance; come and go, threaten, and are dealt with. But the fact of debate, that Americans don’t agree on certain basic concepts – the proper way to read the Constitution or the preeminence of principle or utility – is seemingly eternal. As dour as this may sound, however, the revelation may yet contain a seed of hope. If the knowledge that American political discourse has historically been defined by the same basic ideological cleavages since the late 18th century makes it possible for contemporary citizens of that country to more fully and actively engage with the literature and personalities of the Founding Era, it also offers the existence of viable solutions to any number of political conflicts. After all, though the Founders were as capable of fundamentally disagreeing with each other upon core principles of law, diplomacy, and political economy as their various successors have every shown themselves, they also managed to construct and to govern a functioning republic. Clearly they found ways to work around their differences, or work through them, or simply came to understand that sometimes it was better to get half of what they wanted than nothing at all. These are exceedingly valuable lessons, and freely available to any capable of appreciating the innate correspondence between the founding of American political culture and its current incarnation.

Examining the Jay Treaty, and the public debate that followed its ratification, is not the only way one might achieve this appreciation. But it is certainly one way.

To that end, the text of the Jay Treaty may be found here, The Defence is here, Livingston's Cato is here, and Features of Mr. Jay’s Treaty is right over here.

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