WHY 'LIBERTARIANISM' ISNOT 'CONSERVATISM'
Monday, February 20, 2012
by Richard E. Berg-Andersson
[EDITOR's NOTE: This Commentary is the fourth in an ongoing series of Commentaries under the above heading: previous installments were posted on this website on 13 February 2012; 15 February 2012; and 18 February 2012 ]
On 3 February 1794, the United States Supreme Court- assembled in the temporary capital of Philadelphia- began holding what was its ninth Term of Court since its first having assembled as the Nation's High Court- its court of Last Resort- back in New York City almost exactly four years earlier. Now, as then, John Jay was the Court's- and the Nation's- Chief Justice.
The job of a United States Supreme Court Justice- whether that of the Chief himself or one of his five Associates- was something of a thankless one back in those days. After all, as a primarily appellate court, there still wasn't a whole lot for the High Court, as such, to actually do (the Nation still being young, with its Constitution still in its earliest period of usage, and laws passed by Congress still well filling out the "holes" left unfilled by that fundamental document [thus, it was what the courts would come to call "the political branches of Government"- the Legislative and Executive- that had to so "sweat the details"], there weren't a whole lot of cases even being appealed within the Federal system back then) and then there was the difficult duty of "riding circuit" as a Circuit Justice during most of those months when the Supreme Court was not holding term en banc...
as I myself wrote in an essay for this website more than a decade ago now:
[T]here was the burden- given the poor transportation of a world without railroads or even paved roads, let alone automobiles or airplanes- of a Supreme Court Justice having to "ride Circuit" twice a year (the Judiciary Act of 1789 provided for a set schedule of Circuit Courts being held in each of the Federal Court Districts from April into May and again from October into November each calendar year). The Act clearly recognized this, as leaving Maine and Kentucky out of the Federal Circuits altogether indicates an awareness of the great hardships imposed on Circuit-riding Justices by physical distance. When North Carolina and Rhode Island finally ratified the Constitution within a year of the adoption of the Judiciary Act of 1789, these States were easily shoe-horned into the Southern and Eastern Circuits, respectively: likewise, when Vermont became the 14th State and received its own District Court, it- too- was assigned to the Eastern Circuit; however, when Kentucky finally became the 15th State, followed by Tennessee as the 16th State (with its own District Court), these- like Massachusetts' separate "District of Maine"- remained as much outside the Circuit Court system as the Territorial Courts of the growing number of western Territories as the 18th Century drew to a close- again, a recognition of the limits as to how far a Justice could travel while "riding Circuit".
And then, when the Nation's High Court did finally have to decide what is nowadays considered its first ever major case, the Court seemed to only end up "stepping in it"!
A little less than a year before, on 18 February 1793, the Supreme Court had decided the case of Chisholm v. Georgia [2 Dallas (2 U.S.) 419 (1793)]:
Two citizens of South Carolina (one of whom was named Chisholm), serving as executors on behalf of a British creditor (something which probably had already "poisoned the well" when it came to how the decision in this one would be regarded after the fact), sued the State of Georgia in Federal court on action of Assumpsit (from Latin: "he undertook" [the connection to someone assuming some duty or obligation is rather obvious; there is also a connection to another party to this, thereby, also assuming something will, indeed, be done]-- a legal action in which plaintiff seeks to compel a defendant to carry out some duty or obligation that had been [either expressly or impliedly] agreed to but which was not placed under seal [thus, the agreement could have been oral as well as written]: a Common Law action, it is today generally considered but a variant of overall Breach of Contract). Chisholm and his partner claimed Federal jurisdiction for their suit under that portion of Article III, Section 2, clause 1 where it states that [t]he judicial power shall extend... to controversies... between a State and citizens of another State. It stood to reason that, if a Federal court can hear suits in which a State sues a citizen of another State, the same court also had jurisdiction where the State was being sued by a citizen of another State (in addition, Chisholm and his partner also figured that a Georgia State court would not necessarily give them a fair hearing- or, at least, they had a better shot at winning their case in a neutral venue: so-called "Forum Shopping" in the legal world was known even back then!)
For its part, the State of Georgia, citing the doctrine generally known as 'Sovereign Immunity' (in which a sovereign entity itself decides whether or not it should be held legally liable for its own actions: while, on its face, this might seem grossly unfair, it is- in fact- a practical legal doctrine as, otherwise, potentially every administrative action taken by a sovereignty [such as a State of the American Union or the United States of America itself] could be simply blocked by suit in court, or even mere threat of such a lawsuit: it is rather easy to see how the will of the People expressed through the laws passed by a majority of their duly elected representatives and enforced by elected Executive officers or their lawful appointees could then be thwarted by the minority opposed to such laws to the point where there would be no Rule of Law!), argued that it could not be sued in even its own courts without its own permission and in Federal courts not at all.
United States Attorney General Edmund Randolph had argued, before the Supreme Court during its August 1792 Term, that- should Georgia refuse to appear to answer the suit brought by Chisholm and his partner- a default judgment against the State should be entered and damages thereafter assessed. Between Terms, the State of Georgia made a formal protest, in writing, that the Federal Supreme Court had no jurisdiction in this case but also declined to appear for Oral Argument before the February 1793 Term of Court, at which point Randolph moved for judgment in favor of Chisholm and his partner by default.
The Justices voted, 4-1 (Justice James Iredell being the lone dissenter in the minority and there also being a vacancy on the Court, Justice Thomas Johnson having resigned at the very start of the Term), to grant Randolph's motion on behalf of the two South Carolinians and, rather than an Opinion of the Court with (possibly) attached Concurring and Dissenting Opinions, each Justice delivered an Opinion seriatim (that is, one after another). Justice James Wilson's Opinion in the majority turned more on the issue of Federal supremacy than anything else: to him, the two key questions were whether this State [Georgia]... is amenable to the jurisdiction of the Supreme Court of the United States? and Do the people of the United States form a Nation? while Justice William Cushing's Opinion (also on the side of the majority) got right to the heart of the matter: When a citizen makes a demand against a State of which he is not a citizen, it is really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case then seems clearly to fall within the letter of the Constitution.
For his part, Chief Justice Jay was somewhere in between: Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least control. There was no general court of appellate jurisdiction by whom the errors of State courts, affecting either the nation at large or the citizens of any other State, could be revised or corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her or to her citizens; and that even in cases where State considerations were not always favorable to the most exact measure...
[NOTE: Of course, Jay is here writing of the period in between American Independence and the effectiveness of the Federal Constitution, a period of a little less than thirteen years: for, under the nascent British Empire, the American colonies enjoyed (if one can call it that, since the process seems to have been slow at times to the extreme!) appeal- albeit in a somewhat more limited sense than that appellate jurisdiction over States of the American Union to be later claimed for the United States Supreme Court itself- from the highest court in a colony- whether chartered or proprietary, or Royal Province- to the Privy Council (King-in-Council) in England: see, for example, works such as Joseph Henry Smith's Appeals to the Privy Council from the American Plantations: REB-A]
The Chief Justice went on to address a subject his own foreign affairs resume made him singularly competent to comment upon: Prior also to that period the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest as well as their duty to provide that these laws should be respected and obeyed; in their national character and capacity the United States were responsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State courts, and particularly to the courts of delinquent States, became apparent...
These were among the evils against which it was proper for the nation, that is, the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation...
The question now before us renders it necessary to pay particular attention to that part of [the Judiciary Article (III) of the Federal Constitution] which extends the judicial power "to controversies between a State and citizens of another State." It is contended that this ought to be construed to reach none of these controversies, excepting those in which the State may be a plaintiff. The ordinary rules for construction will easily decide whether these words are to be understood in that limited sense.
This extension of power is remedied, because it is to settle controversies. It is, therefore, to be construed liberally. It is politic, wise, and good, that not only the controversies in which a State is plaintiff, but also those in which a State is a defendant, should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, unless the obvious, plain and literal sense of the words forbid it. If we attend to the words, we find them to be express, positive, free from ambiguity, and without room for such implied expressions: "The judicial power of the United States shall extend to controversies between a State and citizens of another State." If the Constitution really meant to extend these powers only to those controversies in which a State might be plaintiff, to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words not only so incompetent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were they not expressly excepted [?]; on the contrary, not even an intimation of such intention appears in any part of the Constitution.
It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the Constitution. What is it to the cause of justice, and how can it affect the definition of the word controversy, whether the demands which cause the dispute are made by State against citizens of another State, or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those between whom it subsists.
"Politic, wise, and good" though it might well have been for the U.S. Supreme Court to here settle this dispute between Chisholm and his partner on one side and the State of Georgia on the other, the decision thus rendered did not make for good politics! "Localist" sensibilities in defense of the prerogatives of one's own sovereign State arose to the level of passions upon news of this decision. Even "cosmopolitans" were at least divided on the issue: those we might refer to as 'ultra-Federalists' found no fault with it, especially in light of Chief Justice Jay's specific reasoning; however, others within what was now becoming known as the 'Federalist' camp were not so accepting. The fact that "localists" were so united against the judicial finding in Chisholm while "cosmopolitans" were split well explains the rapidity of what transpired thereafter:
A Constitutional Amendment- which was intended to become the 11th such Article in addition to the Constitution of the United States (as but 10 of the 12 proposed Amendments put forth in the American 'Bill of Rights' back in 1789 were ratified by the necessary 11 of the then-14 States of the Union by December 1791 [when the 10 so ratified were declared to be part of the fundamental document])- was now proposed by resolution introduced in the Senate on 2 December 1793, one reading as follows:
The Judicial power of the United States shall not be construed to extend to any suit in Law or Equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
This proposed Amendment was approved by the necessary 2/3 of the Senate on 14 January 1794 (by vote of 23-2) and by the necessary 2/3 of the House on 4 March 1794 (by vote of 81-9)- it can readily be seen herein that overturning the Court's decision in Chisholm v. Georgia was extremely popular! By 7 February 1795, the necessary 3/4 of the States of the Union (12 of 15) had ratified it and it, indeed, became the 11th Amendment to the Federal Constitution thereby (although, strangely, the Amendment was not formally declared as having become part of the Constitution until 8 January 1798 when by-then President John Adams did so via Special Message to Congress: since Adams' pronouncement specifically makes mention of Kentucky having lately ratified it [when there is specific record of Kentucky having already done so some three years earlier], this suggests some kind of irregularity involving Kentucky's original action in this regard [South Carolina, meanwhile, became the 13th State- of now 16 (Tennessee having been admitted to the Union in the interim)- to ratify on 4 December 1797 (as only 12 of 16 is 3/4, Kentucky's ratification wouldn't even have been necessary to put the Amendment into effect)]: this "irregularity" may have simply been slowness of getting official notification to the Nation's capital [still Philadelphia in 1798]- near the end of his time in office, President Washington could only ascertain eight ratifications of the 11th Amendment [even though we now know that 12 States had so ratified]- or the early Federal Government "misplacing the paperwork" [even after Adams' Special Message to Congress on the matter, his own Secretary of State- Timothy Pickering- did not formally certify it as having been ratified until 23 January 1798 (and it is- to this very day- certification of an Amendment to the Constitution by the U.S. State Department that makes its adoption official)!])
Given the rather intense reaction to the Supreme Court's decision in Chisholm, the Court's beleaguered Chief Justice Jay (certainly miffed at his own well-thought out reasoning as to the origin and necessity for a national judiciary [especially the foreign policy aspect of it: the need to reconcile a Nation having to represent States that would otherwise be judicially independent of it abroad] being so summarily rebuffed) was clearly already looking for something at least somewhat more interesting (if also not more personally- where not also professionally- rewarding), and he would soon get it, for- on 16 April 1794- President George Washington sent a Special Message addressed to those "Gentlemen of the Senate" who would have to pass judgment on the President's special request:
In it, Washington wrote that [t]he communications which I have made to you during your present session from the dispatches of our minister in London contain a serious aspect of our affairs with Great Britain. But as peace ought to be pursued with unremitted zeal before the last resource, which has so often been the scourge of nations, and can not fail to check the advanced prosperity of the United States, is contemplated, I have thought proper to nominate, John Jay as Envoy Extraordinary of the United States to His Britannic Majesty.
This nomination of an Envoy Extraordinary was itself extraordinary because John Jay- by virtue of his position- was the chief officer of the Judicial Department of Government who would now be carrying out (while still retaining his judicial office) a primary executive function! But what Washington was clearly implying, in his Special Message, was that the United States and Great Britain were almost on the verge of going to war (that "last resource, which has so often been the scourge of nations", as the President so diplomatically- as well as delicately- now put it) and that extraordinary measures had now to be taken in order to prevent such a thing (largely because there were voices- certainly already being heard in the U.S. House of Representatives- beginning to clamor for such a war [or, at the very least, restricting trade with Great Britain in such a way that might force Britain to retaliate militarily]).
The principal issue between the two countries (besides any lingering negative feeling, amongst the populace, engendered by the fight for American Independence in the first place) was the failure (from the American perspective) of Great Britain to well live up to the terms of the Second Peace of Paris of 1783 which had formally brought forth the United States of America as a recognized member of the family of nations under the very Law of Nations (that which we, today, would term 'International Law'). The most egregious breach was, clearly, the Brits continuing to maintain an ominous military presence via their holding onto forts on what was clearly the American side of the boundary set by the 1783 pact and, in addition, using these forts as bases to (or so the Americans charged) "incite" the native American Indian tribes on the frontier (and keep in mind that the frontier tended not to be Federalist-friendly [as the Whisky Rebellion itself would demonstrate])!
But another potentially explosive issue was directly tied to events going on in France and the fact that (thanks to the declaration of war by the Convention in that country against, among others, Britain at the beginning of February 1793) the United States was now, by definition, a "neutral" in a war between the Great Powers. France had specifically allowed neutrals to trade at her ports- both in metropolitan France as well as in French colonies (as far as the United States might be concerned, the most important of these colonies were those in the West Indies)- but Britain feared that this would allow American ships to bring items back and forth between France and her colonies (via a stopover in the United States [being neutral, an American vessel carrying stuff from Point A to the USA and then trans-shipping it within the USA (even within the same port) before sending it on to Point B- even where Points A and B were under the control of the same belligerent Great Power was not, in and of itself, in violation of International Law]) which would defeat the purpose of a naval blockade Britain was in the process of enforcing against French ports...
thus, Britain invoked- in 1793 against the United States- what had come to be known as 'the Rule of 1756': for it originated during the Seven Years'/French and Indian War when France was benefiting from commerce with the Dutch (neutral in that war France was then fighting against Britain) and Britain took the position that a colonial power could not, in time of war, engage in trade with its own colonies that the mother country did not permit in time of peace. The rationale for this was later stated most effectively by William Scott, Lord Stowell (judge of Britain's High Court of Admiralty from 1798 to 1827), where he said that [a] belligerent would not relax a colonial or coasting trade unless he felt himself disabled from carrying on such a trade. So by engaging in the trade the neutral must be aware that he is benefiting not only himself but one of the belligerents. When he knew that he was helping one of the contending parties, he ceased to be a neutral.
The problem was that British captains were going well beyond this 'Rule of 1756' in the manner in which they handled American ships trading in the West Indies: such ships were boarded and their crew and cargo confiscated (British maritime law entitled a share of the spoils to go to the master of any British vessel that enforced the 'Rule of 1756' which provided all too much incentive to go "all out" in this regard); some American sailors who had emigrated from the British Isles or British colonies were "impressed" into service in the Royal Navy (the roots of the Impressment Controversy that would end up being one of the reasons behind the later War of 1812).
In one of his last official acts as Secretary of State, Thomas Jefferson had issued- on 16 December 1793- a scathing report indicting King and Parliament for failure to join in a commercial treaty with the United States that would address American complaints as regarded trade in the West Indies. The report also recommended that, as Congress specifically had the power (per Article I, Section 8, clause 3 of the U.S. Constitution) [t]o regulate commerce with foreign nations, it should favor trade with nations willing to remove- or at least change, to American advantage- its restrictions on American commerce with that nation or its colonies and, at the same time, retaliate against any nation which made American trade with that nation or its colonies more difficult (through either high tariffs and duties on American goods, refusing to receive any except as might be shipped only in American vessels or prohibiting American vessels from entering its ports altogether). What Jefferson seemed to be aiming at (and, in many ways, provided the main reason for his leaving the Washington Administration at the end of that year) was something of an alliance with the new French Republic (Jefferson felt that- whatever that Republic's excesses in the crucible of Revolution- it was far better for the American Republic to support another Republic than supporting a monarchy [were such a choice to be forced on the United States]) without either war or alliance in the conventional sense: this was, of course, diametrically opposed to Washington's own vision of maintaining American neutrality wherever practicable and it certainly ran counter to the already-evident 'Atlanticism' of the "cosmopolitan" Federalists (pro-British or no).
On 3 January 1794, Congressman James Madison- effective leader of the 'Opposition' in Congress- introduced a number of resolutions in the House based principally on by-then former Secretary of State Jefferson's notion of "retaliation": the House passed one of these (expressing support for retaliation in principle) exactly a month later (the vote on this was 51-46, demonstrating that the 'Opposition'- by the time of the Third Congress- was in control of the lower house of Congress). The rest of Madison's resolutions were tabled, at first temporarily (to see how events might transpire to change the situation, for better or for worse), and then permanently as the House turned more anti-British: on 26 March 1794, a resolution passed in favor of an embargo on British ships in American ports and then, on 7 April, was introduced the Non-Intercourse Bill which would have prohibited commercial relations between the United States and Great Britain as of 1 November unless and until the two main American complaints (as noted above: continued British presence in what American History calls "the old Northwest" and Britain's- to American eyes- position of "anti-neutrality") had been addressed to American satisfaction. It was in this very atmosphere that Washington appointed Chief Justice Jay as his special envoy to Great Britain.
John Jay was, in many ways, already well trained and prepared for his special mission: he had served the Confederation Congress as its Secretary of Foreign Affairs from 1784 until the Federal Constitution instituting its "more perfect Union" took effect in March 1789 (this following up on his role as one of the three American "commissioners" [the others were none other than John Adams and Benjamin Franklin] sent to negotiate the Second Peace of Paris that brought official international recognition to the United States of America in 1783), during which service he also contributed- although not to the level of both Alexander Hamilton and James Madison- to the Federalist arguing in favor of Ratification of the Constitution.
Naturally, President Washington had first asked Jay to serve as his Secretary of State (until a new Federal foreign affairs apparatus could be authorized by the First Congress and thereafter organized, Jay had stayed on as the chief foreign affairs officer of the U.S. Government), but Jay demurred; when Jay, instead, accepted the President's nomination of him as Chief Justice of the United States, Washington turned to Thomas Jefferson for the top State Department post (it is interesting to note that, had Jay actually become Secretary of State, Washington would have had an all-"cosmopolitan" Cabinet and not that what today might be termed a "Government of National Unity" which came into being only with the inclusion of the "localist" Jefferson). As Jefferson would not formally enter upon his duties as Secretary of State until March 1790 (interestingly, Jefferson had sailed home from France- where he had been serving as the Confederation Congress' Minister to that country- shortly after turning down an offer, in July 1789, to assist the National Assembly in drafting its Constitution [including its Declaration of the Rights of Man and of the Citizen]; arriving in Virginia, he learned of his appointment as Secretary of State and, at first, demurred: only a further letter from Washington convinced him to take the post [he had accepted only in February 1790]), Jay continued to function as head of the new State Department ad interim even after already having been commissioned as Chief Justice!
Because of the Chief Justice's quite impressive credentials, Washington had to also make it clear, in his Special Message of 16 April 1794, that his confidence in our minister plenipotentiary in London continues undiminished. But a mission like this, while it corresponds with the solemnity of the occasion, will announce to the world a solicitude for the friendly adjustment of our complaints and a reluctance to hostility. The echoes of what had already been reported from overseas by this time echo most strongly here: for, unlike the Convention in France (with its seemingly scattershot taking on of all the Great Powers of Europe- especially Britain), the Federal Government of the United States was going to do whatever it could to avoid war at all costs (again, Washington himself had noted that such a war could "not fail to check the advanced prosperity" of the country).
The United States Senate in this 'long' session of the Third Congress- although Washington's Administration could generally command the loyalties of a majority of its members (by, at best accounting, a usual breakdown of 16 as against 12 'Opposition' Senators [there were two vacancies in a Senate by now representing 15 States (Kentucky and Vermont, both "localist" strongholds, having been admitted to the Union during the preceding, Second, Congress)- these vacancies being in seats otherwise representing Delaware and Pennsylvania])- was rather concerned about the constitutionality of John Jay's appointment in the first place (this, despite Jay's having already- as noted above- once before served in both an Executive and Judicial capacity simultaneously as exigency seemed to then require). Indeed, in response to the President's Special Message, the Senate quickly considered (though it did not, in the end, adopt) a Resolution stating that to permit Judges of the Supreme Court to hold at the same time any other office of employment emanating from and holden at the pleasure of the Executive is contrary to the spirit of the Constitution, and as tending to expose them to the influence of the Executive , is mischievous and impolitic. The latter part of the proposed resolution may well have more represented the feelings of the "localist" 'Opposition' Senators (and the harsh language contained therein may have, in fact, been what ultimately killed this resolution) but even many "cosmopolitan" Federalist Senators, otherwise loyal to President Washington, were certainly concerned in the very manner expressed in the resolution's first portion!
Nonetheless (and, again, largely because George Washington himself was still- for the most part- well above reproach [even amongst many in the 'Opposition']), Chief Justice Jay's nomination as Envoy Extraordinary for the sole purpose of negotiating what would, at first glance, amount to something of a "codicil" to the original Peace Treaty of 1783 (one that, hopefully, would well dampen the rather fiery rhetoric coming, at that time, from the House of Representatives) was confirmed by the Senate (the vote in favor was 18-8) on 19 April 1794: the perhaps apocryphal story of the Senate being seen as the "saucer" to "cool down" the "hot coffee" that was (and is) the House was very much in evidence here.
The Senate would have yet more to so "cool down" as, on 21 April 1794- just two days after Jay's nomination as special envoy had been secured- the House, by a vote of 58-38, approved its Non-Intercourse Resolution: when this came to the Senate, that body split evenly and- exactly a week later (on 28 April 1794)- Vice-President John Adams cast one of his record 29 tie-breaking votes (it was, as one might expect, in the negative and the 'non-intercourse' legislation died right there without President Washington even having to act upon it [presumably, it would have been vetoed by the President with the Senate, at least, not having enough votes to override in any event: of course, we'll never know!]).
Jay's specific instructions- though he still had much leeway- were to get as much agreement as he could without at all impairing the United States' own obligations to France still arising under the treaty with King Louis XVI's regime back in 1778 (a treaty that, as Washington himself well knew, very much had salvaged the War for American Independence for the Americans); from Washington's perspective, the official geopolitical position (as we would say nowadays) of the Executive branch should be- wherever possible- that any change in internal government of a country (even the altogether strange changes then going on in France) should not- in any way- impair international obligations to that country incurred by treaty (Washington was here interpreting- and attempting to apply- the Constitution's references to all Treaties made, or which shall be made, under the authority of the United States [in, most notably, the 'Supremacy Clause'- Article VI, clause 2- of that document] quite literally: on the grounds that this very clause had "constitutionalized" any and all treaties the United States of America had already become signatory to, even under the now-displaced Articles of Confederation! The very appointment of Chief Justice Jay to what was a "special mission" to Great Britain may, indeed, have been intended to well drive this point home [to those abroad as well as domestically] as- in Article III, Section 2, clause 1 of the Federal Constitution- the "judicial power" was specifically "extend[ed]" to all cases, in Law and Equity, arising under... Treaties made, or which shall be made, under [United States] authority: who better, then, to demonstrate [to now-republican France as well as Great Britain] the seriousness of American intentions than a person who himself sat as the presiding officer the very Court charged with having the final word as regarded the interpretation and application of treaties made with the United States of America?).
But the treaty Jay came up with in his negotiations with Lord Grenville (and initialed by each on 19 November 1794 [as noted in Part Three]) went far beyond anything that could, in the end, protect French interests dating back to the American Revolution itself (as will be discussed below). Moreover, the treaty had the unfortunate circumstance of having been negotiated- and then sent to the United States (via the months-long voyage by sailing ship, to boot)- in the immediate aftermath of the political fallout stemming from the Whisky Rebellion (as also recounted in Part Three). Washington had, in his 'State of the Union' of (unknown to him, of course) the same day what would come to be called "Jay's Treaty" had been initialed across the ocean, stated that [i]n subsequent communications certain circumstances of our intercourse with foreign nations will be transmitted to Congress. However, it may not be unseasonable to announce that my policy in our foreign transactions has been to cultivate peace with all the world; to observe treaties with pure and absolute faith; to check every deviation from the line of impartiality; to explain what may have been misapprehended and correct what might have been injurious to any nation, and having thus acquired the right, to lose no time in acquiring the ability to insist upon justice being done to ourselves.
On this side of the Atlantic, the "point man" on (and one who had no little hand in influencing the negotiations associated with) the treaty was Secretary of the Treasury Alexander Hamilton (rather than Jefferson's replacement as Secretary of State- Edmund Randolph, the former Attorney General to whom Washington had once expressed his sentiment that "the true administration of Justice is the firmest pillar of Good Government"), if only on grounds that- at its heart- it was to be a commercial treaty with concomitant effects upon the public treasury. Hamilton had actually been Washington's original preference as special envoy to Britain (but, as Madison himself noted in a letter to Jefferson at the time, Hamilton's nomination was likely to produce such a sensation that, to his great mortification, he was laid aside and Jay named in his place) and so it was Hamilton who would receive the fairly regular dispatches from Jay, who had first arrived in London back on 15 June (achieved by his sailing out of New York in March [right after the February Term of Court had ended], even before his appointment as Envoy Extraordinary had been confirmed): thus, Jay's Treaty was largely dealt with outside of- as we would say today- "normal State Department channels" at both ends; it would certainly not be the last time the American Executive branch would do such an "end run" around the somewhat more overt methods more usually employed in international diplomacy!
Clearly, based on whatever Hamilton was hearing from London (despite the difficulties inherent in getting mail across the ocean by sailing ship), the President was hoping to get something tangible back from Jay before the Third Congress would adjourn sine die on 3 March 1795; in this, Washington found himself frustrated and he ended up sending a Special Message to that Congress on 28 February 1795, in which he noted that [i]n my first communication to Congress during their present session I gave them reason to expect that "certain circumstances of our intercourse with foreign nations" would be transmitted to them. There was at that time every assurance for believing that some of the most important of our foreign affairs would have been concluded and others considerably matured before they should rise. But notwithstanding I have waited until this moment, it has so happened that, either from causes unknown to me or events which could not be controlled, I am yet unable to execute my original intention... So much of our relation to Great Britain may depend upon the result of our late negotiations in London that until that result shall arrive I can not undertake to make any communication upon this subject.
Nonetheless, anticipating something 'any day now' (Washington [and Hamilton (who had tendered his resignation as Treasury Secretary on 1 December 1794, effective at the end of the following January, but who stayed on beyond that latter date as regarded his diplomatic mission)] likely could easily tell something was well in work by this point), the President issued a presidential proclamation, addressed to individual Senators, on 3 March 1795- the very last day of the Third Congress- which noted that [c]ertain matters touching the public good requiring that the Senate be convened on Monday, the 8th of June next, you are desired to attend the Senate Chamber in Philadelphia that day, then and there to receive and deliberate on such communications as shall be made to you on my part.
In other words, anticipating a treaty sooner rather than later, the President was calling the United States Senate into Special Session to ratify it, as required by the Constitution of the United States [in Article II, Section 2, clause 2: by which the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur].
Four days thereafter- on 7 March 1795- Jay's Treaty (as initialed back on the previous 19 November) arrived on the President's desk in Philadelphia and, the very next day, Washington sent this treaty on to the Secretary of the Senate (Samuel Otis of Massachusetts), even though the Senate was not even in session (it would not be immediately made public in any event as the Senate- except on [rare] extraordinary occasions of its own choosing- still more usually met in "executive session" [that is, its deliberations were not yet open to the public on a regular basis and. indeed, no verbatim transcripts of its proceedings were, back then, even published- as was the practice with the House of Representatives; only an official Journal of Senate proceedings was published (generally after some delay) with Roll Call votes and who introduced what, etc. included, but without the items on its agenda being considered by the Senate printed out in full]).
On 8 June 1795, the United States Senate (now that in the Fourth Congress of the United States) dutifully met in Special Session to begin deliberation on Jay's (and Hamilton's) handiwork.
Jay's "Treaty of Amity, Commerce and Navigation" between 'His Britannic Majesty and the United States of America' is, nowadays, considered a major landmark in International Law (what Jay's era would have still known as 'the Law of Nations') for it firmly established, for the first time, the concept of International Arbitration (by which not all issues in dispute between nations were required to be most fully addressed in a treaty: arbitrators could be appointed on behalf of each signatory to a treaty and these could attempt to hammer out details- intending to achieve those goals expressed more broadly in the language of the treaty itself- without such picayune issues further delaying general agreement on principle between the nations in question).
Under the treaty, four separate sets of "commissioners" (as the arbitrators under Jay's Treaty were called) would deal with four major issues of dispute: the northwest boundary of the United States (the border running north from the headwaters of the Mississippi in what is now the State of Minnesota to the Lake of the Woods was still undetermined [it would not be settled until 1818]), the northeastern boundary of the United States (just how far north did the future State of Maine- still part of the Commonwealth of Massachusetts at the time of Jay's Treaty- extend? [this issue would not be settled until 1842]) and claims between British merchants and American ship's-captains (one "commission" would handle the British claims against American interests, while another "commission" would handle American claims against British interests, so the two would not cause undue complications that otherwise would attend such negotiations were all dealt with together). Meanwhile, the British military outposts in the "old Northwest" would be evacuated by 1 June 1796. These were the essential elements of the treaty.
But Jay had failed to gain many things that "localist" Jeffersonians would have preferred. He had gained no compensation from Britain for slaves "stolen" (the British would have, of course, said "liberated") during the War for American Independence (this would especially anger Southerners [especially as John Jay had also been the 'Jay' in the proposed Jay-Gardoqui Treaty with Spain back in 1786 (one that was ultimately rejected by the then-governing Confederation Congress) in which Jay, on behalf of the United States, renounced American rights of navigation on the Mississippi: in their own minds now twice-bitten, Southern Jeffersonians now "smelled a rat" in Chief Justice Jay!])- however, Jay could make no headway here precisely because Lord Grenville (and, presumably, this was the sense of the Ministry of then-British Prime Minister William Pitt the Younger as a whole) refused to even deal with this particular issue- and the clauses on American trade in the West Indies were, indeed, quite restrictive, listing a whole host of lucrative products of British colonies (but also the colonies of other Powers) therein that- as far as American ships were concerned- were to be considered "contraband" (this enumeration of "contraband" goods was intended to achieve two key British objectives: keeping the French from using America as a 'neutral' carrier of goods from French colonies which could, thereby, legally run the British blockade of France while also keeping American shipping from competing with British shipping in carrying products of British colonies); in addition, the whole issue of "impressment" of American sailors into the British navy was totally unaddressed by the treaty (and, as already noted above, this very issue would again raise its ugly head later on).
Meeting in secret session, the Senate debated Jay's Treaty and ended up approving- on 24 June 1795- all of its 28 Articles but one (which I will get to shortly) by a vote of 20-10, largely along what we can now begin to fairly call "Party lines" (the necessary filling of 10 United States Senate seats [1/3 of the total] by their respective State legislatures between the Third and Fourth Congresses had strengthened the Administration's hand in that body: the Federalists gained 2 seats by taking what had previously been 'Opposition' seats in Kentucky and Vermont and the 2 seats left vacant during the Third Congress [noted earlier in this piece] both went to Federalists as well) and just the 2/3 vote for ratification of a treaty required by the Federal Constitution!... it was that near a thing!!
The article of Jay's Treaty not approved (though it was not outright rejected by the Senate, but merely "suspended" pending potential new negotiations on the topic [the British would accept its suspension on 28 October 1795, on which date there was a formal exchange of ratifications (the final step necessary to bring Jay's Treaty into force) in London]) was Article 12, which contained the more onerous provisions regarding American trade in the West Indies. Yet the final version of the treaty as ratified by the U.S. Senate could easily be seen- at least by the Jeffersonian 'Opposition'- as far more beneficial to Great Britain and, clearly, greatly detrimental to the interests of France (which, again, as a Republic was the more favored- over monarchical [with the still-despised King George III as its monarch] Britain- by the Jeffersonians).
With the treaty now having been ratified by the Senate, Senators opposed to Jay's Treaty now felt free to divulge its contents (despite the Senate not yet having formally consented to publish its [non-verbatim, bare bones] Journals of its Special Session, which had adjourned sine die on 26 June 1795): the first 'salvo' seems to have been fired by Senator Stevens Mason of Virginia- Jeffersonian- when he, on 29 June, sent a copy of the treaty to the Philadelphia Aurora, a Jeffersonian newspaper, which first published it in full on 2 July 1795...
a political firestorm thereafter ensued!
John Jay was already back in the United States as of 28 May 1795, at which time he (and happily so) learned he had been elected Governor of New York ("happily" because he had actually sought the office back in 1792, only to have his supporters charge that the incumbent- George Clinton- had stolen the election [like that's never happened since! ;-)]), the term of office of which (for 3 years) began the following 1 July: thus, on the same day Senator Mason had (though no one yet knew it) "leaked" the treaty to the Aurora (29 June), Jay formally tendered his resignation as Chief Justice of the United States (being overseas, he had already missed out on two Terms of Court in any event). Just as well: for the firestorm over "his" Treaty (fanned the more because its exact terms first became publicly known just as celebrations of Independence Day [a time- outside of elections themselves- during which political feeling was at its highest in any event] were about to get underway) first aimed itself directly at the (mostly) hated treaty's chief negotiator. Town(ship) and mass (usually county-wide) meetings were held throughout the country, generating petition after petition urging- where not outright demanding of- President Washington to withhold his signature from the treaty (yes, necessary in order for him to eventually proclaim it part of the Supreme Law of the Land but, if only technically, merely an administrative task justifying a future exchange of ratifications the President most fully expected: constitutionally speaking, once the Senate had "advise[d] and consent[ed]" to the Treaty through its own vote on its Ratification, it was already the proverbial "done deal") and, often as not, such meetings ended with a public burning of John Jay in effigy (some went even so far as to openly lament "the want of a guillotine"!)-- even in that New York State of which John Jay was now its Chief Executive!!
To be sure, President Washington himself was not all that happy with the treaty either: Jay had exceeded his instructions, but he also had kept Hamilton (who, in turn, had kept Washington) informed as negotiations proceeded (else the President himself would not have been so "champing at the bit" to call the Senate into Special Session in the first place even before the treaty had ever reached American shores!), so the President did not hold the result against Jay personally. Believing it to be the best that could be had at the time in what he still regarded as a dangerous time in American relations with Britain (though he also could clearly see- no less than any pro-French Republic Jeffersonian opponent of the treaty- that it well flew in the face of his own statement that treaties negotiated by his Administration would "check every deviation from the line of impartiality"!), Washington added his own imprimatur to Jay's Treaty on 18 August 1795 (although he also included a "cover note" expressing his- and, by extension, the Nation's- overall dissatisfaction with the list, and number, of goods that were now to be considered "contraband" as regarded American trade with colonies other than Britain's, let alone British colonies themselves).
With Jay's Treaty now having been signed by the President, and for pretty much the first time since his Presidency began, the angrier "localist" Jeffersonians turned on George Washington himself. Up till now- through the embers lit under many a "localist" by the Supreme Court's decision in Chisholm v. Georgia, through even said embers becoming no little flame due to the Administration's response to the Whisky Rebellion- Washington himself had been, more or less, above reproach (for his own part, meanwhile: Washington had issued a presidential proclamation- on 10 July 1795- in which he stated that I have since thought it proper to extend... pardon to all persons guilty of... treasons, misprisons of treasons, or otherwise concerned in the late insurrection [within the western counties of Pennsylvania]... who have not since been indicted or convicted thereof, or of any other offense against the United States [Washington was clearly keeping his promise, in his proclamations relative to the Whisky Rebellion, "that those who, having offended against the laws, have since entitled themselves to indemnity will be treated with the most liberal good faith if they shall not have forfeited their claim by any subsequent conduct"; some historians, at least, have since tried to see Washington's pardon of the "whisky rebels" as something of a quid pro quo in light of the controversy over Jay's Treaty already underway by that date, but I myself see no real evidence that any direct connection between the two existed in the President's own mind: the pardon proclamation itself specifically refers to 10 July 1795 as an already-agreed to date of pardon by the President per an agreement with the "whisky rebels" made under instructions given- back on 2 September 1794- to "commissioners" sent out to "survey" what Washington himself would call "the scene of disaffection"; thus, Washington was here merely keeping his part of the resultant bargain, one which well predated the publication of Jay's Treaty... the pardon was, therefore, hardly an "olive branch" to raw-rubbed "localist" sensibilities related thereto!]).
Up to this point, if any Federalist had the proverbial "target on his back" in the minds of the average "localist", it was Alexander Hamilton (who, although back in New York State defending Jay's Treaty vehemently, had- by then- already left the Administration)... now, however, the flame of "localist" passion had become something of a conflagration and there was but one target left for such ultra-Jeffersonian invective: the President of the United States himself!
Indeed, furious invective was to thereafter be heaped upon the President (for his own part, Washington complained that this stuff was largely "in terms so exaggerated and indecent as could scarcely be applied to a Nero, a notorious defaulter, or even to a common pickpocket"). Things reached something of a head when the House of Delegates of Washington's own native Commonwealth of Virginia voted down a traditional annual resolution expressing confidence in its native son as national Chief Executive (though other States that were now Jeffersonian strongholds refused to go so far as to follow Virginia's lead [South Carolina's own resolution condemning Jay's Treaty specifically exonerated the President]); meanwhile, a constitutional showdown in the Jeffersonian (as we can now fairly say)-controlled U.S. House of Representatives over the treaty was now well brewing:
under the terms of the treaty, the House had to appropriate some $90,000 in order to fully implement it on the American side of things and the majority in the House of the new Fourth Congress (first convening on 7 December 1795) was fuming over the treaty- in their eyes- having stripped Congress of its constitutional powers over (among other things) foreign commerce and piracy on the high seas (much of the personal attack on Washington over the previous few months since he had signed Jay's Treaty had accused him of using the Senate- controlled by the Federalists, after all- as a "cabal" for purposes of just such "usurpation"). The traditional response of the House to the President's Annual 'State of the Union' Message (delivered on 8 December 1795), while still cordial and tempered, had- nevertheless- purposely removed (on a vote of the House pretty much along Party lines) a section of same expressing confidence in Washington's leadership of the country: clearly, the House was prepared to try and block the necessary funding of Jay's Treaty via its own "power of the purse" (per Article I, Section 7, clause 1 of the U.S. Constitution via which [a]ll bills for raising revenue shall originate in the House of Representatives), if that turned out to be the only way for the Jeffersonians to nullify a (to themselves) onerous treaty already ratified (and, although not yet known to them in December, re: which an exchange of ratifications between the parties to it had already taken place).
On 1 March 1796, Washington sent a Special Message to both houses of Congress in which he stated [t]he treaty of amity, commerce and navigation concluded between the United States of America and His Britannic Majesty having been duly ratified, and the ratifications having been exchanged... I have directed the same to be promulgated. The next day (2 March), Congressman Edward Livingston of New York offered a resolution asking the President to send to the House Jay's original instructions: after long debate on the matter, Livingston's resolution passed by a vote of 62-37 on 24 March 1796.
Washington responded by Special Message to the House on 30 March 1796:
In deliberating on this subject [that is: the efficacy of a President sending materials related to the negotiations over a treaty to the chamber of Congress not directly (that is: constitutionally) involved in the ratification of a treaty: REB-A] it was impossible for me to lose sight of the principle which some have avowed in its discussion, the President wrote, or to avoid extending my views to the consequences which must flow from the admission of that principle.
I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Congress as a right;...
The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent...
The course which the debate has taken on the resolution of the House leads to some observations on the mode of making treaties under the Constitution of the United States.
Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on the subject;... that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the Law of the Land. It is thus that the treaty-making power has been understood by foreign nations, and in the treaties made with them we have declared and they have believed [emphases in the original: REB-A] that, when ratified by the President, with the advice and consent of the Senate, they become obligatory...
It is a fact declared by the General Convention and universally understood that the Constitution of the United States was the result of a spirit of amity and mutual concession; and it is well known that under this influence the smaller States were admitted to an equal representation in the Senate with the larger States, and that this branch of the Government was invested with great powers, for on the equal participation of those powers the sovereignty and political safety of the smaller States were deemed especially to depend.
If other proofs than these and the plain letter of the Constitution itself be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention... [in which] it will appear that a proposition was made "that no treaty should be binding on the United States which was not ratified by a law," [moved in Convention by Gouvernour Morris of Pennsylvania on 23 August 1787: REB-A] and that the proposition was explicitly rejected [by a vote (by States)- on that same day- of 1 Aye (Pennsylvania), 8 No and 1 Divided (North Carolina); New Hampshire abstained, New York (by this point, down to 1 delegate- Alexander Hamilton- in any event) was absent and Rhode Island was never represented at the Convention: REB-A].
As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty;... a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request.
Thus rebuffed, the House proceeded to consider measures related to Jay's Treaty which, in retrospect, most fully brought into being the Two-Party System (so called) on a national scale as it might relate to the later events which culminated with the Election of 1796(/1797) that I first mentioned, in this series of Commentaries, in the opening paragraph of its Part Two:
On 7 April 1796, the House adopted a resolution (by a vote of 57-35) which declared that- contrary to what President Washington had seemingly charged (in his response to their earlier resolution)- they were not, in fact, at all disputing the constitutional process of treaty-making which did not involve their own chamber of Congress per se but, at the same time, were asserting a right to deliberate upon, and consent to (or not), effective portions of such treaties as might directly impact upon subjects clearly within the powers of Congress as a whole as outlined, primarily, in Article I, Section 8 of the Federal Constitution. (What was really in dispute here, then, was- at least from the House's perspective- the exact relationship between "laws... made in pursuance of" the Constitution and "treaties... made under the authority of the United States" [re: Article VI, clause 2: the 'Supremacy Clause' of the Constitution]: which took precedence over the other?-- and, in addition, under just what circumstances? The House was here arguing, in essence, that Law- in the form, in this case, of Federal statutes- trumped Treaty at least where Treaty dealt with subjects properly [that is, constitutionally] to be considered by the House no less than the Senate; President Washington argued otherwise-- that Law and Treaty were specifically the result of separate processes [in which the House had no direct impact upon treaty-making] and each had to, therefore, be considered equally with the other in their respective capacities as part and parcel of the Supreme Law of the Land).
A little over a week later- on 15 April 1796- a resolution was offered on behalf of the Federalist minority in the House asking that the appropriation of the funds necessary to Jay's Treaty becoming effective be approved. The Committee of the Whole House debated this resolution for two weeks before a vote on the resolution therein was taken on 29 April and split evenly, 49-49.
Up till this point, the Speaker of the House of Representatives did not generally cast a vote in that body (certainly not on such a divisive matter). But Jonathan Dayton of New Jersey, a Federalist serving as Speaker despite the House being so strongly Jeffersonian, cast his vote for the resolution (although this alone did not carry the resolution, as- per Parliamentary Procedure 101- the House would now supplant itself in its role as Committee of the Whole in order to consider the resolution [technically, merely "recommended" to the House by one of its own Committees, of which each and every member of the House happened to also be a member] anew: Dayton himself gave his reason for doing so as one simply allowing the issue to be further considered [for, if the resolution had failed in Committee of the Whole, it would have died right then and there]).
Then, the next day- 30 April 1796 (the 7th Anniversary of George Washington having first been sworn in as first President of the United States)- the resolution- with a cover note (added by late amendment) declaring that in the opinion of the House, this Treaty was highly objectionable- was considered by the House per se. There was a motion to strike the word "highly" from the cover note (important because at least a few Congressmen might yet be persuaded to vote against the resolution were this highly charged word to remain therein) and the vote on this, too, divided (by a vote of 48-48): Speaker Dayton was, once again, called upon to cast a rare "Speaker's vote" in order to break the tie-- he voted to strike the word "highly". This cleared the way for the 'cover note' itself to be considered (without the offending adverb) and it was, in turn, removed in toto by a vote of 50-49 (technically, the vote was '49 Yea, 50 Nay' on a motion to adopt the resolution with cover note); the resolution providing for the necessary funding to implement Jay's Treaty (now without 'cover note' at all) then carried the day by a vote of 51-48... as had been the case with the earlier ratification of the treaty itself in the other house of Congress, it had also been a near thing!
The political effect of all this, however, is best summarized in an essay I wrote for this very website now more than a decade ago on A Brief History of Congressional Leadership in which I wrote the following:
The earliest Speakers of the House were, in the main, non-partisan- regardless of the intention of the Framers of the then-still new Constitution: in part, this was due to the primitive state of national Parties in this early period... but it was also in part because those in the House seem to have purposely opted- at least at first- to not have the type of "factional" Speaker found in the lower houses of the legislatures of their home States. Most of those serving in the new Federal Government- in whatever capacity- honestly felt that they were embarking on something new, something that could yet prove itself to be above the petty politics of State and local governance: the Speakers chosen during the first three Congresses, as well the manner in which they exercised their authority as the House's presiding officer, seem to show this...
Partisanship, nevertheless, came to the Speaker's chair in the wake of the development of the Federalist and "old" Republican Parties as the 1796 Presidential Election loomed: when pro-Administration Jonathan Dayton of New Jersey, hitherto more or less non-partisanly presiding over the House of the 4th Congress- a House controlled by the Opposition, cast two crucial votes which carried the day for the Washington Administration trying to get funding in order to begin to implement Jay's Treaty, any notion that the Speaker of the House would always remain above politics ended once and for all.
Indeed, Politics had "won the day" more than anything else: for all of the aforementioned controversies of President Washington's second term- over the Chisholm decision, the handling of the Whisky Rebellion and the negotiation, and later implementation, of Jay's Treaty- had contributed to clearest divide between "cosmopolitan" Federalists and "localist" Jeffersonians as the Elections of 1796 drew ever closer. While the lineal ancestors of these divisions were evident in local- that is: State (even colonial)- politics going back at least decades (if not longer) that, in turn, did at least cause such divisions to "bubble up" to the surface of at least quasi-national politics during both American Revolution and later Confederation even before the effectiveness of the Constitution of the United States, there was no way- from this point (the Spring of 1796) on- to stick the proverbial "genii back into the bottle"!
The French Revolution had, indeed, left something of a mark- no matter the 'Burkean' (as it were) sentiments of those most appalled by its excesses as reported from across the sea- on American Politics for good (as well as for better or for worse); the issue now- for nervous 'conservative' Federalists- was how best to prevent what had already happened "over there" from now more easily taking place "over here".
Find PART FIVE of this series here