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Gautham Rao
Assistant Professor of History, American University
NYU Legal History Colloquium 10/2014
Dear NYU Legal History Colloquium Participants,
Below you will find the introduction and chapter four of my book manuscript, At the Water’s Edge:
Customhouses, Governance, and the Origins of the Early American State, which is under contract with the
University of Chicago Press. Thank you so much for taking the time to read my work. I greatly look
forward to your comments and suggestions.
Introduction
The American Revolution vanquished a British leviathan. But in the federal
government of the early republic, Americans built a central government of their own.
This effort was grounded in the institution of the customhouse, where the federal
government collected most of its revenue and enacted crucial commercial regulations.1
Collecting taxes and regulating commerce at the customhouse, however, reflected the
basic problem of an inchoate federal government in the early republic. What was it?
How, and for whom did it operate? Where did it reside? The problem owed to the
duality of the customhouse itself. As a political economic unit, it taxed and regulated for
the public good. On the waterfront, however, commercial peoples drew upon a
traditional, informal authority to influence the customhouse from below. In the early
republic, in routine acts of taxation and regulation at the customhouse, unfolded a
momentous contest over the location and meaning of federal authority that would
underscore a transformation from empire to nation.2
1
On statecraft in Anglo-American early modernity, see Steve Pincus, 1688: The First Modern Revolution
(New Haven: Yale University Press, 2009); John Brewer, Sinews of Power: War, Money, and the English
State, 1688-1783 (Cambridge: Harvard University Press, 1988); E.P. Thompson, Whigs and Hunters: The
Origin of the Black Act (New York: Pantheon Books, 1975); Bernard Bailyn, The Origin of American
Politics (New York: Knopf, 1968); Michael J. Braddick, The Nerves of State: Taxation and the Financing
of the English State, 1558-1714 (New York: St. Martin’s Press, 1996).
2
On the problem of the federal government in the era of the American Revolution, see Alison L. LaCroix,
The Ideological Origins of American Federalism (Cambridge: Harvard University Press, 2010); Max M.
Edling, Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the
American State (New York: Oxford University Press, 2003); Saul Cornell, The Other Founders: Anti-
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***
As outposts of empire, customhouses of the early American republic were liminal
spaces, much as they had been under the British Empire.3 They sat between the Statutes
at Large, Treasury ledgers and published statistics, on one hand, and the brackish
commercial politics and pathways of the seacoasts, on the other. The unique role of
commerce in early modern governance and political economy was to blame for the
customhouse’s Janus-faced existence. As early modern empires like the early federal
government derived revenue and legitimacy from commerce, so they grew dependent on
the market and, in turn, on the merchants and networks that constituted it. In the early
United States, these merchants, who imported plantation goods from the West Indies,
manufactures and luxury goods from Europe, and teas and spices from the East Indies,
paid over revenue and stabilized governance.4 But this dependence on importing
Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina
Press, 1999); Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill:
University of North Carolina Press, 1969); Bernard Bailyn, The
Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press,
1967); Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United
States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983).
3
The best treatment of the customs service in the early republic is Frederick Arthur Baldwin Dalzell,
“Taxation With Representation: Federal Revenue in the Early Republic,” Ph.D. Dissertation, Harvard
University, 1993. Dalzell provides a fine-grained study customs policy and implementation from 1789 to
1800. He concludes that customs officials “accommodated” merchants in order to secure revenue. See
also, Dalzell, “Providence and the Golden Egg: Establishing the Federal Government in Providence, Rhode
Island,” New England Quarterly, vol. 65, no. 3 (September, 1992), 355-388. Also excellent is Joshua
Mitchell Smith’s Borderland Smuggling: Patriots, Loyalists and Illicit Trade in the Northeast, 1783-1820
(Gainesville, Fla.: University of Florida Press, 2006), and the dissertation it is based upon, “The Rogues of
‘Quoddy: Smuggling in the Maine-New Brunswick Borderlands, 1783-1820,” Ph.D. Dissertation,
University of Maine, 2003). Older works are useful for details of legislative history and doctrinal
development. See, e.g., Laurence F. Schmeckebeier, The Customs Service: Its History, Activities and
Organization (Baltimore: Johns Hopkins University Press, 1924); Carl E. Prince and Mollie Keller, The
U.S. Customs Service: A Bicentennial History (Washington, D.C.: Department of the Treasury, U.S.
Customs Service, 1989); Don Whitehead, Borderguard: The Story of the United States Customs Service
(New York: McGraw-Hill Companies, 1963); National Society of the Colonial Dames of America, Three
Centuries of Custom Houses (National Society of the Colonial Dames of America, 1972).
4
These merchants, like those who helped integrate the British Empire in the Atlantic marketplace,
“coordinated people, materials, and capital across market sectors and among geographically dispersed
areas.” David Hancock, Citizens of the World: London Merchants and the Integration of the British
Atlantic Community (New York: Cambridge University Press, 1995), 16.
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merchants and their capital exposed the customhouse and thus the federal government to
an underside of Atlantic commerce that had enfeebled empires past: innumerable local
market cultures, vast pathways of illicit commerce, and a transatlantic radical
“hydrarchy” rooted in the pursuit of gain. So stood the customhouse in the early
republic, at once the source and pathogen of central government.5
Officeholders’ practices of governance reflected the conflict between commerce
and central government at the customhouses of the early republic. At different moments,
customs officials’ drew legitimacy from both local commercial communities and from
the dictates of central government. In the aftermath of the Revolution, they created
discretion to negotiate authority with local commerce as the young federal government
emulated empire.6 After the War of 1812, however, as American politics became
transfixed with the program of constructing a liberal state, the outsized influence of
commerce over federal governance became a main problem. To undo the ostensible
commercial capture of the customhouse, legal and administrative reformers winnowed
local officials discretion. This reform effort, which had unmistakably reconstituted the
5
Marcus Rediker and Peter Linebaugh, The Many Headed-Hydra: Sailors, Slaves, Commoners, and the
Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000), 144. Rediker and Linebaugh
define “hydrarchy” to mean “the organization of the maritime state from above, and the self-organization of
sailors from below.” Though Linebaugh and Rediker use the term in order to identify a class struggle
between maritime states and the Atlantic working class, I seek to understand hydrarchy a bit more
expansively. The organization of the “maritime state” necessitated “self-organization…from below” of
groups other than sailors, including those with considerably more social distinction and authority, such as
merchant capitalists.
6
Negotiated authority, in which two or more groups compete and collaborate to set the terms and limits of
authority, was a main feature of imperial governance in the North American Colonies. See, Jack P. Greene,
“Transatlantic Colonization and the Redefinition of Empire in the Early Modern Era: The British-American
Experience,” in Negotiated Empires: Centers and Peripheries in the Americas, 1500-1820, ed. Christine
Daniels and Michael V. Kennedy (New York: Routledge, 2002), 267-282; Elizabeth Mancke, “Negotiating
an Empire: Britain and Its Oversea Peripheries, c. 1550-1780,” in ibid., 32-74; Daniel J. Hulsebosch,
Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 16641830 (Chapel Hill: University of North Carolina Press, 2005); Eric Hinderaker, Elusive Empires:
Constructing Colonialism in the Ohio Valley, 1673-1800 (New York: Cambridge University Press, 1999).
Negotiated authority was also the product of interactions between English and European colonists and
Indian civilizations. See, for instance, Richard White, The Middle Ground: Indians, Empires, and
Republics in the Great Lakes Region, 1650-1815 (New York: Cambridge University Press, 1991).
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customhouse by 1836, had pried the federal state from the control of the marketplace. On
the wreckage of the first American empire, appeared the outlines of the modern American
state.
***
The United States was born into a world preoccupied by statecraft. Just three
centuries before, however, continental political theorists had defined “the state” to mean
the status of ruling sovereigns. It was closer to a behavioral code or set of conditions for
sovereigns to preserve their status. By the mid-seventeenth-century, “the state” had
become a thing. The shift was much the work of Thomas Hobbes, who argued that the
state was “a purely impersonal authority” distinct from the masses of individuals who
consented to being governed by a sovereign. When Hobbes was through with it, the state
amounted to a single entity that acted for the common good of the people. Thereafter the
state became a main problem of seventeenth and eighteenth-century political thought.7
In practice, too, the Hobbesian revolution in the concept of the state had profound
consequences, especially in the realm of political economy. Here the state was no
abstract impersonal authority, but rather the concrete sum total of the central
government’s offices and authorities. The great political economists in the era of the
Glorious Revolution contemplated this state through its three main functions: revenue,
regulation, and military power. The “fiscal-military” state sought to extract as much
revenue as possible, regulate commerce to punish foes, and deploy military force to
protect and expand its borders. For the fiscal-military state, then, the customhouse came
to enjoy immense importance—it was the “pulse” of central governance, as English
Quentin Skinner, “The State,” in Political Innovation and Conceptual Change, ed. Terrence Ball, James
Farr, and Russell L. Hanson (Cambridge, 1989), 90, 91, 122-3. 126.
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political economist Charles Davenant put it.8 At the customhouse, the fiscal-military
state consolidated its dominion by imposing authority over the commercial marketplace,
coercing submission from individual subjects, and channeling the fruits of regulation to
support a system of public finance, warfare, and expansion.9
The powerful minority of the American founders in search of their own fiscalmilitary state would demand customhouses for the new United States.10 For the
founders, in keeping with the fiscal-military blueprint, customs duties on imported goods
were to be the federal government’s sole and steady source of revenue. This and this
alone would avoid the sad fate of the failed government under the Articles of
Confederation. Customs regulations were just as important. Customhouses would allow
the United States to contend with foreign competitors, both by discriminating in kind
against aggressor nations, but also by forging amity with others.11 Among the first acts
8
E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (New York: Cambridge
University Press, 1990), 23-45. Charles Davenant, An Essay Upon Ways and Means (1695), in Charles
Davenant, The Political and Commercial Works Of that Celebrated Writer Charles Davenant, LL.D. (16951712; Farnborough, England: Gregg Press Limited, 1967), 1:136.
9
On the origins of the fiscal-military state, see John Brewer, Sinews of Power: War, Money, and the
English State, 1688-1783 (Cambridge: Harvard University Press, 1988); Pincus, 1688, esp. 305-436;
Christopher Storrs, Fiscal-Military State in Eighteenth-Century Europe: Essays in Honor of P.G.M.
Dickson (Burlington, Vermont: Ashgate, 2009); Margaret Levi, Of Rule and Revenue (Berkeley, 1989);
Charles Tilly, Of Coercion, Capital, and European States, A.D. 990-1992 (New York, 1995); Fernand
Braudel, Civilization and Capitalism, 15th-18th Century: The Wheels of Commerce, tr. Sian Reynolds
(Berkeley, 1992); Patrick K. O’Brien and Philip A. Hunt, “England, 1485-1815,” in The Rise of the Fiscal
State in Europe, 1200-1815 (New York, 1999), 53-100.
10
On the American “fiscal-military” revolution, see Edling, A Revolution in Favor of Government. The
founding generation’s anxiety over establishing legitimacy at home and abroad is discussed by Mlada
Bukovansky, Legitimacy and Power Politics: the American and French Revolutions in International
Political Culture (Princeton: Princeton University Press, 2002); David M. Waldstreicher, In the Midst of
Perpetual Fetes: The Making of American Nationalism, 1776-1820 (Chapel Hill: University of North
Carolina Press, 1997); Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American
Republic, 1788-1800 (New York: Oxford University Press, 1993), 34-128; James Roger Sharp, American
Politics in the Early Republic: The New Nation in Crisis (New Haven: Yale University Press, 1995);
Steven Watts, The Republic Reborn: War and the Making of Liberal America, 1790-1820 (Baltimore:
Johns Hopkins University Press, 1989); Morton Borden, Parties and Politics in the Early Republic, 17891815 (New York: Taylor & Francis, 1968).
11
Customhouses also played a crucial informational role in early modern state formation. Indeed,
somewhat ironically, authorship of The Wealth of Nations was Adam Smith’s bona fides for an
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of the new United States government in 1789 was to create federal customhouses for
every major, and many minor ports throughout the country. In so doing, Congress had
created a network of officialdom. The subsequent unceasing shuffle of paper between the
Treasury, Congress, Courts, and the customhouses—accounts, abstracts, letters, tables,
statutes, chits, and especially correspondence—constitutes the spine of this study. In this
archive, the customhouse is at once an instrumentality of policy, political theory, and
political economy, as well as a far messier world of waterfront governance.12
As seen from the aerie of the nation’s capital, the history of the customhouse is
the history of an active and energetic young federal government. Through the
customhouses, the federal government, though far smaller and more distant than today,
was a significant force in the political and political economic history of the early
republic.13 It was undoubtedly a strong federal government when compared with its
appointment to the Board of Customs. Nicholas Phillipson, Adam Smith: An Enlightened Life (New Haven:
Yale University Press, 2010), 254.
12
In his magisterial 1992 study of the English revenue system, John Brewer lamented historians’ general
disinterest in the “remarkable proliferation of accounts, memoranda and correspondence” that accompanied
the rise of the early modern state. Brewer, Sinews of Power, 69. Since then, however, historians of empire
have produced excellent, nuanced treatments of administrative officialdom. See Konstantin Dierks, In My
Power: Letter Writing and Communications in Early America (Philadelphia: University of Pennsylvania
Press, 2009); Kenneth J. Banks, Chasing Empire Across the Sea: Communications and the State in the
French Atlantic, 1713-1763 (Montreal: McGill-Queens University Press, 2006); Eve Tavor Bannet, Empire
of Letters: Letter Manuals and Transatlantic Correspondence, 1688-1820 (New York: Cambridge
University Press, 2005); 236-273; Richard J. Ross, “Legal Communications and Imperial Governance:
British North America and Spanish America Compared,” in The Cambridge History of Law in America,
vol. 1 (New York: Cambridge University Press, 2008), 104-143.
13
Stephen Skowronek’s offers a brief but influential treatment of the early American state in his influential
Building a New American State (1982). Skowronek concedes that, though the early American state lacked
“a sense of a state,” it was nonetheless “essential to social order and social development in nineteenthcentury America.” Writes Skowronek, “it fought wars, expropriated Indians, secured new territories,
carried on relations with other states, and aided economic development.” Strangely, however, Skowronek
devotes little time to explaining how this state, which “was not a directive force in social affairs,” managed
to accomplish these tasks. Instead, he focuses on the idea of a “state of courts and parties” that managed
the decentralized federalist “system of control” that “was well established by 1850.” In this system, the
political party system provided “procedural unity” while the federal judiciary mediated interstate conflicts.
Stephen Skowronek, Building a New American State: The Expansion of National Administrative
Capacities, 1877-1920 (New York: Cambridge University Press, 1982), 19, 24, 27, 26. On the legacy of
Building a New American State, see Daniel P. Carpenter, “The Multiple and Material Legacies of Stephen
Skowronek,” Social Science History, vol. 27, no. 3 (2003), 465-74. A strong critique of Skowronek is
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predecessor.14 It had to be. Alexander Hamilton, Thomas Jefferson, Joseph Story,
Andrew Jackson, and other national political leaders did not simply debate political
ideology for sport; they did so in advocacy of political policies. When the debates were
done, the law was put in action. Customs officials collected millions of dollars in
revenue and inspected innumerable vessels, boxes, tierces, barrels, and hogsheads of
cargo. Taxing and regulating commerce required forging and using central governmental
institutions, both to channel the market for the public benefit, and also to promote
economic development.15 Doing so meant turning to customs officials on the waterfront.
Like their superiors in the Treasury and the White House, customs officials were not
merely creatures of party or theory. They had to govern.16
Richard R. John, “Governmental Institutions as Agents of Change: Rethinking American Political
Development in the Early Republic, 1787-1835,” Studies in American Political Development, vol. 11 (Fall,
1997), 347-380.
14
This argument is made most effectively by Max Edling, A Revolution in Favor of Government: Origins
of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003);
Brian Balogh, Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America
(New York: Cambridge University Press, 2009); Richard R. John, “Governmental Institutions as Agents of
Change”; John, “Farewell to the ‘Party Period’: Political Economy in Nineteenth-Century America,”
Journal of Policy History, vol. 16, no. 2 (2004), 117-125.
15
The role of central governmental institutions in the story of American economic development received
much attention from the Progressive Commonwealth historians, who argued that the construction of
infrastructure and other foundations established the preconditions for economic growth. See, e.g. Louis
Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge: Harvard
University Press, 1946); Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of
Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press,
1969); Carter Goodrich, Government Promotion of American Canals and Railroads, 1800-1888 (New
York: Columbia, 1960); Harry N. Scheiber, Ohio Canal Era; A Case Study of Government and the
Economy, 1820-1861 (Athens, Ohio: Ohio University Press, 1968); Malcolm J. Rohrbough, The Land
Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York:
Oxford University Press, 1968); Paul Wallace Gates, History of Public Land Law Development; Written for
the Public Land Law Review Commission (Washington: Government Printing Office, 1968). More
recently, historians of political economy have gone to great lengths to show more direct connections
between policy and market change. For a sampling of this literature, see the fine essays in Richard R. John,
ed., Ruling Passions: Political Economy in Nineteenth-Century America (University Park, PA:
Pennsylvania State University Press, 2006).
16
Alan Taylor, “From Fathers to Friends of the People: Political Personas in the Early Republic,” Journal
of the Early Republic, vol. 11, no. 4 (Winter, 1991), 465-491. More generally, on officeholding in the early
republic, see Carl E. Prince, Federalists and Origins of the U.S. Civil Service (New York: New York
University Press, 1977).
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But the world of officialdom represented in letters between customhouses and the
nation’s capital is notable for its lacunae. Lost in these performances of officialdom—
honorific salutations; half-hearted requests for instructions; pledges of obeisance; and
finally, almost universally, best wishes from “your servant”—was the chaotic world of
the waterfront. In reality, customs officials selectively applied laws, shielded local
wrongdoers, minimized smuggling, and ignored lost revenue. In short, customs officials’
correspondence fabricated for high politics a sense of national order and a rule of national
law that did not exist at the customhouses themselves.17 Customs officials did so because
in the first decades of the fledgling United States, official commissions were insufficient
sources of legitimacy to meet the daunting tasks of taxing merchant capital and regulating
commerce. Beneath the silences in their official correspondences, customs officials
searched for other means of credit and reputation. In commerce they would find the
wellspring of governance, and through customs officials’ newfound legitimacy, the
federal government would develop the sinews of empire.18
Commerce had muddled governance at the customhouse since before the Glorious
Revolution.19 The customhouse walls had been porous to the pressures of custom,
17
Smuggling, and the legal struggle against it, was an important source of capital accumulation, political
mobilization, and statecraft in eighteenth and nineteenth-century America. For a good introduction to this
literature, see John W. Tyler, Smugglers & Patriots: Boston Merchants and the Advent of the American
Revolution (Boston: Northeastern University Press, 1986); Cathy D. Matson, Merchants & Empire:
Trading in Colonial New York (Cambridge: Harvard University Press, 1998); Joshua M. Smith, Borderland
Smuggling: Patriots, Loyalists, and Illicit Trade in the Northeast, 1783-1820 (Gainesville: University of
Florida Press, 2006); Peter Andreas, Smuggler Nation: How Illicit Trade Made America (New York:
Oxford University Press, 2013); Catherine Cangany, Frontier Seaport: Detroit’s Transformation into an
Atlantic Economy (Chicago: University of Chicago Press, 2014).
18
On the problem of localism in state formation, see Philip Gorski, The Disciplinary Revolution: Calvinism
and the Rise of the State in Early Modern Europe (Chicago: University of Chicago Press, 2003); Saskia
Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton
University Press, 1998).
19
Keith Wrightson explores competing, central and local notions of order in his influential essay, "Two
Concepts of Order: Justices, Constables and Jurymen in Seventeenth-Century England," in An
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politics, and power, that emanated from, and drew strength from, nearby coffee houses,
banks, insurance offices, auction houses, and town squares, to say nothing of the docks
and wharves themselves.20 Yet until the revolutionary troubles of the mid-eighteenth—
century, this commercially influenced governance at the customhouse had been the stuff
of empire. Imperial customs officers operated within a complex framework of
assumptions about public virtue, the limits of official law, the extent of traditional and
customary rights, and the rights and benefits of citizenship. They governed on their
reputational capital. Officeholders maintained distinction by governing without
offending the honor and credit of nearby merchants while simultaneously doing justice to
the public good.21
Federal governance in the first years of the early republic emulated that of the
British Empire. The new federal government, like its predecessor, operated at a great
distance from its peripheries. It, too, lacked manpower and revenue. The few customs
officials, blended into the many of their communities, could not afford to alienate
Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries, ed. John
Brewer and John Styles (New Brunswick: Rutgers University Press, 1980), 21-46.
20
On this political economy of the waterfront in the early American republic, see Zabin, Dangerous
Economies; Jane Kamensky, The Exchange Artist: A Tale of High-Flying Speculation and America’s First
Banking Collapse (New York: Viking, 2008), 179-217; Tamara Plakins Thornton, “Capitalist Aesthetics:
Americans Look at the London and Liverpool Docks,” in Capitalism Takes Command, ed. Michael Zakim
and Gary D. Kornblith (Chicago: University of Chicago Press, 2012), 169-198; Joanna Cohen, “‘The Right
to Purchase is as Free as the Right to Sell’: Defining Consumers as Citizens in the Auction-House Conflicts
of the Early Republic,” JER, vol. 30, no. 1 (Spring, 2010), 25-62;. For a fine study of the political
significance of the early modern coffeehouse, see Steven C.A. Pincus, “‘Coffee Politicians Does Create’:
Coffeehouses and Restoration Political Culture,” Journal of Modern History, vol. 67, no. 4 (Dec., 1995),
807-34. On the revolutionary politics of colonial taverns, see David W. Conroy, In Public Houses: Drink
and the Revolution of Authority in Colonial Massachusetts (Chapel Hill: University of North Carolina
Press, 1995).
21
More than any other scholar, Jack P. Greene has illustrated the sources of negotiated authority in the
British imperial governance of the North American colonies. See, Negotiated Authorities: Essays in
Colonial Political and Constitutional History (Charlottesville: University of Virginia Press, 1994, 1-23;
Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire
and the United States, 1607-1788 (Athens: University of Georgia Press, 1986); Constitutional Origins of
the American Revolution (New York: Cambridge University Press, 2011). See also, Hulsebosch,
Constituting Empire; Games, Web of Empire.
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themselves among the commercial class who did business at the customhouse. At stake
was the new government’s sole source of revenue. Customs officials kept the peace
between the central government and the marchlands.22 Herein lay a crucial opening for
merchants, seamen and others on the waterfront, which were cognizant of their centrality
to the survival of empire. At the customhouse, peace would come at a steep price. For
their cooperation with the state, commercial peoples demanded favorable interpretation
and administration of the laws by customs officials. For the first thirty years of the new
republic, this moral economy ruled over the customhouse, not least because of the
implicit threat of “direct action” it engendered.23 Such had been the lesson of the
American Revolution, as aggrieved merchants assembled mobs and pursued vindictive
private suits against customs officials who had enforced laws against the merchants’
collective will. Indeed, by 1775, the power and frequency of colonial mobs had all but
shuttered the doors of the imperial customhouses and lit the fuse of the American
Revolution.24 Mob action against customhouses continued well into the early republic.
Some would wonder whether the upheaval of political authority during the American
Revolution had every actually ended. William Ellery, a customs official in Providence,
Hulsebosch, Constituting Empire. See, William J. Novak, The People’s Welfare: Law & Regulation in
Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Hendrik Hartog,
Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870
(Ithaca, NY: Cornell University Press, 1983); Peter Karsten, Heart versus Head: Judge-Made Law in
Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1997).
23
E.P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past & Present,
no. 50 (Feb., 1971), 79.
24
On the role of the mobs in the American Revolution, see Pauline Maier, From Resistance to Revolution:
Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (New York: Knopf,
1972); Arthur Meier Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776 (1918;
New York: Facsimile Library, 1939); Russell Bourne, Cradle of Violence: How Boston’s Waterfront Mobs
Ignited the American Revolution (New York: John Wiley & Sons, 2006); Edmund S. Morgan and Helen M.
Morgan, The Stamp Act Crisis: Prologue to Revolution (1953; Chapel Hill: University of North Carolina
Press, 1995); Carl M. Bridenbaugh, Cities in Revolt: Urban Life in America, 1743-1776 (New York:
Harper, 1995); Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of
Revolution (Philadelphia: University of Pennsylvania Press, 2004); Gary B. Nash, Urban Crucible: The
Northern Seaports and the Origins of the American Revolution (Cambridge: Harvard University Press,
1986).
22
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Rhode Island, for one, saw the “spirit of ’63,” or the revolutionary ethos that enveloped
imperial customhouses in the wake of the Stamp Act, and that would eventually cause the
ouster of imperial administration throughout the colonies.
In the early republic, however, the mob was the exception rather than the rule as
customs officials readily negotiated authority with local merchants. The Treasury would
acquiesce in this settlement, too, and with good reason. From 1789 to 1816,
customhouses collected $229 million in customs duties, or 90% of all federal revenue.
Americans had ratified the Constitution in 1788 to create a central government capable,
among other things, of collecting revenue. This had unquestionably been achieved.25
The federal government’s remarkable ability to collect this revenue without too heavy a
hand also seemed to bear out the promise of revolutionary republicanism. The central
government functioned effectively but gently by negotiating rather than imposing its
authority.26
By 1836, however, governance at the customhouse had changed dramatically. In
fact, the customhouse themselves bore little resemblance to their imperial predecessors.
In the first days of the republic, as in the British Empire, only the most skilled lookouts
might have been able to pinpoint the small buildings that housed customs officials. By
the Jacksonian era, however, customhouses—first Greek revival temples and then
Italianate palazzos—were hard to miss. In these years, Treasury architects systematized
customhouse construction throughout the expanding nation to communicate a “sense” of
John Joseph Wallis, “ Federal government revenue, by source: 1789–1939.” Table Ea588-593 in
Historical Statistics of the United States, Earliest Times to the Present: Millennial Edition, ed. Susan B.
Carter et al. (New York: Cambridge University Press, 2006). http://dx.doi.org/10.1017/ISBN9780511132971.Ea584-67810.1017/ISBN-9780511132971.Ea584-678; Internet; accessed April 11, 2007.
26
On the comparatively soft footprint of the early federal government, see Balogh, Government Out of
Sight; Edling, Revolution in Favor of Government.
25
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a cocky, confident nation-state, growing into itself.27 The new federal aesthetic reflected
a new means of federal governance as between 1815 and 1836 Treasury and
Congressional reformers changed they way federal governance worked. The end of the
Napoleonic Wars brought an end to an epoch of Atlantic commerce that had derived its
power from military conflict and instability. This sapped the old moral economy of the
customhouse of its power. A new governing order became both possible and necessary.28
Between 1816 and 1836, administrative reform, propelled by the explosive growth of
nationalism and the rise of a national marketplace requiring uniform national standards,
swept through the federal government, including the Treasury Department. Above all,
reform in the age of Jackson meant centralization, as the Treasury sought to consolidate
authority that had devolved to the waterfront since the days of Alexander Hamilton.
As national politicians, jurists, and administrators would learn, however, reform
would only become possible after uprooting the old negotiated authority between
commercial peoples and customs officials that had emerged during the first three decades
Daniel Bluestone, “Civic and Aesthetic Reserve: Ammi Burnham Young’s 1850s Federal Customhouse
Designs,” Winterthur Portfolio, vol. 25, no. 2/3 (Summer-Autumn, 1990), 131, 133. See also, Nathaniel
Hawthorne, The Scarlet Letter: A Romance (London: David Bogue, 1851), 8-9; David M. Henkin, The
Postal Age: The Emergence of Mass Communications in Nineteenth-Century America (Chicago: University
of Chicago Press, 2006), 67; Antoinette Josephine Lee, Architects to the New Nation: the Rise and Decline
of the Supervising Architect’s Office (New York: Oxford University Press, 2000), 11-38. The phrase
“sense of the state” is borrowed from Stephen Skowronek, who discovered it in the writings of H.G. Wells.
Writes Skowronek: “A ‘sense of the state’ pervades contemporary American politics. It is the sense of an
organization of coercive power operating beyond our immediate control and intruding into all aspects of
our lives.” “After all,” he concludes, “it is the absence of a sense of the state that has been the great
hallmark of American political culture.” This book makes a case for the opposite view with regard to the
role of the federal government in the early United States. The “institutional turn” of the political history of
nineteenth-century America has already done so for municipal and state government. A summary of these
literatures can be found in, Richard R. John, “Governmental Institutions as Agents of Change,” Studies in
American Political Development, vol. 11, no. 2 (1997), 347-80; and William J. Novak, “The Myth of the
Weak American State,” American Historical Review, vol. 113, no. 3 (2008), 752-72.
28
The dismantling of transatlantic mercantilist systems had different consequences elsewhere. In Buenos
Aires, for instance, it created a lengthy process of juridical and economic reconstruction that Jeremy
Adelman characterizes as a “maelstrom” of chaos and disorder. Adelman, Republic of Capital: Buenos
Aires and the Legal Transformation of the Atlantic World (Palo Alto, CA: Stanford University Press,
1999), 2.
27
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of the new republic. The problem of customhouse governance in the age of Jackson thus
sparked an effort to quarantine the operations of the federal government from the forces
of the market.29
Rethinking the Politics and Political Economy of State Formation
This book argues that after the Revolution, Americans constructed a federal
government that emulated imperial patterns of provincial and especially commercial
control of governmental institutions. This regime, though useful for perpetuating a
central government with little cultural legitimacy, embroiled the United States in
dangerous crises of sovereignty during the Napoleonic Wars. In the wake of the Wars,
reformers sought to undo the commercial underpinnings of customhouse governance.
Nationalist legal doctrine and consolidated political parties, coupled with customs
officials’ independent embrace of bureaucratization, wrought a wholesale transformation
of the federal government. At the customhouses and the Treasury, administration had
replaced commerce as the logic of governance.
This book, then, is very much a “social history of the state.” 30 It follows the
theory and practice of statecraft from customhouses in seaports to debates in the nation’s
29
Anxieties over the reach of the market in the age of Jackson are best understood through the burgeoning
literature on the market revolution. See, John Lauritz Larson, The Market Revolution in America: Liberty,
Ambition, and the Eclipse of the Common Good (New York: Cambridge University Press, 2009); Charles
G. Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press,
1991); Scott C. Martin, ed., Cultural Change and the Market Revolution in America (New York: Roman &
Littlefield, 2005); Melvyn Stokes and Stephen Conway, The Market Revolution in America: Social,
Political, and Religious Expressions (Charlottesville, VA: University of Virginia Press, 1996); Martin
Bruegel, Farm, Shop, Landing: The Rise of a Market Society in the Hudson Valley, 1780-1860 (Durham,
NC: Duke University Press, 2002). The idea of a market revolution built on an earlier series of studies
interested in dating a rural “transition to capitalism.” See, for instance, Christopher Clark, The Roots of
Rural Capitalism: Western Massachusetts, 1780-1860 (Ithaca: Cornell University Press, 1990); Michael
Merrill, “Cash is Good to Eat: Self-Sufficiency and Exchange in the Rural Economy of the U.S.,” Radical
History Review (1977), 42-71. A critique of this literature is Winifred Barr Rothenberg, From MarketPlace to a Market Economy: The Transformation of Rural Massachusetts, 1750-1850 (Chicago: University
of Chicago Press, 1992).
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14
capital. It seeks to uncover how the United States created and administered central
government in the face of a world of contingency—itself rooted in the decaying of
Atlantic empires. This book builds upon a wide array of studies that illustrate above all
the problem of central governance and administration during a long commercial
revolution that called into question the fabric of politics and political economy.31 By
emphasizing the vexing interactions of commerce and governance at the venue of the
customhouse, it diverges sharply from leading accounts of law and governance in the
early republic that have emphasized ideology, courts, and parties.32 Likewise, it shifts the
30
Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton,
NJ: Princeton University Press, 2009), 5-6. As Canaday explains, this approach entails studying, not
policies alone, but how officeholders put policies into practice, “close to the ground.” Though they do not
explicitly identify with Canaday’s approach of “the social history of the state,” Hendrik Hartog and most
recently Laura Edwards provide powerful examples of the possibilities of this methodology. See, Hendrik
Hartog, “Pigs and Positivism,” Wisconsin Law Review (1986), Hendrik Hartog, “Pigs and Positivism,”
Wisconsin Law Review, no. 4 (1985), 899-935; Laura F. Edwards, The People and their Peace: Legal
Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of
North Carolina Press, 2009). Arguably, the approach closely follows E.P. Thompson’s idea of the “rule of
law” as both a set of formal legal codes as well as a “medium within which other social conflicts have been
fought out.” Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books,
1975), 267, and more generally, 219-69. For a detailed discussion of the historiographical stakes involved
in embracing the “social history of the state,” see Romain Huret, “All in the Family Again? Political
Historians and the Challenge of Social History,” Journal of Policy History, vol. 21, no. 3 (June, 2009), 239263.
31
On empire, see Brewer, Sinews of Power; Max Edling, A Revolution in Favor of Government: Origins of
the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003);
Alison Games, The Web of Empire: English Cosmopolitans in an Age of Expansion, 1560-1660 (New
York: Oxford University Press, 2008); Julia Adams, The Familial State: Ruling Families and Merchant
Capitalism in Early Modern Europe (Ithaca: Cornell University Press, 2005); Daniel J. Hulsebosch,
Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World (Chapel
Hill: University of North Carolina Press, 2005); Alison Gilbert Olson, Making the Empire Work: London
and American Interest Groups, 1690-1790 (Cambridge, MA: Harvard University Press, 1992); P.J.
Marshall, The Making and Unmaking of Empires: Britain, India, and America, c. 1750-1783 (New York:
Oxford University Press, 2005); H.V. Bowen, The Business of Empire: the East India Company and
Imperial Britain, 1756-1833 (New York: Cambridge University Press, 2006), esp. 53-83; Kenneth J.
Banks, Chasing Empire Across the Sea: Communications and the State in the French Atlantic (Ithaca:
McGill-Queens University Press, 2002). On the mechanics of governmental institutions, see Richard R.
John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard
University Press, 1995); John, “Governmental Institutions as Agents of Change: Rethinking American
Political Development in the Early Republic, 1787-1835,” Studies in American Political Development, vol.
11 (Fall, 1997), 347-380; John, “Farewell to the ‘Party Period’: Political Economy in Nineteenth-Century
America,” Journal of Policy History, vol. 16, no. 2 (2004), 117-125; William J. Novak, “The Myth of the
Weak American State,” American Historical Review, vol. 113, no. 3 (2008), 752-72.
32
The vast literature on political ideology and politics is too vast to detail here. Representative works are:
James T. Kloppenburg, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early
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15
focus of the story of the American state from the well-trodden ground of local and
municipal governance33 to the federal government.34 Finally, in contrast to leading
studies of the early American state,35 this book builds on the work of Willard Hurst and
American Political Discourse,” Journal of American History, vol. 74, no. 1 (Jun., 1987), 9-33; Robert E.
Shalhope, “Republicanism and Early American Historiography,” William and Mary Quarterly, 3rd Series,
vol. 39, no. 2 (Apr., 1982), 334-356; Daniel T. Rodgers, “Republicanism: the Career of a Concept,”
Journal of American History, vol. 79, no. 1 (Jun., 1992), 11-38. Leading monographs are: Gordon S.
Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina
Press, 1969); Wood, Radicalism of the American Revolution (New York: Vintage Books, 1992); Robert E.
Shalhope, The Roots of American Democracy: American Thought and Culture, 1760-1800 (Boston:
Twayne, 1990); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition (Princeton: Princeton University Press, 1975); Pocock, Virtue, Commerce, and
History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (New York:
Cambridge University Press, 1985); Joyce Oldham Appleby, Capitalism and a New Social Order: The
Republican Vision of the 1790s (New York: New York University Press, 1984); Drew R. McCoy, The
Elusive Republic: Political Economy in Jeffersonian America (New York: Norton, 1980); Harry L. Watson,
Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990). A good
introduction to the voluminous literature on the Supreme Court in federal politics and governance is
Morton J. Horwitz, Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press,
1977); R. Kent Newmyer, The Supreme Court Under Marshall and Taney (New York: Crowell, 1968);
Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of
North Carolina Press, 1985); Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton
Rouge, LA: Louisiana State University Press, 2001). For a summary of the literature on political parties
and governance, see Joel H. Silbey, The American Political Nation, 1838-1893 (Palo Alto, CA: Stanford
University Press, 1991); Ronald P. Formisano, “The ‘Party Period’ Revisited,” Journal of American
History, vol. 86, no. 1 (Jun., 1999), 93-120.
33
Novak, People’s Welfare, suggests that statecraft in the early republic emanated from state legislatures
and judiciaries. Hartog, Public Property and Private Power, is a strong example of municipal government
in the early republic.
34
For leading studies of the federal government, see, John, Spreading the News; Robin Einhorn, American
Taxation, American Slavery (Chicago: University of Chicago Press, 2007); Edling, Revolution in Favor of
Government; Brian Balogh, A Government Out of Sight: The Mystery of National Authority in NineteenthCentury America (New York: Cambridge University Press, 2009); Laura Jensen, Patriots, Settlers, and the
Origins of American Social Policy (New York: Cambridge University Press, 2003); Adam Rothman, Slave
Country: American Expansion and the Origins of the Deep South (Cambridge, MA: Harvard University
Press, 2005); Brian Schoen, The Fragile Fabric of Union: Cotton, Federal Politics, and the Global Origins
of the Civil War (Baltimore, MD: Johns Hopkins University Press, 2009); Sean Patrick Adams, Old
Dominion, Industrial Commonwealth: Coal, Politics, and Economy in Antebellum America (Baltimore:
Johns Hopkins University Press, 2004); B. Zorina Khan, The Democratization of Invention: Patents and
Copyrights in American Economic Development, 1790-1920 (New York: Cambridge University Press,
2005); Stefan Heuman, “The Tutelary Empire: State- and Nation-Building in the 19th Century United
States,” Ph.D. Dissertation, University of Pennsylvania, 2010. For summaries of this field, see John,
“Governmental Institutions as Agents of Change”; Mark R. Wilson, “Law and the American State, From
the Revolution to the Civil War: Institutional Growth and Structural Change,” in The Cambridge History of
Law in America, Volume II: The Long Nineteenth Century (1789-1920), ed. Michael Grossberg and
Christopher Tomlins (New York: Cambridge University Press, 2008), 1-35, 697-705.
35
Recent literature on the early American state follows Stephen Skowronek, Building a New American
State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University
Press, 1982), 19, 24, 27, 26. On the legacy of Building a New American State, see Daniel P. Carpenter,
“The Multiple and Material Legacies of Stephen Skowronek,” Social Science History, vol. 27, no. 3 (2003),
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others to recast federal statecraft as the history of officers ‘in action.’36 “Formal
structures” like governmental institutions are “never self-sufficient.” They are composed
of routine, daily acts of enforcement that not only mattered as discrete elements, but that
also rested in turn upon myriad relationships and contexts that lay outside the formal
channels of law and officialdom. Recovering how these upward pressures shaped the
practices of officeholders in the customhouses, how they forced the negotiation of
authority and contested the interpretation of laws, allows us to establish how the federal
state worked in the early American republic.37
The chapters below proceed chronologically to illustrate how customhouses came
to be in the United States; how officeholders and commercially-minded citizens governed
by carefully aligned the operations of empire with the turbulent Atlantic market during
the Napoleonic Wars; and finally, how officeholders, jurists, and statesmen reconstituted
465-74. A strong critique of Skowronek is Richard R. John, “Governmental Institutions as Agents of
Change: Rethinking American Political Development in the Early Republic, 1787-1835,” Studies in
American Political Development, vol. 11 (Fall, 1997), 347-380. An older approach to the American state
dwelled on patronage and ‘high’ administration. See, Carl E. Prince, Federalists and the Origins of the
U.S. Civil Service (New York: New York University Press, 1977); and New Jersey’s Jeffersonian
Republicans: The Genesis of an Early Party Machine (Chapel Hill: University of North Carolina Press,
1967). Leonard White’s detailed studies remain the single most comprehensive source on the executive
departments. See, Leonard D. White, The Federalists: A Study in Administrative History (New York:
MacMillan, 1947). White, The Jeffersonians: A Study in Administrative History (New York: MacMillan,
1951); White, The Jacksonians: A Study in Administrative History (New York: MacMillan, 1954). For an
excellent summary of White’s opus, Richard John, “In Retrospect: Leonard D. White and the Invention of
American Administrative History,” Reviews in American History, vol. 24, no. 2 (1996), 344-360.
36
J. Willard Hurst pioneered study of law “in action.” See, Hurst, Law and the Conditions of Freedom in
the Nineteenth-Century United States (Madison, Wisc.: University of Wisconsin Press, 1956); Hurst, Law
and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge:
Belknap Press of Harvard University Press, 1964); William J. Novak, “Law, Capitalism, and the Liberal
State: The Historical Sociology of James Willard Hurst,” Law and History Review, vol. 18, no. 1 (Spring,
2000), 97-145. For works that build on different aspects of Hurst’s legacy, see William J. Novak, The
People’s Welfare: Law & Regulation in Nineteenth Century America (Chapel Hill: University of North
Carolina Press, 1995); Hulsebosch, Constituting Empire; Barbara Young Welke, Recasting American
Liberty: Gender, Race, Law, and the Railroad Revolution (New York: Cambridge University Press, 2001);
Canaday, The Straight State.
37
Bernard Bailyn, “Becker, Andres, and the Image of Colonial Origins,” New England Quarterly, vol. 29,
no. 4 (Dec., 1956), 531.
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governance by seeking to remove commercial influence from the inner-workings of the
nation-state.
Chapter 4: Haiti, the Napoleonic Wars and the Crisis of Commercial Dependence, 17931807
The settlement forged by Alexander Hamilton’s Treasury Department, customs
officials, and commercial communities in the first years of the republic made the central
government dependent, to a great extent, on foreign commerce. An arrangement of
authority that had structured imperial governance in North America since the dawn of the
seventeenth-century was poised to anchor the central government of the new United
States. However, between 1793 and 1807, the promise and perils of this dependence on
foreign commerce became the crux of a debate about the capacity and character of the
central government. Negotiated authority on the waterfront facilitated the collection of
revenue, but did this mode of governance come at too high a cost for the nation’s
sovereignty? Could the United States truly trust importing merchants and other
commercial peoples, who wielded authority within the customhouse, to pursue their
trades, and use their influence over the machinery of the state, in a manner that would
benefit the nation at large?
In Hamilton’s tenure, and throughout the Federalist era, the promise of this
arrangement was hard to overlook. American merchants reaped great profits made
possible by the French Revolutionary Wars. Foreign commerce, especially in war-torn
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Europe and the ravaged West Indies, nurtured dramatic growth within the United States.
It also generated record levels of federal revenue. Hamilton’s revenue system would
come into its own in these years and it would allow the Washington and Adams
administrations to pursue the Federalist visions of central statecraft and political
economy. To this extent, the Federalists understanding of the state was a deeply
commercial one.38
Yet there was a darker side to the Atlantic marketplace in the age of revolution.
The very same commercial opportunities that buoyed national finances challenged the
United States sovereignty and its position among the nations and empires of the western
world. The lucre of the Atlantic market during the French Revolutionary and Napoleonic
Wars owed to the fact that the market itself was much the terrain of the lengthy contest
between England and France. The Atlantic market, fecund as it was with value, was thus
beset with risk. American merchants who gouged war-scarce markets stood accused of
violating embargos, trafficking in contraband, and many other punishable offenses.
Privateering, the practice of licensed wartime plundering of enemy vessels, only
darkened the shadows that overlay these markets. As French and English privateers
stalked American commerce in the Atlantic, they exacerbated uncertainty for American
merchants. Privateers that visited stateside ports wrecked havoc, too, by smuggling prize
goods into the United States and illegally augmenting their armaments with American
aid. American merchants who sought to exploit the market scarcities of the French
38
Americans were hardly alone in noticing the generative effects of commerce in these years. Istvan Hont
understands eighteenth-century political economy to hinge on “a vision of the future as a global market of
competing commercial states.” Hont, Jealousy of Trade, 4. See also Cheney, Revolutionary Commerce, 46.
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Revolutionary and Napoleonic Wars thus not only bargained in risk. They also imported
into the United States violence and disorder.39
To a great extent, the United States’ central government confronted the military
crises of the Napoleonic Wars at the customhouses of the early republic. Although
economic and political historians have written fine studies specific commercial
restrictions, none of have identified the central role of customhouses in administering
these restrictions. Customs officials used their regulatory power to investigate and detain
French and English vessels that were violating American neutrality. They administered
the federal government’s privateering legislation during the maritime Quasi War with
France. Finally, Congress and the Treasury asked customs officials to police American
merchants, too. First, customs offiicals were called upon to ensure that American
merchants refrained from trading with foreign privateers or naval vessels in order to
avoid the appearance of American materiel support for a warring party. Second, during
periods of crisis, Congress asked customs officials to enforce new market regulations
known as commercial restrictions. Through these prohibitions Congress hoped both to
punish foreign aggressors and to prevent licentious merchants from tarnishing American
neutrality.40
39
The immense influence of the French Revolution on American politics and society is well documented.
Most recently, Rachel Hope Cleves provocatively argues that the Reign of Terror in particular sparked
anxiety in the United States that, in turn, shaped the fabric of political discourse. Cleves, The Reign of
Terror in America: Visions of Violence from Anti-Jacobinism to Antislavery (New York: Cambridge
University Press, 2012).
40
Nor have scholars understood the magnitude of the United States material confrontation with the
Napoleonic Wars through the institution of the customhouse. See, for instance, Herbert Heaton, “NonImportation, 1806-1812,” Journal of Economic History, vol. 1, no. 2 (Nov., 1941), PP; Donald R. Hickey,
“America’s Response to the Slave Revolt in Haiti, 1791-1806,” Journal of the Early Republic, vol. 2, no. 4
(Winter, 1982), 361-79; Tim Matthewson, “Jefferson and Haiti,” Journal of Southern History, vol. 61, no. 2
(May, 1995), 209-248.
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Revenue would always be king. But as regulation grew in significance at the
customhouses in the era of the Napoleonic War, it exposed the ambivalences of the
negotiated authority that had settled over the American waterfront, and posed questions
about the nature of empire in the early United States. Above all, it was unclear how
customs officials, and the federal government writ large, could police commerce through
a mode of governance built upon the authority of commercial peoples. The Federalist
Treasury under Hamilton and his successor Oliver Wolcott, Jr., were content to allow
customs officials to negotiate their regulatory power in much the same way they had their
revenue power. Between 1793 and 1800, then, local commercial communities
circumscribed customs officials official regulatory powers. In practice, this translated to
widespread contraband trading, illicit privateer commerce, and smuggling. For Hamilton
and Wolcott, the growth of these shadow markets was a small price to pay for American
commercial expansion and an enormous rise in customs revenue.
It was the Jefferson administration that fully confronted the central government’s
dependence on foreign commerce and the rickety ramparts of their American empire.
The election of 1800 inaugurated no immediate revolution for federal governance.
Indeed, Jefferson and his Secretary of the Treasury Albert Gallatin sustained the system
of negotiated authority between the waterfront, the customhouse, and the Treasury.
Between 1801 and 1807, however, American merchants’ pursuit of commerce with the
black revolutionaries of Haiti, however, and the Haitian Revolution more generally,
forced Jefferson to come to terms with the dangers posed by commerce to the nation.
Merchant vessels left Boston, New York, Philadelphia and Baltimore for Haiti in
contravention of French trade restrictions on commerce with a supposedly rogue colony.
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This commerce jeopardized American relations with France and called into question the
rule of law in American ports. Perhaps most ominously for Jefferson and many
Republicans and Federalists alike, this commerce between American merchants and free
black Haitians threatened to import revolutionary disorder to enslaved Americans.
Thus in his 1804 annual message, Jefferson declared that American merchants
had undertaken “to wage private war, independently of their country,” and this could not
“be permitted in a well-ordered society.” Between 1801 and 1806, the Jefferson
administration and Congress would seek several laws and administrative measures to
curtail the Haiti trade. None of these measures worked.41 Customs officials had carefully
negotiated authority necessary to collect revenue from importing merchants, but these
same customs officials proved unable to police the shadowy commercial world of the
French Revolutionary and Napoleonic Wars. The United States had become dependent
on commerce and that relationship robbed customs officials, and the federal government,
of the power of compulsion. Customs officials’ failures with regard to privateering and
war contraband were fairly easily justified because of the flush times. Haiti proved to be
an altogether different, and far more disturbing matter. Customs officials’ inability to
regulate the Haiti trade suggested that the merchants who wielded such authority in
flouting the customhouse might embroil the United States in a war with France. More
importantly, what was to become of the United States if the customhouses could not
control the Haiti trade? With no power to coerce merchants to cease doing business with
41
Thomas Jefferson, Fourth Annual Message to Congress, November 8, 1804, Annals of Congress, 8th
Cong., 2nd Sess., (Sen.), 11. Jefferson’s language of the “well-ordered society” invoked a common law
tradition of governmental police for the protection of the health and safety of the people. See, Novak,
People’s Welfare.
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black Haitians, many Republicans and some Federalists envisioned the specter of racial
apocalypse.
By 1807, Thomas Jefferson and his administration had come to realize that
negotiated authority did not provide sufficient coercive power for the federal government
to preserve its legitimacy, either at home or abroad. American merchants’ role in the
Haitian Revolution, the vivid fears of slave rebellions, and the potential collapse of
republican political economy, revealed what years of trouble with privateers and
smuggling could not. It was no longer enough for the federal government to be able to
collect revenue. In order to sustain itself, the federal government and its instrumentalities
required a new power to implement its will. Commerce, once the medium of federal
governance, and the stuff of empire, had come to appear dangerous.
Neutrality in Practice
“Whereas it appears that a state of war exists between Austria, Prussia, Sardinia,
Great Britain, and the United Netherlands, of the part, and France on the other,”
proclaimed President George Washington on April 22, 1793, “the duty and interest of the
United States require…a conduct friendly and impartial towards the belligerent [sic]
powers.” The Neutrality Proclamation, as it would come to be known, pledged to these
warring nations that the United States would not take sides in a conflict that promised to
consume Europe and its colonies. In the early modern world, neutrality encompassed
more than refraining from providing military aid to any nation at war. Neutrality also
entailed equity in a nation’s commerce. To honor its neutral status, the United States
would trade with all European nations in such a way as to “conduct friendly and impartial
towards the belligerent powers.” As Washington explained in the Proclamation, the
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23
United States pledged to prevent American merchants from trading in “contraband.” He
further promised “instructions to those officers” to prosecute Americans who violated
these promises. “Those officers” were located primarily in the customhouses. So while
the Neutrality Proclamation circulated in the antechambers of high politics in European
capitals, in practice, its meaning would be determined on the waterfront, and, to a great
extent, at the customhouses.42
At the customhouses, neutrality wrought a negotiated authority in the realm of
commercial regulation that rivaled the negotiated authority that had emerged in the realm
of revenue collection since 1789. In fact, in at least one instance, both negotiations
occurred simultaneously. Jeremiah Olney, who had enraged the merchants of Providence
by strictly implementing customs laws, in March, 1794, pledged his “attentive
observance” to Treasury instructions about regulating commerce as he Merchants in the
same letter that he plotted his strategy against “the suits of Messrs. Arnold & Dexter.”43
Indeed, diplomats, federal higher-ups, and the federal judiciary imposed competing
pressures on the customhouses that ultimately forged a fragile order on the waterfront.
Customs officials tended to the affairs of their port and waterways in a manner that
simultaneously suited local commerce and preserved the United States’ official
neutrality. The Napoleonic Wars sparked a commercial mania as American merchant
communities rushed to profiteer from new markets and opportunities unique to a world at
war. Meanwhile the federal government demanded that customs officials regulate this
42
George Washington, Neutrality Proclamation, Columbian Centinal, May 4, 1793. On the significance
and crafting of the Proclamation, see Elkins and McKitrick, Age of Federalism, 338-339, 353; William R.
Casto, Foreign Affairs and the Constitution in the Age of Fighting Sail (Columbia: University of South
Carolina Press, 2006), 31-34. On the difficulty of defining neutrality, see Stanley L. Engerman, Naval
Blockades in Peace and War: An Economic History Since 1750 (New York: Cambridge University Press,
2006), 67-68.
43
Jeremiah Olney to Alexander Hamilton, March 31, 1794, M178, Roll 29.
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unruly commerce as a means to preserve neutrality. When these two logics came into
conflict, customs officials but rarely offended local commercial mores. Thus the
customhouses would brook, and even enable, commerce of questionable legality with
foreign privateers, rebellious European colonies, and even “the enemy.”
For Washington and the Federalists, neutrality was as much economic as it was
foreign policy. The European powers sudden channeling of their economic resources to
war, rather than trade, opened up vast opportunities. The American merchant, as well as
the American merchant marine, stood to benefit a great deal from these new market
opportunities. War-torn markets returned high prices on goods, American or otherwise,
that American merchants ferried to Europe. This was why a “meeting of the merchants”
in Boston enthusiastically cheered the Neutrality Proclamation. As a Philadelphia
insurance agent put it, “as long as the war continues…this trade will yield great profits.”44
Indeed, the dramatic growth of commerce was an unmistakable feature of life in
Federalist America. For one thing, American markets teemed with imported
commodities from Europe and, especially, the West Indies. Importers brought tens of
millions of pounds of coffee to the United States from the Swedish, Danish, Dutch,
British, French and Spanish West Indies between 1794 and 1798. Meanwhile, “farmers,
merchant millers, and traders” in the mid-Atlantic supplied massive amounts of flour for
hungry European armies and colonists. American newspapers captured this commercial
bustle in shipping and commercial news. More broadly, American commercial appetites
44
Christopher Gore to Tobias Lear, July 28, 1793, Folder 1, Tobias Lear Papers, LC. Jacob G. Koch to
Averhoff von Scheven, April 11, 1796, Box 3, Folder 3, Papers of Jacob Gerhard Koch, LC [hereafter,
Koch Papers]. Fichter, So Great a Proffit, 57; Cathy D. Matson, “The Revolution, the Constitution, and the
New Nation,” in Cambridge Economic History of the United States (New York: Cambridge University
Press, 2000), 1:398.
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25
sparked a cultural confrontation the likes of which paralleled the consumer politics of the
American Revolution.45
The commercial boom that accompanied the outbreak of war in Europe also
meant higher revenue for the federal government. After anxiously overseeing the
establishment of the Treasury and the customhouses, Alexander Hamilton had become
confident enough in the customhouses ability to collect revenue that he devoted his
attention to other matters. Now, as revenues skyrocketed, Hamilton declared the federal
government “prosperous beyond expectation.” It was. Even though maritime war with
France dented customs revenue in 1798 and 1799, the customhouses collected an average
of about $6 million a year between 1793 and 1800.46 Flush with funds, and perhaps more
importantly, confident in the government’s ability to collect revenue in the future,
national leaders, Federalist and Republican alike, embarked upon nation-building
activities. Nowhere was this more noticeable than in the Ohio country, where federal
largesse funded military expeditions against the northern confederacy. On the lands they
Michelle Craig McDonald, “The Chance of the Moment: Coffee and the New West Indies Commodities
Trade,” William and Mary Quarterly, vol. 62, no. 3 (July, 2005), 465. Brooke Hunter, “Wheat, War, and
the American Economy during the Age of Revolution,” in ibid., 516-7. James Alexander Dun, “‘What
Avenues of Commerce, Will You, Americans, not Explore!’: Commercial Philadelphia’s Vantage Point
onto the Early Haitian Revolution,” in ibid., 476. John J. McCusker, “The Demise of Distance: The
Business Press and the Origins of the Information Revolution in the Early Modern Atlantic World,”
American Historical Review, vol. 110, no. 2 (April, 2005), 318, argues that this significance of the business
press began a decade earlier, in 1783. On Americans cultural experience of consumption and its role in
identity formation, see Kariann Akemi Yokota, Unbecoming British: How Revolutionary America Became
a Postcolonial Nation (New York: Oxford University Press, 2011); David Jaffee, A New Nation of Goods:
The Material Culture of Early America (Philadelphia: University of Pennsylvania Press, 2010); Joanna
Cohen, “‘Millions of Luxurious Citizens’: Consumption and Citizenship in the Urban Northeast, 18001865,” Ph.D. Dissertation, University of Pennsylvania, 2009. Economic historians, however, disagree over
the extent to which this commercial development stimulated broad-based economic growth in the first
years of the early republic. See Claudia D. Goldin and Frank D. Lewis, “The Role of Exports in American
Economic Growth during the Napoleonic Wars, 1793 to 1807,” Explorations in Economic History, vol.
117, no. 1 (Spring, 1980), 6-25; Douglass Cecil North, The Economic Growth of the United States, 1790 1860 (Englewood Cliffs, N.J.: Prentice-Hall, 1961); Donald R. Adams, “American Neutrality and
Prosperity, 1793-1808: A Reconsideration,” Journal of Economic History, vol. 40 (Dec., 1980), 714-735;
Matson, “The Revolution, the Constitution, and the New Nation,” 399.
46
Alexander Hamilton, “Public Credit,” January 21, 1795, in ASP-Fi 1:320. Receipts and Public Debt,
April 17, 1810, ASP-Fi 1:423-4.
45
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expropriated from Indians, General Anthony Wayne’s forces built roads that themselves
became conduits for federal funds to soldiers and, eventually, to Ohio merchants. The
Treasury also began subsidizing western settlement by surveying, platting, and auctioning
land in the national public domain. Though the new United States Postal Service
generally paid its own costs, “the vast majority” of those who paid for its services were
the merchants who were simultaneously benefitting from the commercial boom.47
On the waterfront, however, chaos was the cost of this commercial opportunity.
That chaos stemmed in part from officeholders confusion about several treaties the
United States had signed with the nations at war. Once such treaty was the Treaty of
Amity and Commerce, which the United States had entered into with France in 1778. By
this treaty, both nations were permitted: to inspect vessels of the other nation when they
visited ports under enemy command; to haul prizes into “the ports of either party” free of
customs officials “examination as to the lawfulness of such prizes” and with liberty to
depart for their home port at their leisure; “enter into…ports belonging to the other” and
replenish their ships’ stores whenever their naval vessels or privateers might suffer
damage due to piracy, acts of god, or acts of war. The 1778 treaty also restricted France
and the United States from allowing other nations’ privateers from outfitting and
departing from French or American ports. The United States and France had further
agreed, so that “quarrels may be avoided,” to furnish “sea letters or passports” to their
vessels during times of conflict.48 Central as these stipulations may have seemed to
47
William H. Bergmann, The American National State and the Early West (New York: Cambridge
University Press, 2012), 134-5. Malcolm J. Rohrbough, The Land Office Business: The Settlement and
Administration of Public Lands, 1789-1837 (New York: Oxford University Press, 1968); Daniel Feller, The
Public Lands in Jacksonian Politics (Madison, W.I.: The University of Wisconsin Press, 1984). On the
growth of federal institutions more broadly, see Balogh, Revolution Out of Sight, 95-111.
48
Treaty of Amity and Commerce Between the United States of America and His Most Christian Majesty,
February 6, 1778, 8 Statutes 12 (1778), 20, 22, 24, 26, 28.
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securing “amity and commerce” in 1778, they became the crux of confusion fifteen years
later.
The arrival and awesome impact of French and British privateers and naval
vessels compounded officials’ confusion about treaties. The immediate precipitant of the
crisis was French emissary Edmond-Charles Genêt’s mission to establish a North
American bulwark for France’s naval efforts.49 Genêt instructed French consuls in major
American ports to replenish French privateers arriving in American ports and to fit out
new privateers in American ports with American men and materiel. By the summer of
1793, their efforts began to bear fruit. In Boston, for instance, customs officials noted
that “a privateer had been fitted by some Frenchman” and was “cruising in the harbor”
with two Americans serving on board. The appearance of the French privateer prodded
United States Attorney Christopher Gore to address a litany of questions to the
Washington administration—“Does the treaty with France [of 1778] authorize
Frenchmen to purchase vessels, and fir them out…for privateers in American ports? Are
Frenchman, who have been naturalized, or who have resided in America, for years,” to be
considered Frenchmen or Americans?50 As the Washington administration grappled with
these questions, France unleashed a torrent of orders that made American shipping
subject to capture by French privateers. France permitted Americans to ship “nonprohibited items” in February, 1793 but restricted American reexports to France a month
Genêt’s instructions from the French Girondin government were ambitious and wide-ranging. In
addition to securing a base for French privateers, Genêt was to foment rebellion against British and Spanish
rule among French settlers in Canada to the north, as well as Florida and Louisiana to the South. He was
also charged with renegotiating the 1778 Treaty with the United States on even more favorable terms. As
William Casto explains, these instructions were thus “a mixture of pragmatism and idealism” that reflected
“the Girondins’ radical European foreign policy.” Casto, Foreign Affairs and the Constitution in the Age of
Fighting Sail, 14.
50
Christopher Gore to Tobias Lear, July 28, 1793. See also, Zebulon Hollinsgworth to John Fitzgerald,
May 22, 1793, Folder 7, Records Relating to Captures, 1789-1801 (Alexandria), French Spoliation Claims,
#E1265, RG 36, Archives I.
49
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later. In May France authorized “the capture” of American vessels laden “with
provisions” and made the rule retroactive to February 1. On July 1, 1793, France voided
the May rule. The arrival of French privateers, coupled with France’s rapidly shifting
regulations on American shipping, sewed mass uncertainty on the American waterfront.51
For American merchants, the uncertainty caused by Genêt’s intrigues worsened as
Great Britain responded to what appeared like American accommodation of the French
privateers. On June 8, 1793 British Orders-in-Council unleashed an “onslaught” of
privateers against American vessels trading with French ports. Great Britain had a great
deal of experience waging this type of war. During the Seven Years War, British naval
vessels and privateers policing of neutral vessels transformed the West Indies into “a
region of diplomatic uncertainty.” Indeed, Great Britain even devised a legal doctrine to
justify its depredations on neutral commerce. According to the Admiralty’s “Rule of
1756,” or “doctrine of continuous voyage,” which “empowered British privateers” to
prey on purportedly neutral vessels that visited ports of nations with which Great Britain
was at war. In the context of the Napoleonic Wars, Great Britain now permitted
privateers to seize American vessels having traded with French ports or having laden
French goods.52
French and British attacks on American shipping put American merchants in a
bind. On one hand, the war added value to their transactions with war-torn markets. On
the other hand, pursuing that lucre put their vessels and commodities in grave danger.
51
Duffy, Soldiers, Sugar, and Seapower, 107. Fulwar Skipwith, Summary of the French Decrees Affecting
the Commerce of the United States Between the Years 1793 and 1800, Box 12, French Proclamations,
Causten-Pickett Papers. A year later, France would more formally establish American vessels as fair game
for French privateers. George A. King, The French Spoliation Claims (Washington, D.C.: Government
Printing Office, 1916), 7-8.
52
Eliga H. Gould, “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa
1772,” William and Mary Quarterly, third series, vol. 60, no. 3 (Jul., 2003), 487-8.
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The sensational French frigate L’Embuscade, for instance, drew crowds on the east coast
as she hauled British vessels to port as prizes. By July, 1793, however, reports surfaced
that the L’Embuscade would seize even “an American bottom” if it “had Spanish
property on board.” In fact, much of the shipping news went, not to listing arrivals and
departures, but to cataloguing sightings of French and British naval forces.53 Tales
abounded of Americans “much insulted and abused” by British and French privateers. In
the case of the Ship Fanny, French privateersmen masqueraded as a pilot boat to lure an
American vessel to its capture. But most damning was the scale of Americans’ loss of
merchant capital. In Alexandria, Virginia, customs officials accumulated merchants’
affidavits attesting to enormous losses: for instance, the Schooner Hopwell, seized nearby
Cap Francois, Saint-Domingue, valued at $8000; the Schooner Betsey, condemned by a
British prize court, was worth $5452; the Ship Sally, waylaid by a privateer en route from
Rotterdam to Alexandria, valued at $10,000.54
Yet American merchants seemed more than willing to brave the dangers of the
militarized Atlantic market. Between 1790 and 1794, in fact, total American tonnage to
the West Indian holdings of all the European powers increased by about 21,000 tons,
from 103,850 tons in 1790, to 124,245 in 1794.55 American merchants’ brazen
assumption of risk should not be surprising. Since before the Glorious Revolution,
American merchants doing business overseas had pursued commerce in the crosshairs of
interimperial warfare, no matter its official legal status. As historian Cathy D. Matson
53
Daily Advertiser, July 1, 1793, 2. See also, Daily Advertiser, August 12, 1793, 2.
Moxon et al. v. The Fanny, 17 F. Cas. 942 (1793). Affidavit of James Cavan and James Kennedy,
March 26, 1798, Folder 2, Records Relating to Captures, 1789-1801 (Alexandria), French Spoliation
Claims, #E1265, RG 36, Archives I. The affidavits belong to James Porter, n.d. [c.a. 1797]; William Hall,
March 9, 1798; and William Hodgson, March 6, 1798, in ibid.
55
Statement of the Tonnage of American vessels entered into the ports of the United States in the
years…1790, and…1794…, January 22, 1796 ASP-Commerce and Navigation 1:330.
54
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has explained, in this impulse to engage in commerce on the basis of value, as opposed to
legality, lie unmistakable shades of a decidedly liberal political economy.56
In the 1790s, however, due in large part to their privileged position, both within
the United States’ political economy, and their role in constituting negotiated authority on
the waterfront, American overseas merchants pursued new institutional means to protect
themselves.57 Initially, the federal courts seemed the most promising venue for their
claims. Between 1793 and 1795, merchants along the Atlantic coast asked the lower
federal courts to curtail the depredations of French and British privateers. As leading
attorney William Rawle explained in the 1793 case, Findley v. The William, these
merchants turned to the federal courts because “our executive has no strong arm to
enforce obedience to its decision.” Judge Peters’ District Court, sitting as an admiralty
court, was accessible to the aggrieved merchant. Moreover, suspected Findley and
Rawle, it was more likely to involve itself in the intricacies of prize matters, and more
likely to enforce its will.58 Peters would disappoint. But he hoped that the disturbing
maritime “national insult” that racked Philadelphia and other ports in the United States
“will not be passed unnoticed by those who have the power to regulate our national
56
See, Bailyn, New England Merchants, 153; Koot, Empire at the Periphery, 119-125; Matson, Merchants
& Empire;
57
The federal judiciary was another important institution in this regard. Throughout 1793, merchants
involved in overseas commerce complained that French consuls were holding legal proceedings to
adjudicate prizes brought to Charleston—what Charleston merchant Robert Hazelhurst called a “counsel’s
court [sic].” Robert Hazelhurst to William Wilson & Co., Stepmber 25, 1793, reprinted in Petition of
William Wilson et al., November 11, 1807, Reel 5, Unbound Records of the U.S. House of
Representatives, 10th Cong., 1807-1809, M1711, RG 233, Archives I. The United States Supreme Court
would end this practice of the “counsel’s court” in early 1794 in Glass v. the Sloop Betsey. The Jay Court
denied that any “foreign power can…institute…any court of judicature…within the jurisdiction of the
United States.” Additionally, the Court ruled that only the federal courts possessed exclusive jurisdiction
over prize and admiralty cases. At the very least, then, American vessels taken as prizes and hauled to
American ports would be protected by the rule of law. Glass v. The Sloop Betsey, 3 U.S. (3 Dall.) 6
(February 18, 1794).
58
William Rawle, Libel for Restitution of a Captured Ship and Cargo, n.d. [1793], reprinted in The
American Admiralty, ed. Erastus Cornelius Benedict (New York: Banks & Gould, 1850), 542-3. Law Case.
Robert Findley, jun. and others. Ship William. Loudon’s Register, June 26, 1793, 2.
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concerns.” Peters would strike a similar tone in Moxon v. The Fanny shortly thereafter.
Things were little different in Maryland and South Carolina.59
In June, 1794, Congress turned to the customhouses to impose some measure of
order on the privateering plague that had so racked American ports. The ‘Act in addition
to the act for the punishment of certain crimes against the United States’ criminalized
American citizens’ service on a foreign privateer, “fitting out” in American territory a
privateer for foreign forces, and “augmenting the force” of any foreign privateer in
American waters.60 Responsibility for enforcing these provisions fell to the
customhouses. Secretary of the Treasury Alexander Hamilton, who had long since
forsaken his supervision of the customhouses’ accounts and ledgers, now turned his
attention to the regulation of commercial neutrality even while he trained his sights on the
Whiskey rebels. Shortly after passage of the 1794 law, Hamilton dispatched a circular to
the Collectors of Customs demanding that they police “practices which are as contrary to
good order as dangerous to the National Peace.” “Much from your situation must depend
on your vigilance,” he continued. “I am sure the expectation will not be disappointed.”61
Between 1794 and 1800, however, the customhouses regulation of commercial
neutrality entailed a process of negotiating authority much the same as the collection of
revenue in the three previous years. Customs officials were caught in powerful legal,
59
Findley v. The William, 9 F. Cas. 57, 61-62 (1793). Moxon v. The Fanny, 17 F. Cas. 942. In Maryland,
federal District Judge William Paca issued “a similar ruling” in Glass v. The Sloop Betsey, 3 U.S. 6 (1794),
according to Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale
University Press, 1997), 272 n. 63. See District Thomas Bee’s dicta in Ramon de Salderondo v. Nostra
Signora del Camino et al. (1794), in Reports of Cases Adjudged in the District Court of South Carolina, ed.
Thomas Bee (Philadelphia: William Farrand, 1810), 46. Incidentally, a year later, Richard Peters ordered
the seizure of a French privateer Cassius for supposedly unlawfully seizing Philadelphia merchant James
Yard’s William Lindsay nearby Saint Domingue. The United States Supreme Court rebuked Peters and
reversed his order while upbraiding Yard as a rabble-rouser seeking “to disturb” Franco-American relations
for his own benefit. United States v. Peters, 3 U.S. 121 (1795).
60
1 Statutes at Large 381, 381-4 (1794).
61
Alexander Hamilton, Circular to Collectors of Customs, June 17, 1794, Reel 2, Treasury Circulars.
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administrative, and commercial crosswinds. The 1794 statute did enjoin customs
officials to prevent privateers from fitting out, augmenting their force, or enlisting
Americans. Yet, local political pressure, stemming from ideological sympathy to France
in the mid-Atlantic, and to Great Britain in New England, influenced customs officials’
interpretation of the 1794 law. Meanwhile, the Washington administration, no less
buffeted by the same ideological sympathies, exerted a far more reaching scrutiny on
customs officials than had ever been deployed over revenue matters.
For their part, merchants involved in overseas commerce looked to the
customhouse for institutional protection with which to navigate the dangerous waters of
the Atlantic market. As European warfare reached American waters in May, 1793,
Hamilton directed customhouses to issue “sea letters” to all American vessels registered
for overseas commerce. These “letters,” written in several languages, and endorsed by
the Collector of customs, listed a vessels’ owners and business in an effort to confirm its
status as legitimately neutral. The sea letter quickly became a prerequisite of overseas
commerce in the 1790s. As Charleston District Judge Thomas Bee put it, merchants
believe the sea letter was a “superior criterion of a free vessel.” In fact, demand
occasionally outpaced supplies at the customhouse to such a degree that in 1797 a
Charleston merchant lamented, “a want of sea letters” prevented so many vessels from
departing that the government “might as well lay an Embargo at once.”62 Even when a
sea letter was available, however, it was sometimes not sufficient. The belligerent
empires would demand new documents or greater documentary evidence of American
62
Alexander Hamilton, Circular to Collectors of Customs, May 13, 1793, Reel 2, Treasury Circulars.
Thomas Bee’s opinion in Tunno v. Preary, 24 F. Cas. 323 (1794). John M. Lawrence to Thomas
Vermilyea, March 4, 1797, Folder Protets, 1791-1802 (F-O), French Spoliation Clams, District of New
York, RG 36, Archives I.
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neutrality, such as France’s insistence on American vessels bearing a rôle d’equipage, or
bill of lading, and England’s insistence on American mariners bearing comprehensive
proof of American citizenship. In Boston, local merchants thus demanded in 1796 that
Collector Benjamin Lincoln produce a new layer of documentary protection: a
“certificate” recording “that the property was American” and noting that it “was issued
from this office.” Lincoln was all too happy to oblige, believing as he did that “it might
essentially serve the interest of our merchants” without “any possible injury to the United
States from the operation of such a certificate.” Treasury officials quickly pointed out the
flaw of Lincoln’s logic, as the mere existence of his special “certificate” might endanger
all vessels without one.63
At least in New York and Philadelphia, merchants involved in overseas trade also
convinced customs officials to generously attenuate customhouse bond defaults due to
the loss of a vessel or goods to foreign privateers. Here the issue was the moral
implications of seizure by a foreign privateer. Did seizure and condemnation of an
American, ostensibly neutral vessel imply that the vessel was, in fact, violating
neutrality? And if so, if the merchant had lost his vessel or goods because of his own
illegal commerce, would not he still be obligated to pay off his customhouse bonds?
Philadelphia attorney Alexander J. Dallas recalled that the northeastern “merchant’s wits”
had prevailed upon the “abracadabra of the law.” Merchants in New York argued to
63
Benjamin Lincoln to John Steele, May 3, 1796, Benjamin Lincoln Letterbook, Reel 9. France routinely
seized vessels that sailed without the rôle d’equipage. See, for example, Affidavit of William Hodgson,
March 6, 1798, Folder 2, French Spoliation Records-Alexandria, RG36, Archives 1; Charles Cotesworth
Pinckney to Henry William DeSaussure, November 4, 1797, reprinted in John LaFayette Brittain and
Charles Cotesworth Pinckney, “Two Recently Discovered Letters of Charles Cotesworth Pinckney:
Another Glimpse into the Mind of an Eighteenth-Century Man of Affairs,” South Carolina Historical
Magazine, vol. 76, no. 1 (Jan., 1975), 18-19. On the role, see William Stinchcombe, “Talleyrand and the
American Negotiations of 1797-1798,” Journal of American History, vol. 62, no. 3 (Dec., 1975), 581;
Gardner Weld Allen, Our Naval War with France (New York: Archon Books, 1967), 32-33.
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customs officials that a “Proof of Loss Certificate” from a marine insurance company,
attesting to the fact that a vessel had been wrongly seized and condemned by a foreign
privateer, was proof enough for customs officials to cancel customhouse bonds. New
York Collector Joshua Sands was initially pensive: “the Question is whether the
Certificate is sufficient to cancel all the bonds given,” he penciled on a Proof of Loss
Certificate issued by the New York Insurance Company for the Brig Ohio in 1798. In a
Memorandum on the matter, Sands concluded that the Certificate was “proof” enough.
By the time he saw the question attached to the bonds of the Ship Favourite in 1801,
Sands wrote, “It appears to me that the M[arine] Documents are a good warrant for
cancel [sic] the Bonds. Where the underwriters are satisfied to pay the loss it is good
evidence that matters are in general correct.” This had become Treasury policy in 1799
as Comptroller John Steele wrote, the Proof of Loss Certificate was “an indispensable”
piece of documentation for cancelling a customhouse bond.64
A more precise sense of the negotiated nature of authority at the customhouse
came into relief during the Washington administration’s general embargo on foreign
shipping between March and June, 1794. Congress approved an embargo to protect
American vessels from the depredations of British naval vessels and privateers in
particular, who, in the wake of Great Britain’s Orders in Council, had ensnared several
64
Alexander J. Dallas, ed., The Opinion of Judge Cooper, on the Effect of a Sentence of a Foreign Court of
Admiralty (Philadelphia: P. Byrne, 1810), xi, x-xi. Certificate of the New York Insurance Company [Ship
Ohio], May 26, 1798. Memorandum of Imperfect Certificates for Merchandise Exported from the District
of the City of New York, with their Remarks, n.d. [1798 or 1799]. Marginalia on Protest of Abraham S.
Hallett [Ship Favourite], September 16, 1801, Folder Protests of Masters (F-O), French Spoliation
Records-New York. John Steele to Joshua Sands, May 28, 1799, Folder Protests of Masters (P-W), French
Spoliation Records-New York.
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hundred American vessels overseas.65 Congress and the Washington administration
envisioned that customs officials would enforce the law by denying all vessels the
necessary documents—“clearances”—to depart for “a foreign port or place.” If customs
officials encountered difficulties, Washington’s cabinet opined, “it is advised
unanimously, that the governors of the several States ought to be called upon to enforce
the said embargo by the militia.”66
In one instance, a Collector of Customs did in fact
place “a Detachment of Volunteer Artillery at the entrance of the Harbour with orders to
prevent all Vessels…from departing.” And there were occasional reports of American
merchants sailing “in defiance of the embargo.”67 More common, however, were reports
of waterfront crowds assisting customs officials in the enforcement of the Embargo,
especially against vessels flying foreign colors. In late March, “20 armed” New Yorkers
took to “the custom-house boat” in successful pursuit of “two English vessels” that had
fled the Embargo. In Warren, Rhode Island, a few days later, “a number of patriotic
inhabitants jumped on board of several boats” and caught up to a schooner with British
papers that had violated the Embargo. In Charleston, “a great number of
volunteers…accompanied” the Revenue Cutter and militia forces in pursuit of the British
President.68 Meanwhile, people took to taverns and town halls to resolve in favor of the
65
The joint resolution of Congress of March 26, 1794, created an embargo for thirty days. Two subsequent
resolutions extended the embargo. See, Resolutions of March 26, 1794, April 2, 1794, and April 18, 1794,
1 Statutes at Large 400-401. Sharp, American Politics in the Early Republic, 115.
66
Alexander Hamilton, Circular to Collectors of Customs, March 26, 1794, Reel 2, Treasury Circulars.
Cabinet Meeting. Opinion on the Best Mode of Executing the Embargo, March 26, 1794, PAH 16:198.
67
Otho Holland Williams to Alexander Hamilton, June 5, 1794, PAH 16: 462. William Ellery to
Alexander Hamilton, April 14, 1794, PAH 16:256. Interestingly, one of the merchants accused of violating
the embargo was none other than Welcome Arnold—Providence Collector of Custom’s main antagonist.
A more general indictment of American merchants is found in Alexander Hamilton to George Washington,
May 1, 1794, PAH 16:366-7.
68
New-York Gazette, March 29, 1794, 3. The report of this incident in the Philadelphia Gazette notes that
“the time being too short to call out a detachment from the militia, a number of our patriotic fellowcitizens, of different regiments, stepped into the custom-house boat, under the command of an officer.
Philadelphia Gazette and Universal Daily Advertiser, March 31, 1794, 3. The dateline on the Bristol
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embargo. This included the merchant community. An anonymous Rhode Island
“mercantile house,” for instance, confirmed its support for the measure, “though we have
vessels unemployed and cargoes in store…until government have security, that our
property will not again be invaded.” Residents of Newburyport, Massachusetts agreed
“the present Embargo ought to be continued as long as the public exigencies require it.”69
Mercantile support for the Washington administration’s 1794 embargo had as
much to do with self-preservation as patriotism. As the Rhode Island firm had explained,
the embargo made sense as a measure that would protect merchants’ “property” from
French and English wantonness at sea. American commercial peoples did not hesitate to
pursue other means to the same end, even when these means ran afoul of the federal
government’s regulations. Nowhere was this clearer than with American merchants use
of firearms and force on the high seas. In the Anglo-American maritime world during the
age of sail, merchants routinely armed their vessels to act as privateers or merely as a
means of self-defense in an Atlantic marketplace characterized by “zones of war, chaos,
and brutality.” This had surely been the case during the American War of Independence
as approximately 1,700 American privateers, bearing roughly 15,000 guns, took to the
Atlantic in search of prizes.70 During the peace that followed, though, American
merchants and sea captains only sporadically armed their vessels to protect against
incident was April 5, 1794, Spooner’s Vermont Journal, April 28, 1794. General Advertiser, May 6, 1794,
3.
69
Philadelphia Gazette, May 8, 1794, 3. Salem Gazette, May 13, 1794, 3. Connecticut Gazette, May 15,
1794, 3. Massachusetts Mercury, May 20, 1794, 3.
70
Gould, “Zones of Law,” 475. Jack Coggins, Ships and Seamen of the American Revolution (1969; New
York: Dover, 2002), 74. See also, Sidney G. Morse, “The Yankee Privateersmen of 1776,” New England
Quarterly, vol. 17, no. 1 (Mar., 1944), 71-86. Impost officials in Annapolis, Maryland, recorded the
armaments of nineteen outbound vessels between February, 1780, and January, 1781. See, List of All
Vessels Cleared Outward at this Port of Annapolis Between the first day of February 1780 and the fifth day
of January 1781..., Letters Received by the Collector (Annapolis), RG 36, Entry 1219A, NARAPhiladelphia.
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pirates. During the 1780s, in fact, Baltimore port officials observed but few private
vessels with arms. As European warfare again militarized the Atlantic, however,
American merchants and sea captains began to mount cannons on their commercial
vessels in growing numbers.71 Doing so was fairly simple, though by no means cheap.
Merchants and sea captains located cannons or carronades from foundries, at vendue on
the waterfront—at home or abroad—or even from the United States navy. Carpenters
then set to work mounting the firearms, cutting “gunports” in the ship’s outer walls, or
bulwarks, and buttressing the bulwarks to support greater impacts. Ammunition and
paraphernalia—shot, “cartridges, gun screws, rammers, and sponges”—brought the
typical bill for arming to several thousand dollars.72
As the French Revolutionary Wars reached American shores and stamped the
Atlantic marketplace, American merchants, ship owners, and sea captains again moved to
arm their vessels. The experience of Portland, Maine merchant and captain Edward
Preble underscores the logic of armament. After a voyage to the French West Indies in
1797, Preble informed one newspaper editor that the region “still wears an alarming
experience to the commerce of the United States.” He regaled a second editor with tales
71
The sharp decline in the number of armed vessels in Baltimore between 1780 and 1786 is seen in Port of
Baltimore, Records of Arrivals and Clearances, 1780-1939, Vol. 8 RG 36 #1149, NARA-Phila. Newspaper
advertisements suggest that ship owners, states, and even Congress tried to sell their naval armaments
between after the war. See, Independent Chronicle, January 3, 1782, 2; Pennsylvania Packet, May 2, 1782,
1; North-American Intelligencer, August 25, 1784, 2; American Mercury, September 13, 1784, 4.
72
Garitee, Republic’s Private Navy, 118. An extremely detailed account of the process of arming vessels
is, Brian Lavery, The Arming and Fitting of English Ships of War, 1600-1815 (London: Conway Maritime
Press, 1987), 126-134. An instance of supply by public vendue is Baltimore Daily Intelligencer, December
21, 1793, 4. After Congress authorized the construction of naval vessels in 1794, Hamilton assigned
Commissioner of the Revenue Tench Coxe to locate foundries capable of producing several hundred
cannons and carriages. This correspondence gives a basic sense of the foundries to which American
merchants might also have turned to procure naval armaments. Henry Knox to Alexander Hamilton, April
21, 1794, PAH 16:304-6; Tench Coxe to Alexander Hamilton, June 27, 1794, PAH 16:533; Coxe to
Hamilton, June 30, 1794, PAH 16:540. See also, Coxe’s advertisement on behalf of the Treasury,
Baltimore Daily Intelligencer, April 23, 1794, 3. On Coxe’s misery in tending to this purview, see Cooke,
Tench Coxe and the Early Republic, 239-259.
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of no less than twenty-seven American vessels that had suffered capture at the hands of
French privateers. As for his own affairs, Preble’s next adventure was to be a voyage of
the newly built and purchased schooner Phenix to Havana. With an eye to protecting his
new investment, Preble now sought to take no chances. “Having seen the activities of the
Guadeloupe privateersmen on his last visit to the West Indies,” Preble “took the
precaution of arming the Phenix.” In Charleston, District Judge Thomas Bee explained
that in such dangerous times, “all American Indiamen are armed, and it is necessary they
should be so.”73
Customs officials throughout the United States responded differently to the
reappearance of private armed vessels. In Charleston in December, 1794, an informant
told Collector Isaac Holmes that the Brig Cygnet “was arming in this Port.” Holmes
pledged “she [the Cygnet] should not go out” of Charleston harbor. But Holmes found a
middle ground between ignoring the Cygnet’s arming and seizing the vessel: “her Guns
were taken out, her Port holes nailed up, and she permitted to clear.” According to the
same informant, by the following day, the Cygnet was again “completely Armed and
manned.” In Charleston, the District Judge Thomas Bee believed that Holmes’ method
of disarmament was unlawful. “The laws of neutrality and nations in no instance,” he
argued, “interdict neutral vessels from going to sea armed and fitted for defensive war.”
In Portland, Maine, Edward Preble’s armed Phenix “cleared through customs, Havanabound, on 6 June 1797, without hindrance.” In Philadelphia, a confused Collector Sharp
73
Edward Preble, quoted in Christopher McKee, Edward Preble: A Naval Biography, 1761-1807 (1972;
Annapolis, MD: United States Naval Institute, 1972), 46. Ibid., 48. Thomas Bee’s opinion in British
Consul v. Ship Mermaid (1795), Reports of Cases…, 71.
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Delany appealed to his superior, Secretary of the Treasury Oliver Wolcott, Jr., for advice
on how to treat these private armed vessels.74
The Treasury Department officially frowned on American merchants arming their
vessels. As Secretary of the Treasury Wolcott explained to Philadelphia Collector
Delany in 1795, “the United States being also a neutral nation, the vessels of their
citizens do not in most cases require to be armed.” “The arming of such vessels,” he
continued, “therefore raises a presumption that it is done with…intent contrary to the
prohibition of the Act of Congress” of June 5, 1794. That act made it illegal to arm a
vessel in order “to cruise or commit hostilities upon the subjects, citizens or property of
another foreign prince or state with whom the United States are at peace.” Concluded
Wolcott, “no ship belonging to any citizen of the United States is to be permitted to be
armed & to sail” without an explicit “decision of the President…shall be made known.”
This was supposed to have been “settled long since & was supposed to have been so
understood.”75
However strict Wolcott’s instructions to Delany may have seemed, though, they
nonetheless operated through the negotiated authority that characterized customhouse
governance in the 1790s. Indeed, in the very same set of instructions, Wolcott explained
“it is not possible for me to do more than repeat the general principles which have been
established; the application of them according to their true intent & meaning, is your
duty, & that of the officers concerned.” Thus, even after explaining the Treasury
Department’s official stance on the matter, Wolcott reassured Sharp Delany that
Benjamin Moodie to Phineas Bond, December 17, 1794, reprinted in DHSCUS 7:77. Thomas Bee’s
opinion in British Consul v. Ship Mermaid (1795), Reports of Cases…, 71. McKee, 48. Oliver Wolcott,
Jr., to Sharp Delany, November 16, 1795, Reel 8, Wolcott Papers.
75
Wolcott to Delany, November 16, 1795. 1 Stat. 381, 383 (1794).
74
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Philadelphia customs officials would determine the fabric of governance at the
Philadelphia customhouse. The negotiated authority between the Treasury, customs
officials, and commercial peoples that had emerged around the collection of the revenue
was slowly enveloping matters of regulation. In fact, Wolcott soon found himself
offering similar counsel to William Heth, the Collector of Bermuda Hundred, Virginia, in
a dispute about revenue collection. As to “practice” at the customhouse, “you ought to
decide yourself,” wrote Wolcott. “The laws are certainly rules which you ought to
follow,” he explained, “yet it is certain that the officers must take some liberties, now &
then with the more formal directions contained in the Laws, or they will never fulfill the
intention.” “There are shades of difference in the execution of the Laws in different
districts,” he conceded, but “all agree that the officers do their duty properly.” William
Heth was to “take some liberties” to “fulfill the intention” of revenue laws in a way that
best fit his district. Sharp Delany was to do the same for the regulation of armed vessels.
Both men would then be doing their “duty.”76
Wherever commercial communities exerted pressure on customs officials to
influence “the application” of the customhouse regulations, they would have a relatively
free hand to arm private vessels. In Charleston, for instance, two “Officers of the
Customs” testified that, when faced with the question of whether a vessel was armed or
not armed, they “should expect candour” from the ship captain and owners. “Without
strong proof,” they explaied, “they lean, &c.” One officer, identified only as “Weyman”
in court documents, interceded that he believed he “had no business_ to give an opinion
[sic].” And even if he did, “he could not examine” the vessel because it was “half
76
Wolcott to Delany, November 16, 1795. Oliver Wolcott, Jr., to William Heth, November 24, 1797,
Wolcott Papers [emphasis in original].
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loaded.” This Weyman finally took refuge in the defense that, no matter the facts, “what
could he know about the intention” of an individual?77
By the spring of 1797, Wolcott would be forced to again address the question
“whether it be lawful to arm the Merchant Vessels of the United States for their
protection and defence [sic], while engaged in regular commerce?” Wolcott determined
that American vessels bound for the East Indies might lawfully arm because they were
under constant threat of “Pirates and Sea Rovers.” Yet American vessels involved in
“European or West India commerce” could not. In this latter, Atlantic marketplace,
neutral vessels bearing arms betrayed “hostile intentions against some one of the
belligerent Nations” or, in other words, undermined their neutral status. So Wolcott
proposed that “unless guarded by provisions more effectual than have been hitherto
established; it is directed that the sailing of armed vessels” en route to Europe and the
West Indies “be restrained until otherwise ordained by Congress.” Even for Wolcott,
who was no stranger to convoluted circulars, this language reached special levels of
abstraction. While private armed vessels bound for Europe and the West Indies should
“be restrained,” who precisely was supposed to restrain them, and by what means?
Moreover, were officials in the ports to expect Congress to intervene in the matter? The
vagaries of Wolcott’s circular was slack for customs officials to continue to decide on
daily matters of governance as they saw fit to do.78
Justice James Iredell’s Notes of Arguments, Moodie v. Ship Mermaid, DHSCUS 7:94.
Oliver Wolcott, Jr., Circular to Collectors of Customs, April 8, 1797, ASP-C&N 1:811. Wolcott’s
division between East Indian commerce, subject to piracy, and West Indian and European commerce,
subject to the rule of law, suggests a cultural legitimation of violence against North Africans and Arabs,
and a countervailing cultural reluctance against violence toward Europeans. See, Robert J. Allison,
Crescent Obscured: The Legacy of the Barbary Wars (Chicago: University of Chicago Press, 1997). Dael
A. Norwood makes a more nuanced claim that the East India trade was a lens through which Americans
sought to understand a large gamut of political events and ideologies until the Civil War. Dael A.
77
78
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On the eastern seaboard of the United States, commercial communities had grown
militantly in favor of the practice of private arming as French depredations on American
commerce grew in scope and scale. In fact, none other than Alexander Hamilton
lambasted his protégé Wolcott for seeking to prevent merchant vessels from arming.
Hamilton “very much doubt[ed] the expediency of the measure.” As he saw it,
“passiveness in the Government and its inability to protect the Merchants requires…them
to protect themselves.” Hamilton’s advocacy on the part of the “Merchants” exemplified
an emerging movement by commercial peoples to arm vessels in several different
political and political economic contexts. In 1798, as news of French diplomatic
indecencies during the XYZ affair stirred American anger, merchant communities in
several major cities began soliciting funds through subscriptions to construct a privately
funded, public navy. In Newburyport, Massachusetts, and led in part by Collector of
Customs Dudley Tyng, merchants and others financed the construction of a twenty-gun
warship in 1798. Philadelphians, including members of the Chamber of Commerce, the
Bank of the United States, and the Insurance Company of North America, followed suite.
Merchant John Brown, who had harried Collector Jeremiah Olney into negotiating
authority at the Providence customhouse, took on his own subscription ship. In
Charleston, Secretary of the Navy Benjamin Stoddard turned to customs official James
Simons to help convene a committee to produce another subscription. As Stoddard put it,
“the public Interest will be best promoted, by putting the entire direction into the hands of
Norwood, “Trading in Liberty: The Politics of the American China Trade, c. 1784-1862,” Ph.D.
Dissertation, Princeton University, 2012.
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intelligent Merchants of great respectability and character.” Their “direction” would
produce ten armed vessels.79
For “the Merchants,” as Hamilton had described them, the subscription ship
movement was not enough. By January, 1798, as a Federalist paper in Philadelphia put
it, “the question whether our merchants shall arm their vessels for defence [sic]” appeared
before Congress. A second Federalist screed some months later turned to a more
fundamental authority for the right to arm vessels than mere necessity. Writing of “an
authority to arm” the merchant’s vessel, “A Citizen o the United States” argued “that
right existed at Common Law” previous to any federal regulations by the Treasury
Department. “It is one of those unaliebale rights for which the Cambridge Patriots so
warmly contend,” concluded the pseudonymous diatribe.80 In Congress, legislation
quickly materialized in February, 1798, aiming to permit “any vessel of the United
States” to be “equipped with guns…for necessary defense upon the high seas.” This
legislation would have lifted the Adams administration’s prohibition on armed merchant
vessels by directing the customhouses to clear any American vessel bearing arms, on
condition of securing a bond that the vessel would not engage in any but defensive
hostilities. After parliamentary measures scuttled the legislation, Adams took executive
action. As Harrison Gray Otis explained, Adams revoked his “orders to Collectors” and
“placed the right of arming upon the broad and original basis of the law of nature and
nations.” American merchants were now free to arm openly and as they pleased.81
79
Alexander Hamilton to Oliver Wolcott, Jr., April 13, 1797, Reel 1, Wolcott Papers. Frederick C. Leiner,
Millions for Defense: The Subscription Warships of 1798 (Annapolis: Naval Institute Press, 2000), 20, 122,
125, 141, 149; Benjamin Stoddard to James Sheafe, July 16, 1798, quoted in ibid., 30.
80
Gazette of the United States, January 1, 1798 3. Massachusetts Mercury, April 10, 1798, 2.
81
Harrison Gray Otis to William Heath, March 30, 1798, reprinted in the Massachusetts Spy: Or, the
Worcester Gazette, April 25, 1798, 1. Adams’ transmitted the instructions lifting the ban on “vessels of the
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The federal governmental also turned to the customhouses to administer the
Adams’ administration’s privateering program during the Quasi-War with France
between 1798 and 1800. Particularly in the nation’s leading seaports, merchants and sea
captains arrived in noticeable numbers at the customhouse for the necessary paperwork to
convert their vessels to carry “a light battery and a small crew” sufficient to deter French
attacks.82 Customs officials were to take bond from any vessel seeking to arm for
“double the value of such vessel” on condition that it would refrain from any
“unprovoked violence upon the high seas” against American allies. Customs officials
were also to convey executive instructions for the regulation of the privateers. These
instructions required privateers to enter at the customhouse upon conclusion of their
voyage to submit a journal of their voyage and, if lucky enough to have made a capture,
to turn its prize over to the customhouse in advance of prize proceedings at the closest
federal court. Once the owner and captain of the privateer had agreed to these terms at
the customhouse, they received a Letter of Marque.83
Although American privateers and armed merchant vessels effectively protected
American merchant vessels in the Atlantic, and especially the West Indies, they operated
within a context of widespread anxiety about illegal and immoral behavior by American
merchants trading with the French enemy. Those fears originated at the customhouse.
United States from sailing in an armed condition” through a Treasury Department circular to Collector of
Customs. See, Wolcott, Circular to Collectors of Customs, March 21, 1798, in ASP-C&N 1:811.
82
1 Statutes at Large 572, 573 (1798). Between July, 1798, and December, 1800, the New York
Customhouse issued an average of six Letters of Marque per month, with the highest traffic occurring in
January, 1799 (22). Merchant Thomas Buchanan, described by historian Joseph Scoville as a “king among
merchants” in New York, received the most Letters of Marque with five. Bonds for Letters of Marque,
1789-1801, RG 56, #948, Archives I. Scoville, Old Merchants of New York City (New York: Carleton,
1864), 45.
83
On the state of maritime “war quo ad hoc” that made possible privateering program, see Bas v. Tingy, 4
U.S. (4 Dall.) 37, 45-6 (August 15, 1800). On the privateering program, see J. Gregory Sidak, “The Quasi
War Cases—And their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War
Powers,” Harvard Journal of Law and Policy, vol. 28 (2004-2005), 484-5.
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In June, 1798, Congress banned Americans from trading with France for the duration of
the war by requiring customs officials to secure a bond, equivalent to the value of the
ship and its cargo, from merchant vessels trading to the West Indies. If the customhouse
detected commerce with France, or received intelligence thereof, the government would
put the bond into collection.84 Yet several customhouses had interpreted this so narrowly
as to enervate it. Wolcott desperately “expressed to the Collecters [sic]…that all
Commerce with France and her dependencies, in every description of Vessells [sic] is
prohibited,” yet nonetheless, the trade prohibition was “variously understood in different
Districts & that…the political effects intended to be produced will be frustrated
while…Revenue will be exposed to great losses.”85 By January, 1800, a dejected Wolcott
conceded that American vessels had used St. Thomas and other locales in the West Indie
to establish a de facto “direct trade between the United States & French ports.” American
vessels also engaged in the practice of collusive capture by meeting with French vessels
through “preconcerted arrangements” and then claiming to have been seized at sea. Then
there was the old “distress of weather” canard—claiming that inclement weather forced
them to enter a French port for safety, wherein French government officials then ‘forced’
to exchange their goods with the French. The customhouses in the United States did little
to interfere in these proceedings. On the one hand, Wolcott admitted, the customs
officials’ inaction was understandable since “it is impossible to distinguish cases of real
capture or distress, from those which are fictitious.” On the other hand, customs officials
84
85
1 Stat 565 (1798).
Wolcott to Richard Harrison, June 21, 1799, reprinted in DHSCUS 8:327 [emphasis in original].
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permissive approach to policing trading with the enemy during the Quasi War neatly fit a
broader pattern.86
The scope and scale of Americans illegal commerce with French interests during
the Quasi-War undoubtedly stunned Wolcott and the Treasury. Hamilton and the
Federalists had constructed a federal government that relied on officeholders’ discretion
to do what was necessary to tether the tentacles of government to the commercial
marketplace. War and diplomatic conflict, however, posed a fundamental challenge to
governance that had necessarily depended upon, and accommodated commercial
communities. The luster was wearing thin on the negotiated authority that merchants,
customs officials, and the federal Treasury had forged in the previous decade. Thus
Wolcott inveighed against a New Jersey customs official’s practices he had only recently
encouraged William Heth to embrace—“prudence firmness & consistency in some
instance, incredibly negligent and remiss, in others rigorous & oppressive.” The press of
commerce at the customhouses could not be restrained by the rule of law or republican
virtue. As an anonymous Bostonian told Wolcott of affairs in Massachusetts, “The
officers of Government are the friends and acquaintances of the Merchants & are not so
critical as in the populous citys [sic].”87
The Revolution of 1800
86
Wolcott to Samuel Smith, January 23, 1800, Reel 3, Wolcott Papers.
Wolcott, Report to the President of U.S., July 13, 1800. Reel 3. Extract of a Letter from a merchant in
Boston, February 4, 1798, to Nicholas Gilman in Philadelphia, Wolcott Papers, reel 2. Wolcott was also
increasingly concerned that his officeholders could no longer be entrusted with public monies. One
Treasury investigation revealed that the Collector of Wilmington, North Carolina, had been smuggling
massive amounts of goods from French privateers. The Collector of New York, John Lamb, was found to
owe large amounts of money to the Federal government. In Alexandria, an elderly customs official had
placed his trust in a young deputy who had embezzled government funds. On the events in Wilmington,
see Oliver Wolcott, Jr., Report of March 10, 1798, Reel 11, Wolcott Papers; Wolcott to Jedediah
Huntington, November 22, 1798, Reel 11. On the travails of John Lamb, see Wolcott to Lamb, February
17, 1797, Reel 11. The events in Alexandria are summarized in Wolcott, Report of July 24, 1799, Reel 11.
87
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The Republican vision of empire diverged sharply from that of the Federalists. It
hinged on the westward expansion of the white, landed yeomanry, who worked their
land, managed their families, and voluntarily assembled in a public sphere to
communicate its politics.88 It required an active, interventionist state, then, dedicated “to
the end of protecting liberty” by producing a society of free agents “in which ordinary
people could develop their faculties in order to pursue their happiness.” For Jefferson,
the federal government was to play an important role in this empire. Indeed, though
Jefferson was initially squeamish about federally funded internal improvement projects,
he quickly came around to its possibilities—on the condition that the Constitution be
amended to explicitly allow such activities. Of course, it was the customhouses and their
revenue collection that would enable this state and bankroll Jefferson’s imperial visions.
Commerce, which had been an end in itself in the pursuance of empire for the Federalists,
was to be a means to the end of westward expansion and citizenship for the
Republicans.89
However, well before his Republicans vied for control of the federal government,
Thomas Jefferson had grown suspicious of the customs establishment. Jefferson’s
suspicions were partly ideological. He embraced James Madison’s fundamental belief
88
There is an extensive literature on the concept of empire in Jeffersonian America. The best introduction
to this literature is Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood
(Charlottesville: University of Virginia Press, 2000); Peter S. Onuf and Peter Thompson, ed., State and
Citizen: British America and the Early United States (Charlottesville: University of Virginia Press, 2013);
James E. Lewis, American Union and the Problem of Neighborhood: the United States and the Collapse of
the Spanish Empire, 1783-1829 (Chapel Hill: University of North Carolina press, 1998). Johann M. Neem
aptly distinguishes the Jeffersonian vision of the public sphere from its reality: “even if the state aided civil
society in myriad ways, it still would be wrong to conclude that America’s post-revolutionary state
governments supported the development of an independent civil society.” “Political leaders,” continues
Neem, thinking explicitly of Jefferson, “were actively hostile to it” because the constitutive elements of the
public sphere, such as “private associations and corporations,” rivaled rather than augmented the sphere of
government. Johann M. Neem, Creating a Nation of Joiners: Democracy and Civil Society in Early
National Massachusetts (Cambridge: Harvard University Press, 2008), 4-5.
89
Johann M. Neem, “Developing Freedom: Thomas Jefferson, the State, and Human Capability,” Studies
in American Political Development, vol. 27, no. 1 (April, 2013), 3, 8.
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that central government should regulate commerce to unshackle American trade from
European restrictions. The greater goal, then, was a global commerce entirely free of
regulatory discrimination. The greater goal, then, was nothing less than divesting
commerce of governmental intrusion. For Hamilton and the Federalists the opposite had
been true. They saw the customhouse as a political economic beachhead to collect
revenue for funding the national debt and other central governmental activities.90
Alexander Hamilton’s control over customs appointments and policy furnished a
second ground for Jefferson’s suspicion. It was true that, since 1789, Federalist
administrations had stacked the customhouses with their own. According to historian
Carl E. Prince, Federalists dominated the 944 customs employees appointed between
1789 and 1801. Moreover, Presidents Washington and Adams, together with Treasury
Secretaries Hamilton and Wolcott, almost exclusively appointed Federalists to the three
plum posts in the customs: Collector, Naval Officer, and Surveyor. For Prince as for
Thomas Jefferson, this meant nothing less than the overt “politicization of the customs
service.” Federalist customs officials would use their offices for Federalist purposes.91
As Secretary of State, Jefferson had also watched Federalist customs officials,
under Hamilton’s orders, use their offices for Hamilton’s political advantage. In 1793,
for instance, the Washington administration was struggling to come to grips with the
outbreak of war between Great Britain and France. Jefferson, as Secretary of State,
understood this work to lie in his bailiwick of foreign policy. Yet, since the substance of
the administration’s response would have to focus on the regulation of vessels, goods,
For a thorough study of the Republican ambivalence about imposts and customs duties, see McCoy, “The
Virginia Port Bill of 1784.” See also, McCoy, Elusive Republic, 144-147; Crowley, Privileges of
Independence, 110-155; Nelson, Liberty and Property, 66-79.
91
Prince, Federalists and the Origins of the U.S. Civil Service, 15, 275 table 1.
90
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and crews, Secretary of the Treasury Hamilton believed the matter to lie in his official
purview. In May, Jefferson learned that Hamilton had ordered “the Collectors of the
customs…to superintend their neighborhood” and to “watch for all acts of our citizens
contrary to laws of neutrality or landing to infringe those laws, & inform him of it.” For
Jefferson this was not merely a matter of official jealousy. Hamilton’s “Collectors of the
customs” were ‘collecting,’ as their official title suggested; but they were not ‘collecting’
revenue. Rather, they ‘collected’ intelligence for the exclusive use of their superior. So
constituted as the organ of party sentiment, or, even worse, as the instrument of
Hamilton’s influence, the customs establishment threatened the delicate fabric of
American government.92
At the turn of the nineteenth century, the ascendant Republican party expressed
concerns about the customs establishment within the context of an apparent Federalist
conspiracy to enlarge itself through the federal government and, at the expense of the
people.93 Gallatin estimated that “the expenses of collection” of federal revenue cost
taxpayers and customhouse patrons no less than $300,000 per year. Tench Coxe, the
renowned Republican political economist, had worked in Hamilton’s Treasury until being
unceremoniously removed by President John Adams. In 1801, as Jefferson took the helm
of the federal government, Coxe called for a wholesale removal of all “the incumbents.”
“Any set of men” could do the work of righting the ship of state, growled Coxe, save for
“one, that are predominate in the Government.” For Coxe, these “incumbents” had
92
Thomas Jefferson, Memorandum on Customs Collectors, May, 1793, Thomas Jefferson Papers, Series 1,
General Correspondence, LOC [emphasis added]. Prince, 9-10. On the discourse of “collection” in
relation to this episode, see Freeman, Affairs of Honor, 98-99.
93
It was internal taxation, rather than import duties, that really stoked the fires of Republican criticism.
Charlotte Crain, “Pennington v. Coxe: A Glimpse at the Federal Government at the End of the Federalist
Era,” University of Virginia Tax Review, vol. 23 (2003-2004), 417-434. Thomas P. Slaughter, “The Tax
Man Cometh: Ideological Opposition to Internal Taxes, 1760-1790,” WMQ, vol. 41, no. 4 (Oct., 1984),
566-91.
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corroded the Treasury from within, but their devastation “will never be ascertained or
cured until the incumbents are removed.” The Republican newspaper the Aurora charged
that, “Within ten years…the customs, has changed from being the most liberal and easy
to all persons, of any in the universe, to be incumbered with forms, obstructions,
expenses, and abuses, that rival, if not surpass those of the most corrupt governments in
the universe.” A visitor, continued William Duane’s paper, was likely to think the
Collector of Customs “had been appointed by George III” both because of his imperious
“demeanor and of the press gang like band that surrounded him.”94
Though Jefferson and his Secretary of the Treasury Albert Gallatin shied away
from the extremity of the Aurora’s position, they did believe that the customhouses had
abused their powers to collect revenue and regulate commerce.95 Their case in point was
the misadventure of a Baltimore merchant named William Priestman. In 1798 Priestman
had imported several hundred watches into the United States and paid customs duties on
the watches as the law directed at the Baltimore customhouse, the port of entry.
Priestman then shipped the watches to Pennsylvania for sale. According to United States
Attorney William Rawle, Priestman’s transshipment of the watches across state lines,
with neither a permit from Baltimore Customs Collector Otho Holland Williams, nor
advance notification to Philadelphia Customs Collector Sharp Delany, violated the terms
of Congress’ 1793 Enrolling and Licensing Act. Delany seized the watches and a trial
would ensue in the federal District Court held at Philadelphia. Meanwhile, Priestman
94
Albert Gallatin, A Sketch of the Finances of the United States (New York: William A. Davis, 1796), 23.
Tench Coxe to Thomas Jefferson, January 10, 1801, PATJ 33:425. The Aurora reprinted in the
Philadelphia Gazette, February 6, 1801, 3. Enrolling and Licensing Vessels in the Coasting Trade and
Fisheries, 1 Statutes-at-Large 305 (1793).
95
In his 1796 rebuttal to Hamilton’s political-economic reports and the Federalists system writ large,
Albert Gallatin conceded both that revenue collection had been effectual, and that “the whole amount of
fines and forfeitures” for violations of the revenue laws had been comparatively small. Albert Gallatin,
Sketch, 24.
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hedged his bet. He petitioned Secretary of the Treasury Oliver Wolcott, Jr. for a
remission of the penalty incurred by violation of the 1793 law. Wolcott denied
Priestman’s petition in late November, 1798, but Priestman pressed his cause in the
federal courts until the Supreme Court of the United States heard the case in 1800. The
Court rejected Priestman’s claims about the vagaries of the 1793 law. It also offered a
policy rationale: “Public policy, national purposes, and the regular operations of
government, require, that the revenue system should be faithfully observed, and strictly
executed.” For Jefferson and Gallatin, this miscarriage of justice posed a fascinating
question: just how expansive was “the power of the Secy. of the Treasury to revise
former unfavorable decisions of the Department on the subject of fines penalties &
forfeitures”? Tempting though it may have been to entertain visions of using the
Treasury Department to right all the unjust proceedings at the customhouses, Gallatin
decided otherwise. “A decision by a former Secretary,” he wrote to Jefferson, “seems to
preclude any further proceeding on the part of this Department.” Jefferson finally handed
Priestman a Presidential pardon in June, 1801.96
Of course, the ostensible rapacity of the customhouses was but a symptom of the
overall declension that had befallen the federal government under the Federalists,
especially Hamilton and John Adams. As he assumed the Presidency, Jefferson offered
an inherently restorative vision. “Let the general government be once reduced to foreign
concerns only…our general government may be reduced to a very simple organization, &
a very unexpensive [sic]: a few plain duties to be performed by a few servants,” Jefferson
96
Marcus, ed., DCHSCUS, 8:391-5. Priestman v. United States, 4 U.S. 28 (1800). Gallatin to Jefferson,
June 9, 1801, PATJ 34:279. Jefferson lodged a similar inquiry in the case of the prize vessel Betsy
Cathcart. See, Jefferson to Levi Lincoln, June 12, 1801; and Lincoln, Opinion on the Betsy Cathcart, July
3, 1801, PATJ:34, 320-1, 497-503.
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wrote to Postmaster Gideon Granger in mid-August, 1800. As an ideological matter,
Jefferson sought an executive power would be used to truncate itself and guard against its
future expansion. As historian Peter S. Onuf has written, “doctrinaire republicans were
prepared to see any distant central government, even one that was located in America, as
‘foreign’” or, alternatively, as “vulnerable to penetration and capture” by corrupting
influences like Hamiltonian Federalism. By contracting the Federalists’ disparate federal
government, Jefferson safeguarded the republic from any future capture or abuse of
power.97
Jefferson’s reforms began with “Removals,” or rather replacement of Federalist
customs officials by Republicans. By 1801, the customs service had 146 officials—
mostly Collectors, Naval Officers, Surveyors, and Inspectors—“subject to presidential
removal.” As Carl Prince has demonstrated, Jefferson gradually replaced “fifty, of whom
forty-one can be identified as Federalists.” In two of the nation’s leading ports, Jefferson
cleaned house, removing noted Federalist partisans Sharp Delany in Philadelphia—none
other than the Collector who had seized William Priestman’s watches in 1798—and
Joshua Sands in New York, along with their subordinates. Jefferson also made strategic
removals in smaller ports. In Connecticut, which “Jefferson considered as the fortress”
of Federalism, he replaced New Haven Collector Elizur Goodrich, a late appointment of
the outgoing Federalist administration, with seventy-seven year old Samuel Bishop,
97
Jefferson to Gideon Granger, August 13, 1800, PATJ 32:96; see also Jefferson to Caesar A. Rodney,
December 21, 1800, PATJ 33:336-7. Onuf, Jefferson’s Empire, 100. For a lengthy exposition of this
republican governing philosophy, see Appleby, Capitalism and a New Social Order. In private, however,
at least one leading Jefferson ally betrayed a desire to use the customhouse for much the same partisan
purposes as had the Federalists. As Charles Pinckney wrote to James Madison, “…as soon as We can get
the Collectors Place & the very great influence of the Custom house in the hands of a decided & able
republica We shall in future be able to make…Charleston one of the strongholds of republicanism [sic].”
Charles Pinckney to James Madison, May 26, 1801, in The Papers of James Madison, Secretary of State
Series, ed. Robert J. Brugger et al. (Charlottesville: University Press of Virginia, 1986), 1:230.
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Mayor of New Haven. Aggrieved New Haven Federalists took their case against Bishop
straight to Jefferson. Bishop could barely “write his name,” lacked adequate numeracy,
was “totally unacquainted with the Revenue Laws and the forms of doing mercantile
business, and is now too far advanced in life, and too much enfeebled…to learn either.”
Jefferson carefully crafted a response to his New England critics. The “will of the nation,
manifested by their various elections,” had brought Jefferson and the Republican party to
power. Should not there be any Republican officeholders in the federal government?
Democracy, in other words, required “a moderate participation of office in the hands of
the majority.”98
Jefferson and Gallatin, like Hamilton and Wolcott in the 1790s, were cautious in
their appointments. They solicited recommendations from leading Republicans and
pursued intelligent, diligent officers who would reflect well upon the administration.
Sometimes, this came with a hefty ideological price tag, as in the case of the new
Collector of New York, David Gelston. “His credit is good,” “he has a large and
Valuable real Estate, wholly unencumbered, in our interior Country,” and “he is very
highly respected by all parties and all honest Men, for his rigid & irreproachable probity.”
He had also operated an importing firm of some repute, Gelston & Saltonstall. But
Gelston, who would eventually get the nod, was a Burrite. Difficult as it might have been
for Jefferson to place so important an office in the hands of a Burr acolyte, it was
nonetheless a wise move toward preserving the coalition that brought Jefferson to office.
As luck would have it, after Burr’s rapid demise, Gelston proved himself a loyal and
Carl E. Prince, “The Passing of the Aristocracy: Jefferson’s Removal of the Federalists, 1801-1805,”
Journal of American History, vol. 57, no. 3 (Dec., 1970), 570. Carl Russell Fish, The Civil Service and the
Patronage (Cambridge: Harvard University Press, 1904), 33. Remonstrance of the New Haven Merchants,
June 18, 1801, PATJ 34: 381-3. Thomas Jefferson to the New Haven merchants, July 12, 1801, PATJ
34:554-6.
98
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reliable Jeffersonian.99 Other appointments were strategic in different senses. Samuel
Bishop in New Haven, soon to give way to his son Abraham Bishop, was a clear partisan,
the appointment of whom was a bit of red meat for national Republicans.100 Nathan
Haswell, a spritely young merchant and aspiring officeholder, was selected to establish a
customs bulwark on Vermont’s waters of Lake Champlain.101
With regard to the fabric of governance at the customhouse, however, the
Jeffersonians’ reformist agenda and new batch of officeholders would matter little. It
turned out that the Federalists’ vaunted leviathan had been more formidable as rhetoric
than it was in reality. The Federalists had not, for the most part, constituted
customhouses with a type of authority to whip votes. Rather, the Federalists hoped that
their officeholders’ paternal superiority and careful management of local commercial
affairs would secure the political loyalty of the people. At least for a time, Jefferson and
Gallatin would embrace the same model.102
What would change, hoped Jefferson, was the seemingly frequent nonfeasance
that pervaded the Treasury Department. In fact, and again in stark contrast to the
Republicans’ critique of central government, it seemed that Hamilton and Wolcott had
99
Aaron Burr to Albert Gallatin, April 24, 1801, Mary-Jo Kline, Political Correspondence and Public
Papers of Aaron Burr (Princeton: Princeton University Press, 1983), 1:570. Jefferson, Notes on New York
Patronage, n.d. [after February 17, 1801], PATJ 34:11. Mary-Jo Kline, Political Correspondence and
Public Papers of Aaron Burr (Princeton: Princeton University Press, 1983), 1:534-8. For Gelston’s
mercantile background, see Gelston & Saltonstall Letter Book, 1791 May-1793 May, NYHS.
100
David Waldstreicher and Stephen R. Grossbart, "Abraham Bishop's Vocation: or, the Mediation of
Jeffersonian Politics," Journal of the Early Republic, vol. 18, no. 4 (Winter, 1998), 617-657.
101
Finding Aid, Nathan B. Haswell Papers, University of Vermont. Apparently, Haswell had conveniently
blended public office and private enterprise. His firm, Pease & Haswell hosted auctions for goods seized
by the customhouse and condemned by the District Court at Burlington. H.N. Muller, “Smuggling into
Canada: How the Champlain Valley Defied Jefferson’s Embargo,” Vermont History, vol. 38, no. 1 (Winter,
1970), 15.
102
Douglas Bradburn argues that the Republicans were actually unable to deconstruct the Federalist state
because the Federalists “had already dismantled some of the more objectionable elements of their design
before they lost all power,” and because “Federalists in the government continued” to pursue their old
agenda at the expense of Jefferson’s. Citizenship Revolution, 276-77.
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overseen a remarkably rickety network of offices in their decade of rule.103 Gallatin was
stunned to discover, for instance, that several collectors of customs had not transmitted
any records whatever for years.104 Consider the remarkable case of Daniel Benezet,
brother of antislavery crusader Anthony Benezet, and Collector of Great Egg Harbor in
New Jersey. Between his appointment in March, 1790, his dismissal in March, 1795, and
his death in 1797, Daniel Benezet “rendered no account for settlement at the Treasury”
though “repeatedly urged to do it.” The Treasury discovered the omission in 1802
though by then the Great Egg customs records had disappeared. Congressman Joseph
Clay, a Republican from Pennsylvania, fumed at the Treasury’s misconduct. How could
it be that “no steps were taken to recover from [Daniel Benezet] the penalty of his bond,
during his life, nor from his or his father’s estate, until the year 1802, eleven years after
his appointment, seven years after his dismissal, five years after the death of his father,
and four years after the final settlement…of his father’s estate, and after his own
death”?105
The destructive spirit of party, and specifically Federalist toryism, was not the
stuff of federal governance in the early United States. Then what was? As Jefferson and
Gallatin came to realize the magnitude of the challenge posed by the regulation of
The Jeffersonians’ overblown fears of Federalist as “monarchists and aristocrats bent upon destroying
America’s republican experiment” owed to the hyperbolic and combustible nature of political
communication in the 1790s, argues John R. Howe, Jr., “Republican Thought and the Political Violence of
the 1790s,” American Quarterly, vol. 19, no. 2, Part 1 (Summer, 1967), 150.
104
Albert Gallatin, Report on Delinquent Collectors, June 9, 1801, PATJ 34:280.
105
Annals of Congress, 8th Cong., 2nd Sess., 1205 (February 23, 1805). The problems within the
customhouses transcended funds and records. Some offices lay entirely empty. In one case, Wolcott had
not dispatched officials to supervise an entire , revenue-poor western customs district. Gallatin believed
that things were even worse with the business of collecting the excise. Gallatin's Report on Collection of
Internal Revenues, July 28, 1801, PATJ 34: 651-5. At least one cabinet official also realized that many of
the customs positions required real expertise in commercial matters. These were often unsuitable for party
sinecures. Edward Livingston to Albert Gallatin, Gallatin Papers 4:767; vol. 33:330, 331-2n.
103
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neutrality, they would begin to understand the incredible influence that commercial
peoples wielded over the daily operation of the machinery of governance.
‘Forcing a Commerce’
The Louisiana Purchase of 1803 furnished Jefferson with confidence that he could
successfully channel the revenue gleaned from merchant capital toward the westward
expansion of an agricultural empire of yeomanry. Jefferson and Gallatin found, as
Washington, Hamilton, Adams, and Wolcott had before them, that the destructive war
that enveloped Europe created an enormous, seemingly boundless amount of wealth for
American merchants, and in turn, the federal government. On January 1, 1803, Gallatin
estimated that the previous year’s customs revenue exceeded $12 million, far outstripping
previous years’ tallies. The “large revenue on hand, together with the economies in
expenditure” introduced by the Jefferson administration, “made it possible to
consummate” the Louisiana Purchase “from the sale of the new stock and from funds on
hand, without resorting to a temporary loan or even to new taxes.” The Federalists
stabilized the customs revenue mechanism in pursuit of a commercial utopia. Jefferson
had appropriated their statecraft to add 838,000 square miles for western expansion.106
A year later, Jefferson’s confidence in the potentialities of Atlantic commerce had
waned. On November 8, 1804, President Thomas Jefferson dispatched his annual
message to Congress. “Complaints have been received that persons residing within the
United States have taken on themselves to arm merchant vessels and to force a commerce
into certain ports and countries in defiance of the laws of those countries,” he explained.
The individuals responsible for ‘forcing a commerce” had undertaken “to wage private
J.E. Winston, “How the Louisiana Purchase Was Financed,” Louisiana Historical Quarterly, vol. 12,
no. 2 (April, 1929), 200.
106
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war, independently of the authority of their country.” Ethics aside, to “force a
commerce” was to provoke “other nations and to endanger the peace of our own.” This
behavior could not “be permitted in a well-ordered society.” With the stakes so high,
Jefferson had no doubt that Congress “will adopt measures for restraining it effectually in
future.”107
Jefferson had included the strong language urging Congress to police American
armed merchant vessels at the behest of his Secretary of the Treasury Albert Gallatin. In
the previous three years, the two men had been bedeviled by American merchants and
sea-captains who used the force of arms to fight their way into one market in particular:
Haiti. Americans had muscled their way through French blockades to trade with the
black revolutionaries who had led a slave rebellion, emancipated themselves from the
shackles of slavery, and achieved their independence from France. In so doing, however,
these American merchants flouted French laws that restricted foreign commerce with the
rebellious colony of Saint-Domingue. As the American merchants taunted French
military administrators, they jeopardized the United States’ relationship with France and
threatened American neutrality—“the peace of our own.” The crux of the problem, then,
was how the Jefferson administration could “restrain” the armed Haiti trade. Its locale
was the customhouse. The Jefferson administration’s losing struggle to regulate the
armed Haiti trade would instruct the United States and the world of the control exerted
over the customhouses by commerce and commercial peoples.108
Americans had, of course, armed their vessels throughout the 1790s, both in
contravention and in accordance with federal laws and regulations. Congress’
107
Jefferson, Fourth Annual Message to Congress, Annals of Congress, 8th Con., 2nd Sess., 11 (November
8, 1804).
108
Gallatin to Jefferson, n.d. [1804], Writings of Albert Gallatin, 1:211.
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authorization for American armed merchantmen to harass French commerce during the
Quasi-War had, in fact, lapsed. However, John Adams’ spring, 1798 decree lifting all
restrictions on private armed vessels had quietly remained in effect. Thus merchants and
sea captains had no legal reason to disarm. Nor had the Atlantic become any less chaotic
or dangerous after the suspension of the Quasi-War. In the span of a few years, Haitian
revolutionaries expelled British forces and engaged invading French forces under General
Victor Emmanuel LeClerc. Americans would thus contend with familiar foes in the form
of British naval vessels and a French “armada hovering off the shores” of Haiti. The
incorporation of the United States newest metropolis, New Orleans, after the Louisiana
Purchase, also reigned havoc from the Gulf of Mexico through the Leeward Islands as
pirates and privateers—often in collusion with American merchants—stalked the Gulf.109
Even in his earliest days as President, Jefferson likely knew that merchant vessels
had retained their armaments. Gallatin would later explain to Senator Samuel Latham
Mitchill of New York that Jefferson chose to ignore the issue in 1801. The problem was
that Jefferson did not believe it his place—or any other President’s place—to limit or
regulate naval armament. Here Jefferson drew a studied contrast with his predecessor,
John Adams. Jefferson simply did not think it the role of the executive “to permit or
forbid, at his pleasure the arming of vessels.” At his pleasure. Adams had sullied the
presidency with his whimsical power grabs. For Jefferson, “so long as force was not
used,” or “used so rarely not to create alarm,” the United States would not move “in a
Dubois, Avengers of the New World, 251. Marietta Marie LeBreton, “A History of the Territory of
Orleans, 1803-1812,” Ph.D. Dissertation, Louisiana State University, 1969, 257.
109
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special manner against occasional acts of violence.” That a handful of merchants and sea
captains sporadically resorted to force was hardly a pretext for executive action.110
The Jefferson administration was likely reluctant to disrupt an American
commerce with Haiti that had flourished for several decades. As early as the 1780s, a
New York merchant named Henry Packer Dering—who Hamilton would make the
Collector of Customs for Sag Harbor—observed markets in Saint Domingue saturated
with American competition. British discrimination against American commerce in the
British West Indies pushed Americans to expand trade with French planters in Saint
Domingue in the early 1790s. As historian Alec Dun has shown, Saint Domingue
commerce occupied a steadily growing share of Philadelphia merchants’ imports in the
four years after ratification of the Constitution, culminating in approximately 15% of
total imports by 1792.111 This commerce continued to grow even during the Haitian
Revolution. Leading merchant houses in New York, Philadelphia, and Baltimore
delivered millions of tons of foodstuffs and “supplies” to French planters and colonial
officials. Some even supplied vessels to ferry “French soldiers” to and from battle with
the black revolutionaries.112 With General Toussaint L’overture’s victory in 1796,
American merchants transitioned to doing business with the island’s black population.
110
Albert Gallatin to Samuel Latham Mitchill, January 3, 1805, Reel 10, Gallatin Papers. Albert Gallatin
to Thomas Jefferson, July 2, 1804, Writings of Albert Gallatin, 1:194-6, 197, 198.
111
Diary of Henry Packer Dering, Dering Papers. Alec Dun, “‘What Avenues of Commerce, Will You,
Americans, Not Explore!’: Commercial Philadelphia’s Vantage onto the Early Haitian Revolution,”
William and Mary Quarterly, Third Series, vol. 62, no. 3 (Jul., 2005), 479. See also, McDonald, “Chance
of the Moment,” 459-60.
112
Fulwar Skipwith, American Claims not Submitted…March 14, 1802, Box 9, Causten-Pickett Papers,
LOC. Tim Matthewson, “George Washington’s Policy toward the Haitian Revolution,” Diplomatic
History, vol. 3 (Summer, 1979), 325; Matthewson, A Proslavery Foreign Policy, 45. Of course, even after
their defeat, white Saint Dominguains received a golden parachute from the federal government. In 1793,
Congress appropriated $15,000 for “the support of the inhabitants of Saint Domingo, resident within the
United States, as shall be found in want of such support.” Annals of Congress, 3rd Cong., 1st Sess., 14171418 (1793). See also, Refugees from St. Domingo, January 10, 1794, ASP-FR 1:308; White,
Encountering Revolution, 70.
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As a correspondent forecasted to New York merchant house Charles Rogers & Co.,
Toussaint’s victory would undoubtedly “increase the wants and engage the speculators.”
During the Quasi-War, this commerce still grew, much to the chagrin of Haiti’s former
colonial masters. As historian Rayford Logan has explained, it seemed that Americans
would do anything to reach Haitian markets “by resorting to trickery at first and finally to
force.”113
By 1801, the scope of American commerce with Haiti began to trouble France.
For one thing, France had refused to recognize the legitimacy of the revolution and thus
saw Americans as engaging in an illegal commerce with a criminal insurrection. What
Americans traded was equally at issue for it was an open secret that New York,
Baltimore, and Philadelphia shipped Toussaint military supplies in addition to food and
provisions. The election of Thomas Jefferson held out some hope for the French.
Jefferson’s sympathies to the French were well known. As France planned a massive
invasion of the island that would begin in early 1802, it approached Jefferson for aid.
Perhaps a fellow republican could exert sufficient authority and influence over the
merchants to sabotage Toussaint’s supply lines?114 Dispatches from Haiti, however, gave
Jefferson reason to rebuff the French. United States Consul Tobias Lear, former aide-decamp to George Washington, saw great potential in the young republic. “A new and
important aera [sic] has commenced here,” wrote Lear in mid-July, 1801. Even in its
war-torn state, “the Productions of this Island” were “immense” and “the consumption of
113
Unknown [mutil.] to Charles C. Rogers & Co., March 28, 1796, Correspondence 1796-1818-1827, #
895, RG 36, NARA-NY. Logan, Diplomatic Relations of the United States with Haiti, 1776-1891 (Chapel
Hill: University of North Carolina Press, 1941), 126-7, 129. In Philadelphia, the Haiti trade grew steadily
from 1794 to 1796 before slackening gradually by 1798. Between 1799 and 1805, the trade steadily
declined. Dun, 478 table 1.
114
James, Black Jacobins, 245, 262.
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our Articles great indeed.” By this point it was clear that American vessels were finding
their ways into Haitian ports en masse.115
As it became clear that the Jefferson administration was unwilling to take
measures against the Haiti trade, France took matters into its own hands during its
invasion of Haiti in February, 1802. French forces had the authority to seize American
“Vessels and Cargoes” if found in the waters of an insurrectionary colony. American
merchants within Haiti faced a only a slightly less draconian alternative as French
military administrators forced them to enter into dramatically unfair bargains. On March
17, 1802, French Ambassador to the United States Louis Pichon informed Secretary of
States James Madison that American commerce was banned from all ports in Saint
Domingue other than the two under French occupation, Cap Francois and Port
Republicain. All other voyages were subject to seizure and condemnation. Losses
quickly mounted for American merchants and their insurers. In Baltimore alone, the five
leading marine insurers posted total losses of close to $500,000 in late 1804.116
However meekly, the Jefferson administration publicly sided with France.
Madison pledged that the United States would “respect” the French rule that “all foreign
trade with the Island is limited to the two ports.” Yet, it would be up to France to punish
Americans who took it upon themselves to flout the regulations. The French declaration,
115
Tobias Lear to James Madison, July 20, 1801, July 25, 1801, and July 27, 1801, in Papers of James
Madison, 1:445-6, 1:478; and 1:483. Just as problematic as American commerce with black Haitians was
the influx of Saint-Dominguan refugees and culture into the United States. See, Carl A. Brasseaux and
Glenn R. Conrad, The Road to Louisiana: The Saint-Domingue Refugees, 1792-1809 (Lafayette, LA:
Center for Louisiana Studies, 1992), 113-284. On Americans’ cultural confrontation with several
dimensions of the Haitian Revolution, see White, Encountering Revolution. For a fine diasporic history of
Saint-Dominguan institutions and statuses, see Scott and Hebrard, Freedom Papers.
116
Tobias Lear to James Madison, February 16, 1802; February 26, 1802; February 27, 1802; and March 2,
1802, in The Papers of James Madison, Secretary of State Series, ed. Mary A. Hackett et al.
(Charlottesville: University Press of Virginia, 1993), 2:499-500, 519, 519-20, 522. Louis Andre Pichon to
James Madison, March 17, 1802, ibid, 42. Speech of William McCreery, Annals of Congress, 8th Cong.,
2nd Sess., 818 (December 13, 1804).
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explained Madison, “is understood as subjecting individual citizens to the penalties
legally attached to prohibited commerce.” The offending merchants were mere
“individual citizens” committing criminal acts. The French were wise to Madison’s coy
language and demanded stronger action on the part of Jefferson’s administration. Again,
Madison walked a fine line between government policy and individual criminals. “The
American government” pledged to respect French law, while “American merchants”
flouted those laws on their own.117
The Jefferson administration’s purposeful neglect of American armed merchant
vessels all but gave unofficial license for them to pursue adventures to Haiti, and the
French responded by unleashing their privateers and naval vessels on American shipping.
For once, France and Great Britain would see eye to eye. By the summer of 1804, the
British government observed that vessels had “armed in, and have sailed from, the
different ports of the United States.” Pichon too, noted with distaste that disrepute had
descended on American ports “from one end of the continent to the other.” “American
merchants,” he explained, “publicly arm, in the ports of the United States.” Both France
and England wondered how the Jefferson administration could allow these vessels to arm
without any “commission or authority whatever from the Government of the United
States.” The United States was not at war. Congress had not authorized customhouses to
issue letters of marque to privateers. No—American merchants armed their vessels
simply because the sought to do so.118 None of this was denied in the United States. New
117
James Madison to Louis Pichon, March 25, 1802, in Papers of James Madison, Secretary of States
Series, 3:68-9. See, Logan, 139, and more generally, 129-30, 137-9. According to one account, Jefferson
pledged to channel American commerce to France “and to reduce Toussaint to starvation” on the condition
that France remain at peace with Great Britain. Carl Ludwig Lokke, “Jefferson and the Leclerc
Expedition,” American Historical Review, vol. 33, no. 2 (January, 1928), 324.
118
Anthony Merry to James Madison, August 31, 1804; Louis Pichon to James Madison, June 6, 1804,
quoted in Logan, 163-4. Louis Pichon to James Madison, May 7, 1804, ASP-FR 2:607.
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York merchant George Barnewell openly conceded that he had indeed “armed for
defence” two vessels bound for the West Indies and that “both these vessels were
regularly cleared at the custom-house” in New York. From his lofty bench in Charleston,
District Judge Thomas Beeadded that “most of the vessels engaged in this trade went
armed.”119
United States customhouses were responsible for a second problem associated
with the private armed vessels bound for Haiti. Most often, these vessels submitted
papers to the customhouse listing legally permitted destinations and then sailed to
forbidden ports. Take for instance the Charleston Brig Nancy with an armament of
fourteen guns and a crew of forty. In August, 1804, Charleston customs officials cleared
the Nancy for a trip to the permitted French port of Port Republicain. She in fact sailed to
the prohibited port of Port Au Prince. Customs officials thus facilitated the voyage of an
armed vessel to Haiti, while also providing sham paperwork intended to cover the voyage
in legality. In this case, however, legal formalities mattered little. The British frigate
Desiree stormed the vessel and pressed twelve of the crew. Undermanned and flailing,
the Nancy now made an easy target for French vessels and she was easily captured and
condemned.120
By 1804, skirmishes between American merchant vessels—armed and unarmed—
in the West Indies and French naval vessels and privateers had become commonplace.
The Brig John, for instance, had “entered the Cape [Francois]” to trade legally with the
French occupying forces but “not finding a market,” hovered nearby, raised the hackles
of French forces, and then fell victim to French seizure. Merchants in Baltimore also
119
George Barnewell to James Madison, September 6, 1804, ASP-FR 2:607. Dennis v. The Lear, 7 F. Cas.
476, 477 (November, 1805).
120
No. 160, Maryland Insurance Company, Box 32, Folder 1, Causten-Pickett Papers.
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reported the Brigs Dove and Swift Packet, as well as the Schooners Peggy, John, Polly,
and Joseph to their insurers between February and December, 1804. The Cape Francois
firm Killen & Williams warned Baltimore marine insurance underwriters that the
situation disallowed the possibility of an “accurate sketch of our Political Situation which
is not yet organized.”121 Eventually, the risks of the waters around revolutionary Haiti
became too much to bear for marine insurers in Baltimore. The McKim brothers of the
influential Baltimore Insurance Company would revise their standard contractual
interpretation to shield themselves from liability of paying out policies for merchant
vessels that sailed for permitted ports in French controlled Saint-Domingue but that
muscled their way into restricted ports. “The risk from Port to port in St. Domingo was
not insured,” explained Alexander McKim, because “if such a liberty could be taken,
Insurers would find themselves on many risks they never contemplated.”122
Finally, in the summer of 1804, the Jefferson administration explored strategies to
clamp down on the armed Haiti trade. Philadelphia Collector of Customs John Peter
Muhlenberg, a Jefferson loyalist of impeccable credentials—Major-General in the
Revolutionary War, member of the Cincinnati, delegate to the Constitutional Convention,
and former U.S. Senator—conceived of the first approach. Because “vessels bound to
Hispaniola were generally armed,” Muhlenberg “thought it proper to require bonds and
security from the owners that they shall not commit any acts of hostility against the
subjects of powers at peace with the United States.” In other words, merchants in the
“Hispaniola” trade, or more generally the West Indies trade, could still arm their vessels
Caleb Cushing, “Saint Domingo Cases,” [n.d.], Box 1, Folder “St. Domingo Cases,” Causten-Picket
Papers, LOC-MSS. Killen & Williams to Robert and Alexander McKim, January 23, 1804, Fulwar
Skipwith Correspondence, L-Q, Box 8, Causten-Pickett Papers.
122
Alexander McKim to Samuel Sterret and Mark Pringle, May 7, 1806, Baltimore Insurance Company
Correspondence, Box 19, Causten-Pickett Papers.
121
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so long as they pledged their word and a hefty bond to refrain against using their arms
against French vessels.
The Muhlenberg plan was a clever means to work within the negotiated authority
at the Philadelphia customhouse while appearing to take punitive action against
merchants behaving badly.123 For one thing, how exactly would Muhlenberg catch wind
of American armed merchant vessels committing “acts of hostility” against the French?
Presumably, Muhlenberg would have to search newspapers and mercantile gossip to
discover a merchant’s culpability. Even at a broader register, the plan fit neatly within
the way authority had come to work at the customhouses. Taking bonds to ensure
persons comported themselves according to the rules bore striking resemblance to the
aged and familiar common law tool known as the “bond for good behavior.” In fact,
Secretary of the Treasury Albert Gallatin would use this formulation in discussing the
Muhlenberg plan with Jefferson. As historian Joshua M. Stein has explained, colonial
judges used the bond as a way to deter assaults because the bonds were more expensive
than a “typical fine for those found guilty of assault.” If an individual who had posted a
bond for good behavior violated its terms by committing an assault, the judge would
placed the bond in collection. By the first decade of the nineteenth-century, though, the
bond for good behavior had come to appear to be a far lighter punishment than the
judges’ new favored practice for deterring assault: incarceration. Thus Muhlenberg’s
plan had the added benefit of appearing at once familiar, nominal, and harmless.124
123
This was not the first time Muhlenberg sought a third way between outright evasion of a federal revenue
law and (purportedly) excessively punitive enforcement of the law. In 1802, when Muhlenberg had been
the federal Supervisor of Revenue for Pennsylvania, he attempted to facilitate an interpretation of federal
internal duties that would be favorable to Philadelphia sugar refiners. Crane, “Pennington v. Coxe,” 430436.
124
Albert Gallatin to Thomas Jefferson, July 2, 1804, Writings of Albert Gallatin, 1:198. Joshua
Michelangelo Stein, “The Right to Violence: Assault Prosecution in New York, 1760-1840,” Ph.D.
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Hopeful though they were that Muhlenberg’s customs “bonds for good behavior”
might quell French diplomatic protests, Jefferson and Gallatin worried about the
program’s legality. Muhlenberg, after all, had devised this new bond on his own accord
so, as Gallatin put it, it was “unauthorized by law.” So Gallatin asked Muhlenberg to
devise a test case, and Muhlenberg promised to keep an eye out for “any vessel should by
her arming give cause of suspicion that she might be employed in acts of hostility.”125 In
August, Muhlenberg found his suspicious parties: Philip Nicklin and Robert Griffin,
English emigres whose commercial firm was among the city’s foremost. Nicklin and
Griffith owned the America “with twenty two nine pound Guns with Carriages
complete,” and sought to send her to the West Indies. They also had a well-known axe to
grind against the French, who repeatedly attacked their vessels on the grounds of Nicklin
and Griffith’s English nationality.126 Philadelphia customs officials’ demand of a bond
for good behavior surprised Nicklin & Griffith, who noted that the vessel had several
times previous been “admitted to an Entry” at the Philadelphia customhouse. They
promptly refused to post the bond, leading to a hearing before District Judge Richard
Peters. The Jefferson administration would probably have preferred another judge
because Peters was a noted Federalist. But there was some reason for hope. Peters had
received a very public rebuke from the Jay Court a decade before for ordering the seizure
of a French privateer in American waters. Chief Justice Jay had reminded Peters that a
Dissertation, University of California Los Angeles, 2009, 48-59. See Table 1-4: The Use of Bonds, 18001840 for an overview on the stunning demise of the bond for good behavior in the early republic. See also,
Stein, “Privatizing Violence: A Transformation in the Jurisprudence of Assault,” Law and History Review,
vol. 30, no. 2 (May, 2012), 443-7.
125
Gallatin to Jefferson, June 7, 1804, Writings of Gallatin, 1:194-5. Muhlenberg to Gallatin, quoted in
Gallatin to Jefferson, July 2, 1805, ibid., 1:198-199.
126
Friend to Truth and Justice [pseud.], Examination of the Memorial of the Owners and Underwriters of
the American Ship the New Jersey… (Philadelphia: s.n., 1805). Petition of Philip Nicklin & Robert E.
Griffith, November 16, 1804, Philadelphia Forfeiture Appeals, RG 36 Entry 42-E-1-7-1.6, NARA-Phila.
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seizure could occur if and only if a vessel had armed itself in American waters in order to
make war abroad with a nation at peace with the United States. Moreover, Peters’
federalist jurisprudence appeared to fit neatly with the administration’s theory of the
federal customhouses’ power to use the common law instrument of the bond for good
behavior. In Worrall’s Case (1798) Peters argued for requisite federal authority to punish
any crime that augured “the subversion of any federal institution or at the corruption of
its public officers.” He would later confide that he “who believe in the Common Law”
had “been willing to go farther to remedy the evils” of the “lamentably defective” federal
criminal law.127
Judge Peters, however, proved unwilling to stretch the boundaries of federal law
to encompass Muhlenberg’s customhouse bond for good behavior. “This is a fine
Theory,” mocked Peters in a private letter to Timothy Pickering some years later.
According to Peters’ account, the District Judge demanded that Dallas “point out any
Law to justify me,” but that “Dallas knew better.” Peters’ specific problem with the
Muhlenberg program was that bonds “to bind to good behavior and security of the peace”
were “not intended to include ex-territorial [sic] cases.” In short, the customhouses could
take bonds and demand that merchants behave outside of the United States. Customs
officials could only govern commercial behavior within their legally defined jurisdiction.
What was to be done, then, in the instance of a vessel that seemed to be arming “with
intentions to commit hostilities, either defensive or offensive, against either of the
belligerent powers”? Peters claimed that if faced with incontrovertible evidence of such
127
United States v. Peters (1795), 3 U.S. 121, 131. United States v. Worrall, 2 U.S. 384, 400 (1798). See
also, Preyer, “Jurisdiction to Punish,” 232. Richard Peters to Timothy Pickering, December 5, 1807, Box
1, Folder 3, Papers of Timothy Pickering, MHS.
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behavior, he would issue writs against the owners” allowing the customhouse to make a
seizure.128
If the customhouses could not themselves develop legal means to regulate the
armed Haiti trade, perhaps Congress could. Or so Jefferson and Gallatin hoped. At
Gallatin’s insistence, Jefferson dedicated choice words in his annual message to Congress
in November, 1804, to the question of armed merchant vessels. “Complaints have been
received that persons residing within the United States gave taken on themselves to arm
merchant vessels and to force a commerce into certain ports and countries in defiance of
the laws of those countries,” wrote Jefferson. That merchants “should undertake to wage
private war, independently of the authority of their country, can not be permitted in a
well-ordered society,” he continued. At stake was neutrality itself. Armed merchant
vessels might “endanger the peace of our own.” Thus Jefferson exhorted Congress to
“adopt measures for restraining it effectually in future.” This rhetoric alone was
poignant. As Jefferson explained to Thomas Paine, Napoleon “expressed satisfaction at
that paragraph in my message to Congress on the subject of that commerce.”129
Between November, 1804 and March, 1805, Congress considered legislation “to
regulate the clearance of armed merchant vessels” from the customhouses. Jeffersonians
in the house, led by William Eustis and Jospeh Clay, drafted the Muhlenberg plan of
customs bonds for good behavior into a statute “to prevent the forced trade to St.
Domingo,” as Clay put it. In order to clear a customhouse for a port in the West Indies, a
merchant would have to post bond on the promise not to “make or commit any
128
Peters to Pickering, December 8, 1806, Box 1, Folder 3, Pickering Papers.
Annals of Congress, 8th Cong., 2nd Sess., 11 (November 8, 1804). Gallatin’s influence is seen in Albert
Gallatin to Thomas Jefferson, October [n.d.], 1804, Writings of Albert Gallatin, 1:211. Thomas Jefferson
to Thomas Paine, June 5, 1805, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.:
Thomas Jefferson Memorial Association, 1907), 11:81.
129
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depredation, outrage, unlawful assault, or violence, against the vessels, citizens, subjects,
or territory of any nation in amity with the United States.” The bill met resistance from
un unexpected quarter, however, in the person of John Eppes, Jefferson’s son-in-law.
Eppes simply did not trust the merchants involved in the Haiti trade. “What!,” he
exclaimed, “shall it be permitted to every man, who can execute a bond, to wield the
arms of the nation?” His distrust owed to the fact that sentiments other than patriotism
and reverence for the public good motivated the merchant. By contrast, the merchant
vessel “armed banditti” navigated on “whim, caprice, or a thirst of lucre”—principles in
fact at odds with the rule of law. It was in this frame of reference that another Virginia,
Representative John G. Jackson, demanded that Congress carve out a new criminal
jurisdiction, between the categories of “piracy or felony,” for misdeeds performed by
armed merchant vessels at sea.130
Meanwhile, northeastern Federalists, a few commercially oriented republicans,
and mercantile lobbies sought to scuttle restrictions on arming merchant vessels. Senator
William Plumer of New Hampshire declared that “Our merchants have traded to St.
Domingo—Our government has never once intimated to them that the trade was
unlawful—or that they ought not to arm their vessels in carrying it on.” “On the
contrary,” continued Plumer, “our Merchants have at our Custom houses cleared out their
vessels for that island, when they were known to be fully armed & manned.” Louis
Pichon would have agreed, however, angrily, with Plumer’s conclusions. “Not a single
Collector has refused, or even hesitated, to give them a Clearance. Will our government
130
Annals of Congress, 8th Cong., 2nd Sess., 723 (draft bill; Clay); 812 (Eppes), 820 (Eppes), 834 (Jackson)
(December 13 and December 14, 1804).
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now…expose our innocent merchants to ruin! [sic]”131 The New York Chamber of
Commerce, too, offered a memorial against the legislation. Of course, they had to arm
their vessels in self-defense. Yet John Murray, President of the organization, offered a
second amendment rationale for arming. “The inhabitants of the United States have
immemorially claimed the right of possessing arms for the defence [sic] of their houses,
their lives, and property,” argued Murray. No matter “at home,” in “the bosom of the
State, “ or “upon the ocean,” the American “may lawfully carry arms in self-defence.”
Knowing that unadulterated individualism may not have been the most timely sentiment,
Murray also posited that the merchants were doing the work of government. Since “the
commerce of the United States is too diversified and widely extended” for protection by
naval “convoys,” armed merchant vessels would do what the state could not.132
While commercial interests who had been able to shape the practices of federal
governance at the customhouses, their allies now intervened at a higher level. As
historian Donald Hickey observes, Congress’ resulting legislation regulating the armed
Haiti trade was badly “watered down.” The dilution was largely the work of Republican
Senator Samuel Smith of Maryland, who led a special committee to consider the
legislation. Smith had made his considerable fortune as a merchant in the West Indies
and other trades, and he remained a close ally of the Baltimore overseas merchants.
Smith struck out most of the bill’s most punitive measures. However, Smith,
“Republican senators who were merchants themselves or closely connected with
131
One Republican who took several positions on the legislation was Jacob Crowinshield After seeking to
strengthen the bill’s punitive provisions in late November, Crowinshield sought to enervate the legislation
in mid-December. After noting that the bill “was highly interesting to the merchants of the United States,”
Crowinshield puzzled, “Why embarrass unnecessarily?” Annals of Congress, 8th Cong., 2nd Sess., 812,
826.
132
William Plumer, William Plumer’s Memorandum of Proceedings in the United States, 1803-1807, ed.
Everett S. Brown (New York: DaCapo Press, 1969), 188, 189. Memorial of the New York Chamber of
Commerce, December 21, 1804, reprinted in ASP: C&N 1:582.
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mercantile interests,” and their temporary Federalist allies, could not overcome a
Republican majority loyal to Jefferson. The final version required merchants to post
bond at the customhouse that they would only use their arms “merely for resistance and
defence, in case of involuntary hostility.”133
The 1805 law regulating the armed Haiti trade had little effect. Even allies of the
Jefferson administration like Congressman George Logan conceded that the legislation
had been merely nominal. In fact, Logan believed that the armed trade had grown “to as
great if not greater extent than formerly.” The French concurred. Due to the failure of
“neighboring neutral countries” to instill “measures which are in their power” against
“the infamous cupidity” of the Haiti merchants, French General Louis Ferrand predicted
a French naval onslaught on American vessels. For Ferrand, the whole situation could be
blamed on the customhouses. Ferrand declared that “the officers of the customs, in
several ports of the United States,” were facilitating the armed Haiti trade. They
customhouses also received the lion’s share of blame for allowing merchants to arm in
the first place.
In at least one instance, the accusations against customs officials for undermining
the 1805 armed Haiti trade law proved to be correct. In the summer of 1805,
Philadelphia magnate Stephen Girard refused to take out a bond for his Ship Voltaire
which had “4 pounders to be mounted as Signal Guns,” bound for Havana. Philadelphia
customs officials noted, “the owner binds himself to conform to the decision of the
Treasury on the Question of what is to be considered Arming! [sic].” Girard’s word
Hickey, “America’s Response to the Slave Revolt in Haiit,” 373. See, Frank A. Cassell, Merchant
Congressman in the Young Republic (Madison, Indiana: University of Wisconsin Press, 1971), 118-119,
119. 2 Statutes at Large 342 (March 3, 1805). It is worth noting that Smith’s daughter had married Otho
Holland Williams, Gary Lawson Browne, Baltimore in the New Nation, 1789-1861 (Chapel Hill:
University of North Carolina Press, 1980), 51.
133
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would suffice. Undoubtedly, Girard’s status allowed him to take this sort of action and
employ this rationale, for there was no more powerful a merchant Philadelphia. Yet, the
fact that customs officials’ felt no compunction about recording the transaction suggests
that that they expected others who would review the books to understand their own
decision-making logic.134
The failure of the 1805 law was evident beyond the Philadelphia waterfront.
Thomas Jefferson noted that continued tensions with France over the issue of “Santo
Domingo” owed to “the conduct of our merchants.” Meanwhile, Associate Justice of the
Supreme Court William Johnson struck a grave chord in his lengthy circuit opinion
upholding the United States powers to punish merchants trading with black Haitians in
violation of French law. “Every nation is bound to retrain its own citizens from the
commission of offences against all other nations,” began Johnson. Yet it was
“impossible, in the present state of things for the most vigilant government to prevent
those aggressions which [sic] a love of gain and spirit of adventure are hourly
producing.” American merchants who fought their way into Haitian controlled ports
were “waging an individual war.” The lures of the Haiti market, it seemed, had again
overawed the power of government.135
By late 1805, the persistence of the Haiti trade in the face of federal law
implicated American merchants in an even greater crime. Was it “sound policy” for
Americans to nourish the free “black population of St. Domingo whilst we have a similar
134
4 June 1805 Voltaire, Foreign Outward Cargo Manifests, January 1805 to June 1805, Entry 1059, RG
36, NARA-Phila. My thanks to Dr. Michelle Mormul for drawing my attention to this document. For a
general overview of Girard’s commercial prowess and the voyage of the Voltaire, see Albert J. Gares,
“Stephen Girard’s West Indian Trade, 1789-1812,” Pennsylvania Magazine of History and Biography, vol.
72, no. 4 (Oct., 1948), 311-342, esp. 336.
135
Jefferson to Paine, June 5, 1805. Rose v. Himely, 20 F. Cas. 1179, 1181 (1805).
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population in our Southern States,” wondered Congressman George Logan of
Pennsylvania. What if “an insurrection take place…in that part of the Union?” If the
contagion of liberty did indeed spread from Haiti to the American south, commerce
would no doubt bear the blame for, as historian Peter Linebaugh has aargued, sailing
vessels were “the most important conduit of Pan-African communication before the
appearance of the long-playing record.” In this context the failure of the customhouses to
meaningfully enforce the 1805 law threatened the nation’s very fabric.136
Moved by racial fears and “the pressing remonstrances [sic] of France,” Jefferson
now moved for a second law to suppress the armed Haiti trade.137 Since neither the
merchants nor the customhouses could be trusted with a partial measure such as the bond
for good behavior, Congress and the administration turned to an outright prohibition. In
January, 1806, Congress took up a measure to “prohibit the merchants of New York and
other Sea ports, form trading in the violent manner they have done with the revolted [sic]
negroes of Hayti.”138 Some deemed the effort hopeless because the customhouses simply
could not enforce any law restraining the Haiti trade. “No law,” declared Representative
Eppes, “can prevent the evasions of our merchants, if they are determined to trade with
the inhabitants of that islands [sic].” Jacob Crowninshield, who had taken every which
position on the 1805 law, now mocked the attempt to draft new legislation. “Pass what
Annals of Congress, 9th Cong., 1st sess., 28-9 (December 20, 1805). Peter Linebaugh, “All the Atlantic
Mountains Shook,” Labor/La Travailleur, vol. 10 (Autumn, 1982), 119. Notably, the Federalists, despite
cultivating close ties with Touissant L’overture during the Quasi War, had worried about the possible
effects of Haitian freedom on American slavery. Hickey, “America’s Response to the Slave Revolt in
Haiti,” 375-6.
137
Plumer, 379. Jefferson expressed his fears about fraying relations with France in his annual message to
Congress, Annals of Congress, 9th Cong., 1st Sess., 18-19 (December 10, 1805). See also, J. Holland Rose,
“British West India Commerce as a Factor in the Napoleonic War,” Cambridge Historical Journal, vol. 31,
no. 1 (1929), 39.
138
Samuel Latham Mitchill to Catherine Mitchill, n.d. [1806?] Samuel Latham Mitchill Papers, 1802-1815,
Clements Library, University of Michigan [emphasis added].
136
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law you please,” explained Crowinshield, for “you cannot stop the intercourse between
the citizens of the United States and the inhabitants of St. Domingo.”139
The February, 1806 ‘Act to suspend the Commercial intercourse between the
United States, and certain parts of the island of St. Domingo’ suffered the same fate as its
predecessor. As historian Donald Hickey explains, “the Haiti trade ban did not live up to
the hopes and fears of contemporaries.” American merchants and others still found ways
to get to Haitian markets. This was not challenging. After all, American merchants had
pursued this trade, under varying colors of legality, for several decades. As New York
Collector of Customs David Gelston explained, it was a simple task for American vessels
to secure a clearance for a nearby port, such as St. Thomas, and then “be employed to run
to & from the Cape [Francois].” Baltimore merchants added a clever twist to this
practice by landing at St. Thomas, undertaking a sham sale of their vessels to “Danish
Subjects and afterwards proceed to the Island of St. Domingo.”140 Other merchants used
the uncertainty of war to their advantage. The owners of the vessel Brutus, for instance,
sought a clearance for “the Island of Gonaive” off the northwest coast of Hispaniola, on
the grounds that the French had recently taken control of the island. Gelston thought it
fell under the 1806 prohibition. “Notwithstanding the respect due” to the merchants
pressing their case, Gelston worried that the practice “appears to me so much like an
evasion of the law.” For Gelston, the question embodied in the Brutus’ proposed journey
139
Annals of Congress, 510 (February 25, 1806).
David Gelston to Albert Gallatin, January 12, 1807, Box 5, Folder 5, Gelston Papers. Gabriel Christie
to McLam Turner, November 11, 1806, Port of Baltimore, Letter Book/Record of Letters, 1806-1809,
Series 1143, RG 36, NARA-Phila. See also, Gabriel Christie to Gabriel Duval, October 3, 1806, ibid.
140
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“appears to be of so much magnitude” as to determine the utility of the 1806 law. Thus
he requested that the Treasury Department provide succor. He received no answer.141
The Treasury Department’s pregnant silence on how, exactly, customs officials
were to enforce the 1806 Haiti embargo betrayed the Jefferson administration’s waning
concern with and ability to police the armed Haiti trade. Senator George Logan of
Pennsylvania conceded privately that in drafting the law, “it was not his intention to
prohibit the trade,” but rather solely “to please the French, which he said this bill would
do--& not injure our own traders.”142 This was a remarkably cynical interpretation of
several years worth of efforts to reign in a commerce that had, at different times, augured
racial apocalypse and world war. Indeed, the federal government had for several years
tried to police a commerce that promised to jeopardized the national interest. Repeatedly,
the customhouses had proven unable to strike a balance between local commercial
pressure and official policy. Governance that had so recently brought wealth and
authority to the federal government had come to appear dangerous.143
Conclusion
Just as the Jefferson administration turned its attention to regulating the armed
Haiti trade, Aaron Burr shot Alexander Hamilton in Weehawken, New Jersey. Hamilton
would die shortly thereafter. His indiscretions—romantic and political—had of course,
kept him out of government since 1795. Yet, the Jefferson administration’s struggles to
police the armed Haiti trade makes it difficult not to see Hamilton’s persisting influence
Hickey, “America’s Response to the Slave Revolt in Haiti,” 378. David Gelston to Albert Gallatin,
January 12, 1807, Box 5, Folder 5, Gelston Papers. For Gelston’s pursuit of this issue, see Gelston to
Nathaniel Sanford, January 20, 1807, Box 15, Folder 6, Gelston Papers.
142
Logan admitted as much in a conversation with William Plumer on January 21, 1806, Plumer’s
Memorandum, 387.
143
Hickey, “America’s Response to the Slave Revolt in Haiti,” 378.
141
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on federal governance, well into the nineteenth-century. It was Hamilton, after all, who
had counseled customs officials to more loosely interpret statutes and Treasury
instructions in ways that would secure the “good will of the Merchants.” It was
Hamilton, too, who established the powerful precedent that the central government would
not involve itself in the daily affairs of the customhouses. And finally, it was on
Hamilton’s watch that commercial peoples and federal officials negotiated sharp limits
on the customhouses’ ability to coerce merchants and others involved in the import
trades. For the better part of the Federalist era, it had been unnecessary to test those
negotiated limits. Due to the vicissitudes of the Napoleonic Wars, however, the Jefferson
administration would have to do so in the first decade of the nineteenth century.144
Historians are fond of telling the story of politics in the early American republic
by way of the profound intellectual conflict between Hamilton and Jefferson. They are
unquestionably convenient proxies—Hamilton for commerce and central government;
Jefferson for agrarianism and federalism. Yet, what occurred on the waterfront, in the
customhouses, and in the Treasury Department, between 1801 and 1807, and especially
in the context of the Haitian Revolution, illustrates central government and governance
was no less hoary under Jefferson than it had been under Washington and Adams.
Indeed, to the extent that there was a ‘Revolution of 1800’ at the customhouse, it was to
strengthen the commercial grasp over taxing and especially regulatory practices that had
taken root and flowered under the Federalists. For all its ideological difference, then, this
Republican government was stuck with Federalist governance.145
144
Hamilton to Olney, April 2, 1793.
See, for instance, Noble E. Cunningham, Jr., Jefferson v. Hamilton: Confrontations that Shaped a
Nation (New York: MacMillan, 2000). As a shorthand for political economic conflict, see John M. Murrin
145
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et al., Liberty, Equality, Power, A History of the American People: To 1877 (New York: Cengage Learning,
2008), 220-1.