Articles The Revolutionary Martyrdom of Jonathan Robbins Ruth Wedgwoodt If you had been as Robbins was What would you have done? What ought you not to do? And look at Robbins, Hanging at a British Yard-arm!! He was your fellow-citizen, And as brave a heart as bled at Lexington or Trenton; Alas poor Robbins! Alas poor Liberty! Alas poor humbled and degenerate country!* The last scene is the hardest to write, in drama and in revolution. Once political actors spurn existing allegiances, anxiety must attend. How is the revolution to close, consolidate itself and begin the normal tasks of governance? What regime of law can succeed pure politics? One way to examine these problems is in our own past, in the attitudes of our founding revolutionaries toward continuing insurgency. When the American War for Independence was completed and peace restored, did we see ourselves still as a revolutionary people, favoring structures of governance that would amplify popular voice and t Associate Professor of Law, Yale Law School. * Aurora (Philadelphia, Pa.), Sept. 3, 1799, at 2, col. 1. HeinOnline -- 100 Yale L.J. 229 1990-1991 The Yale Law Journal [Vol. 100: 229 sustain resistance against authority, championing rebellion abroad and at home against any undemocratic form? Or did we regard ourselves in a more conserva- tive mien, aloof from continuing challenge, seeing the revolution as one round only and returning to a classical ideal of government in which balance should quell upheaval, seeking our place in a settled family of nations and favoring forms of domestic governance that would enforce our commercial and public obligations under the law of nations? This Article proposes to examine our early self-conception, as revolutionary beacon or conservative actor, through the lens of the law concerning political extradition, in particular, the case of Jonathan Robbins in 1799 and 1800, leader of a rebellion on an English ship in the midst of the Napoleonic wars. Hung in chains for his part in the shipboard mutiny, surrendered to British military justice despite his last moment claim that he was an American impressed into the British navy, Jonathan Robbins provoked a pitched battle among Americans. Attitudes toward revolution and resistance may be set by varying judgment whether rebellion's violence and disorder can be controlled and contained. By that measure, Robbins gave stridor and alarm. He was the American regaining his freedom by force used in self-defense. He was also the seaborne Jacobin, claiming liberty as excuse for the pointless slaughter of a wardroom of ship's officers. All seemed unhinged by the fears of the 1790's. Though independence was confirmed by the peace of 1783, and Massachusetts agrarian unrest met by the strengthened Constitution of 1787, ratification of the infant text was succeeded by ideological innuendo and dread of seditious faction. Anglo-Federalists and Francophile Republicans worried in suspicion that European violence and ideological fever might sweep over America, and unsettle tentative constitution- al compromise with leveling or monarchial extremes. The crescendo of the Jonathan Robbins affair was built upon the fears attending a decade's dissi- dence-citizen Genet appealing to the people to resist Washington's declaration of neutrality, western Pennsylvania farmer-soldiers marching in resistance to federal taxation in the Whiskey Rebellion, eastern Pennsylvania farmers violent- ly disputing taxes in Fries Rebellion, the blandishment of Republican voices seeking alliance with revolutionary France in war against the European powers, High Federalists seeking alliance with England in war against the French. A reconstruction of the battle waged in 1799 and 1800 over Jonathan Robbins should dispel any notion that the Great Compromise of the Constitu- tional Convention settled the proper balance of forms of government. Some have suggested that a constitution's line of march is set in a few grand mo- ments which recast its order and direction. We may instead conclude that a constitution, established so little by text, must be seen as constantly re-created by practice and politics, with unwritten amendments threatened at frequent junctures. A renewed choice between classical and democratic forms lay at the heart of the action. Robbins' delivery challenged American relation to the HeinOnline -- 100 Yale L.J. 230 1990-1991 1990] Jonathan Robbins excesses of revolutionary violence and asked what form of government could reconcile resistance and law. The matter at stake in Robbins was a treaty undertaking made to Great Britain to return fugitives charged with murder, promised as part of an overall settlement of British claims against the United States in the Jay Treaty of 1794. The role of the jury and the House of Representatives, as organs of popular government, was seen as crucially challenged. The treaty article might have been construed to exclude rendition when the United States had concurrent jurisdiction over the crime, preserving a jury trial and a popular political defense to the defendant. It might have been read to require implementing legislation, or to require a full jury hearing of any political defenses before rendition was ever granted. But the opposite result was reached, permitting disappointment that the revolution was forgotten and the exemplary purpose of the Bill of Rights not understood, whose luminous statements caution interpretation even when a prohibitory rule is not breached. One might not suppose quarrels over the foreign affairs power would be central to setting domestic political structure in the aftermath of America's revolution. But at least three factors conjoined to make it so in the last decade of eighteenth century America. The treaty power allotted to President and Senate served as reminder of an alternative model of government, in which the deliberative virtues of a small collegial body are valued above immediate representation of popular political interests. The treaty power reminded that government need not be directly democratic. Too, ideological polarization in Europe was at its height; alliance or "weighted" neutrality was seen as choice of philosophy and tenor of government. With so little of American government settled by rule, with only practice and philosophy to harmonize rival powers, a foreign orbit seemed likely to distort domestic debate. The dangers seemed all the more acute when the orbit could be chosen by an aristocratic Senate and monocrat President. The third magnifier was history. In the English constitutional history available to American debaters, and in their own revolutionary experience, the foreign affairs power had posed a continuing danger to domestic entitlements-the urgent claims of foreign safety used as reason to assess new taxes or demands of supply without the consent of directly elected representa- tives. In the memory of Republicans and Federalists, conflicts between preroga- tive claims in foreign affairs and the popular control of government were what ripened into revolutions. In the Robbins case, the matter would be posed in its most acute form, with treaty power disposing of very liberty. We will see two models of governance competing for American allegiance. In the Republican model, the power of the Executive and its privy Senate must always be restrained. The popular voice of the House of Representatives must be allowed to check foreign undertakings. Faithful execution of "the law" is a narrow constitutional power, limiting the Presidency to the law as given by HeinOnline -- 100 Yale L.J. 231 1990-1991 The Yale Law Journal [Vol. 100: 229 Congress, excludimg Presidential execution of treaty undertakings or of the unwritten law of nations where they affect domestic enjoyments, unless the House has acceded. Restrictions on the exercise of personal liberty or use of property must always be approved by immediate legislative authorization and the assaying check of a jury. The competing model of Federalists takes heed of popular weaknesses. With the Constitution's new resolve to cure earlier incapacities, sovereign America's position in foreign affairs should drive constitutional construction. Executive power must be permitted to act efficaciously. Treaties made by the President and Senate must be counted fully as law. The Presidency must have authority to act upon treaty promises, and perhaps even upon the rules of the unwritten law of nations-even when the Presidential action occurs on-shore and affects citizens. "Law" is constituted from several sources, legislation only one among them, and the President's constitutional duty of faithful execution endows him with a large reserve for action. Though the Congress, acting by supermajority, may be able to forbid Presidential action that affects domestic entitlements, silence and inactivity is not a bar. The President may even seek to act through executive warrants and commissioners, spuming the ordinary jurisdiction of courts and juries, to implement international undertakings in domestic settings unchecked by any other branch. Though the mixture of substance and process will be troubling to formalist lawyers, the quarrel of century's close on the balance of power among constitu- tional branches interleaved the debate on America's revolutionary role in the world. In Jeffersonian eyes, how to distribute American foreign affairs power depended at least in part on political purpose, whether to enter into the settled legal relations of commercially ambitious nations, or to advance France's march