t It is related to have been from the pen of
Melancton
Smith.
Hamilton - 1834 - Life on Hamilton - v2
It might determine the con
duct of Great Britain as to the execution of the treaty, the
surrender of the posts, and the peace of the union.
It involved property of a great amount, and numerous
cases depending on the same principle. It was the deci-
sion of a controversy between a wealthy merchant--a
British subject, an adherent of the enemy--and a fugitive,
an exile, a poor American widow, impoverished by the
war. It was tried while the strife of the fierce contest
was recent, in the midst of a dilapidated and yet disorder-
ed city, when all around were beheld the ravages of the
invader, in a hall of justice desecrated and marred by
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? 216
THE LIFE OF
the excesses of its late occupants, a licentious soldiery.
On one side was the attorney-general of the state, armed
with all its authority to sustain its laws, representing the
passions of an inflamed community, pleading for the
widowed exile. On the other stood Hamilton, resting on
the justice of this mighty cause.
The plaintiff's task was obvious. It was to insist upon
the statute. The statute was explicit. Both the parties
were within its provisions. It was obligatory, and no
court of that state, no court especially of limited jurisdic-
tion, could look beyond it. Look where? To the laws
of nations,--laws having no settled foundation, undergo-
ing constant change, affording no certain rule, and which
ought to have no influence on the government of this state
or upon the people. The war was unjust, admitted by
the enemy to be unjust. By an unjust war, the unjust
party acquires no rights, for no rights can be derived from
an injury. It was not a solemn war, and therefore con-
ferred no rights upon the captor. Nor was that court to
be controlled by the treaty. New-York was a sovereign,
independent state. Congress had no right to bind the
state in this matter; it was interfering with its internal
police. Can they by treaty give away the rights of its
citizens 1 A case like this had never before been heard
of. It was without a precedent, and stood upon the sta-
tute.
Hamilton felt the advantageous position of his oppo-
nent. He passed by the immediate parties to the suit, and
spoke to the question. In a brilliant exordium,* he dila-
ted on its importance in all its various aspects; declared
that the decision might affect all the relations of two great
empires, might be discussed in Europe, and might produce,
* The outline of this speech is framed from an extended brief, giving all
the points of the argument and the authorities.
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? HAMILTON.
247
according to the issue, a good or bad impression of our
country. It would establish precedents that might give a
complexion to future decisions, would remain a record of
the spirit of our courts, and would be handed down to
posterity as indicating the character of our jurisprudence.
It was a question of a most comprehensive nature; its
merits include all the principles which govern the inter-
course between nations. Heretofore our courts have
seemed to consider themselves in an inferior light; their
decisions must hereafter form precedents.
Having thus appealed to the pride of the court, he pro-
ceeded :--" We are told there is no precedent. Then, in-
deed, it is a new case, and a new case must be determined
by the law of nature and the public good. Where the
law is silent, the judge speaks; and the most ancient au-
thority states that in England cases were adjudged accord-
ing to equity, before the customs of the realm were writ-
ten and made certain. This question must be decided by
the laws of nations. But what, it is asked, are the laws of
nations? Where are they to be found? --They are the
deductions of reason, to be collected from the principles
laid down by writers on the subject and established by
the authorized practice of nations, and are a part of the
law of the land. The laws of nations and the laws of
war are part of the common law. "
He then stated the two great divisions of the laws of
nations. The natural, necessary, or internal, universally
binding on the conscience of nations; but in its external
obligations, controlled by the positive or voluntary law
for the good of mankind, which is equally obligatory, and
is enjoined by the natural law.
By the necessary law, the party making an unjust war
acquires no rights, and is bound to make reparation for all
damages. By the voluntary law--which may be defined,
that system of rules which grow out of the independence
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THE LIFE OF
of distinct political associations, qualifying their natural
rights as individuals--both parties have equal rights, hav-
ing no common judge; and the effects of a war on both
sides, are the same.
These effects are principally impunity, the acquisition
of property; a rule established to promote the general
peace of mankind, by removing discussions about the jus-
tice of the war, and the proportion of the damages to the
injury and the security of purchasers, especially neutrals.
But it is objected, this was not a solemn war. The ap-
proved practice of nations is against this objection. But
it was a solemn war. Formalities are arbitrary--an act
of parliament authorized hostilities. The declaration of
independence speaks of an open war subsisting. Congress
formally authorized our citizens to cruise. It has been
said that the state of New-York has no common law of
nations. The answer is, that law results from the relations
of universal society--that our constitution admits the
common law, of which the law of nations is a part--and
that the United States direct our foreign intercourse, and
have expressly become parties to the law of nations. What
are the effects of a war? The general proposition is, that
movable goods belong to the captor forever, as soon as
the battle is over; the fruits of immovables, while they are
in possession. Other rules have been laid down with re-
spect to movables; but the true rule is, the battle being
over. The ancient precedents of pleading are not that
the prize remained a night with the enemy, but that it was
gained by battle of the enemy; and pleading is the touch-
stone of the law. The common law carries the rights of
war so far as to give property in a prisoner, and an action
of trespass for taking him away. Hence, we see the com-
mon law not only adopts the law of nations in its full ex-
tent as a general doctrine, but particular adjudications
recognise the operation of capture.
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? HAMILTON. 249
r
The second branch of the discussion related to the effect
of the treaty of peace, and tended to show that this action
could not be maintained without a violation of the treaty;
every treaty of peace including an amnesty, which is of
its very essence, between private persons as well as the
contending publics. To the objection, that congress had
no right to bind the state, that it was meddling with its in-
ternal police, he replied, that on that construction," the
confederation was the shadow of a shade;" but that con-
gress had an unquestionable right; that " the sovereignty
and independence of the people began by a federal act;
that our external sovereignty is only known in the union--
that foreign nations only recognise it in the union; that the
declaration of independence was the fundamental consti-
tution of every state, all of which was acceded to by the
convention of New-York, which does not pretend to au-
thenticate the act, but only to give their approbation to it:"
that hence it followed," that congress had complete sover-
eignty; that the union was known and legalized in the
constitution of New-York previous to the confederation,
and that the first act of the state government adopted it as
a fundamental law; from which reflections," he says, " we
are taught to respect the sovereignty of the union, and to
consider its constitutional powers as not controllable by
any state. "
The confederation is an abridgment of those powers;
but, mutilating as it is, it leaves congress the full and ex-
clusive powers of war, peace, and treaty. The power of
making peace, is the power of determining its conditions.
It is a rule of reason and law, that to whomsoever any
thing is granted, that also is granted without which it can-
not exist. If congress have not a power to adjust an
equivalent for damages sustained, and remit the rest, they
have no power to make peace. It is true that this power
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? 250
THE LIFE OF
does not permit the making all possible conditions,--such
as dismembering the empire, or surrendering the liberties
of the people; but it includes the power of making all rea-
sonable and usual conditions--such is a remission of dam-
ages,--for without it the state of war continues.
But it may be asked, tiow can congress, by treaty, give
away the rights of citizens of New-York? To this I an-
swer--First, that the citizens of New-York gave them
power to do it for their own safety--Secondly, that the
power results from this principle of all governments: that
the property of all the individuals of a state is the property
of the state itself, in regard to other nations. Hence, an
injury from the government gives a right to take away, in
war, the property of its innocent subjects. Hence, also,
the claim of damages for injuries done is in the public, who
may agree for an equivalent, or release the claim without
it; and, our external sovereignty existing in the union,
the property of all the citizens, in regard to foreign states,
belongs to the United States, as a consequence of what is
called the eminent domain. Hence, to make the defend-
ant answerable, would be a breach of the treaty of peace.
It would be a breach, also, of the confederation. Con-
gress have the exclusive right of war and peace. Congress
have made a treaty of peace, pursuant to their power; a
breach of the treaty is a violation of their constitutional
authority, and a breach of the confederation. The power
of congress in making treaties, is of a legislative kind:
their proclamation enjoining the observance of it is a law,
and a law paramount to that of any particular state. But
it is said," the sovereign authority may, for reasons of state,
violate its treaties, and the laws in violation of them bind
its own subjects. This allegation goes on bold ground,
that the legislature intended to violate the treaty. But I
aver that in our constitution it is not true that the sover-
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? TIAMILTON.
251
eignty of any one state has legally this power. Each state
has delegated all power of this kind to congress. They
are equally to judge of the necessity of breaking, as of the
propriety of making, treaties. "
"The legislature of any one state has nothing to do with
what are called ' reasons of state/ We might as well say
a particular county has a right to alter the laws of the state,
as a particular state the laws of the confederation. It has
been said, and it may be said again, that the legislature
may alter the laws of nations. But this is not true in the-
ory, nor is it constitutional in our government; for con-
gress have the exclusive direction of our foreign affairs, and
of all matters relating to the law of nations. No single
state has any legal jurisdiction to alter them.
"It may again be said, that the accession to the confed-
eration was an act of our legislature. Why may not an-
other act alter or dissolve it? I answer, it is not true; for
the union is known in our constitution as pre-existing.
The act of confederation is a modification and abridgment
of federal authority by the original compact.
"But if this were not the case, the reasoning would not
apply. For this government, in acceding to the confeder-
ation, is to be considered, not as a sovereign enacting a law,
but as a party to a contract; as a member of a more ex-
tensive community agreeing to a constitution of govern-
ment. It is absurd to say, one of the parties to a contract
may, at pleasure, alter it without the consent of the others.
It will not be denied that a part of an empire may, in cer-
tain cases, dismember itself from the rest. But this sup-
poses a dissolution of the original compact. While the
confederation exists, a law of a particular state derogating
from its constitutional authority is no law. But how, you
ask, are the judges to decide? they are servants of the
state. I answer, the confederation vesting no judicial
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? 252
THE LIFE OF
powers in congress, excepting in prize causes, in all other
matters the judges of each state must of necessity be judges
of the United States, and they must take notice of the law
of congress as a part of the law of the land. For it must
be conceded, that the legislature of one state cannot repeal
a law of the United States.
"What is to be done in such a case? It is a rule of law,
that when there are two laws, one not repealing the other,
expressly or virtually, the judges must construe them so as
to make them stand together. That golden rule of the
Roman orator may be applied: 'Primum igitur leges
oportet contendere considerando utra lex ad majores, hoc
est ad utiliores, ad honestiores ac magis necessarias res perti-
nent. Ex quo conficiscitur utsi leges duce aut si plures aut
quotcunque erunt conservari non possint quia discrcpent
inter se, ea maxime conservanda putetur qua? ad maxi-
mas res pertinere videntur'--'Where two or more laws
clash, that which relates to the most important concerns
ought to prevail. '
"Many of these arguments are on the supposition, that
the trespass act cannot stand with the laws of nations and
the treaty. It may, however, legally receive such a con-
struction as will stand with all; and to give it this con-
struction is precisely the duty of the court. We have seen
that to make the defendant liable, would be to violate the
laws of nations, and forfeit our character as a civilized
people; to violate a solemn treaty of peace, and revive the
state of hostility; to infringe the confederation of the United
States, and to endanger the peace of the whole. Can we
suppose all this to have been intended by the legislature?
The answer is,'the law cannot suppose it: if it were in-
tended, the act is void. '"
He then proceeded to state rules for the construction of
statutes, which rendered this extremity unnecessary, quo-
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? HAMILTON.
253
ting the observation of Cato, "Leges enim ipsac cupiunt
ut jure regantur. "
The argument extended to an examination of the juris-
diction of the court, and to a minute investigation of the
distinctions to be taken between citizens and British sub-
jects, claiming the protection of the law of nations. It
closed with a strong exposure of the criminality of the
procedure, and with a vehement exhortation to preserve
the confederation and the national faith; quoting the
beautiful apothegm of Seneca, " Fides sanctificissimum hu-
mani pectoris bonum est. "
Amidst all the refinements which have been resorted to
in order to impair the powers of the constitution, and to
construe it as a compact of states, revocable at the will of
either of the contracting parties, it is deeply interesting
to advert to this early exposition of the true principles of
the American union. An union formed indeed by com-
pact, but by a compact between the people of these
colonies with every individual colonist before the ex-
istence of states; recognised by the people of each
state, in their state constitutions; confirmed by them
as states, in the articles of confederation; and sub-
sequently "perfected" in a constitution ordained and
established by the people "for the United States of
America. "
The result of this argument was a triumph of right over
usurpation. The decision indicates the difficulties with
which the defendant contended ; but the force of the
treaty to overrule the inhibition against pleading a milita-
ry order, was admitted. The court also declared--" Our
union, as has been properly observed, is known, and le-
galized in our constitution, and adopted as a fundamental
law in the first act of our legislature. The federal com-
pact hath vested congress with full and exclusive powers
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? 254 THE LIFE OF
to make peace and war. This treaty they have made
and ratified, and rendered its obligation perpetual; and
we are clearly of opinion, that no state in this union can
alter or abridge, in a single point, the federal articles or
the treaty. "
This decision is the more meritorious, because made by
judges holding by a temporary tenure, soon after the ses-
sion of a legislature which had shown a fixed purpose to
persevere in their odious and impolitic violence.
A few days after this judgment was rendered, a large
public meeting was convened,* and an address to the peo-
ple of the state was passed. This address,f after remark-
ing on "the immense ability and learning" of the argu-
ment, exhorted the people, in their choice of senators, to
elect men who would spurn any proposition that had a
tendency to curtail the privileges of the people, and who
would protect them from judicial tyranny. "Having con-
fined themselves," it stated, "to constitutional measures,
and disapproving all others, they were free in sounding
the alarm. If their independence was worth contending
for against a powerful and enraged monarch, and at the
expense of the best blood of America, surely its preserva-
tion was worth contending for against those among our-
selves who might impiously hope to build their greatness
upon the ruins of that fabric which was so dearly estab-
lished. "
The legislature assembled soon after this meeting.
Without waiting the result of an appeal, which the consti-
tution secured, this decision, made in due form of law, and
with unimpeached fairness, was brought before the assem-
bly. Resolutions were passed, declaring it to be subversive
? Sept. 13th, 1784.
t It is related to have been from the pen of Melancton Smith.
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? HAMILTON.
255
of all law and good order, and the council of appointment
were recommended at their next session, "to appoint such
persons mayor and recorder of New-York, as will gov-
ern themselves by the known law of the land. "
The ability displayed by Hamilton on these occasions,
his liberal views and distinguished probity, gathered around
him the enthusiastic confidence and affection of the better
part of his fellow-citizens; and at a time when the judicial
character of the state was to be formed, and, from the dis-
turbed situation of the community, professional trusts were
of the most important and extensive influence, he was fore-
most in endeavouring to secure to the laws an honest and
enlightened administration.
This was not an easy task. The general relaxation of
morals, an usual and most lamentable concomitant of war,
was attended with a prevailing disregard of, and disposi-
tion to question, the decisions of the courts. In the politi-
cal speculations to which the revolution had given rise,
the sovereignty of the popular will, which was recognised
as the basis of every proceeding, was pushed to the utmost
extremes in its application; and wherever the operations
of the laws bore hard, in the then unsettled relations of
society, to recur to the elementary principles of govern-
ment, and resolve every rule by its apparent adaptation to
individual convenience, was the prevailing tendency of
public opinion. The course of the contest, the means by
which it had been conducted, the extravagant schemes it
had engendered, gave every citizen a strong personal in-
terest in its results, and, long before its termination, had
divided the population into the opposite and hostile classes
of debtors and creditors; each of which being compelled
to unite, either for the common purpose of delaying or en-
forcing justice, acquired the dangerous, disorganizing, and
formidable character of an intestine party.
The laxity of the national faith, as it sprung from, also
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? 256
THE LIFE OF
confirmed this distinction. The loose opinions which had
gradually led on to an unjust discrimination between the
public creditors of different descriptions, soon took posses-
sion of the popular mind, induced preferences equally un-
just in private affairs, and ultimately prostrated all respect
for the obligations of contracts, and for the tribunals by
which they were to be expounded and enforced. This
lawless spirit which pervaded the country, was principally
shown in questions growing out of the claims of two class-
es of creditors, whose situation, though totally different,
it was sought to confound,--those of British merchants,
for debts incurred previous to the revolution, and the
claims of thp tories, either for money due to them, or for
lands of which possessions,' had been taken as enemies'
property.
The animosity natural to the combatants in a civil con-
flict; the enormities committed by the refugees, when the
scale of war seemed to incline in their favour, or where
they could continue their molestations with impunity; the
harassing inroads and depredations which they had made
on private property, and on the persons of non-combatants,
and the harsh and cruel councils of which they were too
often the authors, appeared to the people at large to sane
tion every species of retaliation, and to place the tories be-v
yond the pale of humanity.
This was merely the popular feeling. Both the govern
ments of the United States, and of the individual states,
with few exceptions, resisted these attempts, and sought
to instil a spirit of moderation and forbearance, becom-
ing the victorious party. In the progress of the conflict,
and particularly in its earliest periods, attainder and confis-
cation had been resorted to generally, throughout the conti-
nent, as a means of war. But it is a fact important to the
history of the revolting colonies, that the acts prescribing
penalties, usually offered to the persons against whom they
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? HAMILTON.
257
were directed the option of avoiding them, by acknow-
ledging their allegiance to the existing governments.
It was a preventive. not a vindictive policy. In the
-? game humane spirit, as the contest approached its close
and the necessity of these severities diminished, many of
the states passed laws offering pardons to those who had
been disfranchised, and restoring them to the enjoyment
of their property; with such restrictions only as were
necessary for the protection of their own citizens. In
others, different councils unfortunately prevailed. In New-
Jersey, meetings were held urging a non-compliance with
the treaty, in consequence of the non-fulfilment by Eng-
land of the seventh article, stipulating the return of the
negroes and the restoration of the posts.
In Virginia,* the house of delegates resolved,f "That
confiscation laws, being founded on legal principles, were
strongly dictated by that principle of common justice
which demands that if virtuous citizens, in defence of their
natural rights, risk their life, liberty, and property on
their success; vicious citizens who side with tyranny and
oppression, or cloak themselves under the mask of neu-
trality, should at least hazard their property, and not enjoy
the labours and dangers of those whose destruction they
wished. And it was unanimously declared, that all demands
and requests of the British court for the restitution of pro-
perty confiscated by this state, being neither supported by
law, equity, or policy, are wholly inadmissible; and that
our delegates be instructed to move congress that they
may direct their delegates, who shall represent these states
in a general congress for adjusting a peace or truce, nei-
ther to agree to any such restitution, or submit that the
laws made by any independent state of this union, be
* Almon's Remembrances, p. 92, v. 10, 2d part.
t December 17th, 1782.
33
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? 258
THE LIFE OP
subject to the adjudication of any power or powers on
earth. "
A proclamation was subsequently issued by its governor,
enjoining all those who had adhered to the enemy since
the nineteenth April, seventeen hundred and seventy-five,
or had been expelled by an act of the legislature, or who
had borne arms against the commonwealth, to leave the
state. And an address from the county of Caroline was
presented to the legislature, stating," they see the impolicy,
injustice, and oppression of paying British debts! "
In Massachusetts, a committee of the legislature of which
Samuel Adams was chairman reported that no person
who had borne arms against the United States, or lent
money to the enemy to carry on the war, should ever be
permitted to return to the state. * Resolutions of an intem-
perate character were also brought forward at public
meetings in Maryland; and a bill containing many objec-
tionable features was introduced in the popular branch of
its legislature, but it was resisted with great eloquence, ad-
mirable sense, and unyielding firmness in the senate by
two respected individuals, Charles Carroll and Robert
Goldsborough, and was essentially modified.
In New-York, the division of public sentiment at the
opening of the revolution being very great, each party
viewed the other with the most jealous eyes, and felt more
seriously the importance of individual exertions. The
first act of hostility invited retaliation. Instead of looking
to general results, the people of that state were driven to
desperation by their continued uncertainty and alarm from
dangers which menaced their double frontier.
The laws which were passed for their protection, for
the apprehension of persons of "equivocal character,"
* Report on the files of the general court of Massachusetts, March 16th,
1784.
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? HAMILTON. 259
early in the warfare, were soon followed by the establish-
ment of a board of commissioners of sequestration. An
institution which, though at first confided to safe hands,
was unavoidably intrusted with powers that naturally lead
to abuse, and ultimately became the organ of many harsh
and oppressive proceedings.
Civil discord striking at the root of each social relation,
furnished pretexts for the indulgence of malignant pas-
sions; and the public good, that oft-abused pretext, was
interposed as a shield to cover offences which there were
no laws to restrain.
The frequency of abuse, created a party interested both
in its continuance and exemption from punishment, which
at last became so strong, that it rendered the legislature
of the state subservient to its views, and induced the en-
actment of laws attainting almost every individual whose
connections subjected him to suspicion, who had been
quiescent, or whose possessions were large enough to pro-
mise a reward to this criminal cupidity.
It must not be supposed that these attempts were unre-
sisted. On the contrary, those who were most efficient in
their support of the revolution--those who had incurred
the greatest losses--some of those to whom the contest had
offered few other fruits than an uninterrupted sacrifice of
feeling and property, and who might with much plausibility
have thus reimbursed themselves--offered a steady resist-
ance to these arbitrary edicts; and when it was at last
found to be unavailing, by appearing to unite in the
measures of persecution, and by including in the number
of the attainted the names of those whose proscription
threatened to affect the personal interest of the most vio-
lent, showed them the danger of this game of intoler-
ance.
These proceedings only exasperated the passions of the
populace, and soon after the intelligence of peace, tumult-
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THE LIFE OF
uous meetings were convened under the thus disgraced
name of " the sons of liberty," to denounce the tories, to
menace them from returning to claim their estates, and to
remonstrate with the legislature against measures that
could affect titles by confiscation.
The circumstances under which the election in the city
of New-York was held, bespeak the character of the now
dominant party. A council had been created for the
temporary government of the southern district of the
state, who were directed to impose a prescribed oath to
its electors--an oath that they had not been guilty of any
past offences. In reference to this retrospective inquisi-
tion into the consciences of men, Hamilton remarked--" A
share in the sovereignty of the state, which is exercised by
the citizens at large in voting at elections, is one of the
most important rights of the subject, and in a republic
ought to stand foremost in the estimation of the law. It
is that right by which we exist a free people; and it cer-
tainly, therefore, will never be admitted, that less ceremo-
ny ought to be used in divesting any citizen of that right,
than in depriving him of his property. Such a doctrine
would ill suit the principles of the revolution, which taught
the inhabitants of this country to risk their lives and for-
tunes in asserting their liberty; or, in other words, their
right to a share in the government. That portion of the
sovereignty to which each individual is entitled, can never
be too highly prized. It is that for which we have fought
and bled ; and we should cautiously guard against any
precedents, however they may be immediately directed
against those we hate, which may in their consequences
render our title to this great privilege precarious. "
These considerations were disregarded, and this oath
was prescribed. The election was thus in the hands of a
few violent persons, together with those who were tempt-
ed, by this bribe, to perjury.
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? HAMILTON.
201
As a consequence, the representation was composed of
men of a similar character--the most conspicuous of whom
was Aaron Burr--men chosen by an infuriate populace,
in the midst of a disturbed and overawed city.
The proscribed petitioned for permission to return to
their residences. This was a moment which magnanimity
would have embraced to shield the defenceless; but Clin-
ton, in his opening speech to the legislature, threw all the
weight of his powerful influence into the popular scale.
"While," he said, " we recollect the general progress of
a war which has been marked with cruelty and rapine--
while we survey the ruins of this once flourishing city
and its vicinity--while we sympathize in the calamities
which have reduced so many of our virtuous fellow-citi-
zens to want and distress, and are anxiously solicitous to
repair the wastes and misfortunes we lament," we cannot
listen to these petitions. They were rejected, and a bill
respecting alienism was passed, which was negatived, on
great public principles, by the council of revision.
Two days after the vote on the recent adjudication as to
the treaty, resolutions passed the assembly, calling on the
governors of the states to interchange lists of the persons
who had been banished, in order, as was professed, that the
principles of the federal union might be adhered to and
preserved. They were followed by others declaring that
the rules of justice did not require--and that public tran-
quillity would not permit--that attainted adherents should
be restored to the rights of citizens.
A bill was then introduced, under the specious title of
"An act to preserve the freedom and independence of the
state," disfranchising all persons who had voluntarily re-
mained in those parts of the state which had been occu-
pied by the British, and adjudging them guilty of mispris-
ion of treason without trial, in direct contravention of the
treaty. This bill was also rejected by the revisionary
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council; one of the reasons assigned being, that its opera-
tions would be so extensive, that in most places of the ob-
noxious district it would be difficult, and in many impos-
sible, to find men to fill the necessary offices even for con-
ducting elections, until a new set of inhabitants could be
procured!
A resolution was also introduced, that, notwithstanding
the recommendations of congress, they could not comply
with the fifth article of the treaty. At the same time an
act to repeal the laws inconsistent with it, was rejected by
North Carolina.
It will be remarked, that through the whole of these pro-
ceedings intolerance sought to conceal its deformity under
the mask of the demagogue--a watchful solicitude for lib-
erty, and a distrust of designs to effect a revolution in the
genius of the government.
It is an invidious office to accumulate testimony of the
vitiated state of the popular feeling at this time, and to
embody the evidence of facts tending to impair the nation-
al character, were not a lesson to be derived from them of
infinite value--the tendency of the state governments in
moments of excitement to violate the admitted maxims of
public law, to disregard the most sacred obligations, and
to encroach upon and undermine the rights of individuals,
and that the only security of the American citizen against
local violence and usurpation, is in his national character,
and the broad protection which a well-balanced general
government can alone give.
To show the extent to which the rapacious spirit of the
times was carried, but one more instance will be adduced.
It was a proposal to confiscate the estates of " the society
instituted by a charter from the British government for
the propagation of the gospel in foreign parts," in which
light the British colonies and plantations were regarded in
that charter--notwithstanding the fifth and sixth articles
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? n AMILTON.
2(53
of the treaty--notwithstanding the pure and benevolent
purposes of its institution--notwithstanding that from its
very nature it could not have had any agency in the war,
nor have become the object of resentment and confisca-
tion. This purpose called forth the indignant and deter-
mined opposition of Hamilton. He contended that a re-
gard to honour, justice, and humanity, ought to be alone
sufficient to restrain the legislature from wresting their
estates from the hands of a charitable society which had
committed no offence to incur a forfeiture; and that
especially in an hour of profound tranquillity. That if
the articles of the treaty had been silent on the subject
of confiscation, yet under a general treaty of peace, it
being an established maxim of the law of nations, which
is a part of the law of the land, that every such treaty
virtually implies an amnesty for every thing done du-
ring the war, even by an active enemy, that the rights
of this society were therefore necessarily secured; and
that as the exclusive right of making peace and war be-
longed to the great federal head of the nation, every
treaty made by their authority, was binding upon the
whole people, uncontrollable by any particular legislature,
and that any legislative act in violation of the treaty, was
illegal and void; and that upon a different construction,
"the confederation, instead of cementing an honourable
union, would, with respect to foreign powers, be a perfidi-
ous snare ? and every treaty of peace, a solemn mockery. "
However desirable it may have appeared to the mag-
nanimous part of the community to bury their resentments
from motives of benevolence, it became now apparent that
their efforts could no longer be confined to mere persua-
sion, but that the fears of the considerate must be aroused
to a general co-operation. The effect of popular violence,
though steadily resisted by the American courts, was seen
strongly operative in the councils of Great Britain. The
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T TI n LIFE OF
protection of the tories had, during the discussions of the
provisional treaty, been a subject of much anxious negotia-
tion. When she found that the recommendations of con-
gress were wholly disregarded, England made these pro-
ceedings a ground for refusing the indemnities for spolia-
tions stipulated by the treaty, and for what was a source
of more general interest and alarm, a refusal to deliver up
the frontier posts, which kept in awe the whole interior of
the country. Hamilton, who, as early as the spring of
seventeen hundred and seventy-eight, had been the open ad-
vocate, if the revolution should be eflected, of a general
act of amnesty and oblivion, could no longer brook the
tyranny of a small number of active demagogues, the found-
ers of the democratic party in the state of New-York.
He resolved to come forward as a mediator between the
passions and the true interests of the people. With this
view, in the winter of seventeen hundred and eighty-four,
he addressed a pamphlet "to the considerate citizens of
New-York on the politics of the times, in consequence of
the peace," under the signature of " fhocion. "
This brief production, written at a time when the author
says " he has more inclination than leisure to serve the peo-
ple, by one who has had too deep a share in the common
exertions in this revolution to be willing to see its fruits
blasted by the violence of rash or unprincipled men, with-
out at least protesting against their designs," contains an
earnest appeal to the friends of liberty, and to the true
whigs, on the enormity of the recent laws passed by men
"bent upon mischief, practising upon the passions of the
people, and propagating the most inflammatory and perni-
cious doctrines. "
The persons alluded to, he says, " pretend to appeal to
the spirit of whigism, while they endeavour to put in mo-
tion all the furious and dark passions of the human mind.
The spirit of whigism is generous, humane, beneficent, and
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? HAMILTON.
265
just. These men inculcate revenge, cruelty, persecution,
and perfidy. The spirit of whigism cherishes legal liberty.
holds the rights of every individual sacred, condemns or
punishes no man without regular trial, and conviction of
some crime declared by antecedent laws, reprobates equally
the punishment of the citizen by arbitrary acts of the le-
gislature, as by the lawless combinations of unauthorized
individuals; while these men are the advocates for expelling
a large number of their fellow-citizens unheard, untried;
or, if they cannot effect this, are for disfranchising them in
the face of the constitution, without the judgment of their
peers, and contrary to the law of the land. "
The danger of this arbitrary power, the extent to which
it had been abused by being exercised against general de-
scriptions of persons, are strongly portrayed. "Nothing is
more common," Hamilton observed," than for a free people,
in times of heat and violence, to gratify momentary pas-
sions, by letting into the government principles and prece-
dents which afterwards prove fatal to themselves. Of
this kind is the doctrine of disqualification, disfranchise-
ment, and banishment by acts of the legislature. The
dangerous consequences of this power are manifest. If
the legislature can disfranchise any number of citizens at
pleasure by general descriptions, it may soon confine all
the votes to a small number of partisans, and establish an
aristocracy or an oligarchy; if it may banish at discretion
all those whom particular circumstances render obnoxious,
without hearing or trial, no man can be safe, nor know
when he may be the innocent victim of a prevailing fac-
tion. The name of liberty applied to such a government,
would be a mockery of common sense.
"The English whigs, after the revolution, from an over-
weening dread of popery and the pretender, from triennial,
voted the parliament septennial. They have been trying
ever since to undo this false step in vain, and are repenting
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THI3 LIFE OF
the effects of their folly in the overgrown power of the new
family.
"Some imprudent whigs among us, from resentment to
those who have taken the opposite side, (and many of them
from worse motives,) would corrupt the principles of our
government, and furnish precedents for future usurpations
on the rights of the community.
"Let the people beware of such counsellors. However
a few designing men may rise in consequence, and advance
their private interests by such expedients, the people at
large are sure to be the losers in the event, whenever they
suffer a departure from the rules of general and equal just-
ice, or from the true principles of universal liberty. "
The profligacy of violating the treaty--a treaty in
which Great Britain had made the most important conces-
sions, and for which the only equivalent was & stipulation
that there should be no future injury to her adherents--is
then exposed. "Can we do," he asks, "by act of the legis-
lature what the treaty disables us from doing by due course
of law? This would be to imitate the Roman general,
who, having promised Antiochus to restore half his vessels,
caused them to be sawed in two before their delivery; or
the Platajae, who having promised the Thebans to restore
their prisoners, had them first put to death, and returned
them dead. Such fraudulent subterfuges are justly con-
sidered more odious than an open and avowed violation of
treaty. "
The supremacy of congress on this subject, the dangers
to result from the retaliatory acts of England by retain-
ing the posts, and an exclusion from the fisheries, and the
impolicy of measures which keep alive in the bosom of
society the seeds of perpetual discord, are forcibly painted.
duct of Great Britain as to the execution of the treaty, the
surrender of the posts, and the peace of the union.
It involved property of a great amount, and numerous
cases depending on the same principle. It was the deci-
sion of a controversy between a wealthy merchant--a
British subject, an adherent of the enemy--and a fugitive,
an exile, a poor American widow, impoverished by the
war. It was tried while the strife of the fierce contest
was recent, in the midst of a dilapidated and yet disorder-
ed city, when all around were beheld the ravages of the
invader, in a hall of justice desecrated and marred by
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the excesses of its late occupants, a licentious soldiery.
On one side was the attorney-general of the state, armed
with all its authority to sustain its laws, representing the
passions of an inflamed community, pleading for the
widowed exile. On the other stood Hamilton, resting on
the justice of this mighty cause.
The plaintiff's task was obvious. It was to insist upon
the statute. The statute was explicit. Both the parties
were within its provisions. It was obligatory, and no
court of that state, no court especially of limited jurisdic-
tion, could look beyond it. Look where? To the laws
of nations,--laws having no settled foundation, undergo-
ing constant change, affording no certain rule, and which
ought to have no influence on the government of this state
or upon the people. The war was unjust, admitted by
the enemy to be unjust. By an unjust war, the unjust
party acquires no rights, for no rights can be derived from
an injury. It was not a solemn war, and therefore con-
ferred no rights upon the captor. Nor was that court to
be controlled by the treaty. New-York was a sovereign,
independent state. Congress had no right to bind the
state in this matter; it was interfering with its internal
police. Can they by treaty give away the rights of its
citizens 1 A case like this had never before been heard
of. It was without a precedent, and stood upon the sta-
tute.
Hamilton felt the advantageous position of his oppo-
nent. He passed by the immediate parties to the suit, and
spoke to the question. In a brilliant exordium,* he dila-
ted on its importance in all its various aspects; declared
that the decision might affect all the relations of two great
empires, might be discussed in Europe, and might produce,
* The outline of this speech is framed from an extended brief, giving all
the points of the argument and the authorities.
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? HAMILTON.
247
according to the issue, a good or bad impression of our
country. It would establish precedents that might give a
complexion to future decisions, would remain a record of
the spirit of our courts, and would be handed down to
posterity as indicating the character of our jurisprudence.
It was a question of a most comprehensive nature; its
merits include all the principles which govern the inter-
course between nations. Heretofore our courts have
seemed to consider themselves in an inferior light; their
decisions must hereafter form precedents.
Having thus appealed to the pride of the court, he pro-
ceeded :--" We are told there is no precedent. Then, in-
deed, it is a new case, and a new case must be determined
by the law of nature and the public good. Where the
law is silent, the judge speaks; and the most ancient au-
thority states that in England cases were adjudged accord-
ing to equity, before the customs of the realm were writ-
ten and made certain. This question must be decided by
the laws of nations. But what, it is asked, are the laws of
nations? Where are they to be found? --They are the
deductions of reason, to be collected from the principles
laid down by writers on the subject and established by
the authorized practice of nations, and are a part of the
law of the land. The laws of nations and the laws of
war are part of the common law. "
He then stated the two great divisions of the laws of
nations. The natural, necessary, or internal, universally
binding on the conscience of nations; but in its external
obligations, controlled by the positive or voluntary law
for the good of mankind, which is equally obligatory, and
is enjoined by the natural law.
By the necessary law, the party making an unjust war
acquires no rights, and is bound to make reparation for all
damages. By the voluntary law--which may be defined,
that system of rules which grow out of the independence
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of distinct political associations, qualifying their natural
rights as individuals--both parties have equal rights, hav-
ing no common judge; and the effects of a war on both
sides, are the same.
These effects are principally impunity, the acquisition
of property; a rule established to promote the general
peace of mankind, by removing discussions about the jus-
tice of the war, and the proportion of the damages to the
injury and the security of purchasers, especially neutrals.
But it is objected, this was not a solemn war. The ap-
proved practice of nations is against this objection. But
it was a solemn war. Formalities are arbitrary--an act
of parliament authorized hostilities. The declaration of
independence speaks of an open war subsisting. Congress
formally authorized our citizens to cruise. It has been
said that the state of New-York has no common law of
nations. The answer is, that law results from the relations
of universal society--that our constitution admits the
common law, of which the law of nations is a part--and
that the United States direct our foreign intercourse, and
have expressly become parties to the law of nations. What
are the effects of a war? The general proposition is, that
movable goods belong to the captor forever, as soon as
the battle is over; the fruits of immovables, while they are
in possession. Other rules have been laid down with re-
spect to movables; but the true rule is, the battle being
over. The ancient precedents of pleading are not that
the prize remained a night with the enemy, but that it was
gained by battle of the enemy; and pleading is the touch-
stone of the law. The common law carries the rights of
war so far as to give property in a prisoner, and an action
of trespass for taking him away. Hence, we see the com-
mon law not only adopts the law of nations in its full ex-
tent as a general doctrine, but particular adjudications
recognise the operation of capture.
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? HAMILTON. 249
r
The second branch of the discussion related to the effect
of the treaty of peace, and tended to show that this action
could not be maintained without a violation of the treaty;
every treaty of peace including an amnesty, which is of
its very essence, between private persons as well as the
contending publics. To the objection, that congress had
no right to bind the state, that it was meddling with its in-
ternal police, he replied, that on that construction," the
confederation was the shadow of a shade;" but that con-
gress had an unquestionable right; that " the sovereignty
and independence of the people began by a federal act;
that our external sovereignty is only known in the union--
that foreign nations only recognise it in the union; that the
declaration of independence was the fundamental consti-
tution of every state, all of which was acceded to by the
convention of New-York, which does not pretend to au-
thenticate the act, but only to give their approbation to it:"
that hence it followed," that congress had complete sover-
eignty; that the union was known and legalized in the
constitution of New-York previous to the confederation,
and that the first act of the state government adopted it as
a fundamental law; from which reflections," he says, " we
are taught to respect the sovereignty of the union, and to
consider its constitutional powers as not controllable by
any state. "
The confederation is an abridgment of those powers;
but, mutilating as it is, it leaves congress the full and ex-
clusive powers of war, peace, and treaty. The power of
making peace, is the power of determining its conditions.
It is a rule of reason and law, that to whomsoever any
thing is granted, that also is granted without which it can-
not exist. If congress have not a power to adjust an
equivalent for damages sustained, and remit the rest, they
have no power to make peace. It is true that this power
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does not permit the making all possible conditions,--such
as dismembering the empire, or surrendering the liberties
of the people; but it includes the power of making all rea-
sonable and usual conditions--such is a remission of dam-
ages,--for without it the state of war continues.
But it may be asked, tiow can congress, by treaty, give
away the rights of citizens of New-York? To this I an-
swer--First, that the citizens of New-York gave them
power to do it for their own safety--Secondly, that the
power results from this principle of all governments: that
the property of all the individuals of a state is the property
of the state itself, in regard to other nations. Hence, an
injury from the government gives a right to take away, in
war, the property of its innocent subjects. Hence, also,
the claim of damages for injuries done is in the public, who
may agree for an equivalent, or release the claim without
it; and, our external sovereignty existing in the union,
the property of all the citizens, in regard to foreign states,
belongs to the United States, as a consequence of what is
called the eminent domain. Hence, to make the defend-
ant answerable, would be a breach of the treaty of peace.
It would be a breach, also, of the confederation. Con-
gress have the exclusive right of war and peace. Congress
have made a treaty of peace, pursuant to their power; a
breach of the treaty is a violation of their constitutional
authority, and a breach of the confederation. The power
of congress in making treaties, is of a legislative kind:
their proclamation enjoining the observance of it is a law,
and a law paramount to that of any particular state. But
it is said," the sovereign authority may, for reasons of state,
violate its treaties, and the laws in violation of them bind
its own subjects. This allegation goes on bold ground,
that the legislature intended to violate the treaty. But I
aver that in our constitution it is not true that the sover-
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? TIAMILTON.
251
eignty of any one state has legally this power. Each state
has delegated all power of this kind to congress. They
are equally to judge of the necessity of breaking, as of the
propriety of making, treaties. "
"The legislature of any one state has nothing to do with
what are called ' reasons of state/ We might as well say
a particular county has a right to alter the laws of the state,
as a particular state the laws of the confederation. It has
been said, and it may be said again, that the legislature
may alter the laws of nations. But this is not true in the-
ory, nor is it constitutional in our government; for con-
gress have the exclusive direction of our foreign affairs, and
of all matters relating to the law of nations. No single
state has any legal jurisdiction to alter them.
"It may again be said, that the accession to the confed-
eration was an act of our legislature. Why may not an-
other act alter or dissolve it? I answer, it is not true; for
the union is known in our constitution as pre-existing.
The act of confederation is a modification and abridgment
of federal authority by the original compact.
"But if this were not the case, the reasoning would not
apply. For this government, in acceding to the confeder-
ation, is to be considered, not as a sovereign enacting a law,
but as a party to a contract; as a member of a more ex-
tensive community agreeing to a constitution of govern-
ment. It is absurd to say, one of the parties to a contract
may, at pleasure, alter it without the consent of the others.
It will not be denied that a part of an empire may, in cer-
tain cases, dismember itself from the rest. But this sup-
poses a dissolution of the original compact. While the
confederation exists, a law of a particular state derogating
from its constitutional authority is no law. But how, you
ask, are the judges to decide? they are servants of the
state. I answer, the confederation vesting no judicial
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powers in congress, excepting in prize causes, in all other
matters the judges of each state must of necessity be judges
of the United States, and they must take notice of the law
of congress as a part of the law of the land. For it must
be conceded, that the legislature of one state cannot repeal
a law of the United States.
"What is to be done in such a case? It is a rule of law,
that when there are two laws, one not repealing the other,
expressly or virtually, the judges must construe them so as
to make them stand together. That golden rule of the
Roman orator may be applied: 'Primum igitur leges
oportet contendere considerando utra lex ad majores, hoc
est ad utiliores, ad honestiores ac magis necessarias res perti-
nent. Ex quo conficiscitur utsi leges duce aut si plures aut
quotcunque erunt conservari non possint quia discrcpent
inter se, ea maxime conservanda putetur qua? ad maxi-
mas res pertinere videntur'--'Where two or more laws
clash, that which relates to the most important concerns
ought to prevail. '
"Many of these arguments are on the supposition, that
the trespass act cannot stand with the laws of nations and
the treaty. It may, however, legally receive such a con-
struction as will stand with all; and to give it this con-
struction is precisely the duty of the court. We have seen
that to make the defendant liable, would be to violate the
laws of nations, and forfeit our character as a civilized
people; to violate a solemn treaty of peace, and revive the
state of hostility; to infringe the confederation of the United
States, and to endanger the peace of the whole. Can we
suppose all this to have been intended by the legislature?
The answer is,'the law cannot suppose it: if it were in-
tended, the act is void. '"
He then proceeded to state rules for the construction of
statutes, which rendered this extremity unnecessary, quo-
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? HAMILTON.
253
ting the observation of Cato, "Leges enim ipsac cupiunt
ut jure regantur. "
The argument extended to an examination of the juris-
diction of the court, and to a minute investigation of the
distinctions to be taken between citizens and British sub-
jects, claiming the protection of the law of nations. It
closed with a strong exposure of the criminality of the
procedure, and with a vehement exhortation to preserve
the confederation and the national faith; quoting the
beautiful apothegm of Seneca, " Fides sanctificissimum hu-
mani pectoris bonum est. "
Amidst all the refinements which have been resorted to
in order to impair the powers of the constitution, and to
construe it as a compact of states, revocable at the will of
either of the contracting parties, it is deeply interesting
to advert to this early exposition of the true principles of
the American union. An union formed indeed by com-
pact, but by a compact between the people of these
colonies with every individual colonist before the ex-
istence of states; recognised by the people of each
state, in their state constitutions; confirmed by them
as states, in the articles of confederation; and sub-
sequently "perfected" in a constitution ordained and
established by the people "for the United States of
America. "
The result of this argument was a triumph of right over
usurpation. The decision indicates the difficulties with
which the defendant contended ; but the force of the
treaty to overrule the inhibition against pleading a milita-
ry order, was admitted. The court also declared--" Our
union, as has been properly observed, is known, and le-
galized in our constitution, and adopted as a fundamental
law in the first act of our legislature. The federal com-
pact hath vested congress with full and exclusive powers
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? 254 THE LIFE OF
to make peace and war. This treaty they have made
and ratified, and rendered its obligation perpetual; and
we are clearly of opinion, that no state in this union can
alter or abridge, in a single point, the federal articles or
the treaty. "
This decision is the more meritorious, because made by
judges holding by a temporary tenure, soon after the ses-
sion of a legislature which had shown a fixed purpose to
persevere in their odious and impolitic violence.
A few days after this judgment was rendered, a large
public meeting was convened,* and an address to the peo-
ple of the state was passed. This address,f after remark-
ing on "the immense ability and learning" of the argu-
ment, exhorted the people, in their choice of senators, to
elect men who would spurn any proposition that had a
tendency to curtail the privileges of the people, and who
would protect them from judicial tyranny. "Having con-
fined themselves," it stated, "to constitutional measures,
and disapproving all others, they were free in sounding
the alarm. If their independence was worth contending
for against a powerful and enraged monarch, and at the
expense of the best blood of America, surely its preserva-
tion was worth contending for against those among our-
selves who might impiously hope to build their greatness
upon the ruins of that fabric which was so dearly estab-
lished. "
The legislature assembled soon after this meeting.
Without waiting the result of an appeal, which the consti-
tution secured, this decision, made in due form of law, and
with unimpeached fairness, was brought before the assem-
bly. Resolutions were passed, declaring it to be subversive
? Sept. 13th, 1784.
t It is related to have been from the pen of Melancton Smith.
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? HAMILTON.
255
of all law and good order, and the council of appointment
were recommended at their next session, "to appoint such
persons mayor and recorder of New-York, as will gov-
ern themselves by the known law of the land. "
The ability displayed by Hamilton on these occasions,
his liberal views and distinguished probity, gathered around
him the enthusiastic confidence and affection of the better
part of his fellow-citizens; and at a time when the judicial
character of the state was to be formed, and, from the dis-
turbed situation of the community, professional trusts were
of the most important and extensive influence, he was fore-
most in endeavouring to secure to the laws an honest and
enlightened administration.
This was not an easy task. The general relaxation of
morals, an usual and most lamentable concomitant of war,
was attended with a prevailing disregard of, and disposi-
tion to question, the decisions of the courts. In the politi-
cal speculations to which the revolution had given rise,
the sovereignty of the popular will, which was recognised
as the basis of every proceeding, was pushed to the utmost
extremes in its application; and wherever the operations
of the laws bore hard, in the then unsettled relations of
society, to recur to the elementary principles of govern-
ment, and resolve every rule by its apparent adaptation to
individual convenience, was the prevailing tendency of
public opinion. The course of the contest, the means by
which it had been conducted, the extravagant schemes it
had engendered, gave every citizen a strong personal in-
terest in its results, and, long before its termination, had
divided the population into the opposite and hostile classes
of debtors and creditors; each of which being compelled
to unite, either for the common purpose of delaying or en-
forcing justice, acquired the dangerous, disorganizing, and
formidable character of an intestine party.
The laxity of the national faith, as it sprung from, also
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? 256
THE LIFE OF
confirmed this distinction. The loose opinions which had
gradually led on to an unjust discrimination between the
public creditors of different descriptions, soon took posses-
sion of the popular mind, induced preferences equally un-
just in private affairs, and ultimately prostrated all respect
for the obligations of contracts, and for the tribunals by
which they were to be expounded and enforced. This
lawless spirit which pervaded the country, was principally
shown in questions growing out of the claims of two class-
es of creditors, whose situation, though totally different,
it was sought to confound,--those of British merchants,
for debts incurred previous to the revolution, and the
claims of thp tories, either for money due to them, or for
lands of which possessions,' had been taken as enemies'
property.
The animosity natural to the combatants in a civil con-
flict; the enormities committed by the refugees, when the
scale of war seemed to incline in their favour, or where
they could continue their molestations with impunity; the
harassing inroads and depredations which they had made
on private property, and on the persons of non-combatants,
and the harsh and cruel councils of which they were too
often the authors, appeared to the people at large to sane
tion every species of retaliation, and to place the tories be-v
yond the pale of humanity.
This was merely the popular feeling. Both the govern
ments of the United States, and of the individual states,
with few exceptions, resisted these attempts, and sought
to instil a spirit of moderation and forbearance, becom-
ing the victorious party. In the progress of the conflict,
and particularly in its earliest periods, attainder and confis-
cation had been resorted to generally, throughout the conti-
nent, as a means of war. But it is a fact important to the
history of the revolting colonies, that the acts prescribing
penalties, usually offered to the persons against whom they
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? HAMILTON.
257
were directed the option of avoiding them, by acknow-
ledging their allegiance to the existing governments.
It was a preventive. not a vindictive policy. In the
-? game humane spirit, as the contest approached its close
and the necessity of these severities diminished, many of
the states passed laws offering pardons to those who had
been disfranchised, and restoring them to the enjoyment
of their property; with such restrictions only as were
necessary for the protection of their own citizens. In
others, different councils unfortunately prevailed. In New-
Jersey, meetings were held urging a non-compliance with
the treaty, in consequence of the non-fulfilment by Eng-
land of the seventh article, stipulating the return of the
negroes and the restoration of the posts.
In Virginia,* the house of delegates resolved,f "That
confiscation laws, being founded on legal principles, were
strongly dictated by that principle of common justice
which demands that if virtuous citizens, in defence of their
natural rights, risk their life, liberty, and property on
their success; vicious citizens who side with tyranny and
oppression, or cloak themselves under the mask of neu-
trality, should at least hazard their property, and not enjoy
the labours and dangers of those whose destruction they
wished. And it was unanimously declared, that all demands
and requests of the British court for the restitution of pro-
perty confiscated by this state, being neither supported by
law, equity, or policy, are wholly inadmissible; and that
our delegates be instructed to move congress that they
may direct their delegates, who shall represent these states
in a general congress for adjusting a peace or truce, nei-
ther to agree to any such restitution, or submit that the
laws made by any independent state of this union, be
* Almon's Remembrances, p. 92, v. 10, 2d part.
t December 17th, 1782.
33
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? 258
THE LIFE OP
subject to the adjudication of any power or powers on
earth. "
A proclamation was subsequently issued by its governor,
enjoining all those who had adhered to the enemy since
the nineteenth April, seventeen hundred and seventy-five,
or had been expelled by an act of the legislature, or who
had borne arms against the commonwealth, to leave the
state. And an address from the county of Caroline was
presented to the legislature, stating," they see the impolicy,
injustice, and oppression of paying British debts! "
In Massachusetts, a committee of the legislature of which
Samuel Adams was chairman reported that no person
who had borne arms against the United States, or lent
money to the enemy to carry on the war, should ever be
permitted to return to the state. * Resolutions of an intem-
perate character were also brought forward at public
meetings in Maryland; and a bill containing many objec-
tionable features was introduced in the popular branch of
its legislature, but it was resisted with great eloquence, ad-
mirable sense, and unyielding firmness in the senate by
two respected individuals, Charles Carroll and Robert
Goldsborough, and was essentially modified.
In New-York, the division of public sentiment at the
opening of the revolution being very great, each party
viewed the other with the most jealous eyes, and felt more
seriously the importance of individual exertions. The
first act of hostility invited retaliation. Instead of looking
to general results, the people of that state were driven to
desperation by their continued uncertainty and alarm from
dangers which menaced their double frontier.
The laws which were passed for their protection, for
the apprehension of persons of "equivocal character,"
* Report on the files of the general court of Massachusetts, March 16th,
1784.
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? HAMILTON. 259
early in the warfare, were soon followed by the establish-
ment of a board of commissioners of sequestration. An
institution which, though at first confided to safe hands,
was unavoidably intrusted with powers that naturally lead
to abuse, and ultimately became the organ of many harsh
and oppressive proceedings.
Civil discord striking at the root of each social relation,
furnished pretexts for the indulgence of malignant pas-
sions; and the public good, that oft-abused pretext, was
interposed as a shield to cover offences which there were
no laws to restrain.
The frequency of abuse, created a party interested both
in its continuance and exemption from punishment, which
at last became so strong, that it rendered the legislature
of the state subservient to its views, and induced the en-
actment of laws attainting almost every individual whose
connections subjected him to suspicion, who had been
quiescent, or whose possessions were large enough to pro-
mise a reward to this criminal cupidity.
It must not be supposed that these attempts were unre-
sisted. On the contrary, those who were most efficient in
their support of the revolution--those who had incurred
the greatest losses--some of those to whom the contest had
offered few other fruits than an uninterrupted sacrifice of
feeling and property, and who might with much plausibility
have thus reimbursed themselves--offered a steady resist-
ance to these arbitrary edicts; and when it was at last
found to be unavailing, by appearing to unite in the
measures of persecution, and by including in the number
of the attainted the names of those whose proscription
threatened to affect the personal interest of the most vio-
lent, showed them the danger of this game of intoler-
ance.
These proceedings only exasperated the passions of the
populace, and soon after the intelligence of peace, tumult-
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? 260
THE LIFE OF
uous meetings were convened under the thus disgraced
name of " the sons of liberty," to denounce the tories, to
menace them from returning to claim their estates, and to
remonstrate with the legislature against measures that
could affect titles by confiscation.
The circumstances under which the election in the city
of New-York was held, bespeak the character of the now
dominant party. A council had been created for the
temporary government of the southern district of the
state, who were directed to impose a prescribed oath to
its electors--an oath that they had not been guilty of any
past offences. In reference to this retrospective inquisi-
tion into the consciences of men, Hamilton remarked--" A
share in the sovereignty of the state, which is exercised by
the citizens at large in voting at elections, is one of the
most important rights of the subject, and in a republic
ought to stand foremost in the estimation of the law. It
is that right by which we exist a free people; and it cer-
tainly, therefore, will never be admitted, that less ceremo-
ny ought to be used in divesting any citizen of that right,
than in depriving him of his property. Such a doctrine
would ill suit the principles of the revolution, which taught
the inhabitants of this country to risk their lives and for-
tunes in asserting their liberty; or, in other words, their
right to a share in the government. That portion of the
sovereignty to which each individual is entitled, can never
be too highly prized. It is that for which we have fought
and bled ; and we should cautiously guard against any
precedents, however they may be immediately directed
against those we hate, which may in their consequences
render our title to this great privilege precarious. "
These considerations were disregarded, and this oath
was prescribed. The election was thus in the hands of a
few violent persons, together with those who were tempt-
ed, by this bribe, to perjury.
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? HAMILTON.
201
As a consequence, the representation was composed of
men of a similar character--the most conspicuous of whom
was Aaron Burr--men chosen by an infuriate populace,
in the midst of a disturbed and overawed city.
The proscribed petitioned for permission to return to
their residences. This was a moment which magnanimity
would have embraced to shield the defenceless; but Clin-
ton, in his opening speech to the legislature, threw all the
weight of his powerful influence into the popular scale.
"While," he said, " we recollect the general progress of
a war which has been marked with cruelty and rapine--
while we survey the ruins of this once flourishing city
and its vicinity--while we sympathize in the calamities
which have reduced so many of our virtuous fellow-citi-
zens to want and distress, and are anxiously solicitous to
repair the wastes and misfortunes we lament," we cannot
listen to these petitions. They were rejected, and a bill
respecting alienism was passed, which was negatived, on
great public principles, by the council of revision.
Two days after the vote on the recent adjudication as to
the treaty, resolutions passed the assembly, calling on the
governors of the states to interchange lists of the persons
who had been banished, in order, as was professed, that the
principles of the federal union might be adhered to and
preserved. They were followed by others declaring that
the rules of justice did not require--and that public tran-
quillity would not permit--that attainted adherents should
be restored to the rights of citizens.
A bill was then introduced, under the specious title of
"An act to preserve the freedom and independence of the
state," disfranchising all persons who had voluntarily re-
mained in those parts of the state which had been occu-
pied by the British, and adjudging them guilty of mispris-
ion of treason without trial, in direct contravention of the
treaty. This bill was also rejected by the revisionary
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? 262
THE LIFE OF
council; one of the reasons assigned being, that its opera-
tions would be so extensive, that in most places of the ob-
noxious district it would be difficult, and in many impos-
sible, to find men to fill the necessary offices even for con-
ducting elections, until a new set of inhabitants could be
procured!
A resolution was also introduced, that, notwithstanding
the recommendations of congress, they could not comply
with the fifth article of the treaty. At the same time an
act to repeal the laws inconsistent with it, was rejected by
North Carolina.
It will be remarked, that through the whole of these pro-
ceedings intolerance sought to conceal its deformity under
the mask of the demagogue--a watchful solicitude for lib-
erty, and a distrust of designs to effect a revolution in the
genius of the government.
It is an invidious office to accumulate testimony of the
vitiated state of the popular feeling at this time, and to
embody the evidence of facts tending to impair the nation-
al character, were not a lesson to be derived from them of
infinite value--the tendency of the state governments in
moments of excitement to violate the admitted maxims of
public law, to disregard the most sacred obligations, and
to encroach upon and undermine the rights of individuals,
and that the only security of the American citizen against
local violence and usurpation, is in his national character,
and the broad protection which a well-balanced general
government can alone give.
To show the extent to which the rapacious spirit of the
times was carried, but one more instance will be adduced.
It was a proposal to confiscate the estates of " the society
instituted by a charter from the British government for
the propagation of the gospel in foreign parts," in which
light the British colonies and plantations were regarded in
that charter--notwithstanding the fifth and sixth articles
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? n AMILTON.
2(53
of the treaty--notwithstanding the pure and benevolent
purposes of its institution--notwithstanding that from its
very nature it could not have had any agency in the war,
nor have become the object of resentment and confisca-
tion. This purpose called forth the indignant and deter-
mined opposition of Hamilton. He contended that a re-
gard to honour, justice, and humanity, ought to be alone
sufficient to restrain the legislature from wresting their
estates from the hands of a charitable society which had
committed no offence to incur a forfeiture; and that
especially in an hour of profound tranquillity. That if
the articles of the treaty had been silent on the subject
of confiscation, yet under a general treaty of peace, it
being an established maxim of the law of nations, which
is a part of the law of the land, that every such treaty
virtually implies an amnesty for every thing done du-
ring the war, even by an active enemy, that the rights
of this society were therefore necessarily secured; and
that as the exclusive right of making peace and war be-
longed to the great federal head of the nation, every
treaty made by their authority, was binding upon the
whole people, uncontrollable by any particular legislature,
and that any legislative act in violation of the treaty, was
illegal and void; and that upon a different construction,
"the confederation, instead of cementing an honourable
union, would, with respect to foreign powers, be a perfidi-
ous snare ? and every treaty of peace, a solemn mockery. "
However desirable it may have appeared to the mag-
nanimous part of the community to bury their resentments
from motives of benevolence, it became now apparent that
their efforts could no longer be confined to mere persua-
sion, but that the fears of the considerate must be aroused
to a general co-operation. The effect of popular violence,
though steadily resisted by the American courts, was seen
strongly operative in the councils of Great Britain. The
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? 201
T TI n LIFE OF
protection of the tories had, during the discussions of the
provisional treaty, been a subject of much anxious negotia-
tion. When she found that the recommendations of con-
gress were wholly disregarded, England made these pro-
ceedings a ground for refusing the indemnities for spolia-
tions stipulated by the treaty, and for what was a source
of more general interest and alarm, a refusal to deliver up
the frontier posts, which kept in awe the whole interior of
the country. Hamilton, who, as early as the spring of
seventeen hundred and seventy-eight, had been the open ad-
vocate, if the revolution should be eflected, of a general
act of amnesty and oblivion, could no longer brook the
tyranny of a small number of active demagogues, the found-
ers of the democratic party in the state of New-York.
He resolved to come forward as a mediator between the
passions and the true interests of the people. With this
view, in the winter of seventeen hundred and eighty-four,
he addressed a pamphlet "to the considerate citizens of
New-York on the politics of the times, in consequence of
the peace," under the signature of " fhocion. "
This brief production, written at a time when the author
says " he has more inclination than leisure to serve the peo-
ple, by one who has had too deep a share in the common
exertions in this revolution to be willing to see its fruits
blasted by the violence of rash or unprincipled men, with-
out at least protesting against their designs," contains an
earnest appeal to the friends of liberty, and to the true
whigs, on the enormity of the recent laws passed by men
"bent upon mischief, practising upon the passions of the
people, and propagating the most inflammatory and perni-
cious doctrines. "
The persons alluded to, he says, " pretend to appeal to
the spirit of whigism, while they endeavour to put in mo-
tion all the furious and dark passions of the human mind.
The spirit of whigism is generous, humane, beneficent, and
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? HAMILTON.
265
just. These men inculcate revenge, cruelty, persecution,
and perfidy. The spirit of whigism cherishes legal liberty.
holds the rights of every individual sacred, condemns or
punishes no man without regular trial, and conviction of
some crime declared by antecedent laws, reprobates equally
the punishment of the citizen by arbitrary acts of the le-
gislature, as by the lawless combinations of unauthorized
individuals; while these men are the advocates for expelling
a large number of their fellow-citizens unheard, untried;
or, if they cannot effect this, are for disfranchising them in
the face of the constitution, without the judgment of their
peers, and contrary to the law of the land. "
The danger of this arbitrary power, the extent to which
it had been abused by being exercised against general de-
scriptions of persons, are strongly portrayed. "Nothing is
more common," Hamilton observed," than for a free people,
in times of heat and violence, to gratify momentary pas-
sions, by letting into the government principles and prece-
dents which afterwards prove fatal to themselves. Of
this kind is the doctrine of disqualification, disfranchise-
ment, and banishment by acts of the legislature. The
dangerous consequences of this power are manifest. If
the legislature can disfranchise any number of citizens at
pleasure by general descriptions, it may soon confine all
the votes to a small number of partisans, and establish an
aristocracy or an oligarchy; if it may banish at discretion
all those whom particular circumstances render obnoxious,
without hearing or trial, no man can be safe, nor know
when he may be the innocent victim of a prevailing fac-
tion. The name of liberty applied to such a government,
would be a mockery of common sense.
"The English whigs, after the revolution, from an over-
weening dread of popery and the pretender, from triennial,
voted the parliament septennial. They have been trying
ever since to undo this false step in vain, and are repenting
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? 260
THI3 LIFE OF
the effects of their folly in the overgrown power of the new
family.
"Some imprudent whigs among us, from resentment to
those who have taken the opposite side, (and many of them
from worse motives,) would corrupt the principles of our
government, and furnish precedents for future usurpations
on the rights of the community.
"Let the people beware of such counsellors. However
a few designing men may rise in consequence, and advance
their private interests by such expedients, the people at
large are sure to be the losers in the event, whenever they
suffer a departure from the rules of general and equal just-
ice, or from the true principles of universal liberty. "
The profligacy of violating the treaty--a treaty in
which Great Britain had made the most important conces-
sions, and for which the only equivalent was & stipulation
that there should be no future injury to her adherents--is
then exposed. "Can we do," he asks, "by act of the legis-
lature what the treaty disables us from doing by due course
of law? This would be to imitate the Roman general,
who, having promised Antiochus to restore half his vessels,
caused them to be sawed in two before their delivery; or
the Platajae, who having promised the Thebans to restore
their prisoners, had them first put to death, and returned
them dead. Such fraudulent subterfuges are justly con-
sidered more odious than an open and avowed violation of
treaty. "
The supremacy of congress on this subject, the dangers
to result from the retaliatory acts of England by retain-
ing the posts, and an exclusion from the fisheries, and the
impolicy of measures which keep alive in the bosom of
society the seeds of perpetual discord, are forcibly painted.
