Philo Camillus No. 31
[New York, August 12, 1795]
For the Argus
Cinna pursues his animadversions upon Camillus but he gives new proofs that he depends more on the prejudices than on the reason of his auditory. To represent Camillus as the abject apologist of Great Britain and the defamer of his own Country—to render him odious because he does not flatter and nourish public errors, but honestly and boldly tells his countrymen salutary though unpleasant truths—are evidently with Cinna the chief hope of his cause. Nor is he very wrong in the course he takes. Such props are necessary to him. But he ought to be more cautious in the employment of them, lest by the too free use he impair their efficacy. Does he not fear that these very obvious reflections may occur to a sensible people? Why is it that the opposers of the Treaty so constantly appeal to our passions, and to convince us they are in the right endeavour first to make us angry? Do they imagine that we can only feel, that we can not reason? Do they suppose that a man is best-fitted to judge in proportion as he is agitated and incensed? Or is it that they really dare not trust their cause to the sober result of fair discussion and calm reasoning? Is it that they desire to shut our ears to the wholesome advice of tried and faithful friends, by raising unmerited prejudices and resentments against them? Do they mean to lead us captive by our passions and thus to make us instruments of designs repugnant to our interests and subversive of our present happy condition?
Can Cinna seriously imagine, that he will be able to dupe a discerning people into a distrust of men, whose public and private conduct have been a uniform series of evidence of public and private integrity? Is he so weak as to suppose that his fellow Citizens will give credit to the gross suggestion that such men who have also been among the most steady and persevering2 defenders of their country against Great Britain have now become her partizans or advocates? Is it any proof of this, that this endeavour to shew that in particular questions arising subsequent to the peace there is reasonable ground of doubt whether the delinquency imputed to Great Britain has been as great as has been alleged and that there have been mutual faults? Are sincerity and plain dealing marks of want of friendship? Are they not rather proofs of the truest friendship of one that dares offer honest advice even at the hazard of displeasing?
In Courts, sycophants flatter the errors & prejudices of the Prince—in Republics sycophants flatter the errors and prejudices of the people. In both, honest and independent men are frequently obliged to tell unpalatable truths, which are well or ill received according to the virtue & good sense of those to whom they are addressed. Cinna knows that they are not always well received. He hopes this will be the case in the present instance, but he will probably be disappointed.
In an altercation between two individuals in which there were mutual faults who would deserve to be called the true friend? He who should tell one of the disputants of the faults on his part and advise him to moderation and amicable adjustment—or he who should assure him that his antagonist was intirely in the wrong that he had nothing to blame himself for & that his honor was concerned in pursuing the quarrel without relaxation at the peril of life & fortune?
Cinna, if he knows Camillus, knows that this is not the first time he has stemmed the current of prejudice and has been traduced and vilified for it. But experience on former occasions has taught him to believe that he may safely rely on the ultimate good sense of his fellow Citizens for a justification of his motives.
It is curious to observe an expedient, which has lately been adopted by the party to which Cinna belongs. They affect to brand their opponents with the charge of Toryism. Men, who in this state have for a long time upheld their power and by means of it amassed wealth, with the aid and support of a long list of tories—who even now count among their most zealous adherents men of this description * & some of them of the most profligate character have the audacity to bring the charge of Toryism against a majority of the most conspicuous most tried and most determined Whigs of the Country. Can the Spirit of Whigghism hear this obloquy without indignation? Can these whom that generous spirit truly actuates endure an attempt to blast the characters of its most faithful votaries?
It cannot be: the people of America know the men who have acted a part in their public affairs and they know how to appreciate them. Their esteem will be an impenetrable shield against malice and detraction.
Camillus did not take the course which he has pursued of choice. It no doubt would have been more agreeable to him to have been silent on such topics. But the antagonists of the Treaty made it necessary to place the real state of the question before the people to enable them to judge of the justice of the virulent attack which has been made on our envoy for not attempting to extort from great Britain an acknowlegement of delinquency, though at the price of our national peace and though they who make the attack know in their consciences that such an attempt would not have been made with the least prospect of success.3
But while Camillus has shewn that there have been breaches of the Treaty of peace on our part and that it is difficult to pronounce where the first breach lay4 —he has done nothing that warrants the imputations of having held up this country as “a faithless and treacherous nation” of having justified “a perfidious Prince for his breaches of faith and violences towards America.”5 From an imperfect social organization like ours under the consideration and from the strong impulse of particular circumstances and passions there may have been infractions of a particular Treaty by parts of the Community without amounting to what would fix on a nation the stigma of “faithless and treacherous.” The King of Great Britain may not have been as culpable in particular things as he has been charged to be and yet his conduct towards us in other respects may have been unjust and violent. Camillus evidently admits the latter to have been the case and asserts that we had suffered wrongs of such a nature as ought either to have been adjusted by reparation or avenged by reprisals. Enough has been replied to Cinna’s railing. It is time to come to his reasoning.
He in vain endeavours to derive a vindication of the Trespass act6 from a display of the aggravating circumstances of our war with Great Britain, another auxiliary pressed into the service to inflame the passions. Whatever may be the effect of these to excuse the act in foro conscientiœ, or in reference to the frailties of the human passions, it does nothing to prove that it was conformable with the principles of public right as received among nations, or that its operation did not infract the Treaty of peace. Nothing could be a clearer violation of the laws of War than to say that no military order of a public enemy should be pleaded in bar of a civil action of Trespass. Nothing could be a more certain contravention of a Treaty of Peace than to allow actions of Trespass to be maintained against the subjects of a public enemy for acts done during the war under his military authority and in exclusion of the plea of a military order. No matter what may have been the manner in which the war was carried on. Tis the essence of a Treaty of Peace to extinguish all questions on that head and to secure to each party amnesty and indemnity. Without this the state of war would continue and would be inextinguishable. Reason and writers agree that this amnesty & indemnity are always implied though in some treaties there are for greater caution express clauses; an example pertinent in reference to the article respecting the negroes7 to shew that there are sometimes express stipulations of what would be understood without them.
It is true as alleged that the plea of a military order might have been used to cover great abuses but what war does not produce multiplied abuses? The peace of nations requires nevertheless that these abuses should be submitted to rather than controvert the efficacy of military authority—because to do it is to subvert all the rights of War—and to deny all the effects of acquisition and capture in war.
But it is unlucky for the apology which is made for this act that it passed only seven days before the news of the provisional articles arrived in this Country and when it was known that negotiations for peace were going on and expected that the event would speedily take place8 —and also that the act could only have its effect when in consequence of that event and by an evacuation of the Southern District process could be issued upon it. It is certain that good men concurred in this act but this is only one proof among a myriad that the passions of a revolution are apt to hurry even good men into excesses.
Cinna recurring to the subterfuge which Camillus has noticed and refuted says “A mind not warped by prejudice nor disposed to deceive itself is at some difficulty to imagine how an act passed six months before the definitive Treaty was signed can be tortured into an infraction of that very Treaty.”9 But let me ask Cinna how on the principle of this argument the carrying away of the negroes which happened four months before the same signing could be any more a breach of the Treaty? The answer in each case must be that though positive restitutions by either party may have been postponed to the definitive Treaty, yet the provisional Treaty ought to have arrested the progress of all acts on either side contrary to its provisions—a principle however which bears hard upon our omission to act upon the fifth article till after the Definitive Treaty.10
Mr. Jefferson has taken better ground than Cinna, by saying that the Trespass Act was not an infraction of the Treaty because it dated prior to the provisional articles.11 But if Camillus is right in the fact his answer to this is conclusive—namely that the Trespass Act continued to operate not only after the provisional but after the definitive Treaty down to [April 1787].12
The plainest understanding however must perceive that there can be no difference whether an act passed before or after the Treaty if in fact it had an operation contrary to the Treaty. Tis the operation, the effect, not the date of the law, which is the material thing.
But Cinna following Mr. Jefferson labours to prove that it is a clear position that the Treaty did controul the laws of States which were contrary to it—and in the course of his remarks makes these assertions—1 that the proposition is so self evident to an American Lawyer, that without any proof it forces the same conviction upon his mind as the plainest axioms of Euclid—and 2d. that the Supreme Court of this State in the case of another act decided in conformity with this position.13
Camillus has justly observed upon this position14 that it is a question of theory, and that whether true or not if there were laws of any States the operation of which did in fact contravene the Treaty, it was no justification to the Power whose Treaty with us was contravened that in the theory of our constitution Treaties were paramount to laws. That Power might reply—your theories are nothing to us—tis the fact alone which concerns us and tis enough that we know that laws of certain States do in fact contravene our Treaty.
Cinna replies—that he does not comprehend “what is meant by a law being a question of theory.”15 Camillus said, not that a law was a question of theory for this would be senseless, but that [it] is a question of theory whether a Treaty of the U States under the consideration did ipso facto controul a state law contrary thereto, or whether it only operated to lay an obligation on the state to repeal such law. This proposition is surely one not difficult to be comprehended, and it is manifestly true.
Camillus would probably not dispute with Cinna that the better opinion is that a Treaty ought to controul a state law, but still it is a question about which there was room for and did exist a diversity of opinion, and it may be added of practice.
Self evident as Cinna may affect to consider the proposition, he will find it is one on the principle of which theoretic Writers are not agreed. Rutherford in his Institutes of Natural Law (B II Chap III Page 61)16 speaking of the Legislative Power has this sentiment “In alliances leagues or conventions, if they bind any members (of the society) to give up their private claims or to do any thing which is inconsistent with the civil laws then in being its authority (The Legislative authority) makes them void of course unless it interposes to establish them.” This passage denies the power of Treaty to abrogate the antecedent civil laws as to the claims and acts of Individuals.
But not only was there room for difference of opinion, but it actually existed in a very great degree in many of the States. If Cinna be a lawyer and was at the bar of this State when the question on the Trespass Act was pending, he must know in his heart that the prevailing opinion of our professional men was against the position which he considers as self evident and that the contrary Doctrine was strenuously and seriously maintained in argument by some of our most respectable practicers.17
He has thought fit to quote Mr. Hamilton as having in the case of Rutgers and Waddington relied on the Treaty against the law.18 He is right in this, but he might have added that for some time Mr. Hamilton was almost the only practicer who maintained the doctrine, and that by doing it he rendered himself not a little unpopular among that description of men with whom if I mistake not Cinna is connected in politics, and who reprobated it as a very heretical and unpatriotic opinion.
Camillus has also observed that it was understood that a Majority of our Supreme Court Bench would have maintained the principle of the Trespass act against the Treaty. Cinna asks how this was understood? Did the judges give Camillus an extrajudicial opinion?
Is it then a very uncommon thing for the opinions of Judges to be sounded by the bar in private conversations or on collateral questions in Court? Are judges always so much upon their guard that their leanings are not discerned by attentive observers before they are expressed by judicial determinations? Are there never clues to their opinions before they have pronounced them on the Bench?
An experienced professional man will be at no loss how to answer these questions—and will know that the opinions of Judges are often understood before hand with moral certainty—and one who was at our bar at the period referred to will also know that there was little doubt what would have been the determination of our Supreme Court on the point in question, and that it would have supported the objectionable clause of the act.
If we were to review how many suits were brought under this act in the Supreme Court & how many recoveries had—without any example of an obstacle from the Treaty, we should find a strong negative confirmation of the supposed disposition of the Bench and of the opinion of the Bar.
Nor is this any impeachment of the Court as Cinna would have it. It was a fair question whether a Treaty did or did not controul a legislative act—or whether it only operated to render it the duty of the Legislature to repeal it. And in the particular case, the provision of the Act was so special & peremptory, that it left no room for restraining constructions.
But Cinna asserts further that the Supreme Court did in another case admit the principle of the controuling influence of the Treaty—and he quotes a letter from our District Attorney in proof of it.19 Mr. Harrison it is true states that with regard to British Creditors the Superior Courts soon restrained the operation of the Act relative to debts due to persons within the enemies lines.20 But he does not affirm, and I am much mistaken if he would affirm, that the rest[r]aint in this particular was on the principle of the effect of the Treaty to controul the law.
There is good reason to believe that the Treaty was a collateral motive with the Court for giving a restrictive interpretation to the law but it is believed that they never admitted Cinna’s position as the ground of determination.
There were expressions in the law itself which countenanced a restrictive interpretation. The Title is “An Act relative to Debts due to persons within the enemy’s lines.” The Preamble relates, as objects of the act, to inhabitants of this state who had not remained within the enemy’s power who were indebted to others who did so remain. The creditors described in the body of the act are persons who remained with the enemy or went into or were sent within the enemy’s lines. It is evident that this act gives locality to the situation of the Creditors who were to be affected by it and could not fairly have been extended to British Creditors who were resident in the British dominions. It was natural too to understand the word inhabitants as equivalent to citizens and the mode of expression seems to look to inhabitant or citizen creditors as well as to inhabitant or Citizen Debtors; so that it was easy without resorting to the effect of the Treaty to consider British subjects as not within the act—by which construction an interference with the Treaty was avoided without admitting its controuling influence. The Courts shewed a uniform and a laudable disposition to narrow the operation of this act on account of its infraction of private contracts, and they were no doubt glad to find in the act itself the means of escaping from a violation of the Treaty.
This from the best sources of information is believed to be a faithful account of the transaction. It is at the same time one that does not confirm the representation of Cinna. The further observation will be pursued in a subsequent paper.21
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 12, 1795.
1. This essay was written in reply to the second article by “Cinna” (Brockholst Livingston), which appeared in The [New York] Argus, or Greenleaf’s New Daily Advertiser on August 4, 5, 1795, and was devoted to an attack of “The Defence No. IV,” August 1, 1795. For the authorship of the “Cinna” articles, see the introductory note to “The Defence No. I,” July 22, 1795.
2. In MS, “perserving.”
3. At this point H wrote and crossed out: “In yielding to this necessity he has been cautious too not to pronounce a definitive opinion of his own—he has confined himself to these conclusions, that the question with regard to the right of compensation for the negroes & to the first breach of the Treaty of peace were very mixed difficult and doubtful such as.”
5. These quotations are from “Cinna No. 2” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 4, 1795).
6. “An Act for granting a more effectual Relief in Cases of certain Trespasses,” passed March 17, 1783 (New York Laws, 6th Sess., Ch. XXXI). See “The Defence No. IV,” August 1, 1795. For “Cinna’s” criticism of this essay, see The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 5, 1795.
7. H is referring to Article 7 of the definitive treaty between Great Britain and the United States, September 3, 1783. For the text of this article, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 19. For an earlier discussion of this article, see “The Defence No. III,” July 29, 1795.
8. In the newspaper the remainder of this sentence has been replaced by the following words: “It is also too evident that it must have passed in contemplation of this event, since it could only have its effect when, by means of peace and an evacuation of the southern district, process could be issued upon it.”
9. This is a quotation from “Cinna No. 2” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 4, 1795).
10. The provisional treaty of peace between the United States and Great Britain was signed on November 30, 1782, and ratifications were exchanged on August 6, 1783. The definitive treaty was signed on September 3, 1783. Ratifications were exchanged on May 12, 1784 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 96–107, 151–57). Article 5 of both treaties declared that Congress should recommend to the states the restitution of all Loyalist property.
11. The reference in this sentence is to Thomas Jefferson’s letter to George Hammond of May 29, 1792, in which Jefferson defended the alleged breaches of the treaty by the United States (ADf, Thomas Jefferson Papers, Library of Congress; ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 201–37). For an earlier discussion of this subject, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795.
12. Space left blank in MS. The material within brackets has been taken from the newspaper.
13. For the points made in this paragraph, see “Cinna No. 2” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 4, 5, 1795).
15. This quotation is from “Cinna No. 2” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 4, 1795).
16. Thomas Rutherforth, Institutes of Natural Law: Being the substance of a Course of Lectures on Grotius de Jure Belli et Pacis (Cambridge, 1754–1756), II, 59. The correct page reference is given in the newspaper version.
17. At this point H wrote in the margin: “1782
11 April 1783
9 Aug 1786.”
H was apparently referring to statements made by “Philo Cinna” in an article entitled “Camillus refuted by A. Hamilton,” which appeared in The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 10, 1795. This article began by contrasting H’s statement in “The Defence No. III,” July 29, 1795—that the United States had not uniformly charged the British with the carrying away of Negroes and the detention of the western posts as the first infractions of the treaty of peace until May 29, 1792, when Jefferson wrote to Hammond (see note 10)—with a resolution which H had put forward in the Continental Congress on May 26, 1783, that the United States should remonstrate with the British government (see “Continental Congress. Motion of Protest against British Practice of Carrying off American Negroes,” May 26, 1783). “Philo Cinna” continued: “If then, Congress, as early as May 1783, complained of this infraction, they must have regarded it as the first breach, for Great Britain had not yet had time to hear of what was passing in this country on the subject of the treaty, much less to complain of any violation on our part. It will be recollected that the treaty had been received by Congress early in the preceding month.
“By this resolve, it also appears, that Colonel Hamilton thought the treaty binding from the signature of the provisional articles, but Camillus contends, that it was not so until the exchange of the ratification of the definitive articles which took place more than one year later.
“Nor is this the only instance in which our government formally and explicitly took the ground, although one would be led to conclude from Camillus, that to Mr. Jefferson alone belonged the credit of discovering it.
“On the 11th April 1783, Congress agreed to a proclamation, declaring a cessation of hostilities and only four days after
“Resolved, That the commander in chief be instructed to make the proper arrangements with the commander in chief of the British forces for receiving possession of the posts in the United States occupied by the troops of his Britannic Majesty, and for obtaining the delivery of all negroes and other property of the inhabitants of the United States in possession of the British forces, or any subject of, or adherent to his Britannic Majesty.
“Again, on the 9th August 1786, Congress resolved, that the Secretary for foreign affairs cause to be made out separate lists of the number, name, and owners of the negroes belonging to the citizens of each State, and carried away by the British in contravention of the treaty, and that he transmit said lists to the executives of the States to which they respectively belong.”
18. The case of Rutgers v Waddington, in which H represented the defendant, was heard in the New York Mayor’s Court in 1784. For details of the case, see Goebel, Law Practice description begins Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964–). description ends , I, 282–419. See also H to Jefferson, April 19, 1792.
19. “Cinna” quoted the following extract from a letter written on December 4, 1790, to Jefferson by Richard Harison, a New York lawyer and Federalist, who became United States attorney for the District of New York: “‘The operation of the act,’ says he, speaking of the act relative to debts due to persons within the enemies lines, ‘became soon after the peace a subject of much complaint, grounded upon that article of the treaty, which forbids any impediment to the recovery of the full value in sterling money of all bona fide debts, and that which declares that no person shall suffer any future loss in his person, liberty or property. With regard to British creditors who were supposed to be the proper objects of the 4th article of the treaty, the superior courts of the state soon restrained the operation of the act, and I do not know a single instance where they have been held to be affected by it’” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 5, 1795). Harison’s draft of this letter is in the New-York Historical Society, New York City. The extract of the letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 231–32. See also Goebel, Law Practice description begins Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964–). description ends , I, 271–74.
20. “An Act Relative to Debts due to Persons within the Enemies lines” was passed by the New York legislature on July 12, 1782 (New York Laws, 6th Sess., Ch. I).