Philo Camillus No. 41
[New York, August 19, 1795]
For the Argus
Camillus has stated several infractions of the Treaty of peace by us, besides that of the Trespass act,2 which according to the solution given by our own conduct to the question whether performance was to date from the provisional or definitive Treaty must have been prior to the British infraction by the detention of the posts3 —(viz) 1 An Act of South Carolina of March 26th 1784 suspending the recovering of British Debts for nine months and allowing them then to be recovered only in four yearly installments.4 2 An act of this state of the 12 of May 1784 confirming all confiscations before made notwithstanding errors in the proceedings and taking away the writ of error.5 3 Acts of Virginia passed during the war which prohibitted the recovery of British debts6 and which according to the testimony of the General Assembly of Virginia contained in two several acts7 continued to operate till after the year 1787.
To all these acts Cinna gives one general answer in substance this “that it was a clear principle of Constitutional Law, that the Treaty controuled all laws of the States inconsistent with it.”8 The absurdity of opposing this theoretic dogma, this speculative rule, to actual operating contraventions has been more than once pointed out. It may be likened to the conduct of the Physician who when he was assured that his patient was dead attempted to prove that according to the principles of an infallible theory it was impossible he should die after the remedies which had been administered. Let inquiry be made if the act of South Carolina did not go into full operation from the time it was passed. Let it be examined if a single writ of error has been brought and maintained since the act of this state of May 1784. If there be an instance of a single judgment rendered in a superior court of Virginia in favour of a British Creditor where the question between the law and the Treaty has fairly arisen, during the period referred to, let it be produced. The result of inquiry in each of the cases will confirm the fact that the laws cited did operate in contravention of the Treaty.
As to Virginia, no man who understands the English language will dispute that the acts quoted attest, as far as the knowlege and opinion of the Legislature of Virginia went, this fact—that the acts of that State prohibitting the recovery of British Debts did continue to operate notwithstanding the Treaty. This I affirm is such high evidence of the fact that nothing short of solemn decisions of the Superior Courts to the contrary can overthrow it.
It is in vain that Cinna endeavours to get rid of the force of this testimony by arguing that it is not of the legislative province to pronounce what is the effect of a law and that consequently the opinion of the legislature of Virginia as to the operation of its laws is not evidence of the truth. Cinna by this observation confounds two things, the legal effect and the actual effect. The opinion of a legislature may not always be valid evidence of the first but it is very high and authoritative evidence of the last. It is one thing to consider them as judges of a principle of law—another to consider them as witnesses of a matter of fact. In the last character who can have better pretensions? Who can be presumed better to know the state of a fact in which the feelings and interests of a community are much concerned than the legislative representatives of that community? It is in this sense Camillus quotes and relies upon the two acts of Virginia; the first of which by necessary implication and the last of which in express terms informs that its acts had prevented the recovery of Debts due to British subjects according to the true intent and meaning of the Treaty of Peace.9 The words are these “Be it enacted by the General Assembly that such of the acts or parts of acts of the legislature of this Commonwealth as have prevented or may prevent the recovery of debts due to British subjects according to the true intent and meaning of the Treaty of Peace be and are hereby repealed”10 —to which however a proviso is added suspending the repeal till the British infractions respecting the Negroes & the posts were repaired.11 This provision is a confirmation that the General Assembly considered the fact to be that its laws did obstruct the recovery of debts. The testimony of the legislature of Virginia to the matter of fact is therefore complete and peremptory; and it is [in] this light as before observed that their acts are quoted. Can it be believed that they could be mistaken about a fact, which if it existed at all had existed four years? Or can we suppose that they meant to practice a deception upon Congress upon Great Britain and upon their own Citizens?
It may not be useless to observe that Mr. Jefferson himself understood the meaning of the Legislature of Virginia, in their act of June 1784 in the same sense with Camillus.12 He states it as “resolving, that the Courts shall be opened to British suits as soon as reparation shall be made &c.” The direct inference is that the courts were not then open to British suits.
One would have imagined that Mr. Jefferson when he undertook to contradict this solemn and reiterated testimony of the Legislature of Virginia would have drawn the proofs of his contradiction from no sources inferior to the records of the courts of Virginia. Nothing less than this could be satisfactory. The non production of such proofs is an argument that they did not exist, and if they did not exist, it is a strong negative confirmation of the declaration of the Virginia Legislature.
What does Mr. Jefferson oppose to it? Two letters, in answer to inquiries made by him upon the spur of the occasion, one from Mr. Monroe, a senator, the other from Mr. Giles a representative.13
Mr. Monroe speaks of a case in April 1791 in the District Court of Fredericksburgh where the law of the state was pleaded in bar of the Debt and the plea overruled.14
The case was that one Mitchel a native of Great Britain residing and trading in Virginia, conveyed his debts and other property before the War to the use of his Creditors in Great Britain and one Creditor in Virginia. It was argued for the Defendant that this was a case provided for by the Treaty & prohibited by the law, but judgment was given for the plaintiffs and other jugments were entered in favour of the same parties in that and a subsequent term.
But we are not told on what principle judgment was given for the plaintiffs. It does not appear in what situation Mitchell was during the War. Though a native of Great Britain his situation & conduct might have rendered him a citizen of the U States which is a very common case. If this was not the case, the judgment might have proceeded on the ground that among the creditors for whose benefit the assignment was made there was one citizen and that this interest of a citizen took the case out of the prohibitory acts. In fine nothing precise being said we are left to conjecture what we please.
It is to be observed likewise, that the case cited was subsequent to the present constitution of the U States, which expressly declares that Treaties shall be supreme laws of the land and which was ratified by the People of the several States, long posterior to the impeding Acts. The Court may have considered this express subsequent provision as a repeal of preexisting contrary laws. It in fact did settle the theoretic question by an express constitutional declaration. And it is to be observed that this provision is new & peculiar to that constitution & has been made an objection to it.
Mr. Monroe relates further that it was always the opinion of the ablest counsel at the bar that British Debts were recoverable, that no law prohibited it and if it were otherwise, that the Treaty would control it. And he adds that since the establishment of the present Constitution of the U States he has heared several judges say that they had entertained the same opinion.
But amidst these vague assertions of the opinions of lawyers and judges, Mr Monroe confesses one fact which infinitely outweighs all that he has put in the opposite scale. It is this—That the British Merchants declined generally bringing suits prior to the establishment of the present National Government. What does this prove? Demonstrably that they were advised that it would be useless to bring them—that no recovery could be had. Can we believe that individual interest did not lead them to take the best opinions to be had, and can we doubt from their passiveness that these opinions were against the probability of success?
The neglect of the British Merchants to bring suits for the long term of six or seven years is a decisive corroboration that the opinion of the bar of Virginia coincided with that of the Legislature and that the effect of the prohibitory laws of that State was to obstruct the recovery of British Debts.
As to Mr. Giles’ letter it conveys no real information.15 It totally omits dates, and leaves us to conjecture whether the incidents stated happened prior or subsequent to the present constitution of the U States and were or were not an effect of that constitution. To reconcile him with Mr. Monroe we must understand him as speaking of things subsequent.
Surely we must be convinced that these are feeble authorities against the declarations of two solemn acts of the legislature of Virginia; and considering the industry displayed by Mr. Jefferson on the occasion we must regard the weakness of his evidence on this point as a clear indication of his embarrassment.
I pass by all the testimonies produced from the other states.16 They only prove that in several of the states, the theoretic position that Treaties controuled the local laws was reduced to practice. But they do not prove that this was the case in all of them. From several of the States there is no such testimony.
Discarding what relates to Virginia—the two acts which have been mentioned of South Carolina and New York of the 26 March & 12 May 1784 are conclusive as to the point of there having been contraventions on our part prior to that of the detention of the posts, if performance was to date from the definitive Treaty; because the ratification by us did not arrive in England till the 28 of May of that year and the exchange of ratifications was about the beginning of June.
The reason given by Camillus why performance ought to date from the definitive Treaty is unanswerable.17 It is this that by our own conduct in not acting upon the provisional Treaty especially the fifth article18 we practically determined that performance was not to date from that Treaty—consequently that it was to date from the definitive Treaty. This too is the best ground to be taken for us; since upon a different principle there would come home to Congress itself an infraction of the Treaty from the first moment of its Ratification.
A Writer signed Philo-Cinna has endeavoured to put Camillus at variance with himself, for notwithstanding his conclusion ’tis evident that he means to have it understood that Mr. Hamilton & Camillus are the same person.19 For argument sake be it so—and let us see if he has made out the contradiction.
Camillus says, “that our Government has constantly charged as breaches of the Treaty the two particulars of carrying away the Negroes and detaining the posts but that it is believed to be not true that it has uniformly charged them as first breaches of the Treaty—that as far as is recollected this ground was never formally or explicitly taken by our Government till in the letter quoted from Mr. Jefferson to Mr. Hammond.”20
May 26, 1783, a Resolution was moved by Mr. Hamilton in Congress which recites that “a considerable number of negroes belonging to Citizens of these States had been carried off by the British contrary to the true intent and meaning of the provisional articles” and instructs the Ministers of the US for negotiating peace in Europe to remonstrate thereon to the Court of G Britain and to take proper measures for obtaining reparation.
Upon which Philo Cinna makes this sage comment. “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 of our part.”
Since Camillus affirms that our Government has constantly charged the carrying away the negroes as a Breach of the Treaty when he adds that it did not uniformly charge it as a first breach, and that this ground was for the first time formally and explicitly taken by Mr. Jefferson—to reconcile him with himself in the same paragraph, he must necessarily be translated thus—“Though from the beginning our Government charged the carrying away of the negroes as a breach of Treaty, yet till it was done by Mr. Jefferson, it never formally and explicitly raised the question whether this was or was not the first breach of the Treaty. It is one thing to charge a matter as a breach of Treaty by one party, another to affirm formally and explicitly there it was the first breach committed by either party.”21
Mr. Hamilton’s motion only does the first; it only charges the act in question as a breach of the Treaty—it is intirely silent on the point whether it was or not the first breach.
But Philo-Cinna resorts to an inference to make it speak this last language. He says this must have been the intent, because Great Britain had not yet had time to complain of a violation on our part. Thus he substitutes an implication, founded upon a reason good or bad of his own, for a formal and explicit allegation of a thing. This is a sample of the logic of the party.
But his reason for his implication is not a good one. Mr. Hamilton and Congress knew that the Trespass act existed of a prior date, and, if my memory serves me as to dates, that it had been remonstrated against the British Commander in Chief as inconsistent with the Treaty. This was sufficient reason for silence as to the first breach.
But the argument that Great Britain had not had time to plan22 turns against its object. For the question who had committed the first breach of the Treaty was a relative one, which could not have been raised till mutual infractions had been charged and consequently till Great Britain had had time to complain. A solution of that question could therefore not be implied in Mr. Hamilton’s motion or the resolution of Congress upon it.
The same observations apply to the other acts quoted by Philo Cinna. They all of them charge the carrying away of the negroes as a breach, but they are all of them equally silent on the point whether it was a first breach of the Treaty.
Philo-Cinna endeavours to fix another inconsistency upon the supposed Camillus. He represents the having charged the carrying away the negroes as a Breach of the Treaty to be inconsistent with the doctrine that performance as to the restitution of the posts, was to date from the definitive Treaty. In a former paper, I have noticed an important distinction.23 The Provisional Treaty was to arrest the doing of any acts contrary to the spirit of its several provisions, but acts of restitution were to wait for the definitive Treaty.
But I will tell Philo-Cinna something which he may not know. I have understood that it was in fact Mr. Hamilton’s policy to establish the construction that execution was to date from the Provisional Treaty; for besides that he thought this most agreeable to just & liberal procedure, he foresaw that the contrary conduct on our part would authorise the other party to delay the surrender of the posts, to the prejudice of our interests. Accordingly he made a formal motion to engage Congress to act upon the 24 article of the Treaty, but his motion was negatived almost unanimously.25 Thus it appears that Congress differed from Mr. Hamilton and thereby sanctionned what has been the construction of Great Britain.
This is only one of the instances, in which if Mr. Hamilton’s opinions had prevailed, we might be much less embarrassed than we now are as to the question who committed the first breach of the Treaty.
Another instance of incongruity between Camillus and Mr. Hamilton has been insinuated. It is said that the allegations contained in the motion which has been cited is inconsistent with the doctrine maintained by Camillus with regard to the meaning of the article concerning negroes.26 But to this different answers may be given each of which is satisfactory.
First Camillus has not given a direct opinion of his own as to the meaning of that article, he has only stated the arguments which support the British Construction, and has drawn this conclusion, that it is a very doubtful point whether that be right or wrong.
Secondly—Mr. Hamilton’s motion in Congress is no evidence that he did not then consider it in the same light with Camillus—that is, as a very doubtful point. In a case where an article admitted of two constructions, one in which the interest in some degree and the feelings in a greater degree of a large part of our Country was concerned—a member of Congress, though he might think it doubtful, which of the two constructions was right would naturally assert that which was advantageous to ourselves, in order to endeavour to obtain reparation for what upon our construction was an infraction. And In proportion as it might be his policy to engage Congress to carry the Treaty on their part into execution, would be his zeal to assert a construction favourable to our pretensions.
But thirdly, if the motion in question was dictated by an opinion at the time produced by the contagion of a general current of opinion, that ours was the better construction—it would not follow that a candid man, upon more mature reflection and after hearing and weighing the arguments of the other side, might not be convinced and ready to acknowledge, that the question was very doubtful, and that it was very possible his first opinion might be erroneous. It is the prerogative only of the Democratic Society and their allies to be infallible.
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 19, 1795.
The Argus mistakenly numbered this essay “No. 5.”
2. See “The Defence No. IV,” August 1, 1795. H is referring to “An Act for granting a more effectual Relief in Cases of certain Trespasses,” passed March 17, 1783 (New York Laws, 6th Sess., Ch. XXXI).
4. “An Ordinance Respecting Suits for the Recovery of Debts” (South Carolina Laws, 1784 Sess. [March 26, 1784]).
5. “An Act for the speedy Sale of the Confiscated and forfeited Estates within this State, and for other purposes therein mentioned” (New York Laws, 7th Sess., Ch. LXIV).
6. For these acts of the Virginia legislature, see enclosure No. 6 in Thomas Jefferson to George Hammond, May 29, 1792 (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).
8. See the second essay by “Cinna” (Brockholst Livingston) (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 4, 5, 1795). For background to this essay, see “Philo Camillus No. 3,” August 12, 1795. H’s reference is not a direct quotation from the essay, but a paraphrase of several statements in it. It is closest in wording to the following: “Treaties, then, from the very nature of our union, being the supreme laws of the land, it results necessarily, that its provisions [i.e., those of the treaty of peace of 1783] could not be controuled by the laws of any state, and that no one could reasonably complain of the existence of such acts, which, by the treaty, were rendered nugatory, until obedience to them was enforced by the courts to whom the exposition of such acts and treaties was delegated” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 5, 1795).
9. H is referring to resolutions of the Virginia House of Delegates on June 22, 1784 (see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, notes 37 and 38), and “An act to repeal so much of all and every act or acts of assembly as prohibits the recovery of British debts,” passed December 12, 1787 (Virginia Laws, 12th Sess., Ch. XXXIV).
10. In MS, “respealed.”
11. Article 2 of “An act to repeal so much of all and every act or acts of assembly as prohibits the recovery of British debts” states: “That this act shall be suspended until the governor with the advice of council shall by his proclamation, notify to this state, that Great Britain hath delivered up to the United States the posts therein now occupied by British troops, which posts were stipulated by treaty to be given up to congress immediately after the conclusion of peace; and is also taking measures for the further fulfilment of the said treaty by delivering up the negroes belonging to the citizens of this state taken away contrary to the seventh article of the treaty, or by making such compensation for them as shall be satisfactory to congress” (Virginia Laws, 12th Sess., Ch. XXXIV [December 12, 1787]).
12. This is a reference to Thomas Jefferson’s letter of May 29, 1792, to George Hammond, the British Minister, respecting alleged violations of the treaty of peace 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).
13. The letter from James Monroe to Jefferson is dated May 1, 1792; that from William B. Giles, May 6, 1792. They are printed as enclosures to Jefferson’s letter to Hammond of May 29, 1792 (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, 234–35).
14. Monroe describes the case as follows: “In April, 1791, in the district court of Fredericksburg, the case Mitchell against Wallis, in which the law of the State was plead, in bar of the debt, the following were the circumstances:
“Mitchell, a native of Great Britain, residing and trading in Virginia, having debts due him, to great amount, conveyed them, with other property, just before the war, to the use of his creditors in Great Britain, and of one creditor in Virginia. In this situation the debts remained through the war, and the action was brought in favor of the British creditors, in 1788, or ’89, and judgment rendered for the plaintiffs. Several other judgments were entered in favor of the same parties, in that and the subsequent term. This must be deemed such a debt as was supposed to be prohibited and provided for by the treaty. It was so argued on the part of the defendant, whose counsel I was, and yet judgment was given against him.” (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, 234.)
15. Giles’s letter reads in part: “Previously to my election to Congress, I had been engaged for several years in the practice of law in the State of Virginia. In the prosecution of that business, I was often applied to upon the subject of debts due to British subjects, and had an opportunity of observing the proceedings of several of the courts, in suits brought for the recovery of such debts.
“The rules of several of the county courts were not entirely uniform. In some of the counties, suits of that description were generally continued upon the dockets without trial; but they were such as were not much pressed by the plaintiff’s counsel. In other counties they were brought to trial, and in all the cases within my recollection, in which the debts were established by competent testimony, judgments were rendered for the plaintiffs; except in one instance, in the court for the county of Chesterfield, where, upon an issue of fact upon the plea of a British debt, the jury found the plaintiffs to be British subjects, which finding caused some delay; but judgment was afterwards rendered in the same court for the same debt, and the money since paid under the judgment.” (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, 234–35.)
16. See Jefferson to Hammond, May 29, 1792 (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, 210–37).
18. Article 5 of the definitive treaty of peace of 1783 declared that Congress should recommend to the states the restitution of all Loyalist property (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 154).
20. This and the following paragraph are paraphrases of statements made by “Philo Cinna” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 10, 1794). See “Philo Camillus No. 3,” August 12, 1795, note 17.
21. In MS this word is “part.”
22. In the newspaper this word is “complain.”
24. Space left blank in both MS and newspaper.
25. See “Continental Congress. Report on Measures to be Taken for Carrying into Effect the Peace Treaty,” May 30, 1783. The report called on the states to abide by Articles 4, 5, and 6 of the definitive peace treaty.