New York Assembly. Remarks on an Act Repealing Laws
Inconsistent With the Treaty of Peace1
[New York, April 17, 1787]
Mr. Hamilton in a very animated and powerful speech, expressed great uneasiness that any opposition should be made to this bill, particularly as this state was individually interested therein. He felt greater regret from a conviction in his own mind, on this occasion, that the bill should be objected to, as there was not a single law in existence in this state, in direct contravention of the treaty of peace. He urged the committee to consent to the passing of the bill, from the consideration, that the state of New-York was the only state to gain any thing by a strict adherence to the treaty. There was no other state in the union that had so much to expect from it. The restoration of the western posts, was an object of more than £100,000 per annum. Great Britain, he said, held those posts on the plea that the United States have not fulfilled the treaty. And which we have strong assurances, she will relinquish, on the fulfillment of our engagements with her. But how far Great Britain might be sincere in her declaration, was unknown. Indeed, he doubted it himself. But while he doubted the sincerity of Great Britain, he could not but be of opinion that it was the duty of this state to enact a law for the repeal of all laws which may be against the said treaty, as by doing away all exceptions, she would be reduced to a crisis. She would be obliged to shew to the world, whether she was in earnest or not; and whether she will sacrifice her honor and reputation to her interest. With respect to the bill as it was drafted in conformity to the recommendation of Congress; he viewed it as a wise, and a salutary measure; one calculated to meet the approbation of the different states, and most likely to answer the end proposed. Were it possible to examine an intricate maze of laws, and to determine which of them, or what parts of laws were opposed to the treaty, it still might not have the intended effect, as different parties would have the judging of this matter. What one should say was a law not inconsistent with the peace, another might say was so, and there would be no end, no decision of the business. Even some of the states might view laws in a different manner. The only way to comply with the treaty, was to make a general and unexceptionable repeal. Congress with an eye to this, had proposed a general law, from which the one before them was a copy. He thought it must be obvious to every member of the committee, that as there was no law in direct opposition to the treaty, no difficulty could arise from passing the bill.
Some gentlemen, he observed, were apprehensive that this bill would restore the confiscated estates, &c. This he did not admit. However, if they were so disposed they might add a proviso to prevent it. He had wrote one, which any of the gentlemen might move for if they thought it necessary; in his opinion it was not.
The treaty only provided that no future confiscations should take place; and that Congress should earnestly recommend a restoration of property. But there was nothing obligatory in this.
If this state should not come into the measure, would it not be a very good plea for the other states to favor their own citizens, and say why should we do this, when New-York, the most interested of any of the states, refuses to adopt it; and shall we suffer this imputation when, in fact, we have no laws in existence that militate against the treaty. He stated the great disadvantages that our merchants experienced from the western posts being in the hands of the British, and asked if it was good policy to let them remain so.
It had been said that the judges would have too much power;2 this was misapprehended. He stated the powers of the judges with great clearness and precision. He insisted that their powers would be the same, whether this law was passed or not. For, that as all treaties were known by the constitution as the laws of the land, so must the judges act on the same, any law to the contrary notwithstanding.
Cicero, the great Roman Orator and lawyer, lays it down as a rule, that when two laws clash, that which relates to the most important matters ought to be preferred. If this rule prevails, who can doubt what would be the conduct of the judges, should any laws exist inconsistent with the treaty of peace: But it would be impolitic to leave them to the dilemma, either of infringing the treaty to enforce the particular laws of the state, or to explain away the laws of the state to give effect to the treaty.
He declared that the full operation of the bill, would be no more than merely to declare the treaty the law of the land. And that the judges viewing it as such, shall do away all laws that may appear in direct contravention of it. Treaties were known constitutionally, to be the law of the land, and why be afraid to leave the interpretation of those laws, to the judges; the constitution knows them as the interpreters of the law. He asked if there was any member of the committee that would be willing to see the first treaty of peace ever made by this country violated. This he did not believe, he could not think that any member on that floor harboured such sentiments.
He was in hopes the committee would agree with him in sentiment, and give a proof of their attachment to our national engagements by passing the bill, which would do away every exception of the British Court.3
The [New York] Daily Advertiser, April 23, 1787.
1. In HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , IV, 291–94, and Hamilton, History description begins John C. Hamilton, Life of Alexander Hamilton, a History of the Republic of the United States of America (Boston, 1879). description ends , III, 196–99, H’s remarks are erroneously assumed to have been made on an act entitled “An act relative to debts due to persons within the enemy’s lines,” and another act entitled “An act to explain and amend the act entitled an act relative to debts due to persons within the enemy’s lines.”
On March 21, 1787, the Continental Congress resolved that the states should repeal all acts repugnant to the treaty of peace and recommended that the several states “make such repeal rather by describing than reciting the said acts and for that purpose to pass an Act declaring in general terms that all such acts and parts of acts repugnant to the treaty of peace … shall be and thereby are repealed” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXXII, 125). On April 13, 1787, Samuel Jones introduced in the New York legislature a bill entitled “An act to repeal all the laws of this State, inconsistent with the treaty of peace between the United States of America, and the King of Great-Britain.” The bill was read a second time on April 14 and committed to a committee of the whole house (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 160, 162).
On April 17, the committee of the whole house reported that the title of the proposed act should be changed to “An act complying with the act of the United States in Congress assembled, of the twenty-first day of March, one thousand seven hundred and eighty-seven (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 169).
2. The resolution of the Continental Congress had recommended that all laws repugnant to the treaty be repealed and that “the courts of law and equity in all causes and questions cognizable by them respectively and arising from or touching the said treaty shall decide and adjudge according to the true intent and meaning of the same” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXXII, 125).
3. At the conclusion of his speech, the following exchange took place between H and William Denning, assemblyman from New York City:
“Mr. Denning rose to reply. He had no doubt of the gentleman (Mr. Hamilton’s) candour: but he was still of opinion that the laws should be mentioned particularly. He had a proper sense of the importance of the western posts, and was as great an advocate for national and constitutional measures as any man; but what he had heard on the occasion, served to convince him he was right in his first observations.
“Col. Hamilton replied in a few words that it was absolutely necessary to pass the bill, and that no disadvantage would arise from it, as he again declared, we had no laws in existence that would be affected by it.
“Mr. Denning thought otherwise; and said that the opinion of a very great lawyer and civilian had been taken to the contrary.
“Mr. Hamilton doubted if such an opinion had been given; but if it had, could only have been for partial purposes.” (The Daily Advertiser, April 23, 1787.)
On April 18 the bill was passed by the Assembly and sent to the Senate for concurrence. The Senate did not approve it.