The Defence No. IV1
[New York, August 1, 1795]
An accurate enumeration of the breaches of the Treaty of peace on our part would require a tedious research. It will suffice to select and quote a few of the most prominent and early instances.
One of the earliest is to be found in an Act of this state for granting a more effectual relief in cases of certain Trespasses passed the 17 of March 1783.2
This act takes away from any person (subjects of Great Britain of every description included) who had during the war occupied injured destroyed or received property real or personal of any inhabitant without the British lines the benefit of the plea of a military order; consequently the justification which the laws and usages of war give, and the immunity resulting from the reciprocal amnesty which expressly or virtually is an essential part of every Treaty of peace. To this it may be added, that it was considered by Great Britain as a direct infraction of the 6th article of her Treaty with us, which exempts all persons from prosecution “by reason of the part they might have taken in the War.”3
Mr. Jefferson, not controverting the point that the provisions of this act were contrary to the Treaty, endeavours to get rid of the inference from it, by alleging three things.4
1st. That it passed antecedently to the Treaty, and so could not be a violation of an act of subsequent date.
2 That the Treaty was paramount [to] the laws of the particular States & operated a repeal of them.
3 That the exceptionable principle of this act was never sanctioned by the Courts of Justice and in one instance (the case of Rutgers and Waddington in the Mayors Court)5 was overruled.
As to the first point, it is sufficient to answer that the law continued to operate, in fact, from the time of the Treaty till the 4th of April 1787, when there was a repeal of the exceptionable clause by an act of our legislature.6 During this period of four years, many suits were brought and many recoveries had—extending even to persons who had been in the military service of Great Britain.
To the second point, these observations may be opposed.
The articles of confederation did not like our present constitution declare that Treaties were supreme laws of the land. The U States under that system had no courts of their own to expound and enforce their Treaties as laws. All was to depend on the comparitive authority of laws and Treaties in the judgment of the State Courts.
The question, whether Treaties were paramount to and a virtual repeal of antecedent laws was a question of theory, about which there was room for, and in this country did exist much diversity of opinion. It is notorious, that it has been strenuously maintained that however a national Treaty ought in good faith to be conclusive upon a state to induce a repeal of laws contrary to it—yet its actual laws could not be controuled7 by Treaty without an actual repeal by its own authority. This doctrine has been emphatically that of the party distinguished by its opposition to national principles.
And it is observable that Congress not relying intirely upon the force of the Treaty to abrogate contravening laws, in their address already cited,8 urge the states to a repeal of those laws. It is likewise observiable in respect to the very act under consideration that the Legislature of this State in April 1787 thought a positive repeal of the exceptionable clause necessary.9
The complaints of a power, whose treaty with us was in fact violated by the operation of a state law, could never be satisfactorily answered by referring to a theoretic abstract disputed proposition. Such a power might reply with irresistible force. Tis not for us to concern ourselves about the structure or meaning of your political constitutions, or the force of the legal maxims deducible from the forms and distributions of power which you have adopted for your Government—’tis the fact, in which alone we are interested. You have stipulated this and that to us. Your stipulation in practice is contravened. Tis your duty to see that there is no impediment from conflicting authorities within yourselves to the exact fulfilment of your promises. If you suffer any such impediment to exist, you are answerable for the consequences.
As to the third point it is to be observed that though there may have been no express formal decision of our Courts enforcing the exceptionable principle of the Trespass act—yet there never was a decision of a superior Court against it. And it may not be amiss to remark incidentally that the decision of the Mayors Court from which Mr. Jefferson is glad to derive an exculpation of our conduct10 was the object of severe animadversion at a popular meeting in this City as a judiciary encroachment on the legislative authority of the State.11
The truth on this point is that according to the general opinion of our bar a defence under a military order was desperate; and it was believed that a majority of our Supreme Court Bench would overrule the plea. Hence in numerous cases where it might have been used it was waved; and the endeavour on behalf of defendants was either to effect on collateral grounds a mitigation of damages or to accomplish the best compromises that could be obtained. Even the suit of Rutgers & Waddington after a partial success in the Mayors Court was terminated by a compromise according to the advice of the defendants counsel owing to the apprehension of an unfavourable issue in the Supreme Court; and this notwithstanding the defendant was a British subject.
It is pertinent to remark, that the British Commander in Chief very early remonstrated against this act, but the remonstrance produced no effect.12
Under these circumstances which are faithfully represented, is it possible to doubt that the Act in question operated a breach of our Treaty with Great Britain? and this from the very commencement of its existence? Can we reasonably expect that the nations with whom we have treaties will allow us to substitute theoretic problems to performances of our engagements, and will be willing to accept them as apologies for actual violations?
Another Act of the State of New York may be cited as a violation of the Treaty on our part which must have been nearly co-temporary with that of the detention of the posts. Its date is the 12 of May 1784.13 This act confirms in express terms all confiscations before made, nothwithstanding errors in the proceedings, and takes away the writ of error upon any judgment previously rendered.
This was in substance a new confiscation. Judgments which from error were invalid were nullities. To take away the writ of error by which their nullity might be established was to give them an efficacy which they did not before possess—and as to the operation cannot be distinguished from the rendering of new judgments. To make voidable acts of confiscation valid and conclusive is equivalent to new acts of confiscation. A fair execution of the Treaty required that every thing in this respect should be left where it was and forbade the remedying of defects in former proceedings as much as the institution of new .14
Another and an unequivocal breach of the Treaty is found in an Act of South Carolina of March 26. 1784.15 This Act suspends the recovery of British Debts for nine months, and then allows them to be recovered only in four yearly installments cont[r]ary to the express stipulation of the 4th article “that Creditors on either side shall meet with no lawful impediment to the recovery of the full value in Sterling money of all bona fide debts theretofore contracted”.
It is idle to attempt to excuse infractions of this kind by the pleas of distress and inability. This is to make the convenience of one party the measure of its obligation to perform its promises to another. If there was really an impossibility of payment, as has been pretended, there was no need of legislative obstruction. The thing would have regulated itself, and the very interest of the creditor was a pledge that no general evil could have resulted from allowing a free course to the laws. If such impediments could be justified, what impediments might not be justified? What would become of the Article—the only one in the Treaty to be performed by us of real consequence to Great Britain?
This infraction by South Carolina was prior to that of the detention of the Posts by Great Britain.
But the case of Virginia is still stronger than that of South Carolina. There is evidence which cannot be disputed that her courts in defiance of the Treaty have constantly remained shut to the recovery of British Debts, in virtue of laws passed during the War.
An Act of her General Assembly of the 22 of June 178416 after suggesting as breaches of the Treaty by Great Britain the carrying off of the negroes and the detention of the posts, after instructing her delegates in Congress to request a remonstrance to the British Court complaining of those infractions and desiring reparation, and after declaring that the national honor and interest of the Citizens of that commonwealth obliged the Assembly to withold their co-operation in the complete fulfilment of the said Treaty until the success of the aforementioned remonstrance is known, or Congress shall signify their sentiments touching the premises—concludes with the following resolution:
“That so soon as reparation is made for the foregoing infraction, or Congress shall judge it indispensably necessary, such acts of the legislature passed during the late war as inhibit the recovery of British Debts ought to be repealed and payment thereof made in such time and manner as shall consist with the exhausted situation of the Commonwealth.”17
The plain language of these resolutions is—that there were acts, passed during the War, which then actually inhibited the recovery of British Debts and that for the removal of this inhibition a repealing Act by the Authority of Virginia was necessary.
However unsound this position may have been in theory, it is conclusive evidence that the fact in Virginia was conformable with it—that her Courts had been ever since the peace, then were, and until a repealing law was passed were likely to continue to be, shut against the recovery of British Debts. When testimony of this kind was urged by the British Minister was it possible for our envoy to make any solid reply? Who could be supposed to know better than the Legislature of Virginia the real state of the fact? When that Legislature had declared it to be as has been stated who or what could contradict it? With what truth has it been asserted that “it was at all times perfectly understood that Treaties controuled the laws of of the States?”18
Additional Proof of the contrary is found in the subsequent conduct of Virginia. On the 12th of December 1787 that state passed an act repealing all such acts or parts of acts of the state as had prevented or might prevent the recovery of Debts due to British subjects according to the true intent of the Treaty; but with this proviso that there should be a suspension of the repeal till the Governor with advice of Council had by proclamation notified that Great Britain had delivered up the Posts and was taking measures for the further fulfilment of the Treaty by delivering up the negroes or making compensation for them.19 This denotes clearly that in the opinion of the legislature of Virginia, there were acts of that State which had prevented and might prevent the recovery of Debts according to the Treaty.
It is observable too that the resolutions of June 1784 do not even give the expectation of a complete repeal of the impeding laws, in the event of a reparation of the breaches of Treaty by G: Britain. They only promise such a modification of them as would permit the payment in such time and manner as should consist with the exhausted situation of the Commonwealth; that is, not according to the true intent of the Treaty, but according to the opinion of the legislature of Virginia of the ability of the Commonwealth.
As the infraction, which these proceedings of Virginia admit, resulted from acts passed during the war, it of course was coeval with the first existence of the Treaty of peace—and seems to preclude the possibility of any prior breach of Great Britain. It has been at least demonstrated, that the detention of the posts was not such prior breach—as there was no obligation to surrender till after the exchange of the ratifications of the definitive Treaty in England.
I pass by the serious contraventions of the Treaty, in this important article of the Debts, which are of later date, because they do not affect the question of the first breach; though they are of great weight to demonstrate the obligation of the U States to make compensation.
The argument then, upon the whole, as to the question of first breach stands thus—It is a great doubt whether the carrying away of the negroes was at all a breach. If it was one, the Trespass Act20 of this state preceded it in date and went into operation the very moment it was possible to issue process. The detention of the posts, is subsequent to breaches of the article concerning the recovery of Debts on our part. This in the case of South Carolina is determined by the date of her act (March the 26. 1784) which is before the exchange of the ratifications of the definitive Treaty could have taken place.21 In that of Virginia it results from her own testimony, that impediments to the recovery of British Debts created by acts passed during the war continued from the first moment of the peace till after the war 1787. Or if contrary to our own interpretation, we are disposed to adhere to the provisional treaty as the act from which performance was to date we were guilty of a breach in not acting ourselves upon that Treaty—a breach at least cotemporary with any that can be imputed to G Britain.22 From all which it follows, that take what ground we will, we must be perplexed to fix the charge of the first breach of the Treaty upon Great Britain.
Let the appeal be to the understandings and hearts of candid men, men who have force of mind sufficient to rescue themselves from the trammels of prejudice and who dare to look even unpalatable truths in the face. Let such men pronounce whether they are still satisfied that Great Britain is clearly chargeable with the first breaches of the Treaty—whether they are not on the contrary convinced that the question is one so mixed and doubtful as to have rendered a waver of it even on the score of intrinsic merits expedient on our part—and principally whether they can entertain a particle of doubt, that it was wiser to wave it than to suffer it to prove a final obstacle to the adjustment of a controversy on which the peace of the Country was suspended.
This was undoubtedly the alternative to our Envoy. In the choice he made, the final opinion of an enlightened Country cannot fail to applaude his prudence.
2. New York Laws, 6th Sess., Ch. XXXI. On March 5, 1792, George Hammond, British Minister to the United States, wrote to Thomas Jefferson “an abstract of such particular acts of the United States as appear to me infractions, on their part, of the definitive treaty of peace, concluded between the king, my master, and the United States.” At the end of this letter there is an appendix consisting of a list of state laws that Hammond considered violations of the treaty. On May 29, 1792, Jefferson replied to Hammond’s letter and discussed in considerable detail each of Hammond’s allegations. The New York act of March 17, 1783, as well as all the other state statutes which H mentions in “The Defence No. IV,” is considered by both Hammond and Jefferson, whose letters on this subject are 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, 193–237.
3. For the text of Article 6 of the definitive peace treaty, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 155.
4. See Jefferson to Hammond, May 29, 1792 (ADf, Thomas Jefferson Papers, Library of Congress). This 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, 201–37.
5. For the full and authoritative treatment of this case and H’s part in it, 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, May 20–27, 1792.
7. In the newspaper this word is “controverted.”
9. See note 6.
10. 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, 201–37).
11. This meeting was held on September 13, 1784. On the day of the meeting, the following notice, addressed “To the citizens of New-York,” appeared in The New-York Packet. And the American Advertiser: “You are invited to meet at Mrs. Vandewater’s on Monday evening, for the purpose of taking measures in consequence of the late decision in the Mayor’s Court, in the cause of Rutgers and Waddington. Before you accept this invitation, let me request you to reflect on the impropriety and danger of meddling in this business.… Is not the Mayor’s Court an inferior court of limited jurisdiction? and if that court has erred in a point of law, is there not a natural and easy remedy—an appeal to the Supreme Court by writ of error? If that Court should not reverse but confirm the sentence of the Mayor’s Court, is there not still left a further and higher mode of legal and constitutional redress—an appeal to the Court ordained by the thirty-second article of the constitution, for the trial of impeachments and the correction of errors? a Court which will consist of one branch of the Legislature, to wit, the Senate, together with the Chancellor, and Judges of the Supreme Court? …
“If the Judges of the Mayor’s Court have acted erroneously, let their error be rectified by an appeal to a higher tribunal; if they have acted corruptly, let them be impeached. This last is the proper business of the Legislature, and let us leave the Legislature to their own business.” The Packet did not give an account of the meeting, but its issue of November 4, 1784, contained an open letter to the people of the state of New York from a committee which had been set up at the meeting. This letter is printed in Henry B. Dawson, The Case of Elizabeth Rutgers versus Joshua Waddington, Determined in the Mayor’s Court, in the City of New York, August 7, 1786. With an Historical Introduction (Morrisania, New York, 1866), xxv–xl. 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, 289, note 17; 313, note 85.
In the newspaper version this paragraph is printed after the succeeding one.
13. “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).
14. At this point H wrote and crossed out the word “proceedings.” In the newspaper version the conclusion of this sentence reads: “as much as the institution of new judgments.”
16. This was not an act but a series of resolutions made by 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.
18. Jefferson made this statement in his letter to Hammond of 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).
20. See note 2.
21. Ratifications of the definitive treaty 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 , 151).
22. Instead of the words “a breach at least co-temporary with any that can be imputed to G Britain,” the concluding part of this sentence in the newspaper reads: “a breach, which, being co-temporary with the existence of the treaty, seems not to admit of any prior contravention.”