Front Page Titles (by Subject) no . IV - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . IV - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 5 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 5.
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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 17th of March, 1783. 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 sixth article of her treaty with us, which exempts all persons from prosecution “by reason of the part they might have taken in the war.”
Mr. Jefferson, not controverting the point that the provisions of this act were contrary to the treaty, endeavors to get rid of the inference from it, by alleging three things: 1st. That it passed antecedently to the treaty, and so could not be a violation of an act of subsequent date. 2d. That the treaty was paramount to the laws of the particular States, and operated a repeal of them. 3d. 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 mayor’s court) 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. During the 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 the Confederation did not, like our present Constitution, declare that treaties were supreme laws of the land. The United States, under that system, had no courts of their own, to expound and enforce their treaties as laws. All was to depend upon the comparative 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 on a State, to induce a repeal of laws contrary to it, yet its actual laws could not be controverted 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 entirely upon the force of the treaty to abrogate contravening laws, in their address already cited, urge the States to a repeal of those laws. It is likewise observable in respect to the very act under consideration, that the Legislature of the State, in April, 1787, thought a positive repeal of the exceptionable clause necessary.
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: “It is not for us to concern ourselves about the structure and meaning of your political constitutions, or the force of legal maxims deducible from the forms and distributions of power which you have adopted for your government. It is the act in which alone we are interested; you have stipulated this and that to us—your stipulation in practice is contravened. It is your duty to see that there are no impediments from conflicting authorities within yourselves, to an 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 Supreme Court against it; and it may not be amiss to remark incidentally, that the decision of the mayor’s court, from which Mr. Jefferson is glad to derive an exculpation of our conduct, was the subject of a severe animadversion at a popular meeting in this city, as a judiciary encroachment on the legislative authority of the State. The truth on this point is, that according to the 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 waived; and the endeavor on behalf of the 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 and Waddington, after a partial success in the mayor’s court, was terminated by a compromise, according to the advice of the defendant’s council, owing to the apprehension of an unfavorable issue in the Supreme Court; and this, notwithstanding the defendant was a British subject.
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 commencement of its existence? Can we reasonably expect that 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?
It is pertinent to remark that the British commander-in-chief very early remonstrated against this act; but the remonstrance produced no effect.
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 contemporary with that of the detention of the posts. Its date is the 12th of May, 1784. This act confirms, in express terms, all confiscations before made, notwithstanding 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 restitution of new judgments.
Another and an unequivocal breach of the treaty is found in an act of South Carolina, of March 26, 1784. This act suspends the recovery of British debts for nine months, and then allows them to be recovered only in four yearly instalments, contrary to the express stipulation of the fourth article, “that creditors on either side shall meet with no lawful impediments 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 22d June, 1784, 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 withhold 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 indisputably necessary, such acts and parts of acts 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.”
The plain language of this resolution 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 unfounded this position might have been in theory, here is conclusive evidence that the fact in Virginia was conformable to 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 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 controlled the laws of the States?
Additional proof of the contrary is found in the subsequent conduct of Virginia. On the 12th of December, 1787, the 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, by 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 by making compensation for them. 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 reparation of the breaches of treaty by Great 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 abilities of the commonwealth.
As the infraction which these proceedings of Virginia admit resulted from acts passed during the war, it was of course coeval with the first existence of the treaty of peace, and seems to preclude the possibility of any prior breach by 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 United States to make compensation.
The argument, then, upon the whole, as to the question of the 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 act 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 their recovery of debts on our part. This, in the case of South Carolina, is determined by the date of her act (March 26, 1784), which is before the exchange of the ratifications of the definitive treaty could have taken place. 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 until after the year 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 are guilty of a breach in not acting ourselves upon that treaty; a breach which, being contemporary with the existence of the treaty, seems not to admit of any prior contravention. 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 render a waiver of it, even on the score of intrinsic merit, expedient on our part? and especially whether they can entertain a particle of doubt, that it was wiser to waive it than to suffer it to prove a final obstacle to the adjustment of a controversy on which the peace of their country was suspended? This was undoubtedly the alternative to our envoy. In the choice he made, the ultimate opinion of our enlightened country cannot fail to applaud his prudence.