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In which Hamilton faces off against a patriotic popular phrenzy in New York.
Meanwhile, in New York
Last week Alexander Hamilton survived the Pennsylvania Mutiny and left Congress. But he couldn’t settle down in New York and set up his law practice quite yet. Fortress Manhattan, occupied by the British in August 1776, was still under their control in the summer of 1783.
Preliminary articles of peace had been negotiated in November 1782, and approved by Congress in April 1783. Of course, peace just meant “We won’t kill each other any more,” not “We’re friends now.” In New York, especially, reminders of the war were everywhere: buildings and wharves in shambles, a third of the city in ashes, the bones of those who died on prison ships washing up in Wallabout Bay. As wrathful New Yorkers began streaming back to the city in the spring and summer of 1783, Commander-in-Chief Sir Guy Carlton delayed his departure long enough to ensure that loyalists who wanted to leave the United States could do so under British protection. (NOTE: Those loyal to the British crown were also known as “Tories,” and their opponents as “Whigs.” I’m using the terms “loyalist” and “patriot” in this post, because their meaning is immediately obvious.)
Into this explosive situation rode Alexander Hamilton, on his way to the Schuyler home in Albany. In a letter to Robert Livingston (8/13/1783), he expressed his dismay at the actions of the patriots.
Being in company with Mrs. Schuyler I was induced, in complaisance to her, to pass through New York. But I was sorry not to find any satisfactory ground to believe that the suspicions entertained of the arrival of the definitive treaty were well founded; though Rivington when it is mentioned to him shrugs up his shoulders and looks significantly; and Sir Guy has never explicitly denied its having been received by the Mercury. Measures however seem to be taking in earnest towards an evacuation. A second and a considerable detachment of German troops is embarking. Intelligence is current of the sailing of a large fleet of transports from England. Yet I do not think the British will take leave before the ides of October.
The spirit of emigration has greatly increased of late. Some violent papers sent into the city have determined many to depart, who hitherto have intended to remain. Many merchants of second class, characters of no political consequence, each of whom may carry away eight or ten thousand guineas have I am told lately applied for shipping to convey them away. Our state will feel for twenty years at least, the effects of the popular phrenzy. (More here; similar but shorter letter to James Duane, 8/5/1783, here.
A guinea was 1/4 oz. of gold, so at today’s prices, each of the “merchants of the second class” were worth $2 or $3 million. Including such merchants, about 30,000 loyalists fled New York in 1783. Many were residents of neighboring states who had come to Manhattan for protection when the war broke out.
But not all the loyalists left. Some chose to remain in their home town and to pledge their allegiance to the new nation. That makes them, in 1784, former loyalists. (I’ll keep calling them that, just to remind us that they’re no longer rooting for King George.) If the former loyalists had committed no crimes during the War, their change of allegiance should have meant they could live in peace.
Patriotic New Yorkers seek vengeance
During the Revolutionary War, the New York State legislature had passed a slew of laws against loyalists fighting on behalf of the British or living behind British lines. For example:
- The Act to Regulate Elections (1778) prohibited loyalists from voting or holding office.
- The Banishing Act (1778) provided that persons of “equivocal and suspected character” could be exiled from New York State.
- By the Forfeitures Act (1779), the state could confiscate the property of any loyalist. Bills of attainder (laws aimed at specific individuals, imposing a punishment without trial) were passed the same year against 59 loyalists. Sale of their property was authorized in 1780.
- By the Citation Act (1782), the state protected patriots from being sued by loyalists for debts. If the patriots chose to pay the debts, they were permitted to use the nearly worthless money printed by New York and the Continental Congress.
- “An Act for granting a more effectual relief in cases of certain trespasses” (a.k.a. the Trespass Act) was passed in March 1783. The Trespass Act allowed patriots who had fled New York City to bring suit against loyalists who had occupied their deserted property. It didn’t matter if the loyalists were behind enemy lines, acted on the orders of the British army, and paid rent to the British. There was no legal appeal of a verdict brought under the Trespass Act.
What’s wrong with the Trespass Act? First, it was retroactive (an ex post facto law). It declared an action that was legal when performed to have been illegal. Second, the Trespass Act contravened the terms of the peace treaty between Great Britain and the United States. When the Trespass Act was passed, the provisional terms of the peace treaty were known. According to Article Six, new prosecutions of loyalists were forbidden.
That there shall be no future confiscations made nor any prosecutions commenced against any person or persons for, or by reason of, the part which he or they may have taken in the present war, and that no person shall on that account suffer any future loss or damage, either in his person, liberty, or property; and that those who may be in confinement on such charges at the time of the ratification of the treaty in America shall be immediately set at liberty, and the prosecutions so commenced be discontinued. (More here)
Alexander Hamilton knew that the Trespass Act would have economic and political repercussions – all of them bad. As an advocate of business, commerce, and trade, he was acutely aware of the amount of working capital and productive labor that New York lost by driving away former loyalists.
And politically? Hamilton was one of the few Founding Fathers with a national perspective. As an immigrant, he did not favor any particular state. As George Washington’s aide-de-camp for four years, he had worked on problems of national scope. To Hamilton, New York State’s Trespass Act undercut the status of the United States on the world stage.
In the eye of a foreign nation, if our engagements are broken, it is of no moment whether it is for the want of good intention in the government or for want of power to restrain its subjects. (to Gov. George Clinton, 6/1/1783; in last week’s post)
The knowledge that the Trespass Act contravened a national treaty had no effect whatsoever on New York’s governor and legislature. The passage of the Act was yet another indication of how weak the national government was under the Articles of Confederation. New Yorkers taking revenge trumped national concerns.
Hamilton and three fellow lawyers defend former loyalists
In late November 1783, just after the British evacuated, Hamilton, Eliza, and Philip moved from Albany to New York City. By December 10, Hamilton and three fellow New York lawyers were petitioning the president of Congress for a definitive copy of the peace treaty, so that they could defend former loyalists who were being sued under the Trespass Act.
Being concerned as Council for a number of persons, who, since the annunciation of the provisional treaty have been indicted under the confiscation laws of this state for the part they are supposed to have taken in the late war, we are induced at the desire of our clients and in their behalf, to apply to Congress through your Excellency for an exemplification of the definitive treaty. … [A]s there is a great strictness in the Courts of this State, it will we apprehend, be necessary to be able to produce an exemplification of the treaty under the seal of the United States. In a matter so interesting to a great number of individuals (for it does not belong to us to urge considerations of national honor) we hope we shall be excused when we observe that there appears to us no probability that the legislature of this state will interpose its authority to put a stop to prosecutions ’till the definitive treaty is announced in form. In the mean time a period is limited for the appearance of the indicted persons to plead to their indictments, and if they neglect to appear within the time judgment by default will be entered against them. (More here)
Although other lawyers defended former loyalists, Hamilton was unquestionably the one who hoisted the flag and sallied forth as leader. In January 1784, as a broadside across the bows of patriots suing under the Trespass Act, he published a “Letter from Phocion.” (Phocion, an Athenian statesman and general, is the subject of one of Plutarch’s Lives – one of Hamilton’s favorite books.) Hamilton condemns the ex post facto law.
[The legislature] could not, and cannot, without tyranny, disfranchise or punish whole classes of citizens by general discriptions, without trial and conviction of offences known by laws previously established declaring the offence and prescribing the penalty.
This is a dictate of natural justice, and a fundamental principle of law and liberty. …
If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partizans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. (More here)
Furthermore, Hamilton points out, allowing new prosecutions of former loyalists is expressly prohibited by Article Six of the treaty ending the War.
In the “Letter from Phocion,” Hamilton also examines the motives of those who favor exiling former loyalists. He demolishes the idea that having former loyalists among us will be hazardous for our liberties. He demolishes the idea that it is acceptable to strip former loyalists of their rights, if they remain.
Last month I spent a ridiculous amount of time trying to get a grip on the ideas that drive Hamilton’s economic policies. (See my Hamilton bio, 4.3.6.) In light of that, I was particularly impressed with this passage of the “Letter from Phocion,” in which Hamilton demolishes the argument that if former loyalist businessmen and workers leave, those who remain (the patriots) will be better off. Could any other Founding Father have written this passage? I don’t think so.
I am momentarily distracted by the vision of Hamilton responding to those who suggest we’d all be better for redistributing the wealth of the 1%, or for that matter of the other 99%. …
And I’m back. Here he goes.
The men who are at the head of the party which contends for disqualification and expulsion, endeavoured to inlist a number of people on their side by holding out motives of private advantage to them. To the trader they say, you will be overborne by the large capitals of the Tory merchants; to the Mechanic, your business will be less profitable, your wages less considerable by the interference of Tory workmen. A man, the least acquainted with trade, will indeed laugh at such suggestion. He will know, that every merchant or trader has an interest in the aggregate mass of capital or stock in trade; that what he himself wants in capital, he must make up in credit; that unless there are others who possess large capitals, this credit cannot be had, and that in the diminution of the general capital of the State, commerce will decline, and his own prospects of profit will diminish.
These arguments, if they were understood, would be conclusive with the Mechanic: “There is already employment enough for all the workmen in the city, and wages are sufficiently high. If you could raise them by expelling those who have remained in the city, and whom you consider as rivals, the extravagant price of wages would have two effects; it would draw persons to settle here, not only from other parts of this State, but from the neighbouring States: Those classes of the community who are to employ you, will make a great many shifts rather than pay the exorbitant prices you demand; a man will wear his old cloaths so much longer before he gets a new suit; he will buy imported shoes cheap rather than those made here at so dear a rate: The owner of a house will defer the repairs as long as possible; he will only have those which are absolutely necessary made; he will not attend to elegant improvement, and the like will happen in other branches. These circumstances will give you less employment, and in a very little time bring back your wages to what they now are, and even sink them lower. But this is not all: You are not required merely to expel your rival mechanics, but you must drive away the rich merchants and others who are called Tories, to please your leaders, who will persuade you they are dangerous to your liberty (though in fact they only mean their own consequence.) By this conduct you will drive away the principal part of those who have the means of becoming large undertakers. The Carpenters and Masons in particular, must be content with patching up the houses already built and building little huts upon the vacant lots, instead of having profitable and durable employment in erecting large and elegant edifices.”
There is a certain proportion or level in all the departments of industry. It is folly to think to raise any of them, and keep them long above their natural height. By attempting to do it the œconomy of the political machine is disturbed, and till things return to their proper state, the society at large suffers. The only object of concern with an industrious artisan, as such, ought to be, that there may be plenty of money in the community, and a brisk commerce to give it circulation and activity. All attempts at profit, through the medium of monopoly or violence, will be as fallacious as they are culpable. (More here)
Rutgers v. Waddington …
The test case for the Trespass Act was Rutgers v. Waddington. Mrs. Rutgers was a little old lady whose family brewery had been used during the war by Evelyn Pierrepont and Benjamin Waddington, both of whom had moved to England before the war ended. Rutgers was suing Benjamin’s nephew Joshua Waddington for £8,000. For an overview of the case, its context, and its aftermath, listen to Pooja Nair’s excellent talk from 2015, “A Bar Fight That Changed America: Rutgers v. Waddington.”
The New York Mayor’s Court, closed down during the British occupation, opened for business on February 24, 1784. Rutgers v. Waddington was on the docket that very day. The formal plea was filed in April, and on June 29 it was argued before the Mayor’s Court. Hamilton knew that pleading the Trespass Act’s long-term damage to New York’s economy would not work as a legal defense. Instead, he made three main points about the context and content of the Act. (This is a restatement of Forrest McDonald’s summary in Alexander Hamilton: A Biography, pp. 66-67).
- New York State’s Constitution incorporated the common law. The common law included the law of nations and the laws of war. The laws of war stated that an occupying army had the right to full use of property in the enemy territory it held, and that the owners had no claim for compensation afterwards.
- The Treaty of Paris explicitly stated that no new prosecutions of loyalists were to be initiated.
- The court was obliged to consider whether the Trespass Act was incompatible with higher law (the law of nations and the peace treaty). If it was incompatible, then the court must hold the Trespass Act invalid.
The third point, notes McDonald, was turned by Hamilton into a more palatable option. My command of legal terminology is sketchy, so I’ll quote McDonald.
Courts were regularly called upon, Hamilton said, to construe the meaning of the law as it applied to particular cases. The rules of construction were clear and well known. One of these was the supposition that the legislature is wise and honest; and thus if a narrowly literal reading of the language of a statue leads to an absurd, contradictory, or unjust application, it must be assumed that the legislature had not intended for the act to be read that way. ..
[With regard to the present case of Joshua Waddington, Hamilton argued], The defendant was a foreigner; to make a British alien subject to suit under the Trespass Act would violate the common law, the peace treaty, the law of nations, the honor of the United States, and a number of established legal principles. Since the statute did not declare that the legislature intended to do all that, Hamilton concluded, it must be held that the act did not apply to the defendant, even if it be held that the statue itself were valid. (McDonald, p. 68, here)
On May 12, 1784, While Rutgers v. Waddington was wending its stately way to trial, the New York State legislature passed another retroactive law. Anyone who had held office under the British, helped fit out vessels of war, served in the army, joined the British, or left the state, was guilty of treason and disqualified from voting and from holding office. By one estimate this law excluded from voting about two-thirds of the inhabitants of New York City, Richmond County (Staten Island) and Kings County (Brooklyn), plus nine tenths of Queens County and all of Westchester. (Alexander Clarence Flick, Loyalism in New York During the American Revolution, pp. 163-4)
Clearly the mass of patriotic New Yorkers, including the legislature, is still in phrenzied action.
… and its aftermath
The judges ruled on Rutgers v. Waddington on August 27, 1784. They agreed with some of the plaintiff’s arguments and some of the defendant’s. (Full text of the decision is in Dawson, pp. 1-47.) In September, a jury awarded Rutgers £791 rather than the £8,000 she had sued for.
The Rutgers v. Waddington decision roused fury among patriots. “An Address from the committee appointed at Mrs. Vandewater’s on the 13th day of September, 1784, To the people of the state of New-York” includes the following accusations:
[T]he Mayor’s Court have assumed and exercised a power to set aside an act of the state. That it has permitted the vague and doubtful custom of nations to be plead against, and to render abortive, a clear and positive statute; and military authority of the enemy to be plead against the express prohibition of our legislature.
This proceeding, in the opinion of a great part of the citizens of this metropolis, and in our opinion, is an assumption of power in that Court, which is inconsistent with the nature and genius of our government, and threatening to the liberties of the people. …
If that Independence and freedom which we have obtained at a risque which makes the acquisition little less than miraculous, was worth contending for against a powerful and enraged Monarch, and at the expence of the best blood in America, surely its preservation is worth contending for against those among ourselves, who might impiously hope to build their greatness upon the ruins of that fabric which was so dearly established?
That the principle of decision in the case of Rutgers and Waddington is dangerous to the freedom of our government, and that a perseverance in that principle would leave our Legislature nothing but a name, and render their sessions nothing more than an expensive form of government, the preceding remarks must evidence. (More here)
After spirited debate, the New York State legislature passed a resolution in November 1784:
That the Judgment aforesaid [Rutgers v. Waddington], is, in its tendency, subversive of all law and good order, and leads directly to anarchy and confusion, because if a Court instituted for the benefit and government of a Corporation [New York City] may take upon them to dispense with and act in a direct violation of a plain and known law of the State, all other Courts, either superior or inferior, may do the like; and therewith will end all our dear-bought rights and privileges, and Legislatures become useless. (More here)
New York State legislature to the United States: “Take your judicial review and shove it.”
Hamilton defends more former loyalists
Over the next three years, Alexander Hamilton defended former loyalists in 45 other cases involving Trespass Act, and another 20 under the Confiscation and Citation Acts.
By 1786, the “popular phrenzy” of suing former loyalists was finally subsiding, due in large part to Hamilton’s relentless efforts. In January 1787, Hamilton was appointed chairman of a committee in the New York legislature that was to recommend amendments to the Trespass Act. In April, the part of the Trespass Act that prohibited pleading a military order as a defense was repealed. (More here, note 2.)
From Davis’s Memoirs of Aaron Burr:
Mr. Hamilton’s bill passed; but, lest there should be some forgotten statute that might restrict or limit the political privileges of the tories, it was deemed expedient, on the 13th of April, to introduce and pass an act under the imposing title of “An act to repeal all laws of this state inconsistent with the treaty of peace.” As its provisions met every possible case, the tories were now placed on a footing with the whigs [patriots]. (More here; the section of Burr’s biography seems to be on party politics in the early republic.)
Eight years later, when Jay’s Treaty was under debate, Hamilton admitted to George Washington that his defense of former loyalists seemed to have been little more than a holding action.
The fact is that from the very express terms of the [Trespass] Act a general opinion was entertained embracing almost our whole bar as well as the public that it was useless to attempt a defence—and accordingly many suits were brought and many judgments given without the point being regularly raised and many compromises were made and large sums paid under the despair of a successful defence. I was for a long time the only practicer who pursued a different course and opposed the Treaty to the Act—and though I was never overruled in the Supreme Court, I never got my point established there. I effected many easy compromises to my clients afraid myself of the event in the Supreme Court—& produced delays till the exceptionable part of the Act was repealed. The Supreme Court frequently in a studied manner evaded the main question and turned their decision upon the forms of pleading. (7/9-11/1795; more here)
Next week: Hamilton takes on slave owners in New York.
- Thousands of loyalist refugees took up residence in southeast Canada, in New Brunswick and Nova Scotia. One of the towns they founded was Shelburne, named after the 2nd Earl of Shelburne, later Marquess of Lansdowne, whose dining room we visited earlier this week. For statistics on loyalist emigrants, see Burrows and Wallace, Gotham: A History of New York to 1898, pp. 256-261; on loyalists in New York, here, especially pp. 223-5.
- The bones of some of the 11,000 or so Americans who died on the prison ships continued to wash up on the shores of Wallabout Bay (near the Brooklyn Navy Yard) for decades. Some of those bones are now interred in the Prison Ship Martyrs’ Monument in Fort Greene Park. More on the Prison Ship Martyrs here, with bibliographical references; here, with photos; and here (by Edwin G. Burrows), with several eyewitness accounts.
- Brookhiser gives a very intelligible summary of why the Trespass Act was illegal, even though it was immensely popular. See Alexander Hamilton: A Biography, pp. 64-65.
- For the full text of the judgment in Rutgers v. Waddington, see 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 by Henry B. Dawson (Morrisania, N.Y., 1866). Dawson summarizes the arguments by plaintiff and defendant on pp. xvii-xxiii.
- The definitive work on Rutgers v. Waddington seems to be Peter Charles Hoffer’s Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review (Kansas University Press, 2016). The definitive work on Hamilton’s legal career is The Law Practice of Alexander Hamilton, ed. Julius Goebel, Jr. I haven’t had the time to read either one.
- February 1784 – when Rutgers v. Waddington first appeared on the court docket – was also the month that Hamilton helped establish the Bank of New York. For more on its history and headquarters, see this post on 48 Wall Street.
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