Alexander Hamilton (41 page)

The full truth of Hamilton’s motivation for defending loyalists is complex. He thought America’s character would be defined by how it treated its vanquished enemies, and he wanted to graduate from bitter wartime grievances to the forgiving posture of peace. Revenge had always frightened him, and class envy and mob violence had long been his bugaboos. There were also economic reasons for his stand. He regretted the loss of capital siphoned off by departing Tories, and feared the sacrifice of trading ties vital to New York’s future as a major seaport. He also maintained that the nation’s survival depended upon support from its propertied class, which was being hounded, spat upon, and booted from New York.

Hamilton’s crusade on behalf of injured Loyalists was also spurred by foreign-policy concerns. With the war over, he craved American respectability in Europe. “The Tories are almost as much pitied in these countries as they are execrated in ours,” John Jay advised him from France. “An undue degree of severity towards them would therefore be impolitic as well as unjustifiable.”
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For Hamilton, the anti-Tory legislation in New York flouted the peace treaty with Britain, which stipulated that Congress should “earnestly recommend” to state legislatures that they make restitution for seized Tory property and refrain from future confiscations.
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The treatment of the Tories sensitized Hamilton to the extraordinary danger of allowing state laws to supersede national treaties, making manifest the need for a Constitution that would be the supreme law of the land. For him, the vendetta against New York’s Tories threatened the whole political, economic, and constitutional edifice that he visualized for America.

During the war, the New York legislature had passed a series of laws that stripped Tories of their properties and privileges. The 1779 Confiscation Act provided for the seizure of Tory estates, and the 1782 Citation Act made it difficult for British creditors to collect money from republican debtors. In March 1783, the legislature enacted the statute that most engrossed Hamilton: the Trespass Act, which allowed patriots who had left properties behind enemy lines to sue anyone who had occupied, damaged, or destroyed them. Other laws barred Loyalists from professions, oppressed them with taxes, and robbed them of civil and financial rights. Each of these acts had rabid constituencies. Those who had enriched themselves by buying Tory estates mouthed the rhetoric of liberty while profiting handsomely from their convictions. Revenge, greed, resentment, envy, and patriotism made for an inflammatory mix.

By early 1784, the city had erupted in a wave of reprisals against Tories, who were tarred and feathered. The patriotic press clamored that those who had stayed behind British lines during the war should leave the city voluntarily or be banished. Fearing a Tory stampede, Hamilton did what he always did in emergencies: he took up his pen and protested the anti-Tory legislation in his first “Letter from Phocion,” published in
The New-York Packet.
In plucking the name Phocion from Plutarch, Hamilton cleverly alluded to his own life as well as to antiquity. Phocion was an Athenian soldier of murky parentage who came from another country and became an aide to a great general. Later, as a general himself, the iconoclastic Phocion favored reconciliation with the defeated enemies of Athens. In the essay, Hamilton said that, as a revolutionary veteran, he had “too deep a share in the common exertions of this revolution to be willing to see its fruits blasted by the violence of rash or unprincipled men, without at least protesting against their designs.”
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He railed against the baleful precedent that would be set if the legislature exiled an entire category of people without hearings or trials. If that happened, “no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.”
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Hamilton disputed the rhetoric of Tory baiters and said categorically that they were motivated by “little vindictive selfish mean passions.” To those who thought to profit by driving out Tories, Hamilton cautioned that this strategy would backfire on merchants and workmen alike. “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.’” In fact, Hamilton noted, traders would be denied credit once extended to them by Tory merchants, and mechanics would find that temporarily higher wages either drew more mechanics to New York or slashed demand for their services, returning wages to their former level. Hamilton insisted that the now-chastened Tories would prove faithful friends of the new government; time was to validate his optimism.

Many people were shocked that Alexander Hamilton, Washington’s ex-adjutant, had taken up the Loyalist cause, even though Washington, too, preached mercy toward their former enemies. Hamilton’s actions abruptly altered his image. He was accused of betraying the Revolution and tarnishing his bright promise, and it took courage for him to contest such frenzied emotion. An anonymous poem appeared in the papers that lampooned Hamilton as “Lysander, once most hopeful child of fame.” The writer, a former admirer, lamented that after gallant wartime service Hamilton had stooped to become a lackey for the Loyalists:

Wilt thou LYSANDER, at this well earn’d height,

Forget thy merits and thy thirst of fame;

Descend to learn of law, her arts and slight,

And for a
job
to damn your honor’d name!

In spite of Hamilton’s pleas for tolerance, the persecution of Tories intensified. At a huge meeting on the Common called by the revivified Sons of Liberty in March, speakers urged the massive crowd to expel all Tories by May 1 and asked the state legislature to approve a resolution denying restoration of their citizenship. Dismayed by this turmoil, Hamilton entered the lists again with a second “Letter from Phocion,” reminding his fellow citizens that actions taken now would reverberate into the future: “’Tis with governments as with individuals, first impressions and early habits give a lasting bias to the temper and character.” All mankind was watching the republican experiment: “The world has its eye upon America. The noble struggle we have made in the cause of liberty has occasioned a kind of revolution in human sentiment.”
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If America acted wisely, Hamilton believed, it had a historic opportunity to refute the skeptics of democracy and to doom despots everywhere. Unfortunately, the two Phocion articles did not halt the reign of vengeance. On May 12, 1784, the state legislature passed a law depriving most Loyalists of the vote for the next two years. For Hamilton, it was a horrifying breach of the peace treaty and boded ill for America’s domestic harmony and relations abroad. But he was not intimidated into silence. The feisty Hamilton always reacted to controversy with stubborn grit and a certain perverse delight in his own iconoclasm. He never shrank from a good fight.

By the second “Phocion” letter, Hamilton was defending a rich Tory in a celebrated lawsuit that showed just how far he would go to champion an unpopular cause. He was not a politician seeking popularity but a statesman determined to change minds. In 1776, a patriotic widow, Elizabeth Rutgers, had fled the British occupation of New York, abandoning her family’s large brewery and alehouse on Maiden Lane. As of then, the Rutgerses had parlayed their brewing fortune into a hundred-acre estate. Two years later, a couple of British merchants, Benjamin Waddington and Evelyn Pierrepont, took over the brewery at the prompting of the British Army and appointed Joshua Waddington its supervisor. By that time, the property had been so thoroughly scavenged that it was “stripped of everything of any value except an old copper [vessel], two old pumps, and a leaden cistern full of holes,” Benjamin Waddington later testified.
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To refurbish and reopen the idle brewery, the new operators spent seven hundred pounds for a new storehouse, stable, and woodshed, and they paid rent to the British Army after 1780. On November 23, 1783, two days before Washington entered New York, a fire had incinerated the brewery, causing nearly four thousand pounds in losses for its wartime owners.

Invoking the Trespass Act, Elizabeth Rutgers filed suit in the Mayor’s Court of New York City, demanding eight thousand pounds in back rent from Joshua Waddington. As an aggrieved widow, Mrs. Rutgers aroused intense sympathy, and Hamilton was villainized as a turncoat and a crypto-Tory. But he thought the Rutgers lawsuit an ideal test case to challenge the legality of the Trespass Act. Unlike many Tory tenants who had vandalized properties during the war, Joshua Waddington had taken a crumbling property and restored it at considerable expense. When Mrs. Rutgers calculated the back rent Waddington owed her, she made no allowance for this investment. Also, Waddington had acted under the express authority of the British Army at a time when the city lay under martial law.

Arguments in
Rutgers v. Waddington
were presented on June 29, 1784, before five aldermen and two figures well known to Hamilton: Mayor James Duane and City Recorder (Vice Mayor) Richard Varick. John Adams described Duane as a man with “a sly, surveying eye, a little squint-eyed…very sensible, I think, and very artful.”
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A smart lawyer of Irish ancestry, Duane had married into the Livingston family, corresponded with Hamilton during the Revolution, and then given him the run of his law library. Richard Varick, tall and dignified, with a bald pate and keen eyes, had been an aide to Philip Schuyler and Benedict Arnold and had been with Hamilton when Mrs. Arnold performed her mad scene on the Hudson. If the odds seemed stacked in Hamilton’s favor, especially with two competent cocounsels in Brockholst Livingston and Morgan Lewis, Mrs. Rutgers also fielded a distinguished legal team that included her nephew, Attorney General Egbert Benson, John Laurance, and Hamilton’s King’s College friend Robert Troup. Even in a crowd of six other outstanding lawyers, Hamilton gave a cogent exposition that “soared far above all competition,” said James Kent, then a law clerk for Benson. “The audience listened with admiration for his impassioned eloquence.”
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As he strode about James Duane’s chamber, Hamilton articulated fundamental concepts that he later expanded upon in
The Federalist Papers,
concepts central to the future of American jurisprudence. In renting the property to Waddington, he declared, the British had abided by the law of nations, which allowed for the wartime use of property in occupied territory. New York’s Trespass Act violated both the law of nations and the 1783 peace treaty with England, which had been ratified by Congress. In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void. To appreciate the originality of this argument, we must recall that the country still lacked a federal judiciary. The state legislatures had been deemed the most perfect expression of the popular will and were supposed to possess supreme power. Mrs. Rutgers’s lawyers asserted state supremacy and said congressional action could not bind the New York legislature. At bottom,
Rutgers v. Waddington
addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or a loose federation of states? Hamilton left no doubt that states should bow to a central government: “It must be conceded that the legislature of one state cannot repeal the law of the United States.”
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When Duane delivered his verdict in mid-August, he commended Hamilton and the other lawyers, applauding the arguments on both sides as “elaborate and the authorities numerous.”
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He handed down a split verdict that required Waddington to pay back rent to Rutgers but only for the period
before
he started paying rent to the British Army in 1780. Given the pent-up emotion surrounding the case, Hamilton advised his client to negotiate a compromise with Rutgers, who settled for about eight hundred pounds—much less than the eight thousand pounds she had initially sought. It was a smashing triumph for Hamilton, who had upheld the law of nations. A mere nine months after Evacuation Day, he had won a real if partial victory for a rich British subject against a patriotic widow.

Hamilton knew the case would be a boon to his legal practice, which went full throttle in defending Tories. During the next three years, he handled forty-five cases under the Trespass Act and another twenty under the Confiscation and Citation Acts. His victory also brought predictable notoriety in its wake. The radical press fulminated against him for giving aid to “the most abandoned…scoundrels in the universe,” and rumors floated about of a cabal intent upon assassinating him. The scandalmongering journalist James Cheetham later observed of Hamilton “that a great majority of the loyalists in the state of New York owe the restoration of their property solely to the exertions of this able orator.”
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The tone of politics had rapidly grown very harsh. Some poison was released into the American political atmosphere that was not put back into the bottle for a generation. As after any revolution, purists were vigilant for signs of ideological backsliding and departures from the one true faith. The 1780s and 1790s were to be especially rich in feverish witch hunts for traitors who allegedly sought to reverse the verdict of the war. For the radicals of the day, revolutionary purity meant a strong legislature that would overshadow a weak executive and judiciary. For Hamilton, this could only invite legislative tyranny.
Rutgers v. Waddington
represented his first major chance to expound the principle that the judiciary should enjoy coequal status with the other two branches of government.