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many others, and affected a large amount of property; and, under the circumstances of the times, the plaintiff had all the sympathy of a population which had suffered greatly from the war, and now looked for redress and restitution from the laws of
But the treaty with Great Britain had secured an amnesty for acts done during the war; and it was without precedent, that, after the conclusion of peace, suits could be commenced by the subjects of one belligerent against those of another, for injuries committed during the war by military orders. It was obvious that the law of nations was here in collision with the local statute, and it became of the utmost urgency to determine whether the court would uphold the State-legislation, against the constitutional powers of Congress to bind all the members of the Confederacy by treaty. It was a question of national faith and honour, and might be attended with the most momentous consequences.
The attorney-general of the State appeared for the plaintiff. The statute was explicit and obligatory. No court of limited jurisdiction could look beyond it. Look where? To the law of nations? That law was unsettled, changeable, affording no
certain rule, and ought to have no influence on the government of this State. The war was unjust. By an unjust war the unjust party can acquire no rights. Nor was that court to be bound by the treaty. New York was a sovereign, independent State. Congress had no power to bind the State in this matter, and could not by treaty give away the rights of its citizens. A case like this had never before been heard of. It was without a precedent, and he stood upon the statute.
Then Hamilton rose for the defendant. He began by dilating on the importance of the question, which might affect all the relations of two great empires, be discussed in Europe, produce a good or bad impression of America, and establish precedents that would give a complexion to future decisions, and be handed down to posterity as indicating the character of American jurisprudence. They were told there was no precedent. Then, indeed, it was a new case, and a new case must be determined by the law of nature and the public good. But this case could be decided by the laws of nations. He was asked, Where are they to be found? He answered, that they were the deductions of reason, collected from the principles laid down by writers on the subject, estab
lished by the authorized practice of nations, and a part of the law of the land. The laws of nations and the laws of war are part of the common law.
After an able argument, to show how the general principles of the law of nations applied to the matter in hand, Hamilton proceeded to address himself to the special effect of the treaty, with a view to prove that this action could not be maintained without a violation of the terms of peace. The treaty included an amnesty, which was of its very essence, and which applied to private persons as well as to the public. To say that Congress had no right to bind the State was to reduce the Confederation to the “shadow of a shade." But Congress had an unquestionable right. The sovereignty and independence of the people began by a Federal act; foreign nations only recognized it in the Union ; and the Union was known and legalized in the constitution of New York. The Confederation had left to Congress the full and exclusive powers of war, peace, and treaty. The power of making peace is the power of determining its conditions. It is a rule of reason and law, that, to whomsoever any thing is granted, that also is granted without which it cannot exist. It is true that the power in this
case did not permit the making all possible conditions-such as dismembering the empire, or surrendering the liberties of the people; but it included the power of making all reasonable and usual conditions-such as a remission of damages-for, without it, the state of war would continue.
But could Congress, by treaty, give away the rights of citizens of New York? To this Hamilton answered:-1st. That the citizens of New York had given them power to do it for their own safety.— 2d. That the property of all the individual members of a State is the property of the State itself, in regard to other nations. Hence, an injury from the Government gives a right to take away, in war, the property of its innocent subjects. Hence, also, the claim of damages for injuries done is in the public, who may agree for an equivalent, or release the claim without it. Hence, to make the defendant answerable would be a breach of the treaty of peace. It would be a breach, also, of the Confederation. Congress having made a treaty pursuant to their power, a breach of that treaty would be a violation of their constitutional authority, and a breach of the Confederation. The power of Congress in making treaties is of a legislative kind; their proclamation, enjoining the
observance of a treaty, is a law, and a law paramount to that of any particular State. If it be said that the sovereign authority may, for reasons of state, violate its treaties, and that the laws in violation of them bind its own subjects; it is not true that the sovereignty of any one State has legally this power, for it has delegated all power of the kind to Congress, who are equally to judge of the necessity of breaking, as of the propriety of making treaties.
If it be said that the accession to the Confederation was an act of the Legislature, and why may not another act alter or dissolve it?-the answer is, that the Union was known in the constitution as pre-existing, and that the act of Confederation was a modification and abridgment of Federal authority. But, if this were not the case, the reasoning would not apply. For the government of New York, in acceding to the Confederation, must be considered, not as a sovereign enacting a law, but as a party to a contract. It is absurd to say that one of the parties to a contract may, at pleasure, alter it without the consent of the others. It is not denied that a part of an empire may, in certain cases, dismember itself from the rest.