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But this supposes a dissolution of the original compact. While the Confederation exists, a law of a particular State derogating from its constitutional authority is no law. But how are the judges to decide? they are servants of the State!-The answer is, that the Confederation having vested no judicial powers in Congress, excepting in prize causes, in all other matters the judges of each State must, of necessity, be judges of the United States, and take notice of the law of Congress as a part of the law of the land. It is conceded that the Legislature of one State cannot repeal a law of the United States. When there are two laws, one not repealing the other, the judges must construe them so as to make them stand together. And, where two laws clash, that which relates to the most important concerns ought to prevail.
"Many of these arguments," he continued, "are on the supposition that the trespass act cannot stand with the laws of nations and the treaty. It may, however, legally receive such a construction as will stand with all; and to give it this construction is precisely the duty of the court. We have seen that to make the defendant liable would be to violate the laws of nations, and to forfeit
our character as a civilized people; to violate a solemn treaty of peace, and revive the state of hostility; to infringe the Confederation of the United States, and to endanger the peace of the whole. Can we suppose all this to have been intended by the Legislature? The answer is: The law cannot suppose it; if it were intended, the act is void!"
He then proceeded to lay down rules for the construction of statutes, which would render this extremity unnecessary; and, after a minute investigation of the jurisdiction of the court, and of the distinctions to be taken between American citizens and British subjects, claiming the protection of the law of nations, he wound up with a vehement exhortation to preserve the Confederation and the national faith, and concluded in the words of Seneca: "Fides sanctificissimum humani pectoris bonum est."
The above argument, although much abridged, has been given at some length, not only as characteristic of Hamilton, but because it deals with a great constitutional difficulty, which is constantly reappearing in the history of the United States It is this conflict between State rights and Federal authority which has coloured almost every event
in the annals of America, influenced the men and measures of the last eighty years, and been the rock on which the republic was ever in danger of splitting. To Hamilton belongs the merit, that he was the first clearly to perceive, and distinctly to point out, the full extent of the danger, and his whole subsequent life was devoted to efforts to remedy and correct the evil. If he did not entirely succeed, it was owing to circumstances beyond the control of any statesman, and to him at least his country is indebted for such a solution of the problem, as secured an interval of comparative repose to more than one generation.
In the present instance, he brought over the judges to his opinion, in spite of local prejudice and popular clamour. The court decided that the Union is known and legalized in the constitution, and adopted as a fundamental law in the first act of the Legislature. "The Federal compact," they said, "hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual; and we are clearly of opinion, that no State in this Union can alter or abridge, in a single point, the Federal articles or the treaty."
But this decision, though given in due form of law, was at once called in question. It was first denounced in a great public meeting, as an act of "judicial tyranny;" and then the Legislature of New York passed resolutions, declaring it to be "subversive of all law and good order," and recommending the appointment of judges "who will govern themselves by the known law of the land.” A disposition prevailed to set reason and equity at defiance, and to admit no standard of right and wrong but the blind popular will.
The same spirit showed itself in other ways, and, wherever it showed itself, Hamilton was there to confront it. Although the treaty had expressly declared "that no prosecutions should be commenced against any person on account of the part he might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in person, liberty, or property," the Legislature of New York passed an act, making those inhabitants who had adhered to the enemy, if found within the State, guilty of misprision of treason, and rendering them incapable of holding office, or voting at elections. What made this proceeding doubly odious was, that some of the representatives
of the State had already enriched themselves by the purchase of the forfeited property of the loyalists, and their motives could hardly escape suspicion, when they forced through another bill, entitled "An Act for the speedy Sale of Confiscated Estates.”
It was not in Hamilton's nature to restrain his indignation at such conduct, and this time it was not as an advocate, but as a private citizen, that he took up the cause of justice. He addressed a pamphlet to the people of New York, under the signature of Phocion, in which he called upon the true friends of liberty to resist the attempts of persons "who pretend to appeal to the spirit of Whiggism, while they endeavour to put in motion all the furious and dark passions of the human mind. The spirit of Whiggism is generous, humane, beneficent, and just. These men inculcate revenge, cruelty, persecution, and perfidy. The spirit of Whiggism cherishes legal liberty, holds the rights of every individual sacred, condemns or punishes no man without regular trial and conviction of some crime declared by antecedent laws, and reprobates equally the punishment of the citizen by arbitrary acts of the Legislature, as by the lawless combinations of unauthorized individuals; while these men