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act of a State legislature and a treaty of the United States, the treaty in question being that between Great Britain and the Confederation of the United States at the close of the Revolutionary War. The decision had marked consequences, not commonly noted: it led to the resolution of the Congress of the Confederation, March 21, 1787, that was transmitted to the States in April. That resolution will be set forth later. It had important consequences in the Convention of 1787; it led to that clause of the Federal Constitution declaring the Constitution, the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, the supreme law of the land. The case therefore merits consideration.
According to Judge Daly, the case “first drew Hamilton's attention to the consideration of principles growing out of the union of the states and the establishment of independence, principles which he afterwards elaborated in the discussion of the national Convention of 1787, in the papers of the Federalist, and in the debates of the New York Convention of 1788; and which were subsequently embodied in the Constitution of the United States.'
In 1783, the year of the treaty, the New York Legislature enacted a law that any one who by reason of the invasion had left his place of abode might bring an action of trespass and recover damages against any person who had occupied his premises or received his goods or effects while the property was under the control of the enemy, and the statute forbade the defendant to plead or offer in evidence as a defence that the property was occupied, injured, or destroyed by a military order or command. Under this statute Elizabeth Rutgers brought action against the defendant Waddington for rent of a brew-house or malt-house in the city of New York, possession of which he had received during British occupancy of the city. Waddington pleaded possession of the city by the British army and a license from the commissary-general in 1778 to him, a British subject, to use the premises from September 28, 1778, to April 30, 1780. He also pleaded in bar the treaty of peace, by the terms of which all claims of British subjects or American citizens to retribution or indemnity for acts done during the war were relinquished and released. From the importance of the principle involved and the large number of cases depending upon its determination, covering claims to an enormous amount, it excited a degree of interest, says Judge Daly, that no single case in the State had theretofore aroused. The counsel retained in the cause included some of the most notable lawyers in the city but the leading points were discussed by the AttorneyGeneral, Egbert Benson, for the plaintiff, and by Hamilton, in opposition, for the defendant. The Attorney-General relied upon the statute; the State, he said, had the power to enact it; Hamilton, in answer, asserted that the statute was in violation of the law of nations, which, as part of the common law, had by the State constitution become the law of the State; that the defendant was protected by the treaty of peace; that the Congress of the United States was a party to that treaty, and that it could not violate the terms of the treaty, nor could any State do so.
The principal features of the decision of Duane, the Justice who presided at the trial, are thus set forth by Judge Daly:
The defendant was liable for the rent of the premises for the first three years, as its use, during that period, could not be regarded as having any relation to the war. The license from the commissary-general conferring upon the defendant no right to the possession, that officer having no authority to grant one; but for the remaining three years, during which it was held under an order from Sir Henry Clinton, to whom, or to whose agent, the rent had been annually paid, he held that the defendant was not liable. By the law of nations, restitution of the rents or issues of houses or land, collected bona fide, under the authority of a commander in chief, while in the possession of the city, during a state of war, could not be enforced. The law of nations had become, by the state constitution, the law of the state; and must be regarded as a fundamental law, applicable to and in force throughout the whole confederacy. By the federal compact, the states were bound together as one independent nation. In respect to each other, and in their national affairs, they exercised a joint sovereignty, the will of which could only be expressed by the acts of the delegates of the separate states in congress assembled. Abroad, the states could only be recognized in their federal capacity; and having combined together, and formed a nation, they must be governed by the law of nations. No one state could arrogate to itself the right of changing at pleasure those laws which are received as a rule of conduct by the common consent of the civilized world.
For a separate state to alter or abridge any one of the known laws of nations, was contrary to the nature of the confederacy, in conflict with the intention of the articles, and dangerous to the Union. The defendant was residing in the city in pursuit of his private affairs, taking no part in the acts of the military; and to hold under the statute, that he could not plead as a defence that he had paid for the use of the premises, to those who, in the plenitude of military power, were exercising dominion over the city, was such a clear violation of every principle of right, that it was not to be presumed that such was the intention of the legislature. It was not to be presumed that it was their intention, by the generality of the terms employed in the act, to repeal the law of nations, and violate the compact of the confederacy; it being a familiar rule, that where two laws were in any of their provisions repugnant to each other, the latter was not deemed to be a repeal of the first, unless the intention to do so was clear and unmistakable. Even if such was the intention in the passage of the act, the state had no power to make such a law. The power to go to war and to make peace was vested in the national congress. They had concluded peace by a solemn treaty, and peace worked an oblivion of the past. Nor was it necessary to inquire whether the particular amnesty embodied in the treaty would meet the defendant's case, for his defence rested upon a right included and protected by that general amnesty or immunity thereafter, for any act done during, or having relation to the war which, as between belligerents, is implied in every treaty of peace, whether expressed or not. The treaty bound the whole confederacy, and every state, and no member of the compact could alter, abridge, or impair it.
The Court, following Sir William Blackstone's theory of legislative omnipotence, declared the legislature supreme in matters of legislation. Inasmuch as Duane distinctly held that the legislature could not have meant to violate the law of nations, and that "whoever then is clearly exempted from the operation of this statute by the law of nations, this Court must take it for granted, could never have been intended to be comprehended within it by the Legislature," this conclusion, to the public mind, was equivalent to a decision setting aside the statute as in contravention of the treaty. Public indignation was intense. A public meeting was held and a committee appointed to draw up a letter to the taxpayers protesting against usurpation of power by the judiciary, and the New York Assembly passed the following resolution:
RESOLVED, That the judgment aforesaid 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 may take upon them to dispense with and act in 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.
Despite public protests and legislative resolutions there was gradual acquiescence in the decision. Not only was it in accord with sound principle, but it was soon to be followed by two similar decisions in other States and by provisions of the Federal Con