Slavery and the judiciary: Hamilton’s far-reaching views

One in a series on Alexander Hamilton, by Ron Chernow. So far, we have discussed these topics:

  • central government vs. states’ rights:

https://billcornishwordpresscom.wordpress.com/2017/07/18/hamilton-early-lessons-still-apply/

  • religion:

https://billcornishwordpresscom.wordpress.com/2017/07/24/hamilton-on-religion-belief-in-god-as-moral-authority/

  • politics:

https://billcornishwordpresscom.wordpress.com/2017/07/31/politics-continuing-what-hamilton-and-his-peers-started/

 

 

After last weekend’s events in Charlottesville, Va., I thought slavery would be a good topic this week.

Hamilton unequivocally opposed slavery, a position he never changed throughout his life.

 

The memories of his West Indian childhood left Hamilton with a settled antipathy to slavery … He had expressed an unwavering belief in the genetic equality of blacks and whites – unlike (Thomas) Jefferson, for instance, who regarded blacks as innately inferior – that was enlightened for his day. And he knew this from his personal boyhood experience. (p. 210)

 

Hamilton claimed Nevis in the British West Indies as his birthplace. “British authorities colonized Nevis with vagabonds, criminals and other riffraff swept from the London streets to work as indentured servants or overseers.” (p. 8)

Hamilton rarely talked about his childhood with anyone. He was illegitimate. He was raised in “the insecure middle rung of West Indian life, squeezed between plantation aristocrats above and street rabble and unruly slaves below.” (p.8)

hamilton mug

Nevis, in the Caribbean, was (and still is) a producer of sugar cane, which required slaves in Hamilton’s day. “The eight thousand captive blacks easily dwarfed in number the one thousand whites …” (p. 19) Hamilton saw slave-auction blocks and frequent public whippings. “The Caribbean sugar economy was a system of inimitable savagery …” (p. 19), which made a huge impression on Hamilton as a child.

As an adult helping to form the nascent United States of America, Hamilton continued to oppose slavery. However, because slavery was deeply ingrained in the South, he and other abolitionists had no chance to write their views into the Constitution.

 

… the American Revolution had been premised on a tacit bargain that regional conflicts would be subordinated to the need for unity among the states. This understanding dictated that slavery would remain a taboo subject. (p. 122)

 

Southern leaders would not compromise on this issue. Indeed, they “wondered how their human property would be counted for congressional-apportionment purposes.”

 

Northern states finally agreed that five slaves would be counted as equivalent to three free whites, the infamous “federal ratio” that survived for another eighty years. … Without the federal ratio, Hamilton glumly concluded, “no union could possibly have been formed.” Indeed, the whole superstructure erected in Philadelphia rested on that unstable, undemocratic foundation. (p. 239)

 

When Jefferson moved into the brand-new White House as U.S. president in 1801, he continued to own slaves. Indeed, for more than 50 years of owning and running Monticello, he bought and sold human beings. He never freed even one until his death, when he emancipated only five slaves – all of them relatives of his mistress, Sally Hemings.

 

… the majority of the six hundred workers who erected the White House and the Capitol were slaves whose wages were garnisheed by their masters. (p. 635-6)

 

It took another half-century, long after Hamilton’s death in 1804, for a Civil War to be fought over slavery.

While the 13th Amendment to the U.S. Constitution, passed by Congress on Jan. 31, 1865, abolished slavery legally, the fight for equality for minority groups, including blacks, continues today. White supremacists, who rallied in Charlottesville on Saturday over the fate of a monument of Robert E. Lee, a Confederate general, have no place in the United States, legally or morally.

Confederate Monuments Protest
Rescue personnel help injured people after a car ran into a large group of protesters after a white nationalist rally in Charlottesville, Va., on Aug. 12, 2017. (The Associated Press)

All humans, regardless of race or ethnic background, are created equal in the eyes of God – and U.S. law. As a white male, I am ashamed that some of my race and gender refuse to acknowledge this.

White supremacists do not speak for all white males – not even close. I hope the man who drove a car into a crowd of peaceful protesters who were opposing the supremacists’ rally, killing one and injuring 19, gets prosecuted to the fullest extent of the law. I hope that kind of anger and hatred never appears in this country again.

The authority of the judiciary

As a lawyer, Hamilton preferred cases that established Constitutional law, preferring precedence-setting cases to those that benefited only one individual – even if that meant he passed up lucrative cases filed by wealthy landowners to take a case of someone whom Hamilton felt was being wronged.

One such case was Rutgers v. Waddington, held in the New York City Mayor’s Court in 1784.

Following the Revolutionary War, New York’s legislature enacted a series of laws that stripped British Tories of their property and privilege. One such law passed by the legislature in 1783 was the Trespass Act. It gave patriots the legal right to sue anyone who had occupied, damaged or destroyed homes they had left behind British lines during the war. This law served the foundation for the case.

The plaintiff, Elizabeth Rutgers, owned a large brewery and alehouse that she was forced to abandon during the British occupation of New York City. Under the then recently enacted Trespass Act, Rutgers demanded rent in the sum of 8,000 pounds from Joshua Waddington, who had been running the brewery since it was abandoned.

Hamilton defended Waddington, the British man managing the brewery, claiming the Trespass Act violated the 1783 peace treaty ratified by Congress.

Chief Justice James Duane handed down a split verdict that entitled Rutgers to rent only from the time before the British occupation, and the two parties agreed to the amount of 800 pounds. This case set a precedent for Congress’ legal authority over the states. Duane wrote in his ruling that “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.”

https://en.wikipedia.org/wiki/Rutgers_v._Waddington

 

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. (p. 198)

 

This was a radical argument because at the time, the country “still lacked a federal judiciary.” (p. 198) State legislatures set the law of the land. Rutgers’ lawyers defended this position, while Hamilton defended the British Tory – which cost him huge political points among his opponents.

But the judge’s ruling defended the law of nations over states’ rights.

At about the same time as this case, Hamilton, James Madison and John Jay were writing 85 essays defending the U.S. Constitution called The Federalist Papers. Hamilton wrote six of those essays on the judiciary.

 

In number 78, Hamilton introduced an essential concept, never made explicit in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional. … “no legislative act … contrary to the constitution can be valid …” (p. 259)

 

This is why appointments to the politically divided U.S. Supreme Court have caused large debates in recent years. Top Court rulings do establish law by either upholding or overturning it. We can thank Alexander Hamilton for first promoting this idea.

Politics: Continuing what Hamilton and his peers started

With this series, I’m comparing life in Hamilton’s era – the late 1700s – to 21st century America. In today’s topic, we haven’t changed much during the past 200 years.

The current political landscape was formed in the timeframe experienced by Hamilton, the nation’s first treasury secretary.

 

… the rift between Hamilton and Madison precipitated the start of the two-party system in America. (p. 306)

 

Hamilton and James Madison at one time thought alike, to the point that they (along with John Jay, as a team called “Publius”) co-authored “The Federalist Papers,” a collection of 85 articles and essays promoting the ratification of the U.S. Constitution. While the project was Hamilton’s brainchild and he wrote most of the essays, “Madison, versed in the history of republics and confederacies, covered much of that ground … he also undertook to explain the general anatomy of the new government.” (p. 248)

hamilton book

Several years later, in early 1790, Hamilton wrote another extensive paper, “Report on Public Credit,” which outlined an extremely detailed financial system for the country, which included allowance for public debt – a system that continues today. Hamilton counted on Madison’s support to get his plan through Congress, but Madison surprised him by opposing it.

“Whereas the ‘Publius’ team of Hamilton, Madison and Jay had seen the supreme threat to liberty coming at the state level, Madison now began to direct his criticism at federal power lodged in the capable hands of the treasury secretary (Hamilton).” (p. 305) Congress eventually passed Hamilton’s plan, but not without plenty of effort, much of it by Hamilton himself.

Meanwhile, Hamilton and George Washington continued as leaders of the Federalist party, while Madison and Thomas Jefferson eventually helped form a Republican party.

 

Each side possessed a lurid, distorted view of the other, buttressed by an idealized sense of itself. (p. 392)

 

I sense that today’s Republican and Democratic parties feel the same. Perhaps we as Americans are more alike than we think we are, but you’d never know it if politics is your main line of thought. Perhaps those among us steeped in the political process should take a step back, breathe deeply and see “truth” from the other side. We might be surprised at what we’d see.

 

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. (p. 199)

 

Even before official political parties formed, differing opinions ran strong on how the new nation was to be set up and run. Here’s an example of a legal case that set precedents, but may have cost Hamilton major political points.

In Rutgers v. Waddington, a 1784 case, Hamilton defended Joshua Waddington, agent of Benjamin Waddington and Evelyn Pierrepont – two merchants who took control of a brewery owned by the widow Elizabeth Rutgers under the authority of the British Commissary General during the British occupation of New York. (Joshua Waddington was brewery supervisor.) The provisions of New York state’s Trespass Act (1873) provided Rutgers with the basis for a recovery of rent during that period.

http://www.nycourts.gov/history/legal-history-new-york/legal-history-eras-02/history-new-york-legal-eras-rutgers-waddington.html

The Trespass Act allowed patriots who had left properties behind enemy lines to sue anyone who had occupied, damaged or destroyed them. In this case Hamilton did not defend the patriot but those who occupied the brewery, claiming that the Trespass Act violated the law of nations, which allowed for the wartime use of property in occupied territory, and the 1783 peace treaty with England, which Congress had ratified. (p. 198) He saw Rutgers’ lawsuit as pure greed.

“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.” (p. 196)

The New York City Mayor’s Court gave a split verdict, awarding Rutgers much less – a negotiated 800 pounds – in back rent but not the 8,000 pounds Rutgers had sought.

Hamilton took plenty of heat for defending the British merchants.

“For 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.” (p. 199)

 

The intellectual caliber of the leading figures surpassed that of any future political leadership in American history. On the other hand, their animosity toward one another has seldom been exceeded either. (p. 405)

 

Our Founding Fathers were establishing a new type of country, a democracy trying to combine British and French models (which were very different), writing a new Constitution, setting up a federal judiciary (how much power should it have?) and establishing a monetary system that would earn respect across the world. None of this came easily.

The difficult political clashes of the late 1700s are being repeated today, over different issues of course. When the Founding Fathers established laws, the laws were respected – or changed. Plenty of protests took place in the early days, as they have in every time period since, but the rule of law has won out eventually every time. That will continue today as well.

 

These men wanted to modify the social order, not overturn it – a fair description of Hamilton’s future politics. (p. 46)

 

In the early days of Hamilton’s public life, in the early 1770s, George Washington and other leaders were not trying to form a new nation. That came later when they realized they couldn’t co-exist with England’s oppressive policies, including on trade and taxes.

Hamilton saw the big picture. He wanted the new nation to succeed, as all the Founding Fathers did, of course. But unlike most of them, Hamilton had a plan. He was a prolific writer and an unsurpassed orator, so he knew how to communicate his plan.

I don’t see much big-picture thinking in 2017. We’re focusing more on individual freedoms than we are on the common good. We’re seeking a proper balance there, and eventually, I hope, we’ll find it.