Hamilton on Foreign Relations: Letters from Phocion, Letter 2



Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America’s first constitutional lawyers and the first United States Secretary of the Treasury.

Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America’s first constitutional lawyers and the first United States Secretary of the Treasury.

Alexander Hamilton: The Works of Alexander Hamilton, Volume 4


Foreign Relations, Letters from Phocion, Letter 2


Letter 21

The little hasty production, under the signature of Phocion, has met with a more favorable reception from the public than was expected. The force of plain truth has carried it along against the stream of prejudice; and the principles it holds out have gained ground, in spite of the opposition of those who were either too angry, or too much interested, to be convinced. Men of this description, have, till lately, contented themselves with virulent invectives against the writer, without attempting to answer his arguments; but, alarmed at the progress of the sentiments advocated by him, one of them has at last come forward with an answer; with what degree of success, let those who are most partial to his opinion determine.

To say that the answer of Mentor is a feeble attempt, would be no derogation from his abilities; for, in fact, the cause he espouses, admits of nothing solid; and, as one of its partisans, he is only to be blamed for not knowing its weak sides better than to have been tempted to expose it to the experiment of a defence.

But, before I enter further into the subject, I shall take occasion to acknowledge, with regret, the injudicious appearance of warmth in my former letter; calculated, with many minds, to raise prejudices against the truths it contains, and liable to be misrepresented into a general censure on that part of the community whose zeal, sacrifices, and sufferings must ever render them respectable to the true friends of the Revolution. I shall only observe, in apology (as is truly the case), that whatever severity of animadversion may have been indulged, was wholly directed against a very small number of men, who are manifestly aiming at nothing but the acquisition of power and profit to themselves; and who, to gratify their avidity for these objects, would trample upon every thing sacred in society, and overturn the foundations of public and private security. It is difficult for a man, conscious of a pure attachment to the public weal, who sees it invaded and endangered by such men, under specious but false pretences, either to think or speak of their conduct without indignation. It is equally difficult for one who, in questions that affect the community, regards principles only, and not men, to look with indifference on attempts to make the great principles of social right, justice, and honor, the victims of personal animosity or party intrigue.

More tenderness is indeed due to the mistakes of those who have suffered too much to reason with impartiality; whose honest prejudices, grown into habits by the impressions of an eight years’ war, cannot at once accommodate themselves to that system which the public good requires; and whose situations are less favorable to distinguishing between doctrines invented to serve the turn of a revolution, and those which must give permanent prosperity to the State.

These observations I have thought proper to premise, in justice to my own intentions; and I shall now proceed, as concisely as possible, to examine the suggestions of Mentor, interspersing, as I go along, some remarks on objections which, though omitted by him, have been urged in other shapes against the principles of Phocion.

Mentor proposes to treat the sentiments of Phocion as a political novelty; but if he is serious, it is a proof that he is not even “tolerably well informed.” They are as old as any regular notions of free government among mankind; and are to be met with not only in every speculative writer on these subjects, but are interwoven in the theory and practice of that code which constitutes the law of the land. They speak the common language of this country at the beginning of the Revolution, and are essential to its future happiness and respectability.

The principles of all the arguments I have used, or shall use, lie within the compass of a few simple propositions which, to be assented to, need only to be stated.

Firstly. That no man can forfeit, or be justly deprived, without his consent, of any right to which, as a member of the community, he is entitled, but for some crime incurring the forfeiture.

Secondly. That no man ought to be condemned unheard, or punished for supposed offences, without having an opportunity of making his defence.2

Thirdly. That a crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it.3

Fourthly. That a prosecution is, in its most precise signification, an inquiry or mode of ascertaining, whether a particular person has committed or omitted such act.

Fifthly. That duties and rights, as applied to subjects, are reciprocal; or, in other words, that a man cannot be a citizen for the purpose of punishment, and not a citizen for the purpose of privilege.

These propositions will hardly be controverted by any man professing to be a friend to civil liberty. The application of them will more fully appear hereafter.

By the Declaration of Independence, on the fourth of July, in the year seventeen hundred and seventy-six, acceded to by our Convention on the ninth, the late colony of New York became an independent State. All the inhabitants, who were subjects under the former government, and who did not withdraw themselves upon the change which took place, were to be considered as citizens, owing allegiance to the new government. This, at least, is the legal presumption; and this was the principle, in fact, upon which all the measures of our public councils have been grounded. Duties have been exacted and punishments inflicted according to this rule. If any exceptions to it were to be admitted, they could only flow from the indulgence of the State to such individuals as, from peculiar circumstances, might desire to be permitted to stand upon a different footing.

The inhabitants of the southern district, before they fell under the power of the British army, were as much citizens of the State as the inhabitants of other parts of it. They must, therefore, continue to be such, unless they have been divested of that character by some posterior circumstance. This circumstance must either be:

Their having, by the fortune of war, fallen under the power of the British army;

Their having forfeited their claim by their own misconduct;

Their having been left out of the compact by some subsequent association of the body of the State; or,

Their having been dismembered by treaty.

The first of these circumstances, according to the fundamental principles of government and the constant practice of nations, could have no effect in working a forfeiture of their citizenship. To allow it such an effect, would be to convert misfortune into guilt; it would be, in many instances, to make the negligence of the society, in not providing adequate means of defence for the several parts, the crime of those parts which were the immediate sufferers by that negligence. It would tend to the dissolution of society, by loosening the ties which bind the different parts together, and justifying those who should, for a moment, fall under the power of a conqueror, not merely in yielding such a submission as was exacted from them, but in taking a willing, interested, and decisive part with him.

It was the policy of the Revolution, to inculcate upon every citizen the obligation of renouncing his habitation, property, and every private concern for the service of his country; and many of us have scarcely yet learned to consider it as less than treason to have acted in a different manner. But it is time we should correct the exuberances of opinions propagated through policy and embraced from enthusiasm; and while we admit, that those who did act so disinterested and noble a part deserve the applause and, wherever they can be bestowed with propriety, the rewards of their country, we should cease to impute discriminate guilt to those who, submitting to the accidents of war, remained with their habitations and property. We should learn that this conduct is tolerated by the general sense of mankind; and that, according to that sense, whenever the State recovers the possession of such parts as were, for a time, subdued, the citizens returned at once to all the rights to which they were formerly entitled.

As to the second head, of forfeiture by misconduct, there is no doubt that all such as, remaining within the British lines, did not merely yield an obedience which they could not refuse without ruin, but took a voluntary and interested part with the enemy, in carrying on the war, became subject to the penalties of treason. They could not, however, by that conduct, make themselves aliens, because, though they were bound to pay a temporary and qualified obedience to the conqueror, they could not transfer their eventual allegiance from the State to a foreign power. By becoming aliens, too, they would have ceased to be traitors; and all the laws of the State, passed during the Revolution, by which they are considered and punished as subjects, would have been, by that construction, unintelligible and unjust. The idea, indeed, of citizens transforming themselves into aliens, by taking part against the State to which they belong, is altogether of new invention, unknown and inadmissible in law, and contrary to the nature of the social compact.

But were this not the case, an insurmountable difficulty would still remain: for how shall we ascertain who are aliens, or traitors, let us call them which we will? It has been seen that the boundaries of the British lines cannot determine the question; for this would be to say that the merely falling under the power of the British army, constituted every man a traitor or an alien. It would be to confound one third of the citizens of the State in promiscuous guilt and degradation, without evidence or inquiry. It would be to make crimes, which are, in their nature, personal and individual, aggregate and territorial. Shall we go into an inquiry to ascertain the crime of each person? This would be a prosecution4 ; and the treaty forbids all future prosecutions. Shall the Legislature take the map, and make a geographical delineation of the rights and disqualifications of its citizens? This would be to measure innocence and guilt by latitude and longitude. It would be to condemn and punish, not one man but thousands, for supposed offences, without giving them an opportunity of making their defence. God forbid that such an act of barefaced tyranny should ever disgrace our history! God forbid that the body of the people should be corrupt enough to wish it, or even to submit to it!

But here we are informed by Mentor, that the treaty, instead of offering any obstacle to the views of those who wish to metamorphose their fellow-citizens into aliens, is precisely the thing which removes the difficulty. Mentor is thus far right, that if they are aliens at all, it must be by some stipulation in the treaty; but it requires not a little dexterity to show that such a stipulation exists. If it exist at all, it must be collected from the fifth and sixth articles. Let us, by analyzing these articles, try if we can find it out.

The fifth article speaks, in the first clause, of real British subjects, whose estates had been confiscated; and stipulates that Congress shall recommend a restitution.

In the second clause it speaks of persons resident in districts in the possession of the British forces, who had not borne arms against the United States; of whose estates, also confiscated, Congress are, in like manner, to recommend a restitution.

In the third clause, persons of every other description are comprehended, who are to be permitted to remain twelve months unmolested, in any of the States, to solicit a restoration of their property, which had been confiscated; Congress recommending, even with respect to them, a restitution, on condition of their refunding to the present possessors, where there had been a sale, the bona fide price given by them for the estates in their possession.

It is apparent from the dissection of the article, that the inhabitants in the southern district, possessed by the British army, are not confounded in one general mass of alienism, as has been asserted. We find the express words of description are real British subjects, and as contradistinguished from them, persons resident in districts within the possession of the British arms. These last, by the letter as well as the spirit of the article, are deemed not British subjects.

There is no intelligible medium between a real British subject and one that is not a British subject at all. A man either is or is not the subject of a country. The word real, as applied to the affirmative, is a redundancy. Its natural contrasts are fictitious or pretended. If we should call the persons of other descriptions in the article fictitious or pretended British subjects, instead of justifying, it would exclude, the construction given by Mentor. For if they were only fictitious or pretended British subjects, they must be real American subjects; or, in other words, if they were not real British subjects, which, by necessary implication, they are declared not to be, they must, of necessity, be American subjects.

The phrase real British subjects, strictly considered, is inaccurate; but its practical import, with the help of a little candor, is easily fixed. It is well known, that in this and other States, the property of persons who had never been subjects of this country, before or after the Revolution, but who had truly been subjects of Great Britain, had, in many instances, been confiscated. Sir Henry Clinton, the late Governor Tryon, Lord Dunmore, are examples, among us, of the real British subjects in the contemplation of the treaty. All the rest are, of course, American subjects.

To understand the fifth and sixth articles relatively, it is necessary to remark, that all the different classes described in the fifth article agree in one common quality—they are all persons whose property had been already confiscated. I have placed this fact in a pointed view; because it shows incontestably, that the persons who are the objects of the fifth article, and those who are the objects of the sixth, are totally different. The one relates to persons whose property had been confiscated, and aims at restitution; the other relates to those whose property had not yet been confiscated, who were actually suffering the sentence of the law, and has for object, to prevent future prosecutions, confiscations, or injuries to individuals, on account of their conduct in the war.

This distinction solves the seeming contradiction between the fifth and sixth articles: the former providing for the future residence of persons of a particular description within the State for a twelve-month; the other prohibiting all future injury or damage to persons, liberty, or property. At first sight, the great extent of the latter provision appears to supersede, and render absurd, the former; but the two articles are reconciled, by considering those who had already suffered the sentence of the law as not within the purview of the sixth article, to arrest or remit that sentence; while all others against whom sentence had not passed, are within the protection of the sixth article. It does not operate with a retrospective and restorative influence, but looks forward and stops the future current of prosecution and punishment.

To illustrate, in a more striking manner, the fallacy of Mentor’s comment upon the treaty, I shall give a recital of it, with some explanatory additions, the fairness of which, I think, will not be disputed.

“In the sixth article,” says he, “it is provided that no one shall suffer in his person, liberty, or property, on account of the part he may have taken in the war”; and yet, though no one, consistently with the treaty, can hereafter suffer in either of those respects, yet, many, consistently with the treaty, may be declared aliens, may be stripped of the most valuable rights of citizenship, and may be banished from the State, without injury to person, liberty, or property. “The fifth article,” though it speaks of none but those who have already had their estates confiscated, “describes the persons provided for by the sixth,” which indeed says, that there shall be no future prosecutions, nor confiscations, nor injury to person, liberty, or property; but this only means, that there shall be no future prosecutions commenced against those who have been already attainted and banished; nor confiscations made of the estates of those whose estates have been already confiscated; nor injuries done to the persons, liberty, and property of those who are already to be esteemed dead in law by attainder and exile: but with respect to all those who have not been already attainted, banished, and subjected to confiscation (the only persons comprehended in the fifth article, and provided for in the sixth), we may prosecute, banish, confiscate, disfranchise, and do whatever else we think proper. The fifth article stipulates the good offices of Congress for those who have been already ruined; and the sixth benignly takes care that they shall not be ruined a second time; but leaves all others to their destiny and our mercy. “The fifth article distinguishes the persons who are the objects of it into three classes:—First: those who are real British subjects. The second: those,” meaning British subjects, who are not real British subjects, described by the appellation of persons resident in districts in the possession of the British forces, “who had not taken arms against the country. The third class are described by the provision that is made for them; namely: They shall have liberty to go into any part of the United States for twelve months, to solicit a restoration of their estates that may have been confiscated. This class must be those who, belonging to America, have taken arms against their country. As to the first and second class, it is agreed, that Congress shall recommend to the States a restoration of their property. The third, it seems, were too infamous for the English minister to ask any consideration for, except the wretched privilege of asking it for themselves”; though, in fact, with respect even to them, it is expressly stipulated that Congress shall recommend a restoration of their estates, rights, and properties, on paying to the present possessors, the bona fide price given for them, where there has been an actual sale. “But,” continues he, “I can find, nowhere, even a request, and that only implied, that any of the three classes may dwell among us, and enjoy the immunities and privileges of citizens: for the first class are considered as former subjects; the second and third as acquired subjects of England,”—acquired but not real.

Thus we see, by taking the outline of Mentor’s construction, and filling up the canvas in a manner suited to the design, the whole is a group of absurdities; or, in other words, by connecting the consequences with the principles of his comment on the treaty, the result is too ridiculous not to strike the meanest understanding.

It must appear by this time manifest, that there is nothing in the terms of the treaty, which countenances the supposition that those who have been within the British lines are considered and stipulated for as aliens. One ground upon which this idea has been originally adopted, was, that it would have been improper to have stipulated for them at all, if they were not aliens: but I have shown, in my former letter, that a stipulation for subjects, in similar circumstances, has been far from unprecedented.

A good criterion by which to determine the meaning of the treaty, in this respect, is, to recur to the impressions that it made on its first appearance, before there had been time to contrive and substitute an artificial to the natural and obvious sense of the words. Every man, by appealing to his own bosom, will recollect that he was at first struck with an opinion that the disaffected were secured from every future deprivation and injury whatever; and however many may have been chagrined at the idea that they should be admitted to a parity of privileges with those who had supported the Revolution, none doubted that this was the sense of the treaty. Indeed, the principal doubt seemed to be, in the first instance, whether the sixth article was not so broad as to protect even those who had been attainted, from personal injury, in case of their return within the State.

I shall not, in this place, revive the question of the power of Congress to make this stipulation; not only because Mentor appears to have conceded this point, and to acknowledge our obligation to a faithful observance of the treaty; but because what has been offered in my former letter on this head must continue to appear to me to be absolutely conclusive, until some satisfactory limits can be assigned to the powers of war, peace, and treaty, vested in Congress, other than those I have mentioned—the public safety, and the fundamental constitutions of society.

When any different and intelligible line shall be drawn, I will give up the question, if I cannot show it is inadmissible in practice.

The common interests of humanity, and the general tranquillity of the world, require that the power of making peace, wherever lodged, should be construed and exercised liberally; and even in cases where its extent may be doubtful, it is the policy of all wise nations to give it latitude rather than confine it. The exigencies of a community, in time of war, are so various, and often so critical, that it would be extremely dangerous to prescribe narrow bounds to that power by which it is to be restored. The consequence might frequently be a diffidence of our engagements, and a prolongation of the calamities of war.

It may not be improper, in this place, to answer an objection which has been made to a position contained in my former letter. It is there laid down as a rule, that the breach of a single article of a treaty annuls the whole. The reason of this rule is, that every article is to be regarded as the consideration of some other article.

This has given occasion to observe, that a breach of the treaty on the part of the British, in sending away a great number of negroes, has, upon my principles, long since annihilated the treaty, and left us at perfect liberty to desert the stipulations on our part.

This admits of an easy and solid answer. The breach of one article annuls the whole, if the side injured by it chooses to take advantage of it to dissolve the treaty1 ; but if its interest dictates a different conduct, it may waive the breach, and let the obligation of the treaty continue. The power of determining whether the treaty has been broken, properly belongs to that body who made it. Congress have wisely taken a different course; and, instead of reviving the state of hostility by declaring the treaty void, have proceeded upon the presumption of its continuing in force; and, by subsequent acts, have given it additional validity and strength. The definitive treaty has been since concluded, and proclaimed with a remarkable solemnity and energy for the observance of the citizens of the United States.

The third mode mentioned, by which the inhabitants of the southern district may have lost their rights of citizenship, is, their having been left out of the compact by some subsequent association of the body of the State. The fact, however, is directly the reverse: for, not only the Constitution makes provision for the representation of the people of the southern district in the Legislature, but, during the whole war, by an ordinance of the Convention who framed the Constitution, an actual representation has been kept up in a manner, the regularity of which (whatever might have been the expedience of it) was more than questionable, as all elections were suspended in that part of the State. This circumstance of a constant representation of the inhabitants of the southern district in the Legislature, during the war, is, in a rational as well as a legal light, a conclusive refutation of the pretended alienism of those inhabitants by any events of the war, or by any other matter that applies to them in a collective view antecedent to the treaty of peace. To this it may be added that a variety of the laws of this State, in the course of the war, suppose and treat the inhabitants of the southern district as subjects owing allegiance to the State, and, consequently, having the rights which subjects in general enjoy under the government.5

The argument is still stronger when we attend to what has been done by the government since the restoration of its jurisdiction in the southern district. We did not wait until a bill of naturalization was passed to remove the disabilities of the inhabitants before we proceeded to elections. We did not confine those elections to such persons only as had resided without the British lines, but left them open to all descriptions of persons who would choose to take the oath prescribed for that purpose by the Council. Few, indeed, in this city, besides those who had been absent, did in fact vote at the elections; but a considerable number did in the counties. And if we should admit the doctrine of the general alienism of the inhabitants of the southern district, either before, or in consequence of the treaty of peace, a curious question, not easy to be solved, would arise, as to the validity of the election of many individuals now holding seats in Senate and Assembly. So far as an act of government can decide the point in controversy, it is already decided. The Council for the temporary government of the southern district, in appointing the mode of election; the conduct of the Legislature since, in admitting the members elected in that mode, are unconstitutional; or the inhabitants at large of the southern district, either by the treaty, or any antecedent circumstance, are not aliens.

I have dwelt the more largely on this head, not only because the idea of a general alienism of the inhabitants of the southern district is the ground Mentor has taken; but because some persons, who have it in their power to make a mischievous use of it, are endeavoring to give it circulation, where, if it could prevail, it might lead to pernicious consequences. Pressed by the difficulty of discriminating those who may have forfeited the rights of citizenship from those who have not, without a manifest violation, as well of the Constitution as of the treaty of peace, they are willing, if possible, to devise some general expedient to evade both; and the one they have hit upon, is, to declare all those aliens who have lived within the British lines during the war, on the miserable pretence that they are made such by the treaty.

Thus we have another example how easy it is for men to change their principles with their situations; to be zealous advocates for the rights of the citizens when they are invaded by others; and, as soon as they have it in their power, to become the invaders themselves; to resist the encroachments of power, when it is in the hands of others; and, the moment they get it into their own hands, to make bolder strides than those they have resisted. Are such men to be sanctified with the hallowed names of patriots? Are they not rather to be branded as men who make their passions, prejudices, and interests the sole measure of their own and others’ rights?

The history of mankind is too full of these melancholy instances of human contradiction.

Having mentioned the oath directed to be prescribed to electors in the southern district, by the Council for the temporary government, I shall take occasion, in this place, with freedom but with respect, to examine the propriety of that measure.

This measure was founded upon an act of the Legislature of this State, passed in the year, declaring that persons who had been guilty of certain matters particularized in that act, should be for ever after disqualified from voting at all public elections. I confine myself, for the sake of brevity, to the general idea of the act. The embarrassment with the Council, no doubt, was, how to ascertain the persons who had incurred the disability. As the matters to which that disability related were of a specific nature, it was necessary they should be specifically ascertained before the law could have its effect.

The Council, therefore, could not satisfy that law by declaring all those disqualified who had resided within the British lines during the war. They would not leave the operation of it to a course of judicial investigation and decision, because this would be to fly in the face of the treaty; and appearances were to be preserved. This consideration was strengthened by another. The course of the law must have been dilatory. The elections were to be entered upon. It was deemed inexpedient that the voice of the citizens at large (which must have been the case if the act of the Legislature in question had been left to its natural course) should govern these elections. If the returning citizens were not at this juncture gratified, tumults were by some apprehended.

This was a plausible step, and on that account the more dangerous. If we examine it with an unprejudiced eye, we must acknowledge, not only that it was an evasion of the treaty, but a subversion of one great principle of social security: to wit, that every man shall be presumed innocent until he is proved guilty. This was to invert the order of things; and, instead of obliging the State to prove the guilt in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury.

That this was an evasion of the treaty, the fourth proposition already laid down will illustrate. It was a mode of inquiry, who had committed any of those crimes to which the penalty of disqualification was annexed; with this aggravation, that it deprived the citizen of the benefit of that advantage which he would have enjoyed, by leaving, as in all other cases, the burthen of the proof upon the prosecutor.

To place this matter in a still clearer light, let it be supposed, that instead of the mode of indictment and trial by jury, the Legislature was to declare, that every citizen who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe. Would this not be a palpable evasion of the treaty, and a direct infringement of the Constitution? The principle is the same in both cases; with only this difference in the consequences, that, in the instance already acted upon, the citizen forfeits a part of his rights; in the one supposed, he would forfeit the whole. The degree of punishment is all that distinguishes the cases. In either, justly considered, it is substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one, recognized by the laws and the Constitution of the State,—I mean the trial by jury.

Let us not forget, that the Constitution declares, that trial by jury, in all cases in which it has been formerly used, should remain inviolate for ever; and that the Legislature should, at no time, erect any new jurisdiction which should not proceed according to the courses of the common law. Nothing can be more repugnant to the true genius of the common law, than such an inquisition as has been mentioned into the consciences of men.

A share in the sovereignty of the State, which is exercised by the citizens at large, in voting at elections, is one of the most important rights of the subject, and, in a republic, ought to stand foremost in the estimation of the law. It is that right by which we exist a free people; and it certainly, therefore, will never be admitted, that less ceremony ought to be used in divesting any citizen of that right than in depriving him of his property. Such a doctrine would ill suit the principles of the Revolution, which taught the inhabitants of this country to risk their lives and fortunes in asserting their liberty; or, in other words, their right to a share in the government. That portion of the sovereignty to which each individual is entitled, can never be too highly prized. It is that for which we have fought and bled; and we should cautiously guard against any precedents, however they may be immediately directed against those we hate, which may, in their consequences, render our title to this great privilege precarious. Here we may find the criterion to distinguish the genuine from the pretended Whig. The man that would attack that right, in whatever shape, is an enemy to Whigism.

If any oath, with retrospect to past conduct, were to be made the condition on which individuals who have resided within the British lines should hold their estates, we should immediately see that this proceeding would be tyrannical, and a violation of the treaty; and yet, when the same mode is employed to divest that right, which ought to be deemed still more sacred, many of us are so infatuated as to overlook the mischief.

To say that the persons who will be affected by it have previously forfeited that right, and that therefore nothing is taken away from them, is a begging of the question. How do we know who are the persons in this situation? If it be answered, This is the mode taken to ascertain it; the objection returns, ’T is an improper mode, because it puts the most essential interests of the citizen upon a worse footing than we should be willing to tolerate where inferior interests were concerned; and because, to elude the treaty, it substitutes to the established and legal mode of investigating crimes and inflicting forfeitures, one that is unknown to the Constitution and repugnant to the genius of our law.

Much stress has been laid upon a couple of unmeaning words in the act to enforce the penalties for which the oath was invented. It is declared that the persons who have done the several things enumerated in the act shall be ipso facto disqualified. These words of potent sound but of little substance, have been supposed to include wonderful effects. Let us see if we can give them any definite meaning. If a man commits murder, by the very act, ipso facto, he incurs the penalty of death; but before he can be hanged we must inquire whether he has certainly committed the act. If a man has done any of those things which are declared sufficient to disqualify him from voting, though by the very act, ipso facto, he incurs the penalty of the law, yet, before he can be actually disqualified, we must inquire whether he has really done the act. From this we perceive the words ipso facto are mere expletives, which add nothing to the force or efficacy of the law.

It has been said, too, that an oath to determine the qualifications of electors is a usual precaution in free governments; but we may challenge those who make the assertion, to show that retrospective oaths have ever been administered, requiring electors to swear that they have not been guilty of past offences. In all the violence of party which has, at different periods, agitated Great Britain, nothing of this kind has ever been adopted; but even where religious fanaticism has given an edge to political opposition, and in an undecided contest for the crown, they have never gone further than to prescribe oaths for testing present dispositions towards the government, on general principles, without retrospection to particular instances of past mal-conduct. The practical notions of legal liberty established in that country by a series of trials, would make such an experiment too odious to be attempted by the government. Wise men have thought that even there they have carried the business of oaths to an exceptionable length; but we, who pretend a purer zeal for liberty, in a decided contest, after a formal renunciation of claims by the adverse party, are for carrying the matter to a still more blamable extreme.

Men whose judgments and intentions I respect, were the promoters of the measure which has occasioned this digression: some from the contagion of popular opinion; others from the too strong impressions of momentary expedience; and a third class from the insensible bias of some favorite pursuit.

As to the fourth method in which the inhabitants of the southern district may have lost their rights of citizenship, a dismemberment by treaty, I have naturally been drawn, under the third head, into a discussion of this; and I trust have shown, to the full satisfaction of all candid men, that there is not a shadow of foundation to suppose that such a dismemberment is in the contemplation of the treaty. A few short remarks shall conclude what I intend to say on this article.

It is a case without precedent, that a nation, in surrendering its acquisitions in war to the state from which those acquisitions were made, should stipulate for the inhabitants of the country given up as for its own subjects. To do it would be both useless and absurd: useless, because the country being surrendered, no reasonable advantage could be derived from retaining the allegiance of its inhabitants; absurd, because the district of territory surrendered being given up as a part of the state to which the surrender is made, it would be contradictory, by the same act, to acknowledge the right of that state to the part given up, and yet to hold up a claim to the allegiance of its inhabitants.

The surrender (for the question does not relate to original cessions) carries in itself a decisive implication that the inhabitants of the country surrendered are the subjects of the power to which the surrender is made; and the presumption in this case is so strong that nothing but the most positive and unequivocal exceptions in the treaty would be sufficient to defeat it. Labored constructions to give the treaty that complexion are inadmissible; for if there were room to doubt, the doubt, in just reasoning, should be interpreted against the position that the inhabitants of the country surrendered were the subjects of the power by which the surrender was made.

The only additional remark I shall make on this head is this: Though we are under great obligations to our ministers for the substance of the treaty, which comprehends all the essential interests of this country, we must acknowledge that the language of it is in many respects defective and obscure. The true rule in this case is not to have recourse to artificial and far-fetched interpretation, but to admit such meanings as the simple and popular import of the words conveys. When, therefore, it is said, in the sixth article, “that there shall be no future prosecutions commenced, nor confiscations made, nor damage done to person, liberty, or property of any person or persons on account of the part taken by them in the war”; as the natural and obvious scope of the words presents a full amnesty and indemnity for the future, we should not torture our imaginations to pervert them to a different sense.

It has been urged, in support of the doctrines under consideration, that every government has a right to take precautions for its own security, and to prescribe the terms on which its rights shall be enjoyed.

All this is true when understood with proper limitations; but, when rightly understood, will not be found to justify the conclusions which have been drawn from the premises.

In the first formation of a government, the society may multiply its precautions as much, and annex as many conditions to the enjoyment of its rights, as it shall judge expedient; but when it has once adopted a Constitution that Constitution must be the measure of its discretion in providing for its own safety, and in prescribing the conditions upon which its privileges are to be enjoyed. If the Constitution declares that persons possessing certain qualifications shall be entitled to certain rights while that Constitution remains in force, the government, which is the mere creature of the Constitution, can divest no citizen, who has the requisite qualifications, of his corresponding rights. It may indeed enact laws and annex to the breach of them the penalty of forfeiture; but before that penalty can operate, the existence of the fact upon which it is to take place must be ascertained in that mode which the Constitution and fundamental laws have provided. If trial by jury is the mode known and established by that Constitution and those laws, the persons who administer the government in deviating from that course will be guilty of usurpation. If the Constitution declares that the legislative power of the state shall be vested in one set of men and the judiciary power in another; and those who are appointed to act in a legislative capacity undertake the office of judges; if, instead of confining themselves to passing laws with proper sanctions to enforce their observance, they go out of their province to decide who are the violators of those laws, they subvert the Constitution and erect a tyranny. If the Constitution were even silent on particular points, those who are intrusted with its power would be bound in exercising their discretion to consult and pursue its spirit, and to conform to the dictates of reason and equity; if, instead of this, they should undertake to declare whole classes of citizens disfranchised and excluded from the common rights of the society without hearing, trial, examination, or proof; if, instead of waiting to take away the rights of citizenship from individuals till the state has convicted them of crimes by which they are to lose them before the ordinary and regular tribunal, they institute an inquisition into men’s consciences and oblige them to give up their privileges or undertake to interpret the law at the hazard of perjury, they expose themselves to the imputation of injustice and oppression.

The right of government to prescribe the conditions on which its privileges shall be enjoyed is bounded, with respect to those who are already included in the compact, by its original conditions: in admitting strangers it may add new ones; but it cannot, without a breach of the social compact, deprive those who have been once admitted, of their rights, unless for some declared cause of forfeiture authenticated with the solemnities required by the subsisting compact.

The rights, too, of a republican government are to be modified and regulated by the principles of such a government. These principles dictate that no man shall lose his rights without a hearing and conviction before the proper tribunal; that, previous to his disfranchisement, he shall have the full benefit of the laws to make his defence; and that his innocence shall be presumed until his guilt has been proved. These, with many other maxims, never to be forgotten in any but tyrannical governments, oppose the aims of those who quarrel with the principles of Phocion.

Cases indeed of extreme necessity are exceptions to all general rules, but these only exist when it is manifest the safety of the community is in imminent danger. Speculations of possible danger never can be justifying causes of departures from principles on which, in the ordinary course of things, all private security depends; from principles which constitute the essential distinction between free and arbitrary governments.

When the advocates for legislative discriminations are driven from one subterfuge to another, their last resting-place is that this is a new case, the case of a revolution. Your principles are all right, say they, in the ordinary course of society; but they do not apply to a situation like ours. This is opening a wilderness through all the labyrinths of which it is impossible to pursue them. The answer to this must be that there are principles eternally true, and which apply to all situations such as those that have been already enumerated; that we are not now in the midst of a revolution, but have happily brought it to a successful issue; that we have a Constitution formed as a rule of conduct; that the frame of our government is determined, and the general principles of it settled; that we have taken our station among nations; have claimed the benefit of the laws which regulate them, and must in our turn be bound by the same laws; that those eternal principles of social justice forbid the inflicting punishment upon citizens by an abridgment of rights, or in any other manner, without conviction of some specific offence by regular trial and condemnation; that the Constitution we have formed makes the trial by jury the only proper mode of ascertaining the delinquencies of individuals; that legislative discriminations to supersede the necessity of inquiry and proof would be a usurpation of the judiciary powers of the government, and a renunciation of all the maxims of civil liberty; that by the laws of nations and the rules of justice we are bound to observe the engagements entered into on our behalf by that power which is invested with the constitutional prerogative of treaty; and that the treaty we have made in its genuine sense ties up the hands of government from any species of future prosecution or punishment, on account of the part taken by individuals in the war.

Among the extravagancies with which these prolific times abound, we hear it often said that the Constitution being the creature of the people, their sense with respect to any measure, if it even stand in opposition to the Constitution, will sanctify and make it right.

Happily for us in this country, the position is not to be controverted, that the Constitution is the creature of the people; but it does not follow that they are not bound by it while they suffer it to continue in force, nor does it follow that the Legislature, which is, on the other hand, a creature of the Constitution, can depart from it on any presumption of the contrary sense of the people.

The Constitution is the compact made between the society at large and each individual. The society, therefore, cannot without breach of faith and injustice refuse to any individual a single advantage which he derives under that compact, no more than one man can refuse to perform his agreement with another. If the community have good reasons for abrogating the old compact and establishing a new one, it undoubtedly has a right to do it; but until the compact is dissolved with the same solemnity and certainty with which it was made, the society as well as individuals are bound by it.

All the authority of the Legislature is delegated to them under the Constitution; their rights and powers are there defined; if they exceed them it is a treasonable usurpation upon the power and majesty of the people, and by the same rule that they may take away from a single individual the rights he claims under the Constitution, they may erect themselves into perpetual dictators. The sense of the people, if urged in justification of the measure, must be considered as a mere pretext, for that sense cannot appear to them in a form so explicit and authoritative as the Constitution under which they act, and if it could appear with equal authenticity, it could only bind when it had been preceded by a declared change in the form of government.

The contrary doctrine serves to undermine all those rules by which individuals can know their duties and their rights, and to convert the government into a government of will, not of laws.

There is only one light, on Mentor’s plan, in which this subject remains to be considered; the danger to the government from suffering persons to reside among us who have an aversion to our Constitution; either by their becoming auxiliaries to future attempts of the British nation to recover their lost authority, or by their contributing to corrupt the principles and change the form of our government.

My observations on this subject in my former letter, I believe, remain unshaken by what Mentor has opposed to them. I shall, however, add a few others.

The restoration of British authority in this country is too chimerical to be believed even by Mentor himself; though he makes some faint essay to induce the supposition.

Why did Great Britain make peace with America? Because the necessity of her affairs compelled her to do it In what did this necessity consist? In every species of embarrassment and disorder that a nation could experience. Her public debt had almost arrived at that point, when the expenses of a peace establishment were nearly equal to all the revenues they were able to extract from exhausting the sources of taxation. Had they carried on the war till they had exceeded this point, a bankruptcy would have been the inevitable consequence. We perceive, as it is, the great difficulties that are acknowledged by every succession of ministers, in devising means to retrieve the affairs of the nation.

The distractions of the government, arising from those embarrassments, are scarcely paralleled in any period of British history. Almost every sitting of Parliament is a signal of a change of ministry. The King at variance with his Ministers; the Ministers unsupported by Parliament; the Lords disagreeing with the Commons; the nation execrating the King, Ministers, Lords, and Commons; all these are symptoms of a vital malady in the present state of the nation.

Externally the scene is not brighter. The affairs of the East India settlements are in the most perplexing confusion; and Ireland seems to be ready to dismember itself from the British Empire.

It may be said that these are temporary mischiefs, which may be succeeded by greater tranquility, prosperity, and power. The future situation of Great Britain is a problem which the wisest man cannot solve. In all appearance, it will be a considerable time before she can recover from the pressure of the evils under which she now labors, to be in a condition to form enterprises against others. When that period may arrive, our strength and resources will have greatly increased; the habits of men attached to her will have worn out: and it is visionary to suppose that she will then entertain a disposition to renew her attempts upon a country, increased in strength and resources, exerting its forces under an established Constitution, fortified by foreign alliances, which her acknowledged independence will at all times command; when she reflects that that country, in the tumult of a revolution, and in a state of comparative impotence, baffled all her efforts in the zenith of her power.

To an enlightened mind it will be sufficient to say, upon this subject, that, independent of our own means of repelling enterprises against us, Europe has been taught, by this revolution, to estimate the danger to itself of a union of the two countries under the same government, in too striking a manner ever to permit the reunion, or tolerate the attempts of Great Britain toward it.

The danger from the corruption of the principles of our government is more plausible, but not more solid. It is an axiom, that governments form manners, as well as manners form governments. The body of the people of this State are too firmly attached to the democracy to permit the principles of a small number to give a different tone to that spirit.1 The present law of inheritance, making an equal division among the children of the parents’ property, will soon melt down those great estates, which, if they continued, might favor the power of the few. The number of the disaffected, who are so from speculative notions of government, is small. The great majority of those who took part against us did it from accident, from the dread of the British power, and from the influence of others to whom they had been accustomed to look up. Most of the men who had that kind of influence are already gone: the residue and their adherents must be carried along by the torrent, and, with a very few exceptions, if the government is mild and just, will soon come to view it with approbation and attachment.

Either the number of malcontents in the State is small or it is considerable. If small, there is no room for apprehension; if great, then opposition to the government is only to be overcome by making it their interest to be its friends, or by extirpating them from the community. A middle line, which will betray a spirit of persecution in the government, but will only extend its operation to a small number, will answer no other purpose than to disable a few, and inflame and rivet the prejudices of the rest, by exhibiting the temper of government in a harsh and unconciliating light. We shall, then, in truth, have a considerable faction in the State ready for all innovations.

The impracticability of such a general extirpation, suggests the opposite conduct as the only proper one.

There is a bigotry in politics as well as in religions, equally pernicious in both. The zealots, of either description, are ignorant of the advantage of a spirit of toleration. It was a long time before the kingdoms of Europe were convinced of the folly of persecution with respect to those who were schismatics from the established church. The cry was, these men will be equally the disturbers of the Hierarchy and of the State. While some kingdoms were impoverishing and depopulating themselves by their severities to the non-conformists, their wiser neighbors were reaping the fruits of their folly, and augmenting their own numbers, industry, and wealth, by receiving, with open arms, the persecuted fugitives. Time and experience have taught a different lesson: and there is not an enlightened nation which does not now acknowledge the force of this truth, that whatever speculative notions of religion may be entertained, men will not, on that account, be enemies to a government that affords them protection and security. The same spirit of toleration in politics, and for the same reasons, has made great progress among mankind, of which the history of most modern revolutions is a proof. Unhappily for this State, there are some among us who possess too much influence; that have motives of personal ambition and interest to shut their minds against the entrance of that moderation which the real welfare of the community teaches.

Our neighbors seem to be in a disposition to benefit by our mistakes; and the time will not be very remote, if the schemes of some men can prevail, when we shall be ashamed of our own blindness, and heap infamy upon its promoters.

It is remarkable, though not extraordinary, that those characters, throughout the States, who have been principally instrumental in the revolution, are the most opposed to persecuting measures. Were it proper, I might trace the truth of this remark from that character which has been the first, in conspicuousness, through the several gradations of those, with very few exceptions, who, either in the civil or military line, have borne a distinguished part. On the other hand, I might point out men who were reluctantly dragged into taking a part in the revolution; others who were furious zealots in the commencement of the dispute, that were not heard of to any public purpose, during the progress of it; and others who were fluctuating, according to the tide of good- or ill-fortune; all of whom now join in the cry with a fourth class, more imprudent, but much more respectable, and endeavor, by the loudness of their clamors, to atone for their past delinquencies.

As to Mentor’s commercial reveries, I shall decline bestowing many remarks upon them; not only because they are not immediately connected with the general subject, but because there is little danger of their making any proselytes, while men are convinced that the prosperity of the national commerce depends as much upon the extent of its capital as that of an individual; that to confine trade to any particular description of men, in exclusion of others who have better means of carrying it on, would be, if practicable, to make the people at large tributary to the avarice of a small number who were to have the benefit of the monopoly; that, in the present situation of things, a very small proportion of those intended to be benefited, who have the means to avail themselves of the advantage, would reap all its fruits, even at the expense, and to the prejudice, of the greater part of those who were meant to be favored; that the fewer hands trade is confined to, the less will be its activity, and the less the degree of employment afforded to other classes of the community; and, in short, that all monopolies, exclusions, and discriminations, in matters of traffic, are pernicious and absurd.

Since writing the foregoing, I have learned that a bill is depending before the House of Assembly, for putting various descriptions of persons out of the protection of government. I have too much respect for the wisdom and virtue of that body, to suppose a measure of this nature can obtain the sanction of the majority. What is the plain language of the proposal? There are certain persons who are obnoxious to public resentment. The treaty forbids us to proceed against them in a legal way. Let us, therefore, by an unconstitutional exertion of power evade the treaty, however dangerous the precedent to the liberty of the subject, and however derogatory to the honor of the nation. By the treaty we stipulate, that no person or persons shall suffer, on account of the part they may have taken in the war, any damage to person, liberty, or property; and yet, by taking away the protection of government, which they would enjoy under the subsisting laws, we leave them to suffer whatever injury to either, the rashness of individuals who are the subjects of the State, may think proper to inflict. What would this be, but to imitate the conduct of a certain general, who, having promised that he would not spill the blood of some prisoners who were about to surrender by capitulation, after he had them in his power had them all strangled to death? Words, in every contract, are to be construed so as to give them a reasonable effect. When it is stipulated that a man shall not suffer in person, liberty, or property, it does not merely mean, that the State will not inflict any positive punishment upon him, but also that it will afford him protection and security from injury. The very letter, as well as the spirit of the stipulation, imports this. He shall not suffer any damage, are the words of the treaty.

The scheme of putting men out of the protection of the law, is calculated to transfer the sceptre from the hands of government to those of individuals; it is to arm one part of the community against another; it is to enact a civil war. If, unhappily for the State, this plan could succeed, no man can foresee the end of it. But the guardians of the rights of the community will certainly, on mature deliberation, reject it.

Feeling for the honor of the State, if expulsions must take place, if the Constitution and the faith of the United States must be sacrificed to a supposed political expedience, I had much rather see an open avowal of the principles upon which we acted, than that we should clothe the design with a veil of artifice and disguise, too thin not to be penetrated by the most ordinary eye.

I shall now, with a few general reflections, conclude.

Those who are at present entrusted with power, in all these infant republics, hold the most sacred deposit that ever was confided to human hands. ’T is with governments as with individuals; first impressions and early habits give a lasting bias to the temper and character. Our governments, hitherto, have no habits. How important to the happiness, not of America alone, but of mankind, that they should acquire good ones!

If we set out with justice, moderation, liberality, and a scrupulous regard to the Constitution, the government will acquire a spirit and tone productive of permanent blessings to the community. If, on the contrary, the public councils are guided by humor, passion, and prejudice; if from resentment to individuals, or a dread of partial inconveniences, the Constitution is slighted, or explained away, upon every frivolous pretext, the future spirit of government will be feeble, distracted, and arbitrary. The rights of the subject will be the sport of every party vicissitude. There will be no settled rule of conduct, but every thing will fluctuate with the alternate prevalency of contending factions.

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. The influence of our example has penetrated the gloomy regions of despotism, and has pointed the way to enquiries which may shake it to its deepest foundations. Men begin to ask, everywhere: Who is this tyrant that dares to build his greatness on our misery and degradation? What commission has he to sacrifice millions to the wanton appetites of himself and a few minions that surround his throne?

To ripen enquiry into action, it remains for us to justify the revolution by its fruits.

If the consequences prove that we really have asserted the cause of human happiness, what may not be expected from so illustrious an example? In a greater or less degree the world will bless and imitate.

But if experience, in this instance, verifies the lesson long taught by the enemies of liberty, that the bulk of mankind are not fit to govern themselves; that they must have a master, and were only made for the rein and the spur; we shall then see the final triumph of despotism over liberty; the advocates of the latter must acknowledge it to be an ignis fatuus, and abandon the pursuit. With the greatest advantages for promoting it that ever a people had, we shall have betrayed the cause of human nature.

Let those in whose hands it is placed pause for a moment, and contemplate with an eye of reverence the vast trust committed to them. Let them retire into their own bosoms and examine the motives which there prevail. Let them ask themselves this solemn question: Is the sacrifice of a few mistaken or criminal individuals an object worthy of the shifts to which we are reduced, to evade the Constitution and the national engagements? Then let them review the arguments that have been offered with dispassionate candor; and if they even doubt the propriety of the measures they may be about to adopt, let them remember, that, in a doubtful case, the Constitution ought never to be hazarded without extreme necessity.

Phocion.

EndNotes

1 The first letter from Phocion attracted much attention and drew out many answers, of which the most important was one signed “Mentor.” The author was Isaac Ledyard, a leading politician and a friend of Governor Clinton, so that Hamilton felt it necessary to reply by publishing this second “Phocion” letter.

2 Vide Address of Congress to the people of Great Britain, September 5, 1774.

3 Blackstone, vol. ⅳ., page 5.

4 Vide Proposition 4th.

5 Vatel, page 130, § 48.


Posting the entire Works of Alexander Hamilton is a project of Steven Montgomery. I’m posting these as a way to read and digest the works of Alexander Hamilton. The reader could profit by following along daily.

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