July 27, 2018


Hamilton the Lawyer : a review of Alexander Hamilton, and the Development of American Common Law Kate Elizabeth Brown  (CARSON HOLLOWAY, 7/23/18, Law & Liberty)

Brown offers her readers entrée into many forgotten, but nonetheless fascinating and important, questions. For example, as Secretary of the Treasury, Hamilton had to figure out whether it was possible to pardon a violator of customs law when part of the fine owed by the violator was supposed to be paid to the person who reported the violation.

This is a tricky question. On the one hand, the Constitution empowers the executive to issue pardons. On the other hand, that power was thought to relate to criminal liability only, and not to extend to the private rights of individuals. In other words, a pardon could absolve a man of his punishment--of what has often been called his "debt to society"--but could not relieve him of what he owed to another individual. For did not the customs law give the informant a legal right to his portion of the fine? Hamilton and his colleagues in the executive branch concluded--quite sensibly, and in accord with analogous English practice, as Brown writes--that the pardon could be issued, but conditioned on the pardoned man's paying the informant the latter's portion of the fine.

In another interesting circumstance, Hamilton was confronted with the question whether a municipality could tax the interest on federal securities. The issue arose when William Lowder, the Chairman of Boston's Board of Assessors, wrote to Hamilton, boldly requesting a list of Bostonian holders of federal bonds, so that the city could tax their interest as personal property.

Hamilton's response is surprising, in a way. It is not surprising that he refused to comply, but the reason he gave is perhaps not what we would expect. Hamilton is famous for having anticipated, in his Opinion on the Constitutionality of a National Bank, the arguments for a broad reading of the Necessary and Proper Clause that later appeared persuasive to the Supreme Court in McCulloch v. Maryland (1819). The request of the Boston Board of Assessors also gave Hamilton an opportunity to think about a variation on the other issue that later arose in McCulloch: whether a state could tax the activities of the federal government. It is almost certain that Hamilton would have agreed with John Marshall's ruling in McCulloch that a state could not tax the operations of a federally chartered bank, and with Marshall's related ruling in Weston v. Charleston (1829) that a city cannot tax the interest on federal securities. Yet in 1791, Hamilton raised no such constitutional objection to Boston's proposed tax. He simply refused to comply with the Board of Assessors' request on the grounds that it was incompatible with the public credit of the United States and damaging to "the value of the public stock." [...]

His Common Law Conservative Side

Hamilton was also, Brown explains, a defender of an "extensive" interpretation of the common law. The constitution of the state of New York contained a provision receiving, or adopting as law in New York, the common law of Great Britain. This provision forced New York lawyers and courts to ask: What is the common law? Is it merely the sum of the decisions of the courts at Westminster? Or is it the whole English legal inheritance, as expressed in innumerable decisions, built up over centuries, in courts operating across the entire realm? Hamilton took the latter, more "extensive" view; and this, too, defies our usual understanding of him as a kind of centralist. Here, after all, he was contending that the political community's identity is to be found not just in the rulings of its central authority but also in the customs and usages found in its localities.

We are also used to seeing Hamilton as an innovator, the creator of a new financial and economic order. He sought--in opposition to rivals like Thomas Jefferson--an America that left behind its predominantly agrarian character and built up its institutions of finance, industry, and commerce. Nevertheless, Hamilton's veneration of the whole of the common law marks him, again, as a kind of conservative trying to chart a way forward by the light of principles deeply rooted in his civilization's past.

Finally, we quite reasonably consider Hamilton, especially in contrast to Jefferson, to be a defender of public order and the public authority. Hamilton was a revolutionary, but one who worried that the spirit of 1776, if not channeled properly, might habituate people to disobedience and lawlessness. When, in the early 1790s, the Whiskey Rebellion arose in opposition to the excise tax, Hamilton thought the disturbances would in the end have to be suppressed by the threat of force, so everyone could see that the government could not be defied with impunity. (Jefferson tended to view such rebellions, within limits, as a healthy thing in a republic.)

Posted by at July 27, 2018 7:29 AM