Alexander Hamilton and the Development of American Law Katherine Elizabeth Brown Amherst, New York Master of Arts in American History, University of Virginia, 2012 Master of Arts in American History, University at Buffalo, 2010 Bachelor of Science in Applied Economics and Management, Cornell University, 2004 A Dissertation presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Department of History University of Virginia May, 2015 This dissertation is dedicated to the memory of Matthew and Theresa Mytnik, my Rana and Boppa. i ABSTRACT ―Alexander Hamilton and the Development of American Law,‖ is the first comprehensive, scholarly analysis of Alexander Hamilton‘s influence on American jurisprudence, and it provides a new approach to our understanding of the growth of federal judicial and executive power in the new republic. By exploring Hamilton's policy objectives through the lens of the law, my dissertation argues that Hamilton should be understood and evaluated as a foundational lawmaker in the early republic. He used his preferred legal toolbox, the corpus of the English common law, to make lasting legal arguments about the nature of judicial and executive power in republican governments, the boundaries of national versus state power, and the durability of individual rights. Not only did Hamilton combine American and inherited English principles to accomplish and legitimate his statecraft, but, in doing so, Hamilton had a profound influence on the substance of American law, the contours of federalism, and the expansion of federal judicial and executive power in the early national period. ii TABLE OF CONTENTS ♦♦♦ ALEXANDER HAMILTON AND THE DEVELOPMENT OF AMERICAN LAW Introduction 1 Alexander Hamilton, Lawyer and Lawmaker Chapter One 17 Creating the Federal Magistracy: Discretionary Power and the Energetic Executive Chapter Two 77 Administrative Accommodation in the Federal Magistracy Chapter Three 119 Creating the ―Commercial Republic‖: Neutrality and Law in the American Courts Chapter Four 166 Developing the Jurisprudence of Federalism: Alexander Hamilton and the Defense of the Federal Fiscal Powers Chapter Five 224 Litigation, Liberty, and the Law: Alexander Hamilton‘s Common-Law Rights Strategy Conclusion 287 The Federalist iii ACKNOWLEDGEMENTS I would like to thank the following people, institutions, and four-legged creatures for their help and support: Thank you to Doug Bradburn, Mary Jongema, Neal Milliken, Anna Milliken, Lucy Smith, Sarah Myers, Dana Stefanelli, Bruce Ragsdale, Michael Kane, Stephen McLeod, the Mount Vernon Ladies Association, and the library staff at the Fred W. Smith National Library for the Study of George Washington at Mount Vernon. I would also like to thank the New-York Historical Society, the Gilder-Lehrman Institute of American History, the David Library of the American Revolution, and the Institute for Humane Studies. And, I am grateful to Elizabeth Dale and the Law and History Review for publishing parts of my fifth chapter as an article titled ―Rethinking People v. Croswell: Alexander Hamilton on the Nature and Scope of ‗Common Law‘ in the Early Republic‖ (Vol. 32, Summer 2014). The University of Virginia has an excellent history department and law school, with professors who are tremendous advocates, teachers, and mentors for their graduate students. Thank you, first, to my dissertation committee, including Charles McCurdy, Paul Halliday, Risa Goluboff, and Max Edelson. Mr. McCurdy, the Chief, you are a truly outstanding mentor and teacher, and I am so honored to be your student—your final PhD student! Thank you for being patient with me over these last five years, and for developing me into a scholar. I appreciate all of your guidance and advice as you helped me turn my fascination for Alexander Hamilton into a polished legal history manuscript. Thank you, also, for writing all of those letters of recommendation for me, for sharing your extensive library with me, and for twice letting me bring my Hamilton to your home when we graded all those final exams on the last night of the semester. Also, a special thank you to Peter Onuf, Olivier Zunz, and Sophie Rosenfeld, as well as to the editors at the Papers of George Washington. I am grateful to Bill Ferraro, Tom Dulan, Ben Huggins, David Hoth, and Ed Lengel for all of the advice, support, and experience I gained while working in the RevWar office. I miss being a part of your team and working on RevWar volumes 24 and 26. And, to my amazing friends and family, thank you so very much! I am indebted to you for everything that you have done for me over these years of graduate school. I am grateful for my Mom and Dad—Sue and Mike Brown—as well as Mike Miranda, Peg and Ed Brown, Frank Garmon, Lee B. Wilson (the other half of the Dynamic Duo!), Kristen and Andrew Lashua, Mike and RaeAnne Caires, Ben Brady, Emily Senefeld, Ben Davidson, Jim Ambuske and Jim Hrdlicka (The Jimz), Asaf Almog, Erik Erlandson, and David Grant Smith. And last but never least, thank you to my extended family of four-legged creatures who have been my best companions. These loveable critters include: L.G. Boogie (a.k.a Little Guy Iredell), Stereo Boogs, Botetourt, So Smoke, Smellie Nellie, MoneyPenny, Keela, and my sweet, blind doggie, Hamilton. iv INTRODUCTION ♦♦♦ ALEXANDER HAMILTON, LAWYER AND LAWMAKER A glaring omission exists in the vast body of scholarship written about Alexander Hamilton. Hamilton, as we know from his scores of biographers, was a prodigious lawyer throughout his postwar, professional career. After leaving the Continental Army in 1781, Hamilton could practice before New York‘s Supreme Court bar by July 1782. An astonishingly quick study, the state admitted him as common-law counsel in October 1782, and he qualified as both a solicitor and counsel in Chancery in 1783.1 Hamilton practiced law in New York state until he became the young republic‘s first Secretary of the Treasury in September 1789; he then quickly resumed his private caseload after resigning his cabinet post in January 1795. Ever the industrious attorney, Hamilton had pressing business awaiting him in the New York courts up until his untimely death at the hands of Aaron Burr, a fellow member of the New York bar, on July 12, 1804. Alexander Hamilton‘s post-Revolutionary career was one that constantly engaged with law. Like many other members of America‘s founding generation, Hamilton trained and practiced in the tradition of the common law, a centuries-old amalgamation of homegrown English, and later, American colonial law, that also incorporated elements borrowed from the civil, cannon, and natural law traditions. At the same time that Hamilton participated in America‘s nation-building experiment, he was steeped in English legal traditions. When writing his authoritative commentary on the nature of federal constitutional power in The Federalist, he juxtaposed the British constitution with the new American one he helped to create; when 1 Julius Goebel Jr. and Joseph H. Smith, eds., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 1964-81), 1: 47 [hereafter, LPAH]. 1 proposing commercial, monetary, banking, administrative, or foreign policy in President George Washington‘s cabinet, he used legal arguments to justify his desired course of action. In short, lawyering and common law permeated Alexander Hamilton‘s professional career; why, then, have scholars and biographers routinely ignored his influence on the development of American law? Nineteenth-century festschrift contributor Daniel W. E. Burke reflected on, and presciently anticipated, a formidable problem facing historians: though Hamilton was ―retained in every important case and recognized as the ablest advocate in New York...so chaotic was the system of reporting in those early days, that few of his great cases have come down to us in the books.‖2 To be sure, scholars have caught glimpses of Hamilton‘s seminal influence on American law through a particular set of famous, well documented cases—including Rutgers v. Waddington, Hylton v. U.S. , and People v. Croswell—but largely gave up on piecing together the larger scope and importance of Hamilton‘s legal career.3 (Julius Goebel, Jr. and Joseph H. Smith, the editors of Hamilton‘s law papers, are the two noteworthy exceptions). During the course of his fifteen-year practice, Hamilton argued hundreds of cases and advised an even greater number of clients. And while case-reporting was haphazard in the early republic, Hamilton‘s reputation as a superb lawyer still managed to persist despite an incomplete historical record. Chancellor James Kent celebrated Hamilton‘s achievements in the New York courts, and described his posthumous reputation among jurists: ―But among all his brethren 2 Daniel W. E. Burke, ―Alexander Hamilton as a Lawyer,‖ in Melvin Gilbert Dodge, ed., Alexander Hamilton: Thirty-one orations delivered at Hamilton College from 1864 to 1895 upon the prize foundation established by Franklin Harvey Head, A.M. (New York: G.P. Putnam‘s Sons, 1896), 181. Burke, a graduate of Hamilton College‘s Class of 1893, identified three cases which ―present Alexander Hamilton, the lawyer, as the defender of truth, the champion of justice, and the expositor of liberty,‖ and include People v. Levi Weeks (Court of Oyer and Terminer and General Gaol Delivery for the City and County of New York, 1800), the extended litigation involving merchant Louis Le Guen, and People