Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review


March 8, 2016
by Alec D. Rogers Also by this Author


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Book review: Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review by Peter Charles Hoffer (Kansas University Press, 2016).


During the Revolutionary War, a widow named Elizabeth Rutgers and her sons were forced to abandon their brewery when the British occupied New York City in 1776.  Upon their return, they demanded rent from Joshua Waddington, a Tory who had been occupying and running their establishment from 1778 until displaced by a New York state law enacted in 1783, restoring property to Patriots who had previously abandoned the city.  Under the plain construction of the Trespass Act, one part of the elaborate “Loyalist code” meant to punish Tories and encourage them to mend their ways, it was quite clear that Rutgers was entitled to generous compensation from Waddington.[1]  In early 1784, the Rutgers would initiative a lawsuit in the city’s Mayor’s Court.

In Waddington’s defense his lawyer argued a brilliant, novel defense that relied upon a learned reading of the Laws of Nations (and its subset the Laws of War) that, coupled with the New York Constitution’s incorporation of the English common law into that of New York’s, he argued, trumped the statutory law as the governing authority.  In addition, he continued, a proper reading of the recently ratified Treaty of Paris’s provisions regarding Tory property similarly barred the Trespass Act’s application to the case at bar, another novel assertion that had far reaching implications for the young nation.  The Trespass Act thus disposed with, under this young and relatively newly minted lawyer’s logic, Waddington’s payment to the lawful British authorities largely ought to absolve him of any obligation to Rutgers.

Now, Rutgers was ably represented by her relative and State’s Attorney General, Egbert Benson, who was acting in his private capacity in this case (a situation unimaginable to today’s lawyer, but not uncommon at the time).  Benson was a well-respected lawyer of substantial experience.  Further, he had served in both the state’s constitutional convention and the assembly that had enacted the Trespass Act, placing him in an authoritative position to interpret both documents.  After the litigation he would go on to receive further offices and honors.[2]

But in the annals of American history Benson was a nobody next to Waddington’s relatively young and less experienced counsel, none other than Super Patriot and “ten dollar founding father” Alexander Hamilton.[3]

Peter Charles Hoffer’s Rutgers vs Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review recounts and thoroughly examines this important but largely forgotten episode of Confederation-era history, and considers its importance as a political as well as a legal event.  This new entry in Kansas University Press’s Landmark Law Cases and American Society series uses Rutgers to discourse on many aspects of Revolutionary New York. Hoffer covers both city and state politics, its tavern culture and court system, and the new generation of lawyers that emerged largely as a result of the state’s extensive series of laws aimed at keeping Tories out of public life, including bench and bar.[4]

Hamilton in fact had made a lucrative niche for himself in representing Tories like Waddington in war-related property disputes, eventually handing over sixty such cases.[5] It was not primarily the fees that attracted Hamilton,[6] but the principle of law such cases involved.  By honoring its treaty commitments and demonstrating it could put the Confederation’s legal obligations above parochial political considerations, America could also demonstrate that it was a serious country, worthy of respectful intercourse with other nations.  He also recognized the dangers that persecuting Tories, particularly those in New York who possessed a great deal of intellectual capital, posed to both the young nation and to the city that sought what Hamilton saw as its rightful place as the leading commercial center.[7]

At the heart of the Rutgers’ case was New York’s Loyalist code, a set of laws enacted to punish leading Loyalists and coerce others into supporting the Patriot cause.  Loyalists were subject to many legal penalties and among them were the provisions found in the state’s Trespass Act, which allowed Patriots to sue loyalists who had used their property during the war for back rent thus sweeping aside standard common law defenses that might otherwise have protected Loyalists who had complied with the rule of the lawful British authorities at the time.  While the law had not been enacted in 1783 it was given retroactive effect.

With New York’s law heavily stacked against his client, Hoffer writes that Hamilton chose to make the case about the nature of the confederation and the future of the union. He eschewed pursuit of a legal tactic that might have protected his client but would not have afforded him the opportunity to use the case of a large project of rehabilitating loyalists into New York’s political life.[8] In Rutgers Hoffer detects a larger pattern in Hamilton’s legal practice in which he was already creating an intellectual framework for “a strong national government behind which stood men of property; an orderly and sound world …”[9]

Law in Colonial America was much different in form and practice from today, and even a reader with legal training today would likely have great difficulty following many of aspects of colonial cases.  The relationships between colonial state law, the common law, English law, international law and even the law of nature were unclear.  This gave lawyers who had thought deeply on the nature of law and government, such as Hamilton, additional angles to argue, and their clients an edge. Fortunately, Hoffer has authored numerous books on colonial legal history and some of its most important cases.  He is a sure footed guide, keeping his reader from getting confused by the arcane aspects of a bygone era when law was separate from equity and “form pleading,” the bane of a sloppy lawyer and his poor client.  Where the record is incomplete, as is often the case from that period, Hoffer speculates intelligently on what likely occurred and why.[10]

At only 130 pages of text, however, Rutgers v. Waddington must assume a fair amount of knowledge about the Revolution in general, and Alexander Hamilton in particular.  An academic work, the prose is clear but spare.  No one would confuse Hoffer with a David McCullough or Ron Chernow.  A more detailed examination of some points, such as the tiny, cliquish nature of New York’s bar, go largely unexplored and would have added another dimension to understanding the personal dynamics involved.   Moving much of the information in the final chapter regarding Hamilton and the nature of his enterprise forward would have helped break up some of the more dense legal discussion and propelled the story’s narrative.

Yet, Hoffers’ readers will come away with an expanded understanding of the Revolution from a legal standpoint, a deeper appreciation for the bitterness between Patriots and Loyalists, and the extent to which the New York community struggled with reconciliation (and the vital role law played in it).  Livingstons, Schuylers, DeLanceys all make an appearance.  James Duane plays an important role in the story as mayor and judge.  Those interested in Hamilton will gain insight into the important but lesser examined period of his life between the Revolution and Treasury through which we can gain a glimpse into the development of his thinking that would shape his approach towards creating a new government and as its first Treasury Secretary.  For the relatively small investment of time, Rutgers v. Waddington is therefore highly rewarding.


[1] From their correspondence, it appears Rutgers would ultimate seek around $8,000, or roughly ten times what Waddington had offered in settlement.

[2] In one of these roles, he would accompany Alexander Hamilton to the Annapolis Convention that initiated the call for the Philadelphia convention that would ultimately draft the Constitution.  He would also be a member of the New York Convention that ratified the US Constitution.  Wikipedia, The Free Encyclopedia, s.v. “Egbert Benson,” (accessed February 22, 2016),

[3] Apologies to Lin Manual Miranda.

[4] Among those portrayed despite not appearing for either party in Rutgers is Hamilton’s nemesis Aaron Burr.  Burr was among the leading members of the postwar bar, who had made representation of Patriots in such cases an important part of his practice. Despite benefitting from this law, though, Hamilton worked for its repeal as contrary to the public interest.  Hoffer, Rutgers v. Waddington, 99.

[5] Francis Paschal, “The Law Practice of Alexander Hamilton, edited by Julius Goebel, Jr.,” Indiana Law Journal: Vol. 40: Iss. 4, Article 7 (1965): 603, accessed February 19, 2016, It was not the Loyalists themselves he was trying to protect, but the establishment of their property rights, which he saw as a vital part of rebuilding New York’s economy.  Hoffer, Rutgers v, Waddington, 99.

[6] Hamilton’s practice was lucrative, but his fees were not nearly what he could have charged.  He tried to dissuade litigation and would not accept fees larger than he believed warranted even though as a member of a very small bar (around 40) he could have easily obtained them.  See Ron Chernow, Alexander Hamilton (New York, Penguin Press, 2004), 188.  The Rutgers case only netted him nine pounds, but opened his door to many more Trespass Act cases.  Hoffer, Rutgers v. Waddington, 97.

[7] Hoffer, Rutgers v. Waddington, 23.

[8] Specifically, he might have removed the case to the chancellor’s court, presided over by the sympathetic Robert Livingston and where rules of equity, or fairness, would have governed rather than the outcome rather than the Trespass Act.  Hamilton had written such a motion, but never filed it with the court. Ibid., 58, 64.

[9] Ibid., 63

[10] For instance, he discusses a related pamphlet exchange in which Hamilton lays out his understanding of the Tories’ place in society under the name Phocion, which drew a contrary response from Mentor.  For many years historians thought Mentor might be a local physician, but Hoffer makes an interesting case that Aaron Burr might have been the author.

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