{"id":17872,"date":"2025-10-13T23:49:40","date_gmt":"2025-10-14T03:49:40","guid":{"rendered":"https:\/\/www.statutesandstories.com\/blog_html\/?p=17872"},"modified":"2025-11-22T16:58:44","modified_gmt":"2025-11-22T21:58:44","slug":"17872-2","status":"publish","type":"post","link":"https:\/\/www.statutesandstories.com\/blog_html\/17872-2\/","title":{"rendered":"\u201cBrutus \u2013 Melancton Smith Authorship Thesis\u201d (Part 2)"},"content":{"rendered":"

Confirmed: Antifederalist Melancton Smith was Brutus<\/em><\/strong><\/span><\/p>\n

Deep dive into the \u201cBrutus<\/em> \u2013 Melancton Smith Authorship Thesis\u201d (Part 2)<\/strong><\/span><\/p>\n

Adam P. Levinson, Esq. & John P. Kaminski, PhD<\/span><\/strong><\/p>\n

\"\"<\/a><\/p>\n

For over two hundred years historians have universally agreed that Brutus<\/em> was one of the most important Antifederalist writers. The political discourse between Brutus<\/em> and Publius<\/em> helped frame the national debate during the ratification campaign. Publius<\/em>, the author of The Federalist<\/em> papers, was identified long ago. Yet, the identity of Publius\u2019<\/em> chief opponent has remained one of the longest standing mysteries in American constitutional history. As set forth below, newly uncovered evidence confirms the \u201cBrutus<\/em> \u2013 Melancton Smith Authorship Thesis.\u201d[1]<\/a><\/strong><\/p>\n

In mid-January of 1788, Brutus<\/em> had published ten of what would become sixteen classic Antifederalist essays opposing ratification. On 23 January 1788 Melancton Smith wrote to fellow Antifederalist Abraham Yates, Jr., requesting assistance.[2]<\/a> Smith indicated that \u201cvery little has yet been written\u201d about the \u201cjudicial powers\u201d under the proposed Constitution. Smith shared his concern that Article III of the Constitution appears to be framed as to \u201cclinch<\/em> all of the other powers\u201d which would be extended \u201cin a slow and imperceptible manner\u201d by the courts. Smith also expressed his fear that the Supreme Court would be \u201ctotally independent\u201d and \u201cuncontroulable.\u201d[3]<\/a><\/p>\n

Writing \u201cin haste,\u201d Smith listed a handful of specific questions for Yates to review involving the proposed federal courts.[4]<\/a> Smith also shared that \u201cwe are weak here\u201d and \u201chave not the leisure or ability\u201d to expose all of the defects of the proposed Constitution. Smith asked Yates to confer with Samuel Jones,[5]<\/a> a well-respected legal authority who was one of the few prominent Antifederalist lawyers in New York. After soliciting Yates\u2019 and Jones\u2019 input, Smith pointed out that \u201cif you have not time to arrange them for publication, they will afford great assistance to some here who will do it.\u201d Shortly thereafter Brutus 11 <\/em>appeared in print on January 31.[6]<\/a> The timing and content of Smith\u2019s January 23 letter and the publication of Brutus 11<\/em> one week later provides powerful attribution evidence as to Brutus\u2019s<\/em> identity.<\/p>\n

Brutus 11<\/em> directly aligns with Smith\u2019s letter to Abraham Yates. As will be set forth below, Brutus 11<\/em> addresses the exact questions raised by Smith and repeats the identical concern that the Supreme Court would be \u201ctotally independent\u201d and unaccountable. Providing powerful attribution evidence, Brutus 11<\/em> flows directly from Smith\u2019s January 23 letter, expressing the verbatim prediction that the \u201cjudicial power\u201d would operate in a \u201csilent and imperceptible manner\u201d[7]<\/a> to subvert the legislative, executive and judicial powers of the individual states. Further \u201ccinching\u201d his identity, Brutus<\/em> 11 matches Smith\u2019s complaint that \u201cvery little has yet been written\u201d about the \u201cjudicial power\u201d which Brutus<\/em>\/Smith feared.[8]<\/a><\/p>\n

Overview of Brutus<\/em> Attribution<\/p>\n

This blog post is the second of a multi-part series exploring the authorship of the sixteen letters of Brutus<\/em>. The \u201cBrutus \u2013 Melancton Smith Authorship Thesis\u201d<\/strong> argues that Brutus<\/em> was Melancton Smith, Alexander Hamilton\u2019s chief opponent at the New York ratification convention in Poughkeepsie. Part 1<\/strong><\/span><\/a> began with an overview of existing scholarship and summarized the new evidence which has been compiled by Statutesandstories.com in collaboration with John P. Kaminski. Part 2 provides an exhaustive review of the evidence summarized in Part 1<\/strong><\/span><\/a>. Part 3<\/a><\/strong> <\/span>\u00a0will continue with a discussion of additional attribution evidence, including alignment between Melancton Smith\u2019s speeches at the New York ratification convention and Brutus<\/em>. Part 4 <\/strong><\/span><\/a>explores newly uncovered speeches by Melancton Smith which further confirm Melancton Smith\u2019s identity as Brutus<\/em>.<\/p>\n

Part 2 provides a deep dive into archival evidence spanning Melancton Smith\u2019s career. The \u201cBrutus \u2013 Melancton Smith Authorship Thesis\u201d<\/strong> is based on a detailed review of decades of correspondence, pamphlets, legislative history, records of the New York ratification convention, and recently uncovered speeches by Smith. While the disparate records and manuscripts discussed below are believed to provide compelling proof that Melancton Smith was Brutus<\/em>, it is important to recognize that the Melancton Smith Papers are relatively limited,[9]<\/a> compared to the historic record for other more famous members of the founding generation. Further complicating Brutus\u2019s<\/em> historiography is the fact that Melancton Smith died at a relatively early age during a yellow fever outbreak in 1798. Moreover, many New York records were lost in a fire which destroyed portions of the New York State Capitol in 1911.<\/p>\n

Much of this work is only made possible after the completion of the monumental forty-seven volumes of the Documentary History of the Ratification of the Constitution<\/em> (DHRC<\/em>). Readers are thus advised that Part 2 is not intended to be a quick read. Rather, the goal of Part 2 is to comprehensively set forth detailed and disparate attribution evidence using sources dated prior<\/em> to the New York ratification convention. Part 3<\/a><\/span><\/strong> will focus on detailed attribution evidence primarily arising from Smith\u2019s speeches at the New York ratification convention. Unlike more traditional and reader friendly blog posts, Parts 2 and 3 might best be consumed in digestible installments.<\/p>\n

Earlier this year, Statutesandstories released a related seven-part series about the Antifederalist Federal Farmer<\/em>. Historians have long recognized Brutus<\/em> and the Federal Farmer<\/em> as the two most important Antifederalist authors. For decades, the Federal Farmer<\/em> was believed to have been Richard Henry Lee. In 1974, historian Gordon Wood challenged this longstanding attribution, but did not offer a replacement author. In 1988, John P. Kaminski released a paper arguing that Elbridge Gerry was the Federal Farmer<\/em>. Click here for a link to the F<\/em><\/strong>ederal Farmer <\/em>\u2013 E<\/strong>lbridge Gerry A<\/strong>uthorshipT<\/strong>hesis (\u201cFEAT\u201d)<\/strong> which surveys newly uncovered evidence that Elbridge Gerry was in fact the Federal Farmer<\/em>. With Elbridge Gerry confirmed as the Federal Farmer<\/em>, the field is cleared for Melancton Smith to be recognized as Brutus<\/em>.<\/p>\n

Part 2 is organized into the following categories of attribution evidence:<\/p>\n

    \n
  1. Smith\u2019s 1784 pamphlet opposing the holding in the case of Rutgers v. Waddington<\/em> which made Smith a leading early critic of judicial review;[10]<\/a><\/li>\n
  2. the choice of the pseudonym Brutus<\/em> and Smith\u2019s political rivalry with Alexander Hamilton;<\/li>\n
  3. Smith\u2019s speech to Congress defending New York\u2019s conditional adoption of the impost requested by Congress<\/li>\n
  4. Smith\u2019s two pamphlets as A Republican<\/em> defending New York\u2019s actions on the impost<\/li>\n
  5. the nexus and political relationship between Smith and New York Governor George Clinton, as evidenced in Charles Tillinghast\u2019s letter to Hugh Hughes dated 27 January 1788;<\/li>\n
  6. logistical considerations which place Smith in Brutus\u2019s <\/em>shoes.<\/li>\n<\/ol>\n

    Part 3<\/a><\/span><\/strong> will continue with the following categories of attribution evidence which flow in large part from Smith\u2019s speeches at the New York ratification convention in June and July of 1788:<\/p>\n

      \n
    1. Smith\u2019s linguistic fingerprints (words and phrases reoccurring in Smith\u2019s correspondence and speeches) which align with Brutus<\/em>;<\/li>\n
    2. Brutus\u2019s<\/em> frequent use of biblical references which aligns with Smith\u2019s biography as an \u201cardent Presbyterian\u201d and \u201cpillar of his church\u201d;<\/li>\n
    3. Smith\u2019s logical and syllogistic reasoning style which aligns with Brutus<\/em>;<\/li>\n
    4. Smith\u2019s ardent and abiding opposition to slavery which aligns with Brutus<\/em>;<\/li>\n
    5. Brutus\u2019s <\/em>lack of insider knowledge relating to the Constitutional Convention, in contrast to the Federal Farmer<\/em>;<\/li>\n
    6. Brutus\u2019s <\/em>intimate knowledge<\/em> of the workings of the Confederation Congress which aligns with Smith\u2019s service in Congress beginning in 1785.<\/li>\n<\/ol>\n

      A handful of introductory observations are useful. Modern historians have variously suggested that Brutus<\/em> was Robert Yates, Abraham Yates, Jr., John Williams, and Melancton Smith.[11]<\/a> When evaluating circumstantial attribution evidence, it is argued below that the best attribution evidence is derived from sources written prior to<\/em> the first Brutus<\/em> essay on 18 October 1787. While similarities between the sixteen Brutus<\/em> essays and subsequent speeches delivered at the New York ratification convention (in June and July of 1788) are relevant, such evidence is only marginally useful for attribution purposes.<\/p>\n

      During the ratification debate, pseudonymous essays were intended to be shared, quoted and republished.[12]<\/a> The fact that an Antifederalist speech quoted from Brutus<\/em> merely demonstrates that the delegate agreed with Brutus<\/em>. This is particularly the case with John Williams, whose convention speeches shamelessly lifted entire passages from Brutus<\/em>, Cato<\/em>, Plebeian<\/em> and Richard Henry Lee, without attribution. In other words, the minimally supported John Williams attribution[13]<\/a> \u2013 which lacks any pre-authorship<\/em>[14]<\/a> collaboration – serves as a useful foil to demonstrate the strength of the overwhelming evidence of the Melancton Smith attribution set forth in detail below.[15]<\/a><\/p>\n

      Smith\u2019s opposition to judicial review in Rutgers v. Waddington<\/em><\/u><\/p>\n

      In 1784, Alexander Hamilton defended a Tory businessman, Joshua Waddington, in an important but controversial case that litigated the principle of judicial review. The plaintiff, Elizabeth Rutgers, was a sympathetic widow who had fled British occupied New York City during the war. Thereafter, the family brewery was vandalized by the British. Loyalist Joshua Waddington spent several hundred pounds to restore and reopen the business. While operating the brewery during the war, Waddington paid rent to the British authorities. In 1783, two days before the victorious American army entered New York City, a fire destroyed the property. After returning to New York City, Elizabeth Rutgers filed suit as the property owner seeking back rent under New York\u2019s 1784 Trespass Act.<\/p>\n

      In the case of\u00a0Rutgers v. Waddington<\/em>\u00a0Hamilton represented defendant Joshua Waddington and argued that the Trespass Act violated both the law of nations and the Treaty of Paris.[16]<\/a> The case established, among other things, the principle that state law is invalid if it conflicts with a United States treaty.[17]<\/a> In so holding the\u00a0Rutgers<\/em>\u00a0case created an important state court precedent for judicial review and federal supremacy. Chief Justice Marshall would later rely on Rutgers<\/em> in the seminal United States Supreme Court case of\u00a0Marbury v. Madison<\/em>. The same arguments used by Hamilton in the Rutgers<\/em>\u00a0case\u00a0were discussed in\u00a0The<\/em> Federalist<\/em>.<\/p>\n

      According to Hamilton,\u00a0the \u201cinterpretation of the laws is the proper and peculiar province of the Courts.\u201d In the event of a conflict between state and federal law, \u201cthe Constitution ought to be preferred to the statute.\u201d[18]<\/a> Melancton Smith disagreed. In 1784 Smith was the lead author of a pamphlet challenging the result in Rutgers<\/em>.[19]<\/a> The pamphlet, which is easily overlooked by historians, had the innocuous title \u201cAn Address from the Committee Appointed at Mrs. Vandewater’s on the 13th day of September, 1784.\u201d Among other things, Smith advocated for the Rutgers<\/em> case to be appealed by writ of error to the New York Court of Impeachment and Errors. This is the same procedure which Smith supported at the New York ratification convention in 1788.[20]<\/a> In challenging judicial supremacy under Article III of the Constitution, Brutus<\/em>used substantially similar arguments advanced by Smith in 1784. In turn, \u201cBrutus<\/em>\u2019s critique provided Hamilton\u2019s analytic framework\u201d for Federalist<\/em> 78-83.[21]<\/a><\/p>\n

      \"\"<\/a><\/p>\n

      \"\"<\/a><\/p>\n

      In his 1784 pamphlet from Vandewater\u2019s, Smith railed against the dangers of judicial review, which transferred power to judges \u201cwho are independent of the people.\u201d[22]<\/a> For Smith, the ability of a court to set aside legislation was a threat to the \u201cliberties of the people.\u201d \u00a0As described by Smith, the design of the courts was to \u201cdeclare laws, not to alter them.\u201d[23]<\/a>\u201cSuch power in the courts would be destructive of liberty, and remove all security of property<\/em>.\u201d[24]<\/a><\/p>\n

      These same arguments appear beginning in Brutus<\/em> 11. For example, Smith\u2019s 1784 pamphlet repeatedly warned that the precedent in Rutgers<\/em> was a threat to \u201cliberty and the security of property<\/em>.\u201d[25]<\/a> Brutus<\/em> 14 aligns with this concern that the federal courts jeopardized \u201csecurity of property<\/em> under this constitution.\u201d[26]<\/a> At the core of Smith\u2019s disagreement with Rutgers<\/em> was the objection that judges would be \u201cindependent of the people.<\/em>\u201d[27]<\/a> Likewise, Brutus 15<\/em> explained that the constitution is a compact between the people and their rulers. If the government violates the compact, the people have a right to remove them. \u201c[B]ut when this power is lodged in the hands of men independent of the people<\/em>, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but\u00a0with a high hand and an outstretched arm<\/em>.\u201d[28]<\/a><\/p>\n

      Brutus 15<\/em> repeats the same biblical analogy that Supreme Court justices would generally feel themselves \u201cindependent of heaven itself\u201d:<\/p>\n

      There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people<\/em>, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.<\/p>\n

      Particularly problematic for Brutus<\/em> was the fact that Supreme Court decisions would be unreviewable. Brutus<\/em> pointed out that judicial supremacy under the proposed constitution was a departure from the procedure in both England and in New York.[29]<\/a> Brutus 11<\/em> begins by mentioning that the proposed judicial power under Article III was \u201caltogether unprecedented in a free country.\u201d The federal courts \u201care to be rendered totally independent, both of the people and the legislature.\u201d In 1784, Smith had access to writs of error to appeal the Rutgers<\/em> decision, which he championed in his Rutgers<\/em> pamphlet. In England, litigants could appeal to the House of Lords, which acted as a court of last resort.[30]<\/a> Yet, no such procedure would be available under the proposed Constitution. This perfectly explains the motion that Smith made at the New York ratification convention on July 17 \u201c[t]hat all appeals from any Court, proceeding according to the course of the common law, are to be by writ of error….\u201d[31]<\/a><\/p>\n

      Brutus<\/em> 15 explained that the judges in England, \u201care subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.\u201d British judges \u201cin no instance assume the authority to\u00a0set aside\u00a0an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to controul them by adjudging that they are inconsistent with the constitution.\u201d<\/p>\n

      Brutus<\/em> 15 further explained that:<\/p>\n

      The judges in England are under the controul of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will controul the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment.<\/p>\n

      Other similarities between Smith\u2019s Rutgers<\/em> pamphlet and Brutus<\/em> include the following[32]<\/a>:<\/p>\n