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SPEECHES IN THE NEW YORK ASSEMBLY, 1787 1 - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 8 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 8.
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SPEECHES IN THE NEW YORK ASSEMBLY, 17871
january 19th.—speech on the answer of the house to governor clinton’s message2
This now leads us to examine the important question presented to us by the proposed amendment. For my own part, I have seen with regret the progress of this business, and it was my earnest wish to have avoided the present discussion. I saw with regret the first application of Congress to the Governor, because it was easy to perceive that it involved a delicate dilemma: Either the Governor, from consideration of inconvenience, might refuse to call the Assembly, which would derogate from the respect due to Congress; or he might call them, and, by being brought together at an unreasonable period before the time appointed by law for the purpose, they would meet with reluctance and perhaps with a disposition less favorable than might be wished to the views of Congress themselves.
I saw, with equal regret, the next step of the business. If a conference had been desired with Congress, it might have been had—circumstances might have been explained; reasons might have been assigned satisfactory to them for not calling the Legislature, and the affair might have been compromised. But instead of this, the Governor thought fit to answer by a flat denial, founded on a constitutional amendment, and the idea of an invasion of the right of free deliberation was brought into view. I earnestly wished the matter to have rested here. I might appeal to gentlemen in the House—and particularly to the honorable gentleman who is so zealous in support of the amendment—that, before the speech appeared, I discovered a solicitude that, by passing the subject over in silence, it might give occasion to the present discussion.
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The question by the honorable member on my right has been wrongly stated. He says it is this: whether a request of Congress to convene the Legislature is conclusive upon the Governor of the State? or whether a bare intimation of that honorable body lays him under a constitutional necessity of convening the Legislature? But this is not the true question. From the shape in which the business comes before us, the inquiry truly is: whether a solemn application of the United States to the Executive of the State to convene the Legislature for the purpose of deliberating on a matter which is considered by that body as of essential importance to the Union, and which has been viewed in a similar light by most of the other States individually, is such an extraordinary occasion as left the Governor under no constitutional impediment to a compliance? And, it may be added, whether that application, under all the circumstances, was an attempt to invade the freedom of deliberation in this House?
Here let us ask, what does the Constitution say upon the subject? Simply this, that the governor “shall have power to convene the Assembly and Senate on extraordinary occasions.” But what is an extraordinary occasion? What circumstances are to concur, what ingredients combine, to constitute one? What general rule can be imagined by which to define the precise meaning of these vague terms, and draw the line between an ordinary and an extraordinary occasion? Will the gentleman on my right (that is, the ever-ready-to-jump-up-in-a-Jack-in-the-box-fashion-to-say-it-is-n’t-when-A.-H.-says-it-is Mr. Jones) furnish us with such a criterion? Profoundly skilled as he is in law (at least the local laws of the State), I fancy it will be difficult for him to invent one that will suit his present purpose. Let him consult his law books, they will not relieve his embarrassment. It is easy to see that the clause allows the greatest latitude to opinion. What one may think a very extraordinary occasion, another may think a very ordinary one, according to his bias, his interest, or his intellect.
If there is any rule at all, it is this: the governor shall not call the Legislature with a view to the ordinary details of the State administration. Whatever does not fall within this description, and has any pretensions to national importance in any view, leaves him at liberty to exercise the discretion vested in him by the Constitution. There is at least no constitutional bar in the way. The United States are entrusted with the management of the general concerns and interests of the community; they have the power of war and peace; they have the power of treaty.
Our affairs with respect to foreign nations are left to their direction. We must entertain very diminutive ideas of the Government of the Union, to conceive that their earnest call on a subject which they deem of great national magnitude, which affects their engagements with two respectable foreign powers, France and the United Netherlands, which relates to the preservation of their faith at home and abroad, is not such an occasion as would justify the Executive, upon the terms of the Constitution, in convening the Legislature. If this doctrine is maintained, where will it lead to? what kind of emergency must exist before the Constitution will authorize the Governor to call the Legislature? Is the preservation of our national faith a matter of such trivial moment? Is the fulfilment of the public engagements, domestic and foreign, of no moment? Must we wait for the fleets of the United Netherlands or of France to enforce the observance of them, before the Executive will be at liberty to give the Legislature an opportunity of deliberating on the means of their just demand? This is straining the indefinite words of the Legislature to a most unreasonable extreme. It would be a tenable position to say that the call of the United States is alone sufficient to satisfy the idea of an extraordinary occasion. It is easy to conceive that such a posture of European affairs might exist as would render it necessary to convene the different Legislatures to adopt measures for the public safety, and at the same time inexpedient to disclose the object till they were assembled. Will we say that Congress would be bound to communicate the object of their call to the Executive of every State; or that the Executive of this State, in complying with their request, would be guilty of a violation of the Constitution? But the present case is not that of a mere general request; it is specifically to deliberate upon an object of acknowledged importance in one view or another. On one hand it is alleged to be essential to the honor, interest, and perhaps the existence of the Union; on the other, it is said to be on principles subversive of the Constitution and dangerous to the liberty of the subject. It is therefore a matter of delicacy and moment. And the urgent call of the Union to have it considered, cannot fall within the notion of so common and so ordinary an occasion as would prohibit the Executive from summoning a meeting of the Legislature.
The only argument urged to denominate it such, is that it had been recently determined upon by the Legislature. But there is an evident fallacy in this position. The call was addressed to a new and different body, really different in the contemplation of the Constitution, and materially different in fact with respect to the members who compose it. A large proportion of the members of the present House were not the members of the last. For aught that either Congress or the Governor could officially know, there might have been a total change in the individuals, and, therefore, a total difference in the sentiments. No inference, of course, could be fairly drawn from the conduct of the last Legislature to that of the present. Indeed, however it might be wished to prepossess the members of the former House with a contrary idea, it is plain that there is no necessary connection between what they did at that time and what it may be proper for them to do now. The act of the last session proves the conviction of the House then, that the grant of the impost was an eligible measure. Many members were led to suppose that it would answer the purpose, and might have been accepted by Congress. If the experiment has shown that they were mistaken in their expectations, and if it should appear to them that Congress could not for good reasons accept it, the same motives which induced them to the grant already made, would determine them to consent to such alterations as would accommodate it to the views of Congress and the other States, and make it practicable to carry the system into execution.
It may be observed that as Congress accompanied their request with an explanation of the object, they, by that mode of procedure, submitted the whole matter to the discretion of the Governor, to act according to the estimate formed in his own mind as to its importance.
It is not denied that the Governor had a discretion upon the occasion. It is not contended that he was under a constitutional necessity to convene the Legislature. The resolution of Congress itself does not imply or intimate this. They do not pretend to require, they only earnestly recommend. The Governor might at his peril refuse, responsible, however, for any ill consequences that might have attended his refusal. But the thing contended for is this: that the call of the United States, under the circumstances, was sufficient to satisfy the terms of the Constitution empowering him to convene the Legislature on extraordinary occasions; and left him at full liberty to comply.
The admission of his discretion does not admit that it was properly exercised, nor does it admit that the footing upon which he placed his refusal was proper. It does not admit that the Constitution interposed an obstacle in his way, or that the request of Congress implied any thing hostile to the right of free deliberation.
This is the aspect under which the business presents itself to our consideration, as well from the correspondence between Congress and the Governor, as from the manner in which it is ushered to us in the speech. A general approbation of his conduct is an approbation of the principle by which it is professed to have been actuated.
Are we ready to say that the Constitution would have been violated by a compliance? Are we ready to say that the call upon us to deliberate is an attempt to infringe the freedom of deliberation? If we are not ready to say both, we must reject the amendment.
In particular, I think it must strike us all that there is something singularly forced in intimating that the application of Congress to the Governor of the State to convene a new Legislature to consider a very important national subject, has any thing in it dangerous to the freedom of our deliberations.
I flatter myself we should all have felt ourselves as much at liberty to have pursued our sentiments if we had met upon an extraordinary call, as we do now when met according to our own appointments. There yet remains an important light in which the subject merits consideration. I mean as it respects the authority of the State itself: By deciding that the application of Congress, upon which the debate turns, was not such an extraordinary occasion as left the Governor at liberty to call the Legislature, we may form a precedent of a very dangerous tendency; we may impose a sense on the Constitution very different from the true meaning of it, and may fetter the present or a future executive with very inconvenient restraints. A few more such proceedings may tie up the hands of the Governor in such a manner as would either oblige him to act at an extreme peril, or to omit acting when public exigencies required it. The mere sense of one governor would be no precedent for his successor; but that sense, approved by both Houses of the Legislature, would become a rule of conduct. Suppose a few more precedents of the kind, on different combinations of circumstances equally strong, and let us ask ourselves: What would be the situation of the Governor whenever he came to deliberate on the propriety of exercising the discretion in this respect vested in him by the Constitution? Would he not be apt to act with a degree of caution, or, rather, timidity, which, in certain emergencies, might be productive of very pernicious consequences? A mere intimation of the Constitution to him not to call the Legislature in their recess upon every trifling affair, which is its true import, would be turned into an injunction not to do it but upon occasions of the last necessity.
We see, therefore, that the question upon which we are called to decide is not less delicate as it respects the Constitution of the State itself, than as it respects the Union; and that, in every possible view, it is most prudent to avoid the determination. Let the conduct of the Governor stand on its own merits. If he was right, our approbation will not make him more right; if he was wrong, it would be improper to sanction his error.
Several things have been said in the debate which have no connection with it; but to prevent their making improper impressions, it may not be amiss to take some notice of them. The danger of a power in Congress to compel the convening of the Legislature at their pleasure has been strongly insisted upon. It has been urged that, if they possessed it, they might make it an engine to fatigue the Legislature into a compliance with their measures. Instances of an abuse of a like power in the Crown under the former government have been cited.
It is a sufficient answer to all this to say that no such power has been contended for. I do not assert that their request obliged the Governor to convene the Legislature. I only maintain that their request on an important national subject was such an occasion as left him free to do it without any color for imputing to him a breach of the Constitution; and that, from motives of respect to the Union, and to avoid any further degradation of its authority, already at too low an ebb, he ought to have complied. Admitting, in the fullest extent, that it would be dangerous to allow to Congress the power of requiring the Legislature to be convened at pleasure, yet no injury nor inconvenience can result from supposing the call of the United States upon a matter by them deemed of importance to be an occasion sufficiently extraordinary to authorize not to oblige the governor to comply with it.
I cannot forbear remarking that it is a common artifice to endeavor to insinuate a resemblance between the king under the former government and Congress, although no two things could be more unlike each other. Nothing can be more dissimilar than a monarch, permanent, hereditary, the source of honor and emolument; and a republican body, composed of individuals appointed annually, liable to be recalled within the year, and subject to a continual rotation, which, with few exceptions, is the fountain neither of honor nor emolument. If we will exercise our judgments, we shall plainly see that no such resemblance exists, and that all inferences deducted from the comparison must be false.
Upon every occasion, however foreign such observations may be, we hear a loud cry raised about the danger of intrusting power to Congress; we are told it is dangerous to trust power anywhere; that power is liable to abuse,—with a variety of trite maxims of the same kind. General propositions of this nature are easily framed, the truth of which cannot be denied, but they rarely convey any precise idea. To these we might oppose other propositions, equally true and equally indefinite. It might be said that too little power is as dangerous as too much; that it leads to anarchy, and from anarchy to despotism. But the question still recurs: What is the too much or too little? Where is the measure or standard to ascertain the happy mean?
Power must be granted, or civil society cannot exist; the possibility of abuse is no argument against the thing. This possibility is incident to every species of power, however placed or modified. The United States, for instance, have the power of war and peace; it cannot be disputed that conjunctures might occur in which that power might be turned against the rights of the citizen. But where can we better place it? In short, where else can we place it at all?
In our State constitutions, we might discover powers liable to be abused to very dangerous purposes. I shall instance only the council appointments. In that council the governor claims and exercises the power of nominating to all others.
This power of nomination, in its operation, amounts to a power of appointment, for it can always be so managed as to bring in persons agreeable to him and exclude all others. Suppose a governor disposed to make this an instrument of personal influence and aggrandizement; suppose him inclined to exclude from office all independent men, and to fill the different departments of the State with persons devoted to himself, what is to hinder him from doing it? Who can say how far the influence arising from such a prerogative might be carried? Perhaps this power, if closely inspected, is a more proper subject of republican jealousy, than any power possessed by or asked by the United States—fluctuating and variable as this body is. But as my intention is not to instil any unnecessary jealousies, I shall prosecute these observations no further. They are only urged to show the imperfections of human institutions, and to confirm the principle that the possibility of a power being abused is no argument against its existence. Upon the whole, let us venture with caution upon constitutional ground. Let us not court nor invite discussions of this kind. Let us not endeavor still more to weaken and degrade the Federal Government by heaping fresh marks of contempt on its authority. Perhaps the time is not far distant when we may be inclined to disapprove what we now seem anxious to commend, and may wish we had cherished the Union with as much zeal as we now discover apprehension of its encroachment.
I hope, Mr. Chairman, the House will not agree to the amendment. In saying this I am influenced by no other motive than a sense of duty. I trust my conduct will be considered in this light. I cannot give my consent to put any thing upon our minutes which, it appears to me, we may one day have occasion to wish obliterated from them.
[The House resolved itself into a Committee of the Whole on the paragraph in the election bill enabling the inspector to take aside any ignorant person and examine him privately touching his ballot. A debate arose.]
Col. Hamilton thought it was very apparent, if the clause prevailed, that it would tend to increase rather than prevent an improper influence. For, though an inspector takes an oath that his conduct shall be impartial, yet he can easily interpret the oath so as to correspond with his own wishes. If he is an honest man, he will think the public good concerned in promoting a candidate to whom he is attached; and under this impression may see no harm in recommending him to a person offering his vote. His suggestion will be generally attended with success, and the consequence will be that the inspector will have the disposition of the votes of almost all unlettered persons in favor of the party to which he inclines. Here, then, is a more concentred influence over the illiterate and uninformed part of the community, than they would have been subject to if left to themselves. Here they will be liable to an influence more dangerous than the one we wish to avoid. The question then is, whether it is better to leave them to an accidental influence or imposition, or to subject them to a more regular and extensive influence. The appointment of inspectors will then become more than it is, an object of party, and it will always be in their power to turn the scale of a contested election. On the contrary, if the voters are left to themselves, the activity of the different parties will make the chance equal; and the influence on one hand will be balanced by an equal degree on the other. I move we strike out the clause.
[Mr. Jones did not agree; thought inspector’s influence would be good, he being under oath, and a man of reputation. Mr. Harper thought inspectors should be obliged not to mention, nominate, or propose any person whatever.]
Col. Hamilton observed this was one of those subjects more plausible in theory than practice. The gentleman’s reply did not answer, nor could it, the objections he had made. The question is, whether it is better to let the illiterate take the chance of imposition from two parties equally active, the imposition of the one side being equally balanced by the exertions of the other, or leave it to party views concentred in one person on whom the certain fate of the election depends. I do not mean to impeach the actions of the inspectors, for at present they can have little bias; but if the clause takes place, though an inspector means to do his duty impartially, yet I believe his friendly attention to A being more than to B will lead us to conceive that he will have little scruple to ask for the vote for A, whom he recommends to be as good or a better person than the other. Now if this happen, sure, there are very few ignorant persons but will be greatly influenced by such inspectors, and on them turns the fate of the elections. There is also another reason which should induce us not to admit the proposed mode: it will occasion a great delay, as some inspectors will have to take down and examine the tickets proposed by the illiterate, while the others will find it difficult to attend to the polls. There is therefore the objection of delay as well as influence to avoid, which makes it necessary to strike out the clause altogether. I repeat once more it is better to leave them to parties who are equal in their exertions, equally send about tickets, and whose chance of influence is equal.
[After more debate the question was put on striking out, and lost.]
[The House went into a Committee of the Whole on the election bill. A debate arose upon the clause authorizing the inspector, or any other person offering himself to poll, to take an oath of abjuration of ecclesiastical as well as civil obedience. Mr. Jones did not think it proper to make alteration. Oath of naturalization provides for this point. He went on ground of Constitution, and no other. House could not make any alteration.]
Mr. Hamilton declared the Constitution to be their creed and standard, and ought never to be departed from; but in the present instance it was proper first to examine how far it applied to the subject under consideration: that there were two different bodies in the State to which this has reference; these were the Roman Catholics already citizens and those coming from abroad. Between these two were great distinctions. The foreigner who comes among us and will become a citizen, who wishes a naturalization, may with propriety be asked these terms; it may be necessary he should abjure his former sovereign. For the natural subject, the man born amongst us, educated with us, possessing our manners, with an equally ardent love of his native country, to be required to take the same oath of abjuration—what has he to abjure? He owes no fealty to any other power upon earth; nor is it likely his mind should be led astray by bigotry or the influence of foreign powers. Then, why give him occasion to be dissatisfied with you, by bringing forward a test which will not add to his fidelity? Moreover, the clause in the Constitution confines this test to foreigners, and, if I am not misinformed, it was not till after much debate and warm contention that it got admittance, and then only by a small majority in the convention.
It was a question with him whether it was proper to propose this test in the case before them. But he was decidedly against going so far as to extend it to ecclesiastical matters. Why should we wound the tender conscience of any man? and why present oaths to those who are known to be good citizens? Why alarm them? Why set them upon inquiry which is useless and unnecessary? You give them reason to suppose that you expect too much of them, and they cannot but refuse compliance. The Constitution does not require such a criterion to try the fidelity of any citizen. It is solely intended for aliens and foreigners coming from abroad, with manners and habits different from our own, and whose intentions are concealed.
Instead, Mr. Chairman, of going so far, I would propose to stop at the word State, and strike out all that followed. Then it would read thus:
“I, ———, do swear, etc., that I renounce and abjure all allegiance and obedience to the king of Great Britain, etc., and to every foreign king, prince, power, potentate, and state.”
This will bind the person only in civil matters, and is all that we ought or can require. A man will not then be alarmed in his interpretation, and it will not set his mind to inquire if his religious tenets are affected, and how much inconvenience would be avoided. Again, sir, we should be cautious how we carry the principle of requiring and multiplying tests upon our fellow-citizens, so far as to practise it to the exclusion and disfranchisement of any. And as a doubt must arise with every member on the propriety of extending this abjuration oath, it will be their best mode to decide for the amendment, as in all cases where there is a doubt it is our duty to oppose the measure.
[Mr. Harper thought oath a proper one, and should vote for it.]
Mr. Hamilton mentioned again that, so far as the Constitution went, it was a rule, and must be adopted, but he questioned the propriety of extending it.
[Whole clause, without amendment, was agreed to.]
[Another clause in the bill ordered the judges of election for governor and lieutenant-governor to destroy the whole ballot of every district where there was an excess of even one vote.]
Mr. Hamilton showed this to be a very great injustice to the district, as it was in the power of the clerk or any officer, by putting in an additional ballot, to set aside the votes of five hundred persons; he therefore moved that, in any case where there was an excess, such excess should be destroyed by lot.
[Motion opposed by Mr. Jones and adopted.]
[Discussion on clause in election bill prohibiting pensioners, and officers under Congress from sitting in Assembly or Senate. Question arose whether the Legislature possessed the power of abridging the constitutional rights of the people.]
Mr. Hamilton observed they were going on dangerous ground. The best rule the committee could follow was that held out in the Constitution, which it would be safest to adhere to without alteration or addition. If we once depart from this rule, there is no saying where it will end. To-day, a majority of the persons sitting here, from a particular mode of thinking, disqualify one description of men. A future Legislature, from a particular mode of thinking in another point, disqualify another set of men. One precedent is the pretext of another, till we narrow the ground of qualifications to a degree subversive of the spirit of the Constitution. It is impossible to suppose that the convention who framed the Constitution were inattentive to this point. It is a matter of too much importance not to have been well considered; they have fixed the qualifications of electors with precision; they have defined those of senator and governor, but they have been silent as to the qualifications of members of Assembly. It may be said that, being silent, they have left the matter to the discretion of the Legislature. But is not the language of the framers of the Constitution rather this: We will fix the qualifications of electors; we will take care that persons absolutely indigent shall be excluded; we will provide that the right of voting shall be on a broad and secure basis; and we will trust to the discretion of the electors themselves the choice of those who are to represent them in Assembly. Every qualification implies a disqualification. The persons who do not possess the qualification required are ineligible. Is not this to restrain the freedom of choice allowed by the Constitution to the body of electors? An improper exercise of this liberty cannot constitutionally be presumed. Why, therefore, should we circumscribe it within limits unknown to the Constitution? Why should we abridge the rights of any class of citizens in so important an article?
By the Constitution every citizen is eligible to a seat in the Assembly. If we say certain descriptions of persons shall not be so eligible, what is this but to deprive all those who fall within that description of an essential right allowed them by the Constitution?
I have observed that if we once break the ground of departing from the simple plan of the Constitution, it may lead us much further than we now intend. From the prevalency of a certain system it is now proposed to exclude all persons from seats who hold offices under Congress. The pretence is to guard against an improper influence. I may think another species of influence more dangerous. I have taken notice, upon a former occasion, of the decisive agency of the Executive in the appointment of all officers. If the persons who derive their official existence from that source sit in this House, it cannot be denied that it might give the executive an undue influence in the Legislative deliberations. If, in the vicissitude of human events, a majority of a future Legislature should view the subject in this light, and if the principle of a right to admit disqualifications unknown to the Constitution be admitted in practice, all persons holding office under the State would then be excluded. I wish here to be clearly understood. I mean only to reason on general principles, without any particular reference whatever. I have hitherto confined myself to the general principle of the clause. There are, however, particular objections. One just occurs to me: there are officers who have been wounded in the service, and who now have pensions under the United States as the price of their blood; would it be just, would it not be cruel on this account to exclude men from a share in the government which they have at every hazard contributed to establish? This instance strikes me; other members may probably think of other cases equally strong against the exclusion; further reflections may suggest others that do not now occur. If the committee, however, should resolve to adopt it; for the sake of consistency they must carry it one step further—they must say that no member of Congress shall hold a seat. For surely if it be dangerous that the servants of Congress should have a seat in this House, it is more dangerous that the members themselves should be allowed this privilege.
But I would not be understood to advocate this extension of the clause. I am against the whole business. I am for adhering to the present provisions of the Constitution. I repeat, if we once break the ground of innovation, we may open the door to mischief which we neither know nor think of.
[Mr. Jones opposes Mr. H.’s opinion and wishes clause retained.]
Mr. Hamilton.—I still continue, Mr. Chairman, of the same opinion on this subject. The more I consider the matter, the more forcibly am I struck that it will be dangerous to introduce qualifications unknown to the Constitution. Is it possible to suppose the framers of the Constitution were inattentive to this important subject, or that they did not maturely consider the propriety of annexing qualifications to the elected? From the silence of the Constitution it is inferred that it was intended to leave this point to the discretion of the Legislature. I rather infer that the intention of the Constitution was to leave the qualifications of their representatives wholly to the electors themselves. The language of the Constitution: Let us take care that the persons to elect are properly qualified, that they are in such a situation in point of property as not to be absolutely indigent and dependent, and let us trust to them the care of choosing proper persons to represent them. The Constitution will not presume that whole districts and counties of electors duly qualified will choose men improper for the trust. Let us, on our part, be cautious how we abridge the freedom of choice allowed them by the Constitution, or the right of being elected, which every citizen may claim under it. I hold it to be a maxim which ought to be sacred in our form of government, that no man ought to be deprived of any right or privilege which he enjoys under the Constitution, but for some offence proved in due course of law. To declare qualifications or disqualifications by general descriptions in legislative acts, would be to invade this important principle. It would be to deprive in the gross all those who had not the requisite qualifications, or who were objects of those disqualifications, to that right to a share in the administration of the republic which the Constitution gives them, and that without any offence to incur a forfeiture. As to the objection that the electors might even choose a foreigner to represent them within the latitude of the Constitution, the answer is that common sense would not tolerate such a construction. The Constitution, from the fundamental policy of a republican government, must be understood to intend citizens. But the gentleman (Mr. Jones) has not adverted to the fact that the same difficulty would attend the case of electors where he admits there is no power in the Legislature to make alterations. The expression there is, every male inhabitant possessed of certain property shall vote; but there surely could never be a doubt that such inhabitant must also be a citizen.
But let us pursue the subject a little further: commerce, it will be admitted, leads to an increase of individual property; property begets influence. Though a Legislature composed as we are will always take care of the rights of the middling and lower classes, suppose the majority of the Legislature to consist at a future day of wealthy men, what would hinder them, if the right of innovating on the Constitution be admitted, from declaring that no man not worth ten thousand pounds should be eligible to a seat in either House? Would not this introduce a principle fatal to the genius of our present Constitution?
In making this observation, I cannot be suspected of wishing to increase the jealousy—already sufficiently high—of men of property. My situation, prospects, and connections forbid the supposition. But I mean to lay honestly before you the dangers to which we expose ourselves by letting in the principle which the clause under consideration rests upon. I give no opinion on the expediency of the exclusion proposed. I only say, in my opinion the Constitution does not permit it, and I shall be against any qualification or disqualification—either of electors or elected—not prescribed by the Constitution. To me it appears that the qualifications of both ought to be fundamental in a republican government, not liable to be varied or added to by the Legislature, and that they should for ever remain where the Constitution has left them. I see no other safe ground. It is to be lamented that men, to carry some favorite point in which their party or prejudices are interested, will inconsiderately introduce principles and precedents which lead to successive innovations destructive of the liberty of the subject and the safety of the government. For my part, I shall uniformly oppose every innovaton not known in the provisions of the Constitution. I therefore move that the clause be struck out.
[Discussion on amendment to exclude all British adherents who had been engaged in privateering in war.]
Mr. Hamilton observed that, when the discriminating clauses, admitted into the bill by that House were introduced, he was restrained, by motives of respect for the sense of a respectable part of the House, from giving it any further opposition than a simple vote. The limited operation they would have, made him less anxious about their adoption. But he could not reconcile it to his judgment or feelings to observe a like silence on the amendment proposed by the Senate. Its operation would be very extensive; it would include almost every man in the city engaged in navigation during the war.
We had, in a former debate, travelled largely over the ground of the Constitution, as applied to legislative disqualifications. He would not repeat what he had said, but he hoped to be indulged by the House in explaining a sentence in the Constitution, which seems not well understood by these gentlemen. In one article it says, that no man shall be disfranchised or deprived of any right he enjoys under the Constitution, but by the law of the land or the judgment of his peers.
Some gentlemen hold that the law of the land will include an act of the Legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause in Magna Charta, interprets the law of the land to mean presentment and indictment and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the Constitution, the bill of rights enacted in this very session removes it. It is there declared that no man shall be disfranchised or deprived of any right but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the Legislature.
Are we willing, then, to endure the inconsistency of passing a bill of rights and committing a direct violation of it in the same session? In short, are we ready to destroy its foundations at the moment they are laid?
Our having done it, to a certain degree, is to be lamented; but it is no argument for extending it.
He would now make some remarks on the expediency and justice of the clause, distinct from constitutional considerations.
The word privateer is indefinite. It may include letters of marque. The merchants of this city during war must, generally speaking, abandon their means of livelihood or be concerned in navigation. If concerned in navigation, they must of necessity have their vessels armed for defence. They would naturally take out letters of marque. If every owner of a letter of marque is disfranchised, the body of your merchants will probably be in this situation. Is it politic or wise to place them in it? Is it expedient to force, by exclusions and discriminations, a numerous and powerful class of citizens to be unfriendly to the government?
He knew many individuals who would be comprehended, who are well affected to the prosperity of the country, who are disposed to give every support to the government, and who, some of them at least, even during the war had manifested an attachment to the American cause. But there is one view in which the subject merits consideration, that must lay hold on all our feelings of justice. By the maritime law, a majority of the owners have a right to dispose of the destination of the vessel. The dissent of the minority is of no avail. It may have happened, and probably has happened in many instances, that vessels have been employed as privateers on letters of marque, by a majority of the owners, contrary to the sense of the minority.
Would it be just to punish the innocent with the guilty, to take away the rights of the minority for an offence committed by the majority, without their participation, perhaps contrary to their inclination?
He would mention a further case, not equally strong, but of considerable force to incline the House against the amendment. He had been informed that in one or more instances during the war, some zealous people had set on foot subscriptions for fitting out privateers, perhaps at the instigation of the British Government; and had applied to persons suspected of an attachment to us to subscribe, making their compliance a test of their loyalty. Several individuals, well disposed to our cause, to avoid becoming objects of persecution, had complied; would it not be too rigorous to include them in so heavy a penalty? But if there are any of us who are conscious of greater fortitude, such persons should not on that account be too severe on the weakness of others. They should thank nature for its bounty to them, and should be indulgent to human frailty. How few are there who would have had strength of mind enough in such circumstances to hazard, by a refusal, being marked out as the objects of military resentment? I hope, Mr. Speaker, as well from motives of justice, as a regard to the Constitution, we shall stop where we are, and not go any farther into the dangerous practice of disqualifying citizens by general descriptions. I hope we shall reject the amendment, sir!
[Question was determined in the negative.]
[Bill considered for settling intestate estates, proving wills, and granting letters of administration.]
Mr. Hamilton said he did not rise to oppose the motion of the gentleman who last spoke [Jones]. He should probably vote with him on the question; but he confessed he did not view it in quite so clear a light as that gentleman appeared to do. There appeared to him to be difficulties in the case, which he would candidly lay before the House to assist its judgment. The objection is that a new court is erected or an old one invested with a new jurisdiction, in which it is not bound to proceed according to the course of the common law. The question is, What is meant in the Constitution by this phrase, “the common law”? These words have in a legal view two senses, one more extensive, the other more strict.
In their most extensive sense they comprehend the constitution of all those courts which were established by immemorial custom, such as the Court of Chancery, the Ecclesiastical Court, etc., though these courts proceed according to a peculiar law. In their more strict sense they are confined to the course of proceedings in the courts of Westminster in England, or in the Supreme Courts in this State. If the words are understood in the first sense, the bill under consideration is not unconstitutional; if in the last, it is unconstitutional. For it gives to an old court a new jurisdiction, in which it is not to proceed according to the course of the common law in this last sense. And to give new jurisdiction to old courts, not according to the course of the common law, is in my opinion as much an infringement in substance of this part of the Constitution, as to erect new courts with such jurisdiction. To say the reverse would be to evade the Constitution.
But though I view it as a delicate and difficult question, yet I am fairly inclined to think that the more extensive sense may be adopted; with this limitation, that such new jurisdiction must proceed according to the course of those courts having by the common law cognizance of the subject-matter. They ought, however, never to be extended to objects which at common law belonged to the jurisdiction of the courts at Westminster, and which, in this State, are of the peculiar cognizance of the Supreme Court. At common law, the Ecclesiastical Courts, not the courts of Westminster, had cognizance of intestacies and testamentary causes. The bill proposes that the Court of Probate shall have cognizance of the same causes and proceed in the same manner as the Ecclesiastical Courts, except as to inflicting ecclesiastical penalties.
This distinction I have taken will, I think, bear us out in passing the bill under consideration. But it is certainly a point not without considerable difficulty.
[Question was called and put: Will the House pass the law? Determined in the affirmative.]
[House went into Committee of Whole on Tax Bill.]
Mr. Hamilton observed that, as the present bill exhibited a new system of taxation, it might be proper to enter into some explanations of its principles. It was agreed on all hands that the system heretofore in use was full of defects, both in the view of equality among individuals and of revenue to the State. From the Legislature to the assessor, all was conjecture and uncertainty. To begin with the Legislature,—what criterion could any man possibly have by which to estimate the relative abilities of the several counties? For his part he had thought maturely of the subject, but could find none. The whole must either be a business of honest guessing, or interested calculations of county convenience, in which each member would seek to transfer the burden from his own county to another. The same thing must happen in the subdivisions among the districts by the supervisors; and, in a still more striking manner, in the apportionment of the tax to individuals by the assessors. How can they possibly ascertain the comparative abilities of individuals?—appearances more than realities must govern. The merchant or factor who has a large store of goods, for which, perhaps, he owes more than the amount, will pay much more than a man of less apparent gains, though ten times as much property. This he mentioned by way of example. The same thing happened among other orders of society. Today, an assessor, my friend, taxes me at ten pounds. To-morrow, one less my friend will tax me four times the sum. Infinite differences must happen from the different degrees of judgment men possess, from their different biasses and inclinations. A great inequality results, and all is uncertainty.
Theoretical and practical financiers have agreed in condemning the arbitrary in taxation. By the arbitrary is meant the leaving the amount of tax to be paid by each person to the discretion of the officers employed in the management of the revenue. It is indeed another word for assessment, where all is left to the discretion of the assessors.
The English writers have justly boasted the superiority of their system over that of France and some other countries; because little or nothing is left to the discretion of the officers of the revenue. And the ablest observers among the French have acknowledged the advantage. The celebrated M. Necker in a late publication has taken especial notice of this circumstance. The opinion of that statesman, who conducted the finances of France for several years, and during the most critical periods of the late war, with infinite ability and success, is a most respectable authority in a matter of this kind.
These had no small share in his disapprobation of a practice which puts one citizen so much in the power of another.
He would not say that the practice was contrary to the provisions of our Constitution; but it was certainly repugnant to the genius of our government. What is the power of the supervisors and assessors, but a power to tax in detail, while the Legislature taxes in gross? Is it proper to transfer so important a trust from the hands of the Legislature to the officers of the particular districts? Equality and certainty are the two great objects to be aimed at in taxation. The present bill does not pretend to reach absolute equality. This is impossible. No human plan can attain it. The variety of circumstances to be taken into the calculations are too complicated to be comprised in any scheme that could be devised. But the principles of the present bill will approach much nearer to equality than the former system, and it will have the great advantage of certainty. It leaves nothing to discretion. Every man can himself estimate what he has to pay, without being dependent on the caprices, the affections, or the enmities of another.
The bill in its present form is but an imperfect sketch. It is in the power of the committee to make it better. No doubt the combined wisdom of the House will improve it. The land tax, in particular, may require great alterations. He had not been able to satisfy himself on this part of the plan. All this was, of course, submitted to the discretion of the committee. One thing only was clear. Any change would be for the better, and time and experience would mature and ameliorate it.
[The bill was taken into consideration. Amendments were proposed and adopted.]
[Debate on fees allowed for certain legal services.]
Col. Hamilton expressed a hope that the House would not carry matters to an extreme. It would be, he thought, as improper to make the fees of the profession too low as to make them too high. Gentlemen who practised the law, if they were men of ability, would be paid for the services required of them; and if the law did not allow a proper compensation, it would be evaded. Names might be given to things and charges made; against which there would be no guard. In Pennsylvania and Jersey attempts had been made to reduce the emoluments of the profession below the proper standard. This had afforded no relief; on the contrary, the expenses of the law and the profits of the practisers had increased since the experiment, the only effect of which had been to transfer the expense from the delinquent debtor to the injured creditor. If the legal fees amount to a compensation, in most cases the practiser would content himself with them; if they did not, he would consider himself justified in making the best bargain he could,—the consequences of which were obvious. While differences would arise among mankind, and that there would be differences was certain, lawyers would be necessary, and for their services they would be paid. He, therefore, was of the opinion, that in going through the bill, the House should agree that reasonable allowances should be made for the services mentioned in the bill, or they would defeat their own object.
[Motion that no freeholder or citizen shall be hereafter imprisoned for any sum less than £10, but that execution shall issue and remain in force against the debtor till, from time to time by different seizures of his effects, the creditors shall be satisfied.]
Col. Hamilton confessed that his own judgment was not clearly made up on this subject. It was not, however, a new one to him. It was a question which had two sides, both of which deserved a serious attention. The clause as it stood, in his opinion, was not proper. It might be right to say what shall be done in future contracts. But it will be wrong to meddle with the past. It was very probable, if the clause was passed, it would prevent people in poor circumstances from getting assistance from the wealthy; this ought to be considered. Many a poor man who can be favored with a credit of £10 finds a material advantage in it; if the security be taken away there will be an end to credit. He would wish that every man in distress should meet relief. He was willing to come into any measure that would effect this purpose.
[Debate on bill for relief of certain public creditors.]
Col. Hamilton supposed that it was agreed on all hands that some relief should be granted. There were, he said, two questions before the committee: one, if they would put them on a footing with other citizens; and the other, if they did not merit something more. If, said he, you receive their certificates and grant them your own, you extend to them only that relief which you have already given to your other citizens, who purchased up the loan-office certificates of other States. But there can be no difference between any one species of our debt; and there can be no substantial difference between taking a certificate of this State and a certificate of the United States. Much has been said about discriminating, but all arguments of discrimination amount to nothing. Whether we, by this assumption, make our State a creditor State or not, cannot be determined. The present calculation of the public debts is no criterion to go by. He remembered, he said, that when he was in Congress the liquidated debt was somewhere about $40,000,000, and that it was supposed the unliquidated debt was $40,000,000 more. If this is the case, which he believed it was, the State of New York would be a debtor State. From the situation of public affairs, it is to be regretted that there is no system existing which can give general relief to public creditors. In the present instance, it is only required that you do that justice to one part of your citizens which you have already done to another part. If we should make our State a creditor State, by extending this relief to our citizens, can we not obtain redress, if our Confederation exists, and God forbid that it may not? He was willing, he said, to extend the relief; he did not want to confine it to any particular class of people.
[Debate on repealing part of the Trespass Act.1 ]
Col. Hamilton said that this amendment to the trespass law was only to repeal that part which was in violation of the public treaty. The courts of justice were at present in a delicate dilemma, obliged either to explain away a positive law of the State, or openly violate the national faith by counteracting the very words and spirit of the treaties now in existence. Because the treaty declares a general amnesty, and this State, by this law declares that no person shall plead any military order for a trespass committed during the war. He said no State was so much interested in the due observance of the treaty as the State of New York, the British having possession of its western frontiers, and which they hold under the sanction of our not having complied with our national engagements. He hoped the House would have too much wisdom not to do away this exception, and indeed he expected the bill would be readily agreed to.
[Bill was agreed to almost unanimously.]
Col. Hamilton did not suppose that any arguments would have much influence on the decision of this question. There is no criterion to go by, and we fall into the greatest uncertainty. A gentleman has told us plainly, that he has been intriguing and making the best bargain for his county. He would not say that New York had made any conditions. He hoped that the intrigues might not have the effect that was sought. The county of Albany, he said, was always rated too low. It was only required to pay £7,000 with 70,000 inhabitants; while Suffolk, with only 14,000, paid £4,500. He asked if the House would permit intrigues to have such an effect. The county of Kings, which numbers only 3,000 inhabitants, and contains 18,500 acres of land, is to pay £2,400. Richmond County, which is equally small, is also overrated; is this right? New York had ever been rated too high. One of the gentlemen from New York had proposed £12,000 from the mere despair of coming at an equality, but this sum is too high. He asked if it was justice that the city and county of New York, which was not a tenth part of the value or population of the State, should bear one fourth of its burdens. He hoped this would be considered, and no partiality exhibited by the Legislature.
[Bill for establishing university.]
Col. Hamilton hoped that the House would not recommit the bill. There was no doubt, he said, but the Legislature possessed the right to give this power. There were frequent examples of the kind in Great Britain, where this power had been granted. No disadvantage, he said, could arise from it; on the contrary, many would be the benefits. He therefore wished the bill might be finished, as no doubt existed with him of the power and the propriety of the Legislature granting those privileges which were mentioned in the bill.
[Bill to repeal citation acts.]
Mr. Hamilton advocated the bill with great ability and candor. He mentioned the bad effects of the present laws, the difficulties that the courts of justice threw in the way of them, and the impossibility ever to amend them in such a manner as to have them acted upon. He urged the influence the opinion of our courts ought to have on the Legislature. The courts were not interested, and their decisions were perfectly impartial. He asked if the Southern District of the State, instead of having fared tolerably well, had been ruined, would the Legislature have compelled their debtors who were without the lines to have paid additional sums. This he did not believe. And why, then, said he, compel the creditors to take a less sum? He mentioned that in several instances the severity of the law fell on gentlemen who were attached to the American cause, and who had acted meritoriously in the Revolution. It was certainly not right to view all the creditors as enemies. Remarking on the ill effects of the Legislature interfering in private contracts, and the violation of public faith which it occasioned, he observed that it would destroy all credit, and be the means of injuring many whom the Legislature had intended to benefit.
[Bill passed unanimously.]
These Speeches, with the exception of that on the Independence of Vermont, are now included for the first time in Hamilton’s Works. They are taken from the contemporary newspaper report.
Congress had asked for an extra session of the Legislature, to reconsider their action as to granting revenue, and Governor Clinton had refused to call an extra session as requested. This was the point involved in the debate on the answer of the House to the Governor’s message, which drew with it approval or censure of the Governor’s course.
This was an Act to punish persons who held property of patriots during the war, and to prevent their pleading a military order in defence.