It is impossible to suppose that the
convention
who framed
the constitution were inattentive to this point.
the constitution were inattentive to this point.
Hamilton - 1834 - Life on Hamilton - v2
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 opposition was again called up, and travelled over
the same ground; inveighed against the dangers of an in-
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? HAMILTON.
407
croachment on the rights of the people; justified fully the
conduct of the governor; declared that the decision of the
constitutional question was not necessarily involved, and
closed with a strong appeal to popular feeling on the dan-
gers to be apprehended from countenancing such an inva-
sion of the freedom of their deliberations.
Hamilton replied; indicated more clearly the fallacy of
the arguments which had been used; pointed out the true
construction of the language of the constitution; warned
the house of the folly and danger of this distrust of the
powers of congress, and ridiculed the attempt to draw an
analogy between its powers and those of a monarchy.
"Are we not," he asked, " to respect federal decisions?
are we on the contrary to take every opportunity of hold-
ing up their resolutions and requests in a contemptible and
insignificant light, and tell the world their calls, their re-
quests are nothing to us; that we are bound by none of
their measures? Do not let us add to their embarrassments,
for it is but a slender tie that at present holds us. You
see, alas ! what contempt we are falling into since the peace;
you see to what our commerce is exposed on every side;
you see us the laughing-stock, the sport of foreign nations.
And what may this lead to? I dread, sir, to think. Little
will it avail then to say, we could not attend to your wise
and earnest requests without inconvenience: little will it
avail to say, it would have injured individual interests to
have left our farms. These things arc trifling when com-
pared to bringing the councils and powers of the union into
universal contempt, by saying their call was unimportant,
and that it did not come under the indefinite meaning of
'extraordinary. See, gentlemen, before you may feel, what
may be your situation hereafter. There is more involved
in this measure than presents itself to your view.
"You hear it rung in your ears that, from the resem-
blance between the king and the congress of these states,
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? 408
THE LIFE OF
it would be dangerous to come into measures proposed by
them, and adopted by every state but this. But I say there
is no danger; it is impossible; the constitution, the con-
federation, prevents it. Let us hear the reasoning used ;--
they have the power of declaring war and peace, and re-
quest the power of raising and applying money. This, if
in a king, permanent, hereditary, and independent of the
people, would be danger; but in an annual body chosen
from ourselves, and liable on every turn of popular breath
to be changed, who are checked by twelve other states,
who would not stand by and see the ruin of their associ-
ates, as it would involve their own,--where can be the
danger? How can a similitude exist between bodies so
different--as different as east from west, as north from
south? I regret that these things should be compared, for
there is no necessity for sounding this alarm. It is enough
the danger of republican governments that their very na-
ture tends to their destruction, because of their liability to
change. "
The question was then taken, and such was the force of
the governor's party, that the conciliatory substitute was
rejected by a vote of thirty-six to nine.
A few days after the address was adopted, this irritating
topic being disposed of, the friends of the impost, however
inauspicious the prospect, indulged the hope that the exi-
gencies of the country might induce a compliance with a
measure which had been at this time sanctioned by all of
the other states, and that notwithstanding the views of the
opposition, when the final vote was taken, they would shrink
from the responsibility of placing the state in an attitude
so hostile to the confederation and leading to consequences
so portentous.
A motion was made for a reference of this subject to a
committee, according to the usual practice of the house,
but the speaker having avowed himself a friend of the
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? HAMILTON.
409
measure, and it being apprehended that the report of a
committee favourable to the impost might have weight with
the house, an attempt was made to defeat this motion and
to refer the svibject to a committee of the whole house.
This design was defeated, and a committee was appointed
to investigate the subject. While under its consideration,
Hamilton moved a reference of the laws apparently con-
travening the treaty: one, relative to debts due to persons
within the enemy's lines; the other, the much agitated
"Trespass act:" taking as the basis of this motion the letter
of the secretary of foreign affairs, and the communications
of the British government in relation to its violation. Of
this committee he was appointed chairman, and he intro-
duced a bill after a speech indicating the importance of this
measure to the state, and her obligation to remove all im-
pediments to the foreign negotiations.
The following is a brief outline of his remarks upon this
subject: He first expressed great uneasiness that any op-
position should be made to this bill, particularly as this
state was individually interested therein. He felt greater
regret from a conviction in his own mind on this occasion,
that the bill should be objected to, as there was not a single
law in existence in this state in direct contravention of the
treaty of peace. He urged the committee to pass the bill,
from the consideration that the state of New-York was
the only state to gain any thing by a strict adherence to
the treaty.
There was no other state in the union that had so much
to expect from it. The restoration of the western posts was
an object of more than one hundred thousand pounds per
annum. Great Britain held those posts on the plea that
the United States had not fulfilled the treaty, and which
we have strong assurances she will relinquish on the fulfil-
ment of our engagements with her. But how far Great
Britain might be sincere in her declaration was unknown.
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? 410
THE LIFE OF
Indeed he doubted it himself. But while he doubted the
sincerity of Great Britain, he could not but be of opinion
that it was the duty of this state to enact a law for the re-
peal of all laws which may be against the treaty, as by do-
ing away all exceptions she would be reduced to a crisis;
she would be obliged to show to the world whether she was
in earnest or not, and whether she will sacrifice her honour
and reputation to her interest. With respect to the bill, as
it was drafted in conformity with the recommendation of
congress, he viewed it as a wise and salutary measure;
one calculated to meet the approbation of the different
states, and most likely to answer the end proposed. Were
it possible to examine an intricate maze of laws, and to
determine which of them or what parts of those laws were
opposed to the treaty, it still might not have the intended
effect, as different parties would have the judging of the
matter. What one would say was a law not inconsistent
with the treaty of peace, another might say was so, and
there would be no end, no decision of the business. Even
some of the states might view laws in a different manner.
The only way to comply with the treaty, was to make a
general and unexceptionable repeal. Congress, with an
eye to this, had proposed a general law, from which the
one before them was a copy. lie thought, as it was ob-
vious to every member of the committee, that as there
was no law in direct opposition to the treaty, no difficulty
could arise from passing the bill.
Some gentlemen, he observed, were apprehensive that
the bill would restore confiscated estates. This he did
not admit. However, if they were so disposed, they
might add a proviso to prevent it. He had written one,
which any of the gentlemen might move, if they thought
necessary. In his opinion it was not necessary. The bill
only provided that no future confiscations should take
place, and that congress should earnestly recommend a
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? HAMILTON.
411
restoration of property. But there was nothing obliga-
tory in this.
If this state should not come into the measure, would
it not be a very good plea for the other states to favour
their own citizens, and say, why should we do thus, when
New-York, the most interested of any of the states, refuses
to adopt it? And shall we suffer this imputation, when
we have in fact no laws that militate against the treaty?
He stated the great disadvantages that our merchants
experienced from the western posts being in the hands of
the British, and asked if it was good policy to let them re-
main so.
It had been said that the judges would have too much
power. That was a misapprehension. He stated the
powers of the judges with great clearness and precision.
He insisted that their powers would be the same whether
these laws passed or not; for as all treaties were known
by the constitution as the laws of the land, so must the
judges act on them, any law to the contrary notwithstand-
ing.
Cicero, the great Roman orator and lawyer, lays it down
as a rule, that when two laws clash, that which relates to
the most important matters ought to be preferred. If this
rule prevail, who can doubt what would be the conduct
of the judges, should any laws exist inconsistent with the
treaty of peace? But it would be impolitic to leave them
to the dilemma either of infringing the treaty to enforce
the particular laws of the state, or to explain away the
laws of the state to give effect to the treaty.
He declared that the full operation of the bill would be
no more than merely to declare the treaty the law of the
land; and that the judges viewing if as such, shall do away
all laws that may appear in direct contravention of it.
Treaties were known constitutionally to be the law of the
land, and why be afraid to leave the interpretation of those
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? 412
THE LIFE OF
laws to the judges. The constitution knows them as the
interpreters of the law. He asked if there was any mem-
ber of the committee who would be willing to see the first
treaty of peace ever made by this country violated?
This he did not believe. He could not think that any
member on that floor harboured such sentiments. He was
in hopes that the committee would agree with him in opin-
ion, and give a proof of their attachment to our national
engagements by passing the bill, which would do away
every exception of the British court. " This exposition
overcame every objection, and this important act passed
the house, but fell in the senate.
At the commencement of the session he was appointed
chairman of the committee on expiring laws, to report which
should be continued, and also such new laws as they should
conceive would be beneficial to the state. In the perform-
ance of this duty his mind was directed to a great variety
of topics. The first matter of local interest which called
forth his exertions, was an "act to regulate the elections" of
the state. This act not only involved several important
principles, but had a special bearing on its political charac-
ter. Its details have not enough of general interest to
warrant their introduction in this place. It is sufficient to
remark the singular inconsistency evinced on this occasion
in the conduct of the opponents to the power of the gene-
ral government, who claimed the exclusive merit of pro-
tecting the liberties of the state.
On questions which arose involving the highest consti-
tutional principles, while Hamilton and his friends were -
foremost in resisting all attempts to explain away the state
constitution, and to abridge the freedom of elections, and
were endeavouring to maintain a complete and full tolera-
tion of religious opinions, the state party was found advo-
cating measures tending to the most dangerous consequen-
ces. They opposed a mere request of congress for conve-
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? HAMILTON.
413
ning the legislature of the state, as threatening danger to the
freedom of deliberation, and they proposed a test not sanc-
tioned by its constitution. They refused a grant of power
necessary to the existence of the union, as dangerous to
the liberties of the people; and they sought to violate the
constitution of their state, by restraining the free exercise
of the right of suffrage--the first principle of all free insti-
tutions--the sovereignty of the people.
One proposition was to enable the inspectors of the elec-
tions to take aside every illiterate person, and examine him
privately, respecting his ballot. Against this, Hamilton
took a decided stand, showing the danger of an improper
influence being exercised, and the probability that the
leaning of the inspectors would produce an improper bias;
contending that "it was better that the illiterate should
take the chance of imposition from parties equally active,
than to leave them subject to party views, concentred in
inspectors, upon whom the fate of the election depended.
That it was wholly contrary to the very genius and inten-
tion of balloting, which means, that a man's vote should be
secret, and known only to himself; but by this proviso he
was not merely permitted, he was obliged to discover his
vote, thus depriving the unlettered person of that liberty
which his more instructed fellow-citizen had secured to
him. These reasons, he hoped, would be deemed sufficient
to induce the house to reject the clause, as repugnant to
the genius and liberty of our republic. " He prevailed.
Another clause authorized the inspectors to impose an
oath of abjuration of ecclesiastical as well as civil obedi-
ence, which was defended by the leader of the democratic
party, on the ground that this distinction was warranted
by the constitution. Hamilton declared " that the consti-
tution was their creed and standard, and ought never to
be departed from, but that its provisions had not been cor-
rectly understood; that there were two different bodies
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THE LIFE OF
in the state to which the proposition had reference. These
were the Roman Catholics who were already citizens, who
were born among us, and those coming from abroad. That
from foreigners wishing to be naturalized, the abjuration
of their former sovereign might be required for reasons
which do not exist on the part of the person born and ed-
ucated here, unencumbered with that dangerous fanaticism
which terrified the world some centuries back, but which
is now dissipated by the light of philosophy. These acts
are therefore no longer necessary, for the dangers are now
only imaginary, and are void of existence, at least with
respect to us, the object being to exclude Roman Catho-
lics from their right of representation.
He animadverted on the little influence possessed by the
pope in Europe--spoke of the reformation going forward
in the German empire, and of the total independence of
the French church, and compared the requiring of oaths
of this nature, to the vigilance of those who would bring
engines to extinguish fires which had long subsided. He
observed, also, that the Roman Catholics were not the only
society affected--that some of the Dutch Reformed church-
es held a species of ecclesiastical foreign jurisdiction; he
alluded to the classes of Amsterdam. "But," he asked,
"is the natural subject, the man born among us, educated
with us, possessing our habits, possessing our manners,
with an equal ardent love of his native country, to be re-
quired to take the same oath of abjuration? What has he
to abjure? He owes no fealty to any other power upon
earth. There is no probability that his mind will be led
astray by bigotiy or foreign influence. Then why give
him cause of dissatisfaction, by bringing forward a test
which will not add to his fidelity? "
He stated that the clause in the constitution confined the
test to foreigners, and that it was adopted after much de-
bate, and by a small majority, and that even as to them, he
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? HAMILTON.
415
questioned whether the test ought to be proposed. That
he was decidedly against going so far as to extend it to ec-
clesiastical 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 that is useless and unnecessary 1
You give them reason to suppose that you request 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. The oath should be confined to civil matters.
It is all that we ought or can require. A man will not
then be alarmed in his interpretation. It will not set his
mind to inquire if his religious tenets are affected, and much
inconvenience would be avoided. 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 or disfranchisement of any. " The clause
was, nevertheless, in part retained.
"A further provision was proposed, excluding pensioners
and officers holding under congress, from seats in the
senate and assembly. This clause gave rise to the discussion
of a most important question, whether the legislature pos-
sessed the power of abridging the constitutional rights of
the people.
By the state party it was contended, that while the con-
stitution protected the rights of the electors, it was silent as
to the elected, and that therefore the legislature had the
right to annex qualifications to the elected.
Colonel Hamilton observed, " that they were going on
dangerous ground; that the best rule to follow was the
rule of the constitution, which it would be safest to adhere
to without alteration or addition. If we once depart from
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? 416
THE LIFE OF
this rule, it is impossible to see where we would end.
To-day, a majority of the persons sitting here, from a par-
ticular mode of ihinking, disqualify one description of men;
a future legislature, from a particular mode of thinking on
another point, disqualify another set of men. One prece-
dent is the pretext of another, till we narrow the ground
of qualifications to a degree subversive of the constitution.
It is impossible to suppose that the convention who framed
the constitution were inattentive to this point. It is a mat-
ter of too much importance not to have been well considered.
"They have fixed the qualification of electors with pre-
cision. They have defined those of senator and governor,
but they have been silent as to the qualifications of mem-
bers 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 dis-
cretion of the electors themselves the choice of those who
are to represent them in assembly 1
"Every qualification implies a disqualification. The per-
sons who do not possess the qualification required, become
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 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
:dl those who fall within that description, of an essential
right allowed them by the constitution?
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? HAMILTON.
417
"If we once break the ground of departing from the sim-
ple plan of the constitution, it may lead us much farther
than we 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 im-
proper influence. I may think another species of influ-
ence more dangerous. To preserve consistency, we should
declare that no member of congress should 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 privi-
lege. *
"There are officers who have been wounded in the ser-
vice, 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 administration of that government which they have at
every hazard contributed to establish? 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 seems to be
this: Let us take care that the persons to elect are pro-
perly 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 per-
sons to represent them.
"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 consti-
* John Lansing and John Haring were recently appointed by the legis.
lature in which they had seats delegates to congress.
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? 418
THE LIFE OF
tution, 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 im-
portant principle. It would be to deprive, in the gross, all
those who had not the requisite qualifications, or who were
objects of those disqualifications, of that right to a share in
the administration of the republic which the constitution
gives them; and thus, without any offence, to nicur a for-
feiture. 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.
"Let us pursue the subject a little further. Commerce,
it will be admitted, leads to an increase of individual pro-
perty. Property begets influence. Though a legislature,
composed as we arc, will always take care of the rights
of the middling and lower classes, suppose the majority
of the legislature at a future day to consist of wealthy men,
what could 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 of
aristocracy fatal to the genius of our present constitu-
tion?
"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 connec-
tions, forbid the supposition; but I mean honestly to lay
before you the dangers to which we expose ourselves, by
letting in the principle which the clause under considera-
tion 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 1 shall be against any
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? HAMILTON.
419
qualification or disqualification, either of electors or elect-
ed, not prescribed by the constitution.
"The qualifications both of the electors and the elected
ought to be fundamental in a republican form of govern-
ment, not liable to be varied or added to by the legislature,
and they should for ever remain where the constitution
left them. It is to be lamented that men, to carry some fa-
vourite point in which their party or their prejudices are
interested, will inconsiderately introduce principles and
precedents which lead to successive innovations destruc-
tive of the liberty of the subject and the safety of the gov-
ernment. " The clause was stricken out.
The candour, the simplicity of his truth, and the strict
regard to the liberties of the citizen displayed on these oc-
casions, entered deeply into the mind of the house, and
every question where state pride was not concerned,or offi-
cial influence not exerted, he carried by a large majority.
He opposed with great force an amendment of the senate,
making a hostile discrimination as to persons who had been
engaged in privateering during the war, on the ground that
all legislative disfranchisements were unconstitutional. "In
one article of the constitution it is said--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 on a simi-
lar clause in Magna Charta, interprets the law of the land
to mean presentment, and indictment, and process of out-
lawry, 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 de-
prived of any right but by due process of law or the judg-
ment of his peers. The words ' due process,' have a pre-
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? 420
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cise technical import, and are only applicable to the pro-
cess and proceedings of the courts of justice. They can
never be referred to an act of the legislature.
"Are we willing then to endure the inconsistency of pass-
ing 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?
"When the discriminating clauses admitted into the bill
by this house were introduced, he was restrained by mo-
tives of respect for the sense of a respectable part of the
house, from giving it any other opposition than a simple
vote. The limited operation they would have, made him
less anxious about their adoption, but he could not recon-
cile 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 concerned in navigation during the war.
"Let us, then, distinct from constitutional considerations,
consider the expediency and justice of the clause. The
word privateer is indefinite, and may include letters of
marque. The merchants of this city during the war, ge-
nerally speaking, must abandon their means of livelihood or
be concerned in navigation. If concerned in navigation,
they must of necessity have their vessels armed for de-
fence. 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 pow-
erful class of citizens to be unfriendly to the government?
"He knew many individuals who would be comprehend-
ed, who are well affected to the prosperity of the country,
who are disposed to give every support to the govern-
ment, and who, some of them at least, even during the
war, had manifested an attachment to the American cause.
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? HA MILTON.
421
But there is one view in which the subject merits consider-
ation, 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 hap-
pened, and probably has happened in many instances, that
vessels have been employed as privateers, or 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, per-
haps contrary to their inclinations? 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 fit-
ting out privateers, perhaps at the instigation of the Brit-
ish government; and had applied to persons suspected
of an attachment to us to subscribe, making their com-
pliance a test of their loyalty. Several individuals well
disposed to our cause, to avoid becoming the objects of
persecution, had complied; would it not be too rigorous to
include them in so heavy a penalty?
"It may be said they were guilty of a culpable want of
firmness. But if there are any of us who are conscious
of greater fortitude, such persons should not on that ac-
count be too severe on the weaknesses 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, as well from motives of justice as a regard to
the constitution, we shall stop where we are, and not go
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any farther into the dangerous practice of disqualifying
citizens by general descriptions. "
"Though," a member replied, " he held Colonel Hamil-
ton in high estimation, and had a very great respect for
his candour, abilities, and knowledge of mankind, yet he
believed him much mistaken. He laid it down as a maxim,
that the man who was once an enemy will always remain
so. It was prudent to guard against admitting these peo-
ple to a participation of the . rights of citizens. He would
not operate on those who had taken up arms unwillingly.
The exclusion was constitutional,'because the constitution
must warrant every thing necessary for its own support. "
He appealed to that section of it which prohibited attain-
ders, except for crimes committed during the war.
Hamilton denied the distinction, and explained the inten-
tion and meaning of this clause of the constitution. He
defined acts of attainder, "as laws confiscating for treason
and misprision of treason all the property and estate of
the attainted traitor, and forfeiting his life unless he ap-
peared to take his trial. " This was the construction of it
by the country from which we derive our knowledge of
jurisprudence, and he believed no example could be ad-
duced, wherein it had been extended or applied in any
other manner. He was positive it could not be exercised
to disfranchise a whole party; for this obvious reason, that
it would involve the innocent with the guilty. This clause
in the constitution was only intended to apply in particular
cases, where an exception to the established mode of com-
mon law became necessary by the persons absenting
themselves, and did not apply to the subject before the
house. Precedents of this kind laid the foundation for the
subversion of the liberties of the people. He hoped they
would not be established. " He again prevailed. *
* Nays 32 to 21.
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? HAMILTON.
423
It has been stated that in the year seventeen hundred
and eighty-two, while Hamilton was continental receiver,
he had digested a system of taxation, the great object of
which was to exclude arbitrary valuations; that he also
had sought to engraft the same principle in the continental
revenue system, framed in the following year.
Having been placed on the committee of ways and
means, he now brought forward and enforced at much
length similar views. His great objects were to substitute
a mode by which every individual could himself estimate
what he had to pay, without being dependent on the ca-
prices, the affections, or the enmities of another; and to
approximate as near as possible to certainty and equality,
the two great objects to be aimed at in every system of
taxation.
One of the clauses of the bill raising taxes deviated from
a general and safe principle. It proposed a tax on certain
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
Hamilton declared his opinion, "that it was not proper to
tax any particular class of men for the benefit of the state
at large; but in the present instance it was to answer a
very important purpose. It was putting in force that most
excellent part of the constitution, which declares that the
judges should be independent of the legislature. This, at
present, was not the case. He therefore supported the
paragraph, observing that the salaries of the judges should
be permanent; that they should neither fear the powers
nor court the favour of the legislature. He believed it
was right that this independence should arise from the tax
proposed. " He succeeded in sustaining this provision, but
the plan, after a very full consideration, was defeated by
a small majority.
A discussion arose upon the objections of the council of
revision to a bill for settling intestate estates, proving wills,
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THE LIFE OF
and granting letters of administration. Jones advocated
the enactment of the law. Hamilton, after stating that he
should probably vote with him, remarked, " that he did not
view the matter 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 V These words have, in a
legal view, two significations--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, &c. ; 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 court in this state. If the words
are understood in the first sense, the bill under consider-
ation is not unconstitutional. In the last it is unconstitu-
tional, for it gives to an old court a new jurisdiction, in
which it is to proceed according to the course of the com-
mon 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 of an infringement, in sub-
stance, 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 inclined to think that the more extensive sense
may be fully adopted, with this limitation--that such new
jurisdictions must proceed according to the course of those
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? HAMILTON.
425
courts, having, by the common law, cognizance of the sub-
ject matter. They ought, however, never to be extended
to objects which, at common law, belonged to the jurisdic-
tion 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 testament-
ary cases. The bill proposes that the court of probates
shall have cognizance of the same causes and proceed in
the same manner as the ecclesiastical courts, except as to
inflicting ecclesiastical penalties. The distinction I have
taken will, I am inclined to think, bear us out in passing
the bill under consideration. But it is certainly a point
not without considerable difficulty. " The bill was passed.
If the precise and profound knowledge of the great prin-
ciples of jurisprudence here evinced, commands the respect
of that important class of men whose profession educates
and constitutes them the guardians of human rights, his
tolerant spirit more attracts the commendation of all those
who justly value freedom of conscience, without which the
law is chiefly known by her fetters and her scourge.
our minutes which, it appears to me, we may one day have
occasion to wish obliterated from them. "
The opposition was again called up, and travelled over
the same ground; inveighed against the dangers of an in-
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? HAMILTON.
407
croachment on the rights of the people; justified fully the
conduct of the governor; declared that the decision of the
constitutional question was not necessarily involved, and
closed with a strong appeal to popular feeling on the dan-
gers to be apprehended from countenancing such an inva-
sion of the freedom of their deliberations.
Hamilton replied; indicated more clearly the fallacy of
the arguments which had been used; pointed out the true
construction of the language of the constitution; warned
the house of the folly and danger of this distrust of the
powers of congress, and ridiculed the attempt to draw an
analogy between its powers and those of a monarchy.
"Are we not," he asked, " to respect federal decisions?
are we on the contrary to take every opportunity of hold-
ing up their resolutions and requests in a contemptible and
insignificant light, and tell the world their calls, their re-
quests are nothing to us; that we are bound by none of
their measures? Do not let us add to their embarrassments,
for it is but a slender tie that at present holds us. You
see, alas ! what contempt we are falling into since the peace;
you see to what our commerce is exposed on every side;
you see us the laughing-stock, the sport of foreign nations.
And what may this lead to? I dread, sir, to think. Little
will it avail then to say, we could not attend to your wise
and earnest requests without inconvenience: little will it
avail to say, it would have injured individual interests to
have left our farms. These things arc trifling when com-
pared to bringing the councils and powers of the union into
universal contempt, by saying their call was unimportant,
and that it did not come under the indefinite meaning of
'extraordinary. See, gentlemen, before you may feel, what
may be your situation hereafter. There is more involved
in this measure than presents itself to your view.
"You hear it rung in your ears that, from the resem-
blance between the king and the congress of these states,
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? 408
THE LIFE OF
it would be dangerous to come into measures proposed by
them, and adopted by every state but this. But I say there
is no danger; it is impossible; the constitution, the con-
federation, prevents it. Let us hear the reasoning used ;--
they have the power of declaring war and peace, and re-
quest the power of raising and applying money. This, if
in a king, permanent, hereditary, and independent of the
people, would be danger; but in an annual body chosen
from ourselves, and liable on every turn of popular breath
to be changed, who are checked by twelve other states,
who would not stand by and see the ruin of their associ-
ates, as it would involve their own,--where can be the
danger? How can a similitude exist between bodies so
different--as different as east from west, as north from
south? I regret that these things should be compared, for
there is no necessity for sounding this alarm. It is enough
the danger of republican governments that their very na-
ture tends to their destruction, because of their liability to
change. "
The question was then taken, and such was the force of
the governor's party, that the conciliatory substitute was
rejected by a vote of thirty-six to nine.
A few days after the address was adopted, this irritating
topic being disposed of, the friends of the impost, however
inauspicious the prospect, indulged the hope that the exi-
gencies of the country might induce a compliance with a
measure which had been at this time sanctioned by all of
the other states, and that notwithstanding the views of the
opposition, when the final vote was taken, they would shrink
from the responsibility of placing the state in an attitude
so hostile to the confederation and leading to consequences
so portentous.
A motion was made for a reference of this subject to a
committee, according to the usual practice of the house,
but the speaker having avowed himself a friend of the
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? HAMILTON.
409
measure, and it being apprehended that the report of a
committee favourable to the impost might have weight with
the house, an attempt was made to defeat this motion and
to refer the svibject to a committee of the whole house.
This design was defeated, and a committee was appointed
to investigate the subject. While under its consideration,
Hamilton moved a reference of the laws apparently con-
travening the treaty: one, relative to debts due to persons
within the enemy's lines; the other, the much agitated
"Trespass act:" taking as the basis of this motion the letter
of the secretary of foreign affairs, and the communications
of the British government in relation to its violation. Of
this committee he was appointed chairman, and he intro-
duced a bill after a speech indicating the importance of this
measure to the state, and her obligation to remove all im-
pediments to the foreign negotiations.
The following is a brief outline of his remarks upon this
subject: He first expressed great uneasiness that any op-
position should be made to this bill, particularly as this
state was individually interested therein. He felt greater
regret from a conviction in his own mind on this occasion,
that the bill should be objected to, as there was not a single
law in existence in this state in direct contravention of the
treaty of peace. He urged the committee to pass the bill,
from the consideration that the state of New-York was
the only state to gain any thing by a strict adherence to
the treaty.
There was no other state in the union that had so much
to expect from it. The restoration of the western posts was
an object of more than one hundred thousand pounds per
annum. Great Britain held those posts on the plea that
the United States had not fulfilled the treaty, and which
we have strong assurances she will relinquish on the fulfil-
ment of our engagements with her. But how far Great
Britain might be sincere in her declaration was unknown.
52
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? 410
THE LIFE OF
Indeed he doubted it himself. But while he doubted the
sincerity of Great Britain, he could not but be of opinion
that it was the duty of this state to enact a law for the re-
peal of all laws which may be against the treaty, as by do-
ing away all exceptions she would be reduced to a crisis;
she would be obliged to show to the world whether she was
in earnest or not, and whether she will sacrifice her honour
and reputation to her interest. With respect to the bill, as
it was drafted in conformity with the recommendation of
congress, he viewed it as a wise and salutary measure;
one calculated to meet the approbation of the different
states, and most likely to answer the end proposed. Were
it possible to examine an intricate maze of laws, and to
determine which of them or what parts of those laws were
opposed to the treaty, it still might not have the intended
effect, as different parties would have the judging of the
matter. What one would say was a law not inconsistent
with the treaty of peace, another might say was so, and
there would be no end, no decision of the business. Even
some of the states might view laws in a different manner.
The only way to comply with the treaty, was to make a
general and unexceptionable repeal. Congress, with an
eye to this, had proposed a general law, from which the
one before them was a copy. lie thought, as it was ob-
vious to every member of the committee, that as there
was no law in direct opposition to the treaty, no difficulty
could arise from passing the bill.
Some gentlemen, he observed, were apprehensive that
the bill would restore confiscated estates. This he did
not admit. However, if they were so disposed, they
might add a proviso to prevent it. He had written one,
which any of the gentlemen might move, if they thought
necessary. In his opinion it was not necessary. The bill
only provided that no future confiscations should take
place, and that congress should earnestly recommend a
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? HAMILTON.
411
restoration of property. But there was nothing obliga-
tory in this.
If this state should not come into the measure, would
it not be a very good plea for the other states to favour
their own citizens, and say, why should we do thus, when
New-York, the most interested of any of the states, refuses
to adopt it? And shall we suffer this imputation, when
we have in fact no laws that militate against the treaty?
He stated the great disadvantages that our merchants
experienced from the western posts being in the hands of
the British, and asked if it was good policy to let them re-
main so.
It had been said that the judges would have too much
power. That was a misapprehension. He stated the
powers of the judges with great clearness and precision.
He insisted that their powers would be the same whether
these laws passed or not; for as all treaties were known
by the constitution as the laws of the land, so must the
judges act on them, any law to the contrary notwithstand-
ing.
Cicero, the great Roman orator and lawyer, lays it down
as a rule, that when two laws clash, that which relates to
the most important matters ought to be preferred. If this
rule prevail, who can doubt what would be the conduct
of the judges, should any laws exist inconsistent with the
treaty of peace? But it would be impolitic to leave them
to the dilemma either of infringing the treaty to enforce
the particular laws of the state, or to explain away the
laws of the state to give effect to the treaty.
He declared that the full operation of the bill would be
no more than merely to declare the treaty the law of the
land; and that the judges viewing if as such, shall do away
all laws that may appear in direct contravention of it.
Treaties were known constitutionally to be the law of the
land, and why be afraid to leave the interpretation of those
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THE LIFE OF
laws to the judges. The constitution knows them as the
interpreters of the law. He asked if there was any mem-
ber of the committee who would be willing to see the first
treaty of peace ever made by this country violated?
This he did not believe. He could not think that any
member on that floor harboured such sentiments. He was
in hopes that the committee would agree with him in opin-
ion, and give a proof of their attachment to our national
engagements by passing the bill, which would do away
every exception of the British court. " This exposition
overcame every objection, and this important act passed
the house, but fell in the senate.
At the commencement of the session he was appointed
chairman of the committee on expiring laws, to report which
should be continued, and also such new laws as they should
conceive would be beneficial to the state. In the perform-
ance of this duty his mind was directed to a great variety
of topics. The first matter of local interest which called
forth his exertions, was an "act to regulate the elections" of
the state. This act not only involved several important
principles, but had a special bearing on its political charac-
ter. Its details have not enough of general interest to
warrant their introduction in this place. It is sufficient to
remark the singular inconsistency evinced on this occasion
in the conduct of the opponents to the power of the gene-
ral government, who claimed the exclusive merit of pro-
tecting the liberties of the state.
On questions which arose involving the highest consti-
tutional principles, while Hamilton and his friends were -
foremost in resisting all attempts to explain away the state
constitution, and to abridge the freedom of elections, and
were endeavouring to maintain a complete and full tolera-
tion of religious opinions, the state party was found advo-
cating measures tending to the most dangerous consequen-
ces. They opposed a mere request of congress for conve-
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? HAMILTON.
413
ning the legislature of the state, as threatening danger to the
freedom of deliberation, and they proposed a test not sanc-
tioned by its constitution. They refused a grant of power
necessary to the existence of the union, as dangerous to
the liberties of the people; and they sought to violate the
constitution of their state, by restraining the free exercise
of the right of suffrage--the first principle of all free insti-
tutions--the sovereignty of the people.
One proposition was to enable the inspectors of the elec-
tions to take aside every illiterate person, and examine him
privately, respecting his ballot. Against this, Hamilton
took a decided stand, showing the danger of an improper
influence being exercised, and the probability that the
leaning of the inspectors would produce an improper bias;
contending that "it was better that the illiterate should
take the chance of imposition from parties equally active,
than to leave them subject to party views, concentred in
inspectors, upon whom the fate of the election depended.
That it was wholly contrary to the very genius and inten-
tion of balloting, which means, that a man's vote should be
secret, and known only to himself; but by this proviso he
was not merely permitted, he was obliged to discover his
vote, thus depriving the unlettered person of that liberty
which his more instructed fellow-citizen had secured to
him. These reasons, he hoped, would be deemed sufficient
to induce the house to reject the clause, as repugnant to
the genius and liberty of our republic. " He prevailed.
Another clause authorized the inspectors to impose an
oath of abjuration of ecclesiastical as well as civil obedi-
ence, which was defended by the leader of the democratic
party, on the ground that this distinction was warranted
by the constitution. Hamilton declared " that the consti-
tution was their creed and standard, and ought never to
be departed from, but that its provisions had not been cor-
rectly understood; that there were two different bodies
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THE LIFE OF
in the state to which the proposition had reference. These
were the Roman Catholics who were already citizens, who
were born among us, and those coming from abroad. That
from foreigners wishing to be naturalized, the abjuration
of their former sovereign might be required for reasons
which do not exist on the part of the person born and ed-
ucated here, unencumbered with that dangerous fanaticism
which terrified the world some centuries back, but which
is now dissipated by the light of philosophy. These acts
are therefore no longer necessary, for the dangers are now
only imaginary, and are void of existence, at least with
respect to us, the object being to exclude Roman Catho-
lics from their right of representation.
He animadverted on the little influence possessed by the
pope in Europe--spoke of the reformation going forward
in the German empire, and of the total independence of
the French church, and compared the requiring of oaths
of this nature, to the vigilance of those who would bring
engines to extinguish fires which had long subsided. He
observed, also, that the Roman Catholics were not the only
society affected--that some of the Dutch Reformed church-
es held a species of ecclesiastical foreign jurisdiction; he
alluded to the classes of Amsterdam. "But," he asked,
"is the natural subject, the man born among us, educated
with us, possessing our habits, possessing our manners,
with an equal ardent love of his native country, to be re-
quired to take the same oath of abjuration? What has he
to abjure? He owes no fealty to any other power upon
earth. There is no probability that his mind will be led
astray by bigotiy or foreign influence. Then why give
him cause of dissatisfaction, by bringing forward a test
which will not add to his fidelity? "
He stated that the clause in the constitution confined the
test to foreigners, and that it was adopted after much de-
bate, and by a small majority, and that even as to them, he
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? HAMILTON.
415
questioned whether the test ought to be proposed. That
he was decidedly against going so far as to extend it to ec-
clesiastical 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 that is useless and unnecessary 1
You give them reason to suppose that you request 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. The oath should be confined to civil matters.
It is all that we ought or can require. A man will not
then be alarmed in his interpretation. It will not set his
mind to inquire if his religious tenets are affected, and much
inconvenience would be avoided. 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 or disfranchisement of any. " The clause
was, nevertheless, in part retained.
"A further provision was proposed, excluding pensioners
and officers holding under congress, from seats in the
senate and assembly. This clause gave rise to the discussion
of a most important question, whether the legislature pos-
sessed the power of abridging the constitutional rights of
the people.
By the state party it was contended, that while the con-
stitution protected the rights of the electors, it was silent as
to the elected, and that therefore the legislature had the
right to annex qualifications to the elected.
Colonel Hamilton observed, " that they were going on
dangerous ground; that the best rule to follow was the
rule of the constitution, which it would be safest to adhere
to without alteration or addition. If we once depart from
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THE LIFE OF
this rule, it is impossible to see where we would end.
To-day, a majority of the persons sitting here, from a par-
ticular mode of ihinking, disqualify one description of men;
a future legislature, from a particular mode of thinking on
another point, disqualify another set of men. One prece-
dent is the pretext of another, till we narrow the ground
of qualifications to a degree subversive of the constitution.
It is impossible to suppose that the convention who framed
the constitution were inattentive to this point. It is a mat-
ter of too much importance not to have been well considered.
"They have fixed the qualification of electors with pre-
cision. They have defined those of senator and governor,
but they have been silent as to the qualifications of mem-
bers 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 dis-
cretion of the electors themselves the choice of those who
are to represent them in assembly 1
"Every qualification implies a disqualification. The per-
sons who do not possess the qualification required, become
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 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
:dl those who fall within that description, of an essential
right allowed them by the constitution?
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? HAMILTON.
417
"If we once break the ground of departing from the sim-
ple plan of the constitution, it may lead us much farther
than we 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 im-
proper influence. I may think another species of influ-
ence more dangerous. To preserve consistency, we should
declare that no member of congress should 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 privi-
lege. *
"There are officers who have been wounded in the ser-
vice, 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 administration of that government which they have at
every hazard contributed to establish? 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 seems to be
this: Let us take care that the persons to elect are pro-
perly 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 per-
sons to represent them.
"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 consti-
* John Lansing and John Haring were recently appointed by the legis.
lature in which they had seats delegates to congress.
53
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THE LIFE OF
tution, 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 im-
portant principle. It would be to deprive, in the gross, all
those who had not the requisite qualifications, or who were
objects of those disqualifications, of that right to a share in
the administration of the republic which the constitution
gives them; and thus, without any offence, to nicur a for-
feiture. 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.
"Let us pursue the subject a little further. Commerce,
it will be admitted, leads to an increase of individual pro-
perty. Property begets influence. Though a legislature,
composed as we arc, will always take care of the rights
of the middling and lower classes, suppose the majority
of the legislature at a future day to consist of wealthy men,
what could 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 of
aristocracy fatal to the genius of our present constitu-
tion?
"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 connec-
tions, forbid the supposition; but I mean honestly to lay
before you the dangers to which we expose ourselves, by
letting in the principle which the clause under considera-
tion 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 1 shall be against any
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? HAMILTON.
419
qualification or disqualification, either of electors or elect-
ed, not prescribed by the constitution.
"The qualifications both of the electors and the elected
ought to be fundamental in a republican form of govern-
ment, not liable to be varied or added to by the legislature,
and they should for ever remain where the constitution
left them. It is to be lamented that men, to carry some fa-
vourite point in which their party or their prejudices are
interested, will inconsiderately introduce principles and
precedents which lead to successive innovations destruc-
tive of the liberty of the subject and the safety of the gov-
ernment. " The clause was stricken out.
The candour, the simplicity of his truth, and the strict
regard to the liberties of the citizen displayed on these oc-
casions, entered deeply into the mind of the house, and
every question where state pride was not concerned,or offi-
cial influence not exerted, he carried by a large majority.
He opposed with great force an amendment of the senate,
making a hostile discrimination as to persons who had been
engaged in privateering during the war, on the ground that
all legislative disfranchisements were unconstitutional. "In
one article of the constitution it is said--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 on a simi-
lar clause in Magna Charta, interprets the law of the land
to mean presentment, and indictment, and process of out-
lawry, 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 de-
prived of any right but by due process of law or the judg-
ment of his peers. The words ' due process,' have a pre-
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cise technical import, and are only applicable to the pro-
cess and proceedings of the courts of justice. They can
never be referred to an act of the legislature.
"Are we willing then to endure the inconsistency of pass-
ing 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?
"When the discriminating clauses admitted into the bill
by this house were introduced, he was restrained by mo-
tives of respect for the sense of a respectable part of the
house, from giving it any other opposition than a simple
vote. The limited operation they would have, made him
less anxious about their adoption, but he could not recon-
cile 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 concerned in navigation during the war.
"Let us, then, distinct from constitutional considerations,
consider the expediency and justice of the clause. The
word privateer is indefinite, and may include letters of
marque. The merchants of this city during the war, ge-
nerally speaking, must abandon their means of livelihood or
be concerned in navigation. If concerned in navigation,
they must of necessity have their vessels armed for de-
fence. 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 pow-
erful class of citizens to be unfriendly to the government?
"He knew many individuals who would be comprehend-
ed, who are well affected to the prosperity of the country,
who are disposed to give every support to the govern-
ment, and who, some of them at least, even during the
war, had manifested an attachment to the American cause.
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? HA MILTON.
421
But there is one view in which the subject merits consider-
ation, 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 hap-
pened, and probably has happened in many instances, that
vessels have been employed as privateers, or 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, per-
haps contrary to their inclinations? 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 fit-
ting out privateers, perhaps at the instigation of the Brit-
ish government; and had applied to persons suspected
of an attachment to us to subscribe, making their com-
pliance a test of their loyalty. Several individuals well
disposed to our cause, to avoid becoming the objects of
persecution, had complied; would it not be too rigorous to
include them in so heavy a penalty?
"It may be said they were guilty of a culpable want of
firmness. But if there are any of us who are conscious
of greater fortitude, such persons should not on that ac-
count be too severe on the weaknesses 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, as well from motives of justice as a regard to
the constitution, we shall stop where we are, and not go
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THE LIFE OF
any farther into the dangerous practice of disqualifying
citizens by general descriptions. "
"Though," a member replied, " he held Colonel Hamil-
ton in high estimation, and had a very great respect for
his candour, abilities, and knowledge of mankind, yet he
believed him much mistaken. He laid it down as a maxim,
that the man who was once an enemy will always remain
so. It was prudent to guard against admitting these peo-
ple to a participation of the . rights of citizens. He would
not operate on those who had taken up arms unwillingly.
The exclusion was constitutional,'because the constitution
must warrant every thing necessary for its own support. "
He appealed to that section of it which prohibited attain-
ders, except for crimes committed during the war.
Hamilton denied the distinction, and explained the inten-
tion and meaning of this clause of the constitution. He
defined acts of attainder, "as laws confiscating for treason
and misprision of treason all the property and estate of
the attainted traitor, and forfeiting his life unless he ap-
peared to take his trial. " This was the construction of it
by the country from which we derive our knowledge of
jurisprudence, and he believed no example could be ad-
duced, wherein it had been extended or applied in any
other manner. He was positive it could not be exercised
to disfranchise a whole party; for this obvious reason, that
it would involve the innocent with the guilty. This clause
in the constitution was only intended to apply in particular
cases, where an exception to the established mode of com-
mon law became necessary by the persons absenting
themselves, and did not apply to the subject before the
house. Precedents of this kind laid the foundation for the
subversion of the liberties of the people. He hoped they
would not be established. " He again prevailed. *
* Nays 32 to 21.
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? HAMILTON.
423
It has been stated that in the year seventeen hundred
and eighty-two, while Hamilton was continental receiver,
he had digested a system of taxation, the great object of
which was to exclude arbitrary valuations; that he also
had sought to engraft the same principle in the continental
revenue system, framed in the following year.
Having been placed on the committee of ways and
means, he now brought forward and enforced at much
length similar views. His great objects were to substitute
a mode by which every individual could himself estimate
what he had to pay, without being dependent on the ca-
prices, the affections, or the enmities of another; and to
approximate as near as possible to certainty and equality,
the two great objects to be aimed at in every system of
taxation.
One of the clauses of the bill raising taxes deviated from
a general and safe principle. It proposed a tax on certain
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
Hamilton declared his opinion, "that it was not proper to
tax any particular class of men for the benefit of the state
at large; but in the present instance it was to answer a
very important purpose. It was putting in force that most
excellent part of the constitution, which declares that the
judges should be independent of the legislature. This, at
present, was not the case. He therefore supported the
paragraph, observing that the salaries of the judges should
be permanent; that they should neither fear the powers
nor court the favour of the legislature. He believed it
was right that this independence should arise from the tax
proposed. " He succeeded in sustaining this provision, but
the plan, after a very full consideration, was defeated by
a small majority.
A discussion arose upon the objections of the council of
revision to a bill for settling intestate estates, proving wills,
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and granting letters of administration. Jones advocated
the enactment of the law. Hamilton, after stating that he
should probably vote with him, remarked, " that he did not
view the matter 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 V These words have, in a
legal view, two significations--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, &c. ; 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 court in this state. If the words
are understood in the first sense, the bill under consider-
ation is not unconstitutional. In the last it is unconstitu-
tional, for it gives to an old court a new jurisdiction, in
which it is to proceed according to the course of the com-
mon 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 of an infringement, in sub-
stance, 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 inclined to think that the more extensive sense
may be fully adopted, with this limitation--that such new
jurisdictions must proceed according to the course of those
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? HAMILTON.
425
courts, having, by the common law, cognizance of the sub-
ject matter. They ought, however, never to be extended
to objects which, at common law, belonged to the jurisdic-
tion 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 testament-
ary cases. The bill proposes that the court of probates
shall have cognizance of the same causes and proceed in
the same manner as the ecclesiastical courts, except as to
inflicting ecclesiastical penalties. The distinction I have
taken will, I am inclined to think, bear us out in passing
the bill under consideration. But it is certainly a point
not without considerable difficulty. " The bill was passed.
If the precise and profound knowledge of the great prin-
ciples of jurisprudence here evinced, commands the respect
of that important class of men whose profession educates
and constitutes them the guardians of human rights, his
tolerant spirit more attracts the commendation of all those
who justly value freedom of conscience, without which the
law is chiefly known by her fetters and her scourge.
