The
negative on the state laws afforded one security to the na-
tional government.
negative on the state laws afforded one security to the na-
tional government.
Hamilton - 1834 - Life on Hamilton - v2
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THE LIFE OF
ers, as if they had been appointed by the president and
senate of the United States.
"If it be possible," Hamilton observed, "to construct a
federal government capable of regulating the common
concerns', and preserving the general tranquillity, it must
carry its agency to the persons of its citizens. It must
stand in need of no intermediate legislations, but must it-
self be empowered to employ the arm of the ordinary
magistrate to execute its own resolutions. The majesty
of the national authority must be manifested through the
medium of the courts of justice. The government of the
union, like that of each state, must be able to address itself
immediately to the hopes and fears of individuals, and to
attract to its support those passions which have the strong-
est influence upon the human heart. It must, in short,
possess all the means, and have a right to resort to all the
methods, of executing the powers with which it is intrust-
ed, that are possessed and exercised by the governments
of particular states. "
Under this important provision as to the appointments
of these governors and presidents, the administration of
the general government, pervading the states, would have
executed itself, while their legislatures would have retained
the control of that part of internal police which relates
"to the rights of property and life among individuals, the
administration of justice, the supervision of agriculture,
and of such things as are proper for local legislation. "
The advantages would thus have been attained of the re-
productiveness of the civil power, and of its diffusive force
throughout the whole extent of the republic, and the state
legislatures would have acted as sentinels to warn against
the first approach of usurpation.
The ninth article provided that the president must then
be "a citizen of one of the states, or hereafter be born a
citizen of the United States;" that senators and represen-
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? HAMILTON.
503
tatives must be citizens and inhabitants of the state in
which they were chosen.
Prompted by the recent proceedings in New-York, he
also provided that no person eligible as president, or to the
legislature, shall be disqualified but by the conviction of
some offence for which the law shall have previously or-
dained the punishment of disqualification; but that the
legislature might provide by law that persons holding
offices under the United States, or either of them, shall not
be eligible to the assembly, and " shall be, during their con-
tinuance in office, suspended from sitting in the senate. "
The citizens of each state were to be entitled to all the
immunities of citizens of other states, and full faith and
credit was to be given to the public acts, records, and ju-
dicial proceedings of each; fugitives from justice were
to be delivered up;--provisions taken from the articles of
confederation. No new state was to be formed without
the concurrent consent of the United States, and of the
states concerned; but new states might be admitted by
the general legislature into the union. The United States
were declared bound to guaranty a republican form of
government to each state, and to protect it as well against
domestic violence as against foreign invasion; a provision
drawn from the propositions of Randolph, but essentially
enlarged--supplying, as Hamilton observed, " a capital im-
perfection" in the articles of the confederation.
All treaties, contracts, and engagements under those ar-
ticles, were to have equal validity under the constitution;
no state could enter into a treaty or alliance with another,
or with a foreign power, without the consent of the United
States. The members of the legislature of the United
States and of each state, and all officers, executive and
judicial, were to take an oath or affirmation to support the
constitution of the United States.
Though a change of government would not have dis-
i
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? 504
THE LIFE OF
solved existing treaties not inconsistent with its principles,
yet Hamilton's knowledge of the distinctions of interna-
tional law would teach him the importance of a full and
explicit declaration on this important subject. as a guard
of the interests and of the faith of the nation. In the ab-
solute prohibition of treaties by the states with foreign
powers, the restrictive clause of the confederation was ex-
tended, and the requisition of an oath to support the con-
stitution was a useful additional bond. Amendments to it
were to be proposed by two-thirds of both houses, to be
ratified by the legislatures or conventions in two-thirds of
the states.
Finally, to secure the immediate operation of the new
system, and to give it the solemn sanction of the people,
it was provided (in the tenth article) that the constitution
should be submitted to conventions of the people of each
state, by their deputies, chosen under the direction of their
respective legislatures; that each convention ratifying the
constitution should appoint the first representatives and
senators from such state, the representatives so appointed
to continue in office only one year.
When the constitution shall have been duly ratified, con-
gress were to give notice of a day and place of meeting
of the senators and representatives from the several states;
a majority of whom, when assembled, it was provided,
shall, by plurality of voices in joint ballot, elect a president
of the United States, " and the constitution, thus organized,
shall be carried into effect. "
From this abstract it will be seenjQhough Hamilton
would have made use of the state governments for certain
purposes, thus completely refuting the allegation that he
contemplated their abrogation, yet it was his desire to
have established a simple government pervading the whole
union and uniting its inhabitants as one people. ^) As it was
necessary that "each department should havea will of its
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? HAMILTON. 505
/
own," this government was so constituted that the mem-
bers of each had no agency in the appointment of the
others, and, with the exception of the judiciary, each was
"drawn from the same fountain of authority, the people,
and through channels having no communication whatever
with one another. " "In the constitution of the judiciary
in particular," Hamilton remarked, "it might be inexpedient
to insist rigorously on the principle ; because peculiar quali-
fications being essential in the members, the primary con-
sideration ought to be to select that mode of choice which
best secures these qualifications, and because the perma-
nent tenure by which the appointments are held in that
department must soon destroy all sense of dependence on
the authority conferring them. "
"It is equally evident," he observed, " that the members
of each department should be as little dependent as possi-
ble on those of the others, for the emoluments annexed to
their offices:" hence is seen the provision that the compen-
sation of the executive and the judiciary should be fixed by
law; that of the judges not to be diminished during their
term, and to guard against executive influence, that of the
president to be neither increased nor diminished. "In
framing a government which is to be administered by men
over men, the great difficulty," he said, "lies in this--you
must first enable the government to control the governed,
and, in the next place, oblige it to control itself. A de-
pendence on the people is, no doubt, a primary control on
the government; but experience has taught mankind the
necessity of auxiliary precautions. " Of these, the chief
was "in the distribution of the supreme powers of the
state. " "But it is not possible," he observed, "to give to
each department an equal power of self-defence. In re-
publican governments, the legislative authority necessarily
predominates. The remedy for this inconvenience is, to
divide the legislature into different branches; and to ren-
64
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? 506
THE LIFE OF
der them by different modes of election, and different prin-
ciples of action, as little connected with each other as the
nature of their common functions and their common depend-
ence on the society will admit. " With these views in the
structure of this government, while by the frequent choice of
the popular branch elected by universal suffrage, the demo-
cratic influence was to be constantly renewed and invi-
gorated, in the duration of the senate and executive chosen
by constituents with property qualifications, he hoped to
secure efficient and enduring checks on the impetuosity
and instability of the many. The power of the people was
to be kept up by a constitutional augmentation of the
number of these representatives; and thus the barrier
against executive usurpation, if attempted, was steadily
strengthened; and " as the weakness of the executive," he
remarked, "may require that it should be fortified," he
gave him an "absolute negative on the legislature, as the
natural defence with which the executive magistrate should
be armed. "
Having provided these precautions, by the deposit of
the national trusts with representatives of different inter-
ests freely chosen by the people, and holding by a respon-
sible and defeasible tenure, governed by the great maxims
previously stated, he empowered the legislature "to pass
all laws necessary to the common defence and safety, and
to the general welfare of the union. "
It would require an elaborate commentary to indicate
the character and adaptation of the more minute parts of
this frame of government to their several purposes, nor will
its qualities be more fully discussed. If intrinsic de-
fects are seen, they are defects resulting from the inherent
difficulty of imparting the necessary and safe vigour and
stability to republican institutions, which exclude the prin-
ciple of hereditable power.
But in this approach " to the confines of another govern-
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? HAMILTON.
507
ment" without a departure from the republican theory, is
seen a remarkable manifestation, both of the fertility of
his genius, and of the severe and provident control of his
reason and experience. It would not be easy tojironounce
on the probable working of such a system,VDut the subse-
quent history of the country gives abunclant evidence,
that a departure from some of its principles has neither
added security to liberty nor promoted the general wel-
fare. ^'
* Plan in the Appendix.
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? 508
THE LIFE OF
CHAPTER XXIV.
[1787. ]
Having thus presented to the convention the model of
an efficient government. founded on the power of the peo-
ple, Hamilton now exerted all his influence to raise their
minds to a point which it is questionable whether they
would have otherwise reached. The result of these ef-
forts may be seen in the influence which the opinions of
Washington, however cautiously expressed, would exert
over the members of that body; and in the direction now
given to Madison's mind: both of whom, Hamilton subse-
quently stated, adopted his views, regarding his plan as
not exceeding in stability and strength what the exigen-
cies of the country required. "They were," in his own
words, "completely up to the scheme. "
On the day after his speech was delivered, Madison ad-
dressed the committee. * He stated that the confederation
might be dissolved by the infraction of any article of it,
recapitulating the instances in which it had been violated.
The Jersey plan did not provide for the ratification of the
states. Its judiciary was to have only an appellate juris-
diction, without providing for a second trial. We must
radically depart from the federal plan, or share the fate
of all confederacies. The Jersey plan gave no checks on
the excesses of the states. It did not secure the internal
tranquillity, nor prevent foreign influence.
* The residue of the debates is taken, with very few exceptions, from
Yatos, the general accuracy of which is confirmed by other authorities.
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? HAMILTON.
509
How is military coercion to enforce government? Un-
less we agree upon a plan, what will be the situation of the
smaller states? If they form partial confederacies, must
they not make larger concessions to the greater states?
The large states cannot assent to an equal representation.
If the states were equalized, state distinctions would still
exist.
In reply to an observation of Wilson, Hamilton remark-
ed that he did not intend yesterday a total extinguishment
of state governments, but that a national government ought
to be able to support itself without the aid or interference of
the state governments, and therefore should have full sove-
reignty. Even with corporate rights the states will be
dangerous to the national government, and ought to be
new modified, or reduced to a smaller scale. In the course
of a series of forcible and eloquent remarks, King observ-
ed that none of the states were at that time sovereign or
independent; many of their essential rights were vested in
congress. By the confederation, it possesses the rights of
the United States. This is the union of the men of these
states. None individually or collectively, except in con-
gress, have the rights of peace, or war, or treaty. The
magistracy in congress possesses the sovereignty. As to
certain points, we are now an united people; consolidation
is already established; the states are confederates, the con-
stituents of* a common sovereign, constituted with powers
partly federal and partly national. The alterations which
had been made, show others can be made, except the sub-
version of the states, which are expressly guarantied. The
articles of the confederation providing in themselves for an
alteration, might be so altered as to give them a national
character. "The declaration of independence," Wilson
said, "preceded the state constitutions. What does this
declare? In the name of the people of these states, we
are declared to be free and independent. The powers of
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? 510
THE LIFE OF
war, peace, alliances, and trade, are declared to be vested
in congress. "
"I assent to this remark," Hamilton observed; "establish
a weak government, and you must, at times, overleap its
bounds. Rome was obliged to create dictators. Cannot
propositions be made to the people because we before con-
federated on other principles? The people can grant the
powers if they will! The great objects of industry can
only be protected by a general government. " On motion
of King, it was resolved by seven states that the Jersey
plan was inadmissible.
Having thus obtained a decided expression of the opin-
ion of the convention against the continuance of a mere
league with enlarged powers, they proceeded, on the twen-
tieth of June, again to consider the Virginia resolutions.
After an amendment of the first, so as to declare that " the
government of the United States ought to consist of a su-
preme legislative, judiciary, and executive," Lansing moved
a declaration "that the powers of legislation be vested in
the United States in congress. "* He stated that if the Jer-
sey plan was not adopted, it would produce the mischiefs
they were convened to obviate. That the "principles of
that system" were "an equality of representation, and de-
pendence of the members of congress on the states. That
as long as state distinctions exist, state prejudices would
operate, whether the election be by the states or the peo-
ple. " If there was no interest to oppress, there was no
need of an apportionment. What would be the effect of
the other plan? Virginia would have sixteen, Delaware
one representative. Will the general government have
leisure to examine the state laws? Will it have the neces-
sary information? Will the states agree to surrender?
Let us meet public opinion, and hope the progress of senti-
* Hamilton's MSS. notes, v. i. p. 77.
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? HAMILTON. 511
ment will make future arrangements. "He would like the
system" of his colleague (Hamilton) "if it could be estab-
lished,"* but it was " a system without example. "
Mason wished to preserve the state governments, and to
draw lines of demarcation, trusting to posterity to amend.
He was in favour of a republican system with a legislature
of two branches.
Martin urged the grant of new powers, and such a mo-
dification of the existing system as would not endanger the
state governments. "The grant," he said, " is a state grant,
and the union must be so organized that the states are in-
terested in supporting it. " After further debate, the pro-
position to vest the powers of legislation in congress was
rejected, and the national plan was taken up. On the ques-
tion of constituting two branches of the legislature, Johnson
observed "that the Jersey plan would preserve the state
governments, and thus was a departure from that of Vir-
ginia, which, though it concentres in a distinct national gov-
ernment, is not wholly independent of those of the states.
"A gentleman from New-York, with boldness and deci-
sion, proposed a system totally different from both, and,
though he has been praised by every body, has been sup-
ported by none. He could have wished that the support-
ers of the Jersey system could have been satisfied with that
of Virginia, and the individuality of the states be sup-
ported. It is agreed on all hands that a portion of govern-
ment is to be left to the states; how can this be done?
By joining the states in their legislative capacities, with the
right of apportioning the second branch of the national
legislature to represent the states individually. " Wilson
would try to designate the powers of each. Madison ap-
prehended the greatest danger from the encroachments of
* In the original notes, "He would like my system if it could be estab-
lished--system without example. "
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? 512 THE LIFE OF
the states; an apprehension justified by experience.
The
negative on the state laws afforded one security to the na-
tional government. To draw the line between the two
was a difficult task. He believed it could not be done, and
was inclined to a general government. A national legis-
lature of two branches was approved.
On the question of the election of the first branch by
the people, great diversity of opinion existed. Hamilton
again declared himself in favour of it. He observed,* "It
is essential to the democratic rights of the community,
that this branch be directly elected by the people. Let us
look to probable events. There may arrive a period when
the state legislatures may cease. Such an event ought not
to embarrass the national government. "
King concurred in support of this principle. He believed
that the magistrates of the states will ever pursue schemes
of their own; and this state policy will, if the states elect
the first branch, pervade the national government, to which
those of the states will ever be hostile. After an opposite
view by Pinckney and Rutledge, the resolve, giving the
election to the people, was carried, and the duration of this
branch considered. It was proposed to limit it to two years.
Sherman was for one. Hamilton said,f "There is a medium;
I confess three years is not too long a term: a representative
ought to have freedom of deliberation, and ought to exercise
an opinion of his own. I am convinced the public mind
will adopt a solid plan; although the government of New-
York is higher toned than that of any other state, yet the
electors are listless and indifferent. The public are not
now ready to receive the best plan of government, but the
progress of circumstances will give it a different complex-
ion. " A biennial term was then adopted.
* Yates, page 149, omitted in Madison's reports, 926.
t Yates, 151. See Madison, 931.
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? HAMILTON. 513
On the inquiry as to the compensation of the members,
Hamilton remarked that "the states ought not to pay the
members, nor ought the amount to be fixed by the consti-
tution. He who pays is master. If each state pays its
own members, the burden being according to their re-
spective distances from the seat of government, would be
disproportionate. It has been asserted that the interests
of the general and state legislatures are precisely the same.
This cannot be correct. The views of the governed are
often materially different from those who govern. The
science of policy is the knowledge of human nature. A
state government will ever be the rival power of the gen-
eral government. It is, therefore, highly improper that
the state legislatures should be the paymasters of the
national government. All political bodies love power,
and it will often be improperly attained. "* It was re-
solved that the members should be paid from the public
treasury.
To secure the representatives from influence, it had been
proposed to render them ineligible to any office establish-
ed by a particular state, or by the United States, during
their term of service. It was now proposed to expunge
the clause which extended the restriction to one year after
the expiration of that term. King considered it impossi-
ble to carry t he system of exclusion so far," and we refine,"
he said, "too much by going in this instance to Utopian
lengths. It is a mere cobweb. "--" If there was no exclusive
clause, Madison thought there might be danger of creating
offices, or augmenting the stipends of those already created,
in order to gratify members if they were not excluded.
Such an instance had fallen within his own observation.
He was of the opinion that no office ought to be open to a
member, which might be created or the emolument aug-
? Yates, 152-3.
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? 514
THE LIFE OF
mented while he was in the legislature. " Hamilton closed
the debate* with these remarks:--
"In all general questions which become the subjects of
discussion, there are always some truths mixed with false-
hoods. I confess there is danger where men are capable
of holding two offices. Mankind in general are vicious--
their passions may be operated upon: we have been
taught to reprobate the danger of influence in the British
government, without duly reflecting how far it is neces-
sary to support a good government. We have taken up
many ideas upon trust, and at last, pleased with our own
opinions, establish them as undoubted truths. Hume'sf
opinion of the British constitution confirms the remark,
that there is always a body of firm patriots, who often
shake a corrupt administration. Take mankind as they
are, and what are they governed by? Their passions.
"There may be in every government a few choice spirits,
who may act from more worthy motives. One great error
is, that we suppose mankind more honest than they are.
Our prevailing passions are ambition and interest; and it
ever will be the duty of a wise government to avail itself
of those passions, in order to make them subservient to the
public good, for these ever induce us to action.
"Perhaps a few men in a state may, from patriotic mo-
tives, or to display their talents, or to reap the public ap-
plause, step forward. But if we adopt this clause, we
destroy the motive. I am, therefore, against all exclusions
and refinements, except this exclusion--that when a mem-
ber takes his seat, he should vacate every other office. It
* Yates, 156.
t "It was known that one of the ablest politicians (Mr. Hume) had pro-
nounced all that influence on the side of the crown which went under the
name of corruption, an essential part of the weight which maintained the
equilibrium of the constitution. "
Madison, 938,~gives this version of Hamilton's remarks thus italicised.
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? HAMILTON.
515 -
is difficult to put any exclusive regulation into effect; we
must in some degree submit to the inconvenience. "
The second branch, or senate, was next considered.
Hamilton, in accordance with his plan, wished that it should
be chosen by the people, through the medium of electors;
but it was decided that the choice should be made by the
state legislatures. Its term of service was much debated.
Madison said, " We are now to determine whether the re-
publican form shall be the basis of our government. " He
admitted that great powers were to be given, and that they
might be abused. Members may also lose their attachment
to their states. Yet the first branch would control them
in many of their abuses. "But we are now forming a body
on whose wisdom we mean to rely, and their permanency
in office secures a proper field in which they may exert
their firmness and knowledge. Democratic communities
may be unsteady, and be led to action by the impulse of
the moment. They may be sensible of their own weak-
ness, and desire the counsels and checks of friends to guard
them against the turbulence and weakness of unruly pas-
sions. Such are the various pursuits of this life, that, in
all civilized countries, the interest of a community will be
divided; there will be debtors and creditors, and an une-
qual possession of property; and hence arise different
views and different objects in government. This, indeed,
is the ground-work of aristocracy, and we find it blended
in every government, both ancient and modern. Even
where titles have survived property, we discover the noble
beggar haughty and assuming. The man who is possessed
of wealth, who lolls on his sofa or rolls in his carriage,
cannot judge of the wants or feelings of the day-labourer.
"The government we mean to erect is intended to last
for ages. The landed interest at present is prevalent; will
it not in time, by the operation of trade and manufactures,
be overbalanced in future elections? and, unless wisely pro-
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? 516 THE LIFE OF ,
vided against, what will become of your government? In
England, at this day, if elections were open to all classes
of people, the property of the landed proprietors would be
insecure; an agrarian law would soon take place. If
these observations be just, our government ought to secure
^he permanent interests of the country against innovation.
Landholders ought to have a share in the government to
Support these valuable interests, and to balance and check
the other. They ought lobe so constituted as to protect the
minority of the opulent against the majority. The senate,
therefore, ought to be this body; and, to answer these pur-
poses, ought to have permanency and stability. Various
have been the propositions; but my opinion is, the longer
they continue in office, the better will their view be an-
swered. "* "\
Sherman replied," that a bad government was the worse
for being long; that frequent elections give security and
permanency. That in Connecticut an annual government
had existed one hundred and thirty-two years, and as long
as a man behaves well he is never turned out of office.
Four years to the senate is quite sufficient with the rota-
tion proposed. "
Hamilton observed, "This question has already been
considered in several points of view. We are now form-
ing a republican government. Real liberty in neither found
in despotism, nor in the extremes of democracy, but in mode-
rate governments. Those" who mean to form a solid re-
publican government, ought to proceed to the confines of
another government^ As long as offices are open to all
* Yates, 169.
t It will be remarked that a similar opinion was expressed by Jefferson a
few months before. Writing from Paris, February 28,1787, to La Fayette,
then about to take part in the deliberations of France, he observed, " I wish
you success in your meeting, (the assembled des notables. ) I should form
better hopes of it, if it were divided into two houses instead of seven; keep.
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? HAMILTON.
517'
men, and no constitutional rank is established, it is pure
republicanism. But if we incline too much to democracy, we
shall soon shoot into a monarchy. The difference of pro-
perty is already great among us. Commerce and industry
will stjll increase the disparity. Your government must
meet this state of things, or combinations will in process
of time undermine your system. What was the tribuni-
tial power of Rome? It was instituted by the plebeians as a
guard against the patricians. But was this a sufficient
check? No! The only distinction which remained at
Rome was, at last, between the rich and poor. The gen-
tleman from Connecticut forgets that the democratic body
is already secure in a representation. As to Connecticut,
what were the little objects of their government before the
revolution? Colonial concerns merely. They ought now
to act on a more extended scale; and dare they do this?
Dare they collect the taxes and requisitions of congress?
Such a government may do well if they do not tax, and
this is precisely their situation. "
Wilson remarked, " The motion is now for nine years, ?
and a triennial rotation. Every nation attends to its for-
eign intercourse to support its commerce, to prevent foreign
contempt, and to make war and peace. Our senate will
be possessed of these powers, and therefore ought to be
dignified and permanent. What is the reason that Great
Britain does not enter into a commercial treaty with us?
Because congress has not the powers to enforce its observ-
ance. But give them those powers, and give them the
stability proposed by the motion, and they will have more
ing the good model of your neighbouring country before your eyes, you may
get on step by step towards a good constitution. Though that model is not
perfect, yet, as it would unite more suffrages than any new one which could
be proposed, it is better to make that the object. If every advance is to be pur.
chased by filling the royal coffers with gold, it will be gold well employed"
--2 Jeff. Works, p. 101.
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? 518
THE LIFE OF
permanency than a monarchical government. The great
objection of many is, that this duration would give birth to
views inconsistent with the interests of the union. This
can have no weight if the triennial rotation is adopted,
and this plan may possibly tend to conciliate the mjnds of
the members of the convention on this subject, which have
varied more than on any other question. " Delaware, Penn-
sylvania, and Virginia, were in favour of nine years, but
it was agreed that it should be six, with a biennial rota-
tion.
The discussion of the powers of the legislature was de-
ferred in order to consider the proportionate suffrage of
the states in its choice. Martin urged with great vehe-
mence an equal representation of the states as their right,
and as most promotive of the general welfare; and after
a motion of Lansing, that the representation in the first
branch should be according to the rule of the confederation,
Madison supported earnestly a proportionate representa-
tion of the states. "Some gentlemen," he said,* "are
afraid that the plan is not sufficiently national, while others
apprehend that it is too much so. If this point of re-
presentation was once well fixed, we would come nearer
to one another in sentiment. The necessity would then
be discovered of circumscribing more effectually the state
governments, and enlarging the bounds of the general gov-
ernment. Some contend that the states are sovereign, when
in fact they are only political societies. There is a gra-
dation of power in all societies, from the lowest corpora-
tion to the highest sovereign. The states never possessed
the essential rights of sovereignty. -These were always
vested in congress. Their voting as states in congress is
no evidence of sovereignty. The state of Maryland voted
by counties. Did this make the counties sovereign? The
? Yates, p. 184-5.
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? HAMILTON.
519
states at present are only great corporations, having the
power of making by-laws, and these are effectual only if
they are not contradictory to the general confederation.
? 502
THE LIFE OF
ers, as if they had been appointed by the president and
senate of the United States.
"If it be possible," Hamilton observed, "to construct a
federal government capable of regulating the common
concerns', and preserving the general tranquillity, it must
carry its agency to the persons of its citizens. It must
stand in need of no intermediate legislations, but must it-
self be empowered to employ the arm of the ordinary
magistrate to execute its own resolutions. The majesty
of the national authority must be manifested through the
medium of the courts of justice. The government of the
union, like that of each state, must be able to address itself
immediately to the hopes and fears of individuals, and to
attract to its support those passions which have the strong-
est influence upon the human heart. It must, in short,
possess all the means, and have a right to resort to all the
methods, of executing the powers with which it is intrust-
ed, that are possessed and exercised by the governments
of particular states. "
Under this important provision as to the appointments
of these governors and presidents, the administration of
the general government, pervading the states, would have
executed itself, while their legislatures would have retained
the control of that part of internal police which relates
"to the rights of property and life among individuals, the
administration of justice, the supervision of agriculture,
and of such things as are proper for local legislation. "
The advantages would thus have been attained of the re-
productiveness of the civil power, and of its diffusive force
throughout the whole extent of the republic, and the state
legislatures would have acted as sentinels to warn against
the first approach of usurpation.
The ninth article provided that the president must then
be "a citizen of one of the states, or hereafter be born a
citizen of the United States;" that senators and represen-
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? HAMILTON.
503
tatives must be citizens and inhabitants of the state in
which they were chosen.
Prompted by the recent proceedings in New-York, he
also provided that no person eligible as president, or to the
legislature, shall be disqualified but by the conviction of
some offence for which the law shall have previously or-
dained the punishment of disqualification; but that the
legislature might provide by law that persons holding
offices under the United States, or either of them, shall not
be eligible to the assembly, and " shall be, during their con-
tinuance in office, suspended from sitting in the senate. "
The citizens of each state were to be entitled to all the
immunities of citizens of other states, and full faith and
credit was to be given to the public acts, records, and ju-
dicial proceedings of each; fugitives from justice were
to be delivered up;--provisions taken from the articles of
confederation. No new state was to be formed without
the concurrent consent of the United States, and of the
states concerned; but new states might be admitted by
the general legislature into the union. The United States
were declared bound to guaranty a republican form of
government to each state, and to protect it as well against
domestic violence as against foreign invasion; a provision
drawn from the propositions of Randolph, but essentially
enlarged--supplying, as Hamilton observed, " a capital im-
perfection" in the articles of the confederation.
All treaties, contracts, and engagements under those ar-
ticles, were to have equal validity under the constitution;
no state could enter into a treaty or alliance with another,
or with a foreign power, without the consent of the United
States. The members of the legislature of the United
States and of each state, and all officers, executive and
judicial, were to take an oath or affirmation to support the
constitution of the United States.
Though a change of government would not have dis-
i
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? 504
THE LIFE OF
solved existing treaties not inconsistent with its principles,
yet Hamilton's knowledge of the distinctions of interna-
tional law would teach him the importance of a full and
explicit declaration on this important subject. as a guard
of the interests and of the faith of the nation. In the ab-
solute prohibition of treaties by the states with foreign
powers, the restrictive clause of the confederation was ex-
tended, and the requisition of an oath to support the con-
stitution was a useful additional bond. Amendments to it
were to be proposed by two-thirds of both houses, to be
ratified by the legislatures or conventions in two-thirds of
the states.
Finally, to secure the immediate operation of the new
system, and to give it the solemn sanction of the people,
it was provided (in the tenth article) that the constitution
should be submitted to conventions of the people of each
state, by their deputies, chosen under the direction of their
respective legislatures; that each convention ratifying the
constitution should appoint the first representatives and
senators from such state, the representatives so appointed
to continue in office only one year.
When the constitution shall have been duly ratified, con-
gress were to give notice of a day and place of meeting
of the senators and representatives from the several states;
a majority of whom, when assembled, it was provided,
shall, by plurality of voices in joint ballot, elect a president
of the United States, " and the constitution, thus organized,
shall be carried into effect. "
From this abstract it will be seenjQhough Hamilton
would have made use of the state governments for certain
purposes, thus completely refuting the allegation that he
contemplated their abrogation, yet it was his desire to
have established a simple government pervading the whole
union and uniting its inhabitants as one people. ^) As it was
necessary that "each department should havea will of its
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? HAMILTON. 505
/
own," this government was so constituted that the mem-
bers of each had no agency in the appointment of the
others, and, with the exception of the judiciary, each was
"drawn from the same fountain of authority, the people,
and through channels having no communication whatever
with one another. " "In the constitution of the judiciary
in particular," Hamilton remarked, "it might be inexpedient
to insist rigorously on the principle ; because peculiar quali-
fications being essential in the members, the primary con-
sideration ought to be to select that mode of choice which
best secures these qualifications, and because the perma-
nent tenure by which the appointments are held in that
department must soon destroy all sense of dependence on
the authority conferring them. "
"It is equally evident," he observed, " that the members
of each department should be as little dependent as possi-
ble on those of the others, for the emoluments annexed to
their offices:" hence is seen the provision that the compen-
sation of the executive and the judiciary should be fixed by
law; that of the judges not to be diminished during their
term, and to guard against executive influence, that of the
president to be neither increased nor diminished. "In
framing a government which is to be administered by men
over men, the great difficulty," he said, "lies in this--you
must first enable the government to control the governed,
and, in the next place, oblige it to control itself. A de-
pendence on the people is, no doubt, a primary control on
the government; but experience has taught mankind the
necessity of auxiliary precautions. " Of these, the chief
was "in the distribution of the supreme powers of the
state. " "But it is not possible," he observed, "to give to
each department an equal power of self-defence. In re-
publican governments, the legislative authority necessarily
predominates. The remedy for this inconvenience is, to
divide the legislature into different branches; and to ren-
64
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? 506
THE LIFE OF
der them by different modes of election, and different prin-
ciples of action, as little connected with each other as the
nature of their common functions and their common depend-
ence on the society will admit. " With these views in the
structure of this government, while by the frequent choice of
the popular branch elected by universal suffrage, the demo-
cratic influence was to be constantly renewed and invi-
gorated, in the duration of the senate and executive chosen
by constituents with property qualifications, he hoped to
secure efficient and enduring checks on the impetuosity
and instability of the many. The power of the people was
to be kept up by a constitutional augmentation of the
number of these representatives; and thus the barrier
against executive usurpation, if attempted, was steadily
strengthened; and " as the weakness of the executive," he
remarked, "may require that it should be fortified," he
gave him an "absolute negative on the legislature, as the
natural defence with which the executive magistrate should
be armed. "
Having provided these precautions, by the deposit of
the national trusts with representatives of different inter-
ests freely chosen by the people, and holding by a respon-
sible and defeasible tenure, governed by the great maxims
previously stated, he empowered the legislature "to pass
all laws necessary to the common defence and safety, and
to the general welfare of the union. "
It would require an elaborate commentary to indicate
the character and adaptation of the more minute parts of
this frame of government to their several purposes, nor will
its qualities be more fully discussed. If intrinsic de-
fects are seen, they are defects resulting from the inherent
difficulty of imparting the necessary and safe vigour and
stability to republican institutions, which exclude the prin-
ciple of hereditable power.
But in this approach " to the confines of another govern-
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? HAMILTON.
507
ment" without a departure from the republican theory, is
seen a remarkable manifestation, both of the fertility of
his genius, and of the severe and provident control of his
reason and experience. It would not be easy tojironounce
on the probable working of such a system,VDut the subse-
quent history of the country gives abunclant evidence,
that a departure from some of its principles has neither
added security to liberty nor promoted the general wel-
fare. ^'
* Plan in the Appendix.
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? 508
THE LIFE OF
CHAPTER XXIV.
[1787. ]
Having thus presented to the convention the model of
an efficient government. founded on the power of the peo-
ple, Hamilton now exerted all his influence to raise their
minds to a point which it is questionable whether they
would have otherwise reached. The result of these ef-
forts may be seen in the influence which the opinions of
Washington, however cautiously expressed, would exert
over the members of that body; and in the direction now
given to Madison's mind: both of whom, Hamilton subse-
quently stated, adopted his views, regarding his plan as
not exceeding in stability and strength what the exigen-
cies of the country required. "They were," in his own
words, "completely up to the scheme. "
On the day after his speech was delivered, Madison ad-
dressed the committee. * He stated that the confederation
might be dissolved by the infraction of any article of it,
recapitulating the instances in which it had been violated.
The Jersey plan did not provide for the ratification of the
states. Its judiciary was to have only an appellate juris-
diction, without providing for a second trial. We must
radically depart from the federal plan, or share the fate
of all confederacies. The Jersey plan gave no checks on
the excesses of the states. It did not secure the internal
tranquillity, nor prevent foreign influence.
* The residue of the debates is taken, with very few exceptions, from
Yatos, the general accuracy of which is confirmed by other authorities.
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? HAMILTON.
509
How is military coercion to enforce government? Un-
less we agree upon a plan, what will be the situation of the
smaller states? If they form partial confederacies, must
they not make larger concessions to the greater states?
The large states cannot assent to an equal representation.
If the states were equalized, state distinctions would still
exist.
In reply to an observation of Wilson, Hamilton remark-
ed that he did not intend yesterday a total extinguishment
of state governments, but that a national government ought
to be able to support itself without the aid or interference of
the state governments, and therefore should have full sove-
reignty. Even with corporate rights the states will be
dangerous to the national government, and ought to be
new modified, or reduced to a smaller scale. In the course
of a series of forcible and eloquent remarks, King observ-
ed that none of the states were at that time sovereign or
independent; many of their essential rights were vested in
congress. By the confederation, it possesses the rights of
the United States. This is the union of the men of these
states. None individually or collectively, except in con-
gress, have the rights of peace, or war, or treaty. The
magistracy in congress possesses the sovereignty. As to
certain points, we are now an united people; consolidation
is already established; the states are confederates, the con-
stituents of* a common sovereign, constituted with powers
partly federal and partly national. The alterations which
had been made, show others can be made, except the sub-
version of the states, which are expressly guarantied. The
articles of the confederation providing in themselves for an
alteration, might be so altered as to give them a national
character. "The declaration of independence," Wilson
said, "preceded the state constitutions. What does this
declare? In the name of the people of these states, we
are declared to be free and independent. The powers of
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? 510
THE LIFE OF
war, peace, alliances, and trade, are declared to be vested
in congress. "
"I assent to this remark," Hamilton observed; "establish
a weak government, and you must, at times, overleap its
bounds. Rome was obliged to create dictators. Cannot
propositions be made to the people because we before con-
federated on other principles? The people can grant the
powers if they will! The great objects of industry can
only be protected by a general government. " On motion
of King, it was resolved by seven states that the Jersey
plan was inadmissible.
Having thus obtained a decided expression of the opin-
ion of the convention against the continuance of a mere
league with enlarged powers, they proceeded, on the twen-
tieth of June, again to consider the Virginia resolutions.
After an amendment of the first, so as to declare that " the
government of the United States ought to consist of a su-
preme legislative, judiciary, and executive," Lansing moved
a declaration "that the powers of legislation be vested in
the United States in congress. "* He stated that if the Jer-
sey plan was not adopted, it would produce the mischiefs
they were convened to obviate. That the "principles of
that system" were "an equality of representation, and de-
pendence of the members of congress on the states. That
as long as state distinctions exist, state prejudices would
operate, whether the election be by the states or the peo-
ple. " If there was no interest to oppress, there was no
need of an apportionment. What would be the effect of
the other plan? Virginia would have sixteen, Delaware
one representative. Will the general government have
leisure to examine the state laws? Will it have the neces-
sary information? Will the states agree to surrender?
Let us meet public opinion, and hope the progress of senti-
* Hamilton's MSS. notes, v. i. p. 77.
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? HAMILTON. 511
ment will make future arrangements. "He would like the
system" of his colleague (Hamilton) "if it could be estab-
lished,"* but it was " a system without example. "
Mason wished to preserve the state governments, and to
draw lines of demarcation, trusting to posterity to amend.
He was in favour of a republican system with a legislature
of two branches.
Martin urged the grant of new powers, and such a mo-
dification of the existing system as would not endanger the
state governments. "The grant," he said, " is a state grant,
and the union must be so organized that the states are in-
terested in supporting it. " After further debate, the pro-
position to vest the powers of legislation in congress was
rejected, and the national plan was taken up. On the ques-
tion of constituting two branches of the legislature, Johnson
observed "that the Jersey plan would preserve the state
governments, and thus was a departure from that of Vir-
ginia, which, though it concentres in a distinct national gov-
ernment, is not wholly independent of those of the states.
"A gentleman from New-York, with boldness and deci-
sion, proposed a system totally different from both, and,
though he has been praised by every body, has been sup-
ported by none. He could have wished that the support-
ers of the Jersey system could have been satisfied with that
of Virginia, and the individuality of the states be sup-
ported. It is agreed on all hands that a portion of govern-
ment is to be left to the states; how can this be done?
By joining the states in their legislative capacities, with the
right of apportioning the second branch of the national
legislature to represent the states individually. " Wilson
would try to designate the powers of each. Madison ap-
prehended the greatest danger from the encroachments of
* In the original notes, "He would like my system if it could be estab-
lished--system without example. "
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? 512 THE LIFE OF
the states; an apprehension justified by experience.
The
negative on the state laws afforded one security to the na-
tional government. To draw the line between the two
was a difficult task. He believed it could not be done, and
was inclined to a general government. A national legis-
lature of two branches was approved.
On the question of the election of the first branch by
the people, great diversity of opinion existed. Hamilton
again declared himself in favour of it. He observed,* "It
is essential to the democratic rights of the community,
that this branch be directly elected by the people. Let us
look to probable events. There may arrive a period when
the state legislatures may cease. Such an event ought not
to embarrass the national government. "
King concurred in support of this principle. He believed
that the magistrates of the states will ever pursue schemes
of their own; and this state policy will, if the states elect
the first branch, pervade the national government, to which
those of the states will ever be hostile. After an opposite
view by Pinckney and Rutledge, the resolve, giving the
election to the people, was carried, and the duration of this
branch considered. It was proposed to limit it to two years.
Sherman was for one. Hamilton said,f "There is a medium;
I confess three years is not too long a term: a representative
ought to have freedom of deliberation, and ought to exercise
an opinion of his own. I am convinced the public mind
will adopt a solid plan; although the government of New-
York is higher toned than that of any other state, yet the
electors are listless and indifferent. The public are not
now ready to receive the best plan of government, but the
progress of circumstances will give it a different complex-
ion. " A biennial term was then adopted.
* Yates, page 149, omitted in Madison's reports, 926.
t Yates, 151. See Madison, 931.
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? HAMILTON. 513
On the inquiry as to the compensation of the members,
Hamilton remarked that "the states ought not to pay the
members, nor ought the amount to be fixed by the consti-
tution. He who pays is master. If each state pays its
own members, the burden being according to their re-
spective distances from the seat of government, would be
disproportionate. It has been asserted that the interests
of the general and state legislatures are precisely the same.
This cannot be correct. The views of the governed are
often materially different from those who govern. The
science of policy is the knowledge of human nature. A
state government will ever be the rival power of the gen-
eral government. It is, therefore, highly improper that
the state legislatures should be the paymasters of the
national government. All political bodies love power,
and it will often be improperly attained. "* It was re-
solved that the members should be paid from the public
treasury.
To secure the representatives from influence, it had been
proposed to render them ineligible to any office establish-
ed by a particular state, or by the United States, during
their term of service. It was now proposed to expunge
the clause which extended the restriction to one year after
the expiration of that term. King considered it impossi-
ble to carry t he system of exclusion so far," and we refine,"
he said, "too much by going in this instance to Utopian
lengths. It is a mere cobweb. "--" If there was no exclusive
clause, Madison thought there might be danger of creating
offices, or augmenting the stipends of those already created,
in order to gratify members if they were not excluded.
Such an instance had fallen within his own observation.
He was of the opinion that no office ought to be open to a
member, which might be created or the emolument aug-
? Yates, 152-3.
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? 514
THE LIFE OF
mented while he was in the legislature. " Hamilton closed
the debate* with these remarks:--
"In all general questions which become the subjects of
discussion, there are always some truths mixed with false-
hoods. I confess there is danger where men are capable
of holding two offices. Mankind in general are vicious--
their passions may be operated upon: we have been
taught to reprobate the danger of influence in the British
government, without duly reflecting how far it is neces-
sary to support a good government. We have taken up
many ideas upon trust, and at last, pleased with our own
opinions, establish them as undoubted truths. Hume'sf
opinion of the British constitution confirms the remark,
that there is always a body of firm patriots, who often
shake a corrupt administration. Take mankind as they
are, and what are they governed by? Their passions.
"There may be in every government a few choice spirits,
who may act from more worthy motives. One great error
is, that we suppose mankind more honest than they are.
Our prevailing passions are ambition and interest; and it
ever will be the duty of a wise government to avail itself
of those passions, in order to make them subservient to the
public good, for these ever induce us to action.
"Perhaps a few men in a state may, from patriotic mo-
tives, or to display their talents, or to reap the public ap-
plause, step forward. But if we adopt this clause, we
destroy the motive. I am, therefore, against all exclusions
and refinements, except this exclusion--that when a mem-
ber takes his seat, he should vacate every other office. It
* Yates, 156.
t "It was known that one of the ablest politicians (Mr. Hume) had pro-
nounced all that influence on the side of the crown which went under the
name of corruption, an essential part of the weight which maintained the
equilibrium of the constitution. "
Madison, 938,~gives this version of Hamilton's remarks thus italicised.
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? HAMILTON.
515 -
is difficult to put any exclusive regulation into effect; we
must in some degree submit to the inconvenience. "
The second branch, or senate, was next considered.
Hamilton, in accordance with his plan, wished that it should
be chosen by the people, through the medium of electors;
but it was decided that the choice should be made by the
state legislatures. Its term of service was much debated.
Madison said, " We are now to determine whether the re-
publican form shall be the basis of our government. " He
admitted that great powers were to be given, and that they
might be abused. Members may also lose their attachment
to their states. Yet the first branch would control them
in many of their abuses. "But we are now forming a body
on whose wisdom we mean to rely, and their permanency
in office secures a proper field in which they may exert
their firmness and knowledge. Democratic communities
may be unsteady, and be led to action by the impulse of
the moment. They may be sensible of their own weak-
ness, and desire the counsels and checks of friends to guard
them against the turbulence and weakness of unruly pas-
sions. Such are the various pursuits of this life, that, in
all civilized countries, the interest of a community will be
divided; there will be debtors and creditors, and an une-
qual possession of property; and hence arise different
views and different objects in government. This, indeed,
is the ground-work of aristocracy, and we find it blended
in every government, both ancient and modern. Even
where titles have survived property, we discover the noble
beggar haughty and assuming. The man who is possessed
of wealth, who lolls on his sofa or rolls in his carriage,
cannot judge of the wants or feelings of the day-labourer.
"The government we mean to erect is intended to last
for ages. The landed interest at present is prevalent; will
it not in time, by the operation of trade and manufactures,
be overbalanced in future elections? and, unless wisely pro-
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? 516 THE LIFE OF ,
vided against, what will become of your government? In
England, at this day, if elections were open to all classes
of people, the property of the landed proprietors would be
insecure; an agrarian law would soon take place. If
these observations be just, our government ought to secure
^he permanent interests of the country against innovation.
Landholders ought to have a share in the government to
Support these valuable interests, and to balance and check
the other. They ought lobe so constituted as to protect the
minority of the opulent against the majority. The senate,
therefore, ought to be this body; and, to answer these pur-
poses, ought to have permanency and stability. Various
have been the propositions; but my opinion is, the longer
they continue in office, the better will their view be an-
swered. "* "\
Sherman replied," that a bad government was the worse
for being long; that frequent elections give security and
permanency. That in Connecticut an annual government
had existed one hundred and thirty-two years, and as long
as a man behaves well he is never turned out of office.
Four years to the senate is quite sufficient with the rota-
tion proposed. "
Hamilton observed, "This question has already been
considered in several points of view. We are now form-
ing a republican government. Real liberty in neither found
in despotism, nor in the extremes of democracy, but in mode-
rate governments. Those" who mean to form a solid re-
publican government, ought to proceed to the confines of
another government^ As long as offices are open to all
* Yates, 169.
t It will be remarked that a similar opinion was expressed by Jefferson a
few months before. Writing from Paris, February 28,1787, to La Fayette,
then about to take part in the deliberations of France, he observed, " I wish
you success in your meeting, (the assembled des notables. ) I should form
better hopes of it, if it were divided into two houses instead of seven; keep.
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? HAMILTON.
517'
men, and no constitutional rank is established, it is pure
republicanism. But if we incline too much to democracy, we
shall soon shoot into a monarchy. The difference of pro-
perty is already great among us. Commerce and industry
will stjll increase the disparity. Your government must
meet this state of things, or combinations will in process
of time undermine your system. What was the tribuni-
tial power of Rome? It was instituted by the plebeians as a
guard against the patricians. But was this a sufficient
check? No! The only distinction which remained at
Rome was, at last, between the rich and poor. The gen-
tleman from Connecticut forgets that the democratic body
is already secure in a representation. As to Connecticut,
what were the little objects of their government before the
revolution? Colonial concerns merely. They ought now
to act on a more extended scale; and dare they do this?
Dare they collect the taxes and requisitions of congress?
Such a government may do well if they do not tax, and
this is precisely their situation. "
Wilson remarked, " The motion is now for nine years, ?
and a triennial rotation. Every nation attends to its for-
eign intercourse to support its commerce, to prevent foreign
contempt, and to make war and peace. Our senate will
be possessed of these powers, and therefore ought to be
dignified and permanent. What is the reason that Great
Britain does not enter into a commercial treaty with us?
Because congress has not the powers to enforce its observ-
ance. But give them those powers, and give them the
stability proposed by the motion, and they will have more
ing the good model of your neighbouring country before your eyes, you may
get on step by step towards a good constitution. Though that model is not
perfect, yet, as it would unite more suffrages than any new one which could
be proposed, it is better to make that the object. If every advance is to be pur.
chased by filling the royal coffers with gold, it will be gold well employed"
--2 Jeff. Works, p. 101.
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? 518
THE LIFE OF
permanency than a monarchical government. The great
objection of many is, that this duration would give birth to
views inconsistent with the interests of the union. This
can have no weight if the triennial rotation is adopted,
and this plan may possibly tend to conciliate the mjnds of
the members of the convention on this subject, which have
varied more than on any other question. " Delaware, Penn-
sylvania, and Virginia, were in favour of nine years, but
it was agreed that it should be six, with a biennial rota-
tion.
The discussion of the powers of the legislature was de-
ferred in order to consider the proportionate suffrage of
the states in its choice. Martin urged with great vehe-
mence an equal representation of the states as their right,
and as most promotive of the general welfare; and after
a motion of Lansing, that the representation in the first
branch should be according to the rule of the confederation,
Madison supported earnestly a proportionate representa-
tion of the states. "Some gentlemen," he said,* "are
afraid that the plan is not sufficiently national, while others
apprehend that it is too much so. If this point of re-
presentation was once well fixed, we would come nearer
to one another in sentiment. The necessity would then
be discovered of circumscribing more effectually the state
governments, and enlarging the bounds of the general gov-
ernment. Some contend that the states are sovereign, when
in fact they are only political societies. There is a gra-
dation of power in all societies, from the lowest corpora-
tion to the highest sovereign. The states never possessed
the essential rights of sovereignty. -These were always
vested in congress. Their voting as states in congress is
no evidence of sovereignty. The state of Maryland voted
by counties. Did this make the counties sovereign? The
? Yates, p. 184-5.
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? HAMILTON.
519
states at present are only great corporations, having the
power of making by-laws, and these are effectual only if
they are not contradictory to the general confederation.
