A
government
performing its great office of providing
for the common defence and safety, and for the general
welfare, by its own comprehensive organs, acting upon indi-
viduals, the only proper objects of government, would
perhaps have possessed a sufficiently central power to have
maintained its due ascendency.
for the common defence and safety, and for the general
welfare, by its own comprehensive organs, acting upon indi-
viduals, the only proper objects of government, would
perhaps have possessed a sufficiently central power to have
maintained its due ascendency.
Hamilton - 1834 - Life on Hamilton - v2
"
Neither in the general outline, nor in the subdivisions, does it approach so
near to accuracy as by possibility to have received the sanction of its author.
A few of the discrepancies will be indicated.
In Madison's report of the preliminary remarks, to show that the states
may have had in view a reference to the people at large, he ascribes this ob-
servation to Hamilton:--" In the senate of New-York a proviso was moved,
that no act of the convention should be binding until it should be referred to the
people, and ratified; and the motion was lost by a single voice only; the rea-
son assigned being, that it might probably be found an inconvenient shackle. "
Had this proviso been moved, it must have been moved on the 28th of Feb-
ruary, 1787, upon a resolution introduced by Hamilton in the assembly on
the 26th, and proposed by Schuyler in the senate on that day. No such pro-
viso was moved.
The proviso actually moved was that of Yates, an adherent of Clinton,
who proposed to insert a declaration that" the alterations and provisions in the
articles of confederation should be not repugnant to, or inconsistent with, the
constitution of the state," and it was lost by a single vote.
Thus Hamilton is represented as sanctioning the accuracy of a speech,
which contains a statement of an occurrence that did not take place, when
he was a principal actor in, and was familiar with all the particulars of what
had occurred at an interval of less than four months.
As the ground of the opposition of his colleagues, and that on which they
soon after withdrew from the convention, was, that it was exceeding its pow-
ers, it is obvious, if he had made such a statement, that it would have been
controverted by them, and shown to have been erroneous by referring to the
journals of New-York. As no such statement was made by Hamilton, no
contradiction of it is found in the notes of Yates; but his actual representa-
tion, and which corresponds with the fact, is there correctly given. "Nor
can we," he observed, in reply to Lansing,} "suppose an annihilation of our
powers by forming a national government, as many of the states have made
t Yalee' Debates. 130. New-York Journal* 1787. pp. 44, 45, February 28th.
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? HAMILTON.
491
journal, but "a full plan, so prepared that it might have
gone into immediate effect if it had been adopted. "
This plan consisted of ten articles, each article being
divided into sections.
in their constitutions no provisions for any alterations; and thus much / can
say for the state I have the honour to represent, that when our credentials
were under consideration in the senate, some members were for inserting a
restriction on the powers, to prevent an encroachment on the constitution.
It was answered by others; and, therefore, the resolve carried on the creden.
tials, that it might abridge some of the constitutional powers of the state, and
possibly, in the formation of a new union, it would be found necessary. This
appears reasonable, and therefore leaves us at liberty to form such a national
government as we think best adapted to the good of the whole. "
In the enumeration of the supports of government, Madison, 880, represents
Hamilton as stating the second to be " the love of power. Men love power.
The same remarks are applicable to this principle:--the states have con-
stantly shown a disposition rather to regain the powers delegated by them,
than to part with more, or to give effect to what they had parted with! The
ambition of their demagogues is known to hate the control of the general
government. " Could he have embraced "the love of power," producing
such consequences as are here enumerated, among " the supports of govern-
ment? "
Yates states the second support thus, "Utility and necessity," which
agrees with the brief, each confirming the accuracy of the other. And sub.
sequcntly, when he represents Hamilton as saying " men always love power,"
he represents him as adding the observation, "and states will prefer particu-
lar concerns to the general welfare. " In No. 15 of the Federalist, after
speaking of the perpetual effort "of the states, or inferior orbs, to fly off from
the common centre," Hamilton observes: "This tendency is not difficult to
be accounted for--it has its origin in the love of power. Power controlled, or
abridged, is almost always the rival and enemy of that power by which it is
controlled or abridged. " The third support stated by Hamilton, Madison
says, was " an habitual attachment by the people. " Yates concurs with the
Juliet, in stating it to be " an habitual sense of obligation. "*
( A more remarkable feature in this report is, that Madison, in order to leave
the impression that Hamilton contemplated a monarchy, omits the declara-
tion ascribed to him by Yates. "/ despair that a republican form of gov-
ernment can remove the difficulties. Whatever may be my opinion, I would
* Yates, 191. If this should be called a verbal difference, it will be recollected that Hamiltoo
is said to have acknowledged *' the fidelity of his report, without suggesting more than a very
few verbal alterations. " Would he not have suggested an alteration of this error 1
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? 492 THE LIFE OF
The first of these declared that the "legislative power
should be vested in an assembly and senate, subject to a
negative; the executive power, with specified qualifica-
tions, in a president of the United States; and the supreme
judicial authority, with certain exceptions, in a supreme
court, to consist of not less than six, nor more than twelve,
judges.
The assembly of representatives were (by the second ar-
ticle) to be chosen by the free male citizens and inhabitants
of the several states in the union, all of whom, of the age
of twenty-one years and upwards, were to be entitled to
an equal vote. The first assembly was to consist of one
hundred members, which were distributed among the
states--the most populous state, Virginia, having sixteen,
and the least populous, Delaware, having two representa-
tives. The whole number was never to be less than one
hold it, however, unwise to change that form of government. "* Thus con.
curring with the declaration previously more accurately given, in his own
language, "that the republican theory ought to be adhered to in this country
as long as there was any chance of its success; that the idea of a perfect equal-
ity of all political rights among the citizens, exclusive of all permanent and
hereditary distinctions, was of a nature to engage the good wishes of every
good man, whatever might be his theoretic doubts; that it merited his best
l efforts to give success to it in practice; that hitherto, from an incompetent
structure of the government, it had not had a fair trial; and that the en-
deavour ought then to be, to secure to it a better chance of success, by a gov-
ernment more capable of energy and order. "
We-lrue friend of his fame can regret that ho entertained, and, entertain-
ing, expressed these theoretic doubts; and it is the sublimest aspect of his
character, that, in despite of these doubts, he devoted " the best efforts" of
his life to give this experiment of "a perfect equality of political rights, sue.
cess in practice. " J
* Madison, 893, says in a note: "The explanatory observations, which did not immediately
follow, were to have been furnishc J by Mr. H. . who did not find leisure at the lime to write them
out. and they wore not obtained. " It is not probable Hamilton, approving his report of the
speech, as he alleges, would have omitted such important explanatory observations. But if he
did so omit them, it was incumbent upon Madison to havo given the substance of them. On
reading them, the motive to this omission become* obvious.
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? HAMILTON.
493
hundred, nor more than a given number, which was not
fixed, to be apportioned among the states by a decennial
census of the whole number of free persons, except In-
dians not taxed, and three-fifths of all other persons: the
term of service was to be determined by the legislature, but
was not to exceed three years, and to commence and end
the same day. It was to choose its own officers, to judge
and decide on the qualifications and elections of its mem-
bers, and to have the exclusive power of impeachment;
but the concurrence of two-thirds was necessary to im-
peach a senator.
Revenue bills and appropriations for the support of
fleets and armies, and for the salaries of the officers of gov-
ernment, were to originate in this body, but might be al-
tered or amended by the senate. The acceptance of of-
fice under the United States, vacated a scat in it. Thus,
in the constituency of this branch of the government, (all
the citizens and inhabitants of the union,) the principle of
universal suffrage was recognised, and the democratic
interests were fully represented. Its power over the purse,
the sword, and over impeachments, gave it the means to
resist usurpation, and rendered it an efficient counterpoise
to the more durable members of the government, and the
natural guardian of the rights and liberties of the people.
The third article related to the second branch of the le-
gislature. The senate were also representatives of the
people, but under the modifications that the senators were
to be chosen by electors elected in districts of the states
for that purpose, and only by persons who had an estate
in land for life, or for an unexpired term of not less than
fourteen years. The first senate was to be apportioned
among the states as the convention should decide. For
the purpose of future elections, the states which had more
than one senator, were to be divided into convenient dis-
tricts, to which senators were to be apportioned. A state
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? 494
THE LIFE OF
having one senator, to be a district. In case of death, re-
signation, or the removal of a senator from office, his place
was to be supplied by a new election in the district from
which he came; and upon each election there were not to
be less than six nor more than twelve electors chosen in
a district. The senate was never to consist of less than
forty members, nor was any state to have a less number
than that originally allotted to it; but the number might
be increased in proportion to the whole number of repre-
sentatives in the ratio of forty to one hundred; the increase
to be apportioned among the states according to the re-
spective numbers of their representatives. The senators
were to hold during good behaviour, removable only by
conviction on impeachment for some crime or misdemea-
nor, and might vote by proxy, but no senator present was
to hold more than two proxies. To the senate, thus repre-
senting the numbers and property of the country, compo-
sing a not numerous body, and removed from immediate
popular influences and passions, were confided the sole
power of declaring war, and a control over the patronage
of the government, by requiring its consent to executive
appointments, which consent was also necessary to the
ratification of treaties.
By the fourth article, the president was to be elected by
electors chosen by electors chosen by the people in election
districts. The first electors of each state were to be equal
in number to the whole number of senators and represen-
tatives of such state in the national legislature. They were
to be chosen by its citizens having an estate of inheritance,
or for three lives in land, or a clear personal estate of the
value of a thousand Spanish dollars of the then standard.
These first electors of each state, meeting together, were
to vote for a president by ballot, not being one of their
own number. Then they were to nominate openly two
persons as second electors; and out of the nominees having
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? HAMILTON.
495
the four highest numbers, were to choose by ballot, by plu-
rality of votes, two who were to be the second electors of
each state. These second electors, neither of whom could
be voted for as president, were to meet on an appointed
day, and in the presence of the chief-justice, or of a senior
judge of the supreme court of the United States, were to
open the lists of the persons voted for by the first electors.
The person having a majority of the whole number, was
to be president. If there was not a majority, then the se-
cond electors were to vote for one of the three persons
having the highest number of the votes of the first electors;
and the person having a number of votes equal to a ma-
jority of the whole number of the second electors chosen,
was to be the president. But if no such second choice
should be made, then the person having the highest num-
ber of votes of the first electors, was to be president. By
this complicated process, it was hoped to obtain a correct-
ed expression of the public wishes in the choice of the
chief magistrate, who was still the representative of the
people. v
The president was to take an oath, " faithfully to exe-
cute his office, and to the utmost of his judgment and power
to protect the rights of the people, and preserve the con-
stitution inviolate. " He was to hold his office during good
behaviour, removable only by conviction upon impeach-
ment of some crime or misdemeanor. He was to have
power to convene and to prorogue the legislature; to have
a negative on the acts and resolutions of the assembly and
senate ; to take care that the laws be faithfully executed; to
be commander-in-chief of the army, navy, and militia; and
to have the direction of war when commenced, but not to
take the actual command in the field without the consent
of the senate and assembly; to have the absolute appoint-
ment of the chief officers of the four great executive de-
partments, and the nomination, and, with the advice of the
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? ,190
THE LIFE OF
senate, the appointment of all other officers, except such
as were differently provided for by the constitution, re-
serving to the legislatures the power of appointing by name,
in their laws, persons to execute special trusts, and leaving
to ministerial officers the appointment of their deputies.
He might fill vacancies temporarily in the recess of the
senate, and could pardon all offences except treason, which
required the assent of the senate and assembly. He might
be impeached by two-thirds of the legislature, two-thirds
of each house concurring. If convicted, to be removed
from office, and then tried and punished in the ordinary
course of law. His impeachment was to operate as a sus-
pension, until determined. His compensation was to be
fixed, and not to be increased or diminished during his
term of service. If he departed the United States, his of-
fice was abdicated.
The president of the senate was to be vice-president;
to exercise all the powers of the president in case of his
death, resignation, impeachment, removal from office, or
absence from the United States, until another was chosen.
The chief-justice, and other judges of the supreme court,
were (by the fifth article) to hold during good behaviour,
removable by impeachment and conviction. They were
to have original jurisdiction in all causes in which the
United States shall be a party: in all controversies between
the United States and a particular state, or between two
or more states, except questions of territory; in all cases
affecting foreign ministers, consuls, and agents: and an ap-
pellate jurisdiction, both as to law and fact, in all cases
concerning the citizens of foreign nations; in all questions
between the citizens of different states, and in all others in
which the fundamental rights of the constitution were in-
volved, subject to specified exceptions, and to the regula-
tions of the legislature. The judges of all courts which
might be constituted by the legislature, were also to hold
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? HAMILTON.
497
during good behaviour, removable by impeachment, and
were to have competent salaries, to be paid at stated times,
and not to be diminished during their continuance in office;
but the legislatures might abolish the courts themselves.
All crimes, except on impeachment, were to be tried by
a jury of twelve men, in the state where committed; and
all civil causes arising under the constitution, before triable
by jury in the states, were also to be tried by jury, unless
two-thirds of the national legislature should, in special
cases, concur in a different provision.
When offices were of such duration as good behaviour,
it was felt to be highly important to provide an efficacious
and independent tribunal of impeachment; and as not only
the rights of the nation, but of the states, were to be guarded,
to have reference in its constitution to the general and par-
ticular governments.
With this view, a court of impeachment was to be insti-
tuted, by which the president, vice-president, the senators,
governors, and presidents of the states, the principal offi-
cers of the great executive departments, ambassadors and
public ministers, judges of the supreme court, generals and
admirals of the navy, were to be tried. This court was to
consist of the judges of the supreme court, and of the chief
justice, or first or senior judge, of the supreme court of law
of each state, of whom twelve were to compose a court,
and a majority might convict. All other persons, when
impeached, were to be tried by a court to consist of the
judges of the supreme court and six senators, drawn by
lot, a majority of whom might convict. Provisions were
made for conducting these impeachments. Such was to
have been the permanent structure of this government.
The danger of collisions between the states, arising out
of conflicting claims of territory, had been presented to
Hamilton, in the progress of the controversy between New-
York and Vermotit. Other claims were unsettled. He
68
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? 498
THE LIFE OF
proposed (in a sixth article) that a court should be formed,
when territorial controversies should arise, of persons to
be nominated by the controverting states, not their own
citizens, double the number of the judges of the supreme
court, one-half of whom, elected by the senate, should,
with the judges of that court, decide the appeal.
In the resolutions prepared by Hamilton in seventeen
hundred and eighty-three, it is seen that the leading defect of
the confederation proposed to be corrected by him was, its
"confining the federal government within too narrow limits;
withholding from it that efficacious authority and influence in
all matters of general concern, which are indispensable to
the harmony and welfare of the whole; embarrassing gen-
eral provisions by unnecessary details and inconvenient ex-
ceptions, incompatible with their nature, tending only to cre-
ate jealousies and disputes respecting the proper bounds of
the authority of the United States, and that of the particular
states, and a mutual interference of the one with the other. "
It was a settled maxim in his mind, " that a government
ought to contain within itself every power requisite to the
full accomplishment of the objects committed to its care,
and to the complete execution of the trusts for which it is
responsible; free from every other control but a regard
for the public good, and to the sense of the people. "
Another maxim was," that every power ought to be
commensurate with its object; that there ought to be no
limitation of a power destined to affect a purpose which is
of itself incapable of limitation. " Applying these enlarged
and obvious principles, and having sought to guard, in the
structure of the government, against an abuse of its pow-
ers, he declared, in the seventh article of this constitution,
that " the legislature of the United States shall have power
to pass all laws which they shall judge necessary to the
common defence and general welfare of the union. "
As a check upon this power, every act, bill, or resolu-
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? HAMILTON.
499
tion, was to have the assent of the president, which, if not
given within ten days after such, act being presented to
him, was to become a law, of which the enacting style
was to be, that it was " enacted by the people of the Uni-
ted States of America;" thus recognising in every exer-
cise of legislative power the sovereignty and unity of the
American people. This general power was followed by
the declaration of a few general restrictions in the nature
of a bill of rights, either suggested by the experience of
this country, or having reference to the nature of the gov-
ernment.
The danger of legislative tyranny, and of retrospective
laws, not only to the domestic peace, but to the foreign
relations of the country, had been too immediately before
him not to have commanded his attention. To provide
an efficient check to such pernicious proceedings, he
framed a clause declaring "that no bill of attainder or
ex post facto law shall be passed;" and adopting the lan-
guage of the articles of the confederation, and thus add-
ing guards to the republican system, he provided that no
title of nobility should be granted by the United States, or
either of them, and that no person holding any office or
trust under the United States should, without permission
of the legislature, accept any present, emolument, office, or
title, from a foreign prince or state. "The prohibition of
titles of nobility," he said, " may truly be denominated the
corner-stone of republican government; for, so long as
titles of nobility are excluded, there can never be serious
danger that the government will be any other than that of
the people. "
To preclude the recurrence of such an attempt as he
had recently defeated in the assembly of New-York, and
carrying out the principle that is seen in his system of
public instruction, he embodied in the constitution the
proviso, so important to the interests of religion, to free-
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? 500
THE LIFE OF
dom of opinion, and to the peace of society, "nor shall
any religious sect, or denomination, or religious test for
any office or place, be ever established by law. "
In forming a government founded upon a full recogni-
tion of the sovereignty of the people, it is seen that he had
apportioned the representation to the number of free in-
habitants; thus following this great principle to its appro-
priate result. But in apportioning the direct contribu-
tions of the states to the public treasury, there being no
common measure of a nation's wealth, he took a basis
which, in the peculiar condition of this country, promised
a nearer approach to equality than any other. "Taxes
on lands, houses, and other real estate, and capitation
taxes, were to be proportioned in each state to the whole
number of free persons, except Indians not taxed, and
three-fifths of all other persons. "
As the command over the purse of the nation was in-
tended by him to be a real check upon the action of the
government, and with this view the originating revenue
bills had been given to the popular branch, he provided
"that the two houses might by joint ballot appoint a trea-
surer of the United States," thus securing the custody of the
revenues of the nation to the department it had intrusted
with raising and appropriating them.
A government performing its great office of providing
for the common defence and safety, and for the general
welfare, by its own comprehensive organs, acting upon indi-
viduals, the only proper objects of government, would
perhaps have possessed a sufficiently central power to have
maintained its due ascendency. But as the state govern-
ments were to continue in order to prevent collision, it was
declared that the laws of the United States, and treaties
made under the articles of the confederation, and to be
made under the constitution, were to be the supreme law
of the land, and to be so construed by the several courts of
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? n AMILTON.
501
the several states. The legislature was to convene once in
each year, which, unless otherwise provided for by law,
should be on the first Monday in December; to receive a
reasonable compensation fixed by law, no succeeding as-
sembly to increase its own compensation.
The preceding injunction, that the laws and treaties of
the United States "shall be the supreme law of the land,"
obligatory on all the courts, guarded against conflicts with
the legislation of the states, and in theory secured the ne-
cessary supremacy to the judiciary power of the general
government; but that power might be rendered nugatory
by a defective execution of those laws. The position of
New York at that moment indicated the danger to be ap-
prehended from the executive trust of the states being in-
dependent of the government of the union.
To provide against both these evils, he declared (in the
eighth article) that the governor or president of each state
shall be appointed by the authority of the United States,
shall have a negative on all laws about to be passed in the
state of which he shall be governor or president, subject to
such regulations as the legislature of the United States
shall prescribe, but in all other respects, except as to the
appointment of the officers of the militia, to have the same
powers the constitution of the states then did or should
allow. Each governor or president of a state was to
hold his office until a successor was actually appointed,
which could not be during the recess of the senate, "un-
less he died, resigned, or was removed on impeachment. "
The officers of the militia might be appointed under the
authority of the United States, unless its legislature au-
thorized their appointment by the governors or presidents
of the states; and, to avoid any obstruction from that
source, the governors and presidents of the states at the
time of the ratification of the constitution, were to con-
tinue in office in the same manner, and with the same pow-
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? 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.
Neither in the general outline, nor in the subdivisions, does it approach so
near to accuracy as by possibility to have received the sanction of its author.
A few of the discrepancies will be indicated.
In Madison's report of the preliminary remarks, to show that the states
may have had in view a reference to the people at large, he ascribes this ob-
servation to Hamilton:--" In the senate of New-York a proviso was moved,
that no act of the convention should be binding until it should be referred to the
people, and ratified; and the motion was lost by a single voice only; the rea-
son assigned being, that it might probably be found an inconvenient shackle. "
Had this proviso been moved, it must have been moved on the 28th of Feb-
ruary, 1787, upon a resolution introduced by Hamilton in the assembly on
the 26th, and proposed by Schuyler in the senate on that day. No such pro-
viso was moved.
The proviso actually moved was that of Yates, an adherent of Clinton,
who proposed to insert a declaration that" the alterations and provisions in the
articles of confederation should be not repugnant to, or inconsistent with, the
constitution of the state," and it was lost by a single vote.
Thus Hamilton is represented as sanctioning the accuracy of a speech,
which contains a statement of an occurrence that did not take place, when
he was a principal actor in, and was familiar with all the particulars of what
had occurred at an interval of less than four months.
As the ground of the opposition of his colleagues, and that on which they
soon after withdrew from the convention, was, that it was exceeding its pow-
ers, it is obvious, if he had made such a statement, that it would have been
controverted by them, and shown to have been erroneous by referring to the
journals of New-York. As no such statement was made by Hamilton, no
contradiction of it is found in the notes of Yates; but his actual representa-
tion, and which corresponds with the fact, is there correctly given. "Nor
can we," he observed, in reply to Lansing,} "suppose an annihilation of our
powers by forming a national government, as many of the states have made
t Yalee' Debates. 130. New-York Journal* 1787. pp. 44, 45, February 28th.
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? HAMILTON.
491
journal, but "a full plan, so prepared that it might have
gone into immediate effect if it had been adopted. "
This plan consisted of ten articles, each article being
divided into sections.
in their constitutions no provisions for any alterations; and thus much / can
say for the state I have the honour to represent, that when our credentials
were under consideration in the senate, some members were for inserting a
restriction on the powers, to prevent an encroachment on the constitution.
It was answered by others; and, therefore, the resolve carried on the creden.
tials, that it might abridge some of the constitutional powers of the state, and
possibly, in the formation of a new union, it would be found necessary. This
appears reasonable, and therefore leaves us at liberty to form such a national
government as we think best adapted to the good of the whole. "
In the enumeration of the supports of government, Madison, 880, represents
Hamilton as stating the second to be " the love of power. Men love power.
The same remarks are applicable to this principle:--the states have con-
stantly shown a disposition rather to regain the powers delegated by them,
than to part with more, or to give effect to what they had parted with! The
ambition of their demagogues is known to hate the control of the general
government. " Could he have embraced "the love of power," producing
such consequences as are here enumerated, among " the supports of govern-
ment? "
Yates states the second support thus, "Utility and necessity," which
agrees with the brief, each confirming the accuracy of the other. And sub.
sequcntly, when he represents Hamilton as saying " men always love power,"
he represents him as adding the observation, "and states will prefer particu-
lar concerns to the general welfare. " In No. 15 of the Federalist, after
speaking of the perpetual effort "of the states, or inferior orbs, to fly off from
the common centre," Hamilton observes: "This tendency is not difficult to
be accounted for--it has its origin in the love of power. Power controlled, or
abridged, is almost always the rival and enemy of that power by which it is
controlled or abridged. " The third support stated by Hamilton, Madison
says, was " an habitual attachment by the people. " Yates concurs with the
Juliet, in stating it to be " an habitual sense of obligation. "*
( A more remarkable feature in this report is, that Madison, in order to leave
the impression that Hamilton contemplated a monarchy, omits the declara-
tion ascribed to him by Yates. "/ despair that a republican form of gov-
ernment can remove the difficulties. Whatever may be my opinion, I would
* Yates, 191. If this should be called a verbal difference, it will be recollected that Hamiltoo
is said to have acknowledged *' the fidelity of his report, without suggesting more than a very
few verbal alterations. " Would he not have suggested an alteration of this error 1
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? 492 THE LIFE OF
The first of these declared that the "legislative power
should be vested in an assembly and senate, subject to a
negative; the executive power, with specified qualifica-
tions, in a president of the United States; and the supreme
judicial authority, with certain exceptions, in a supreme
court, to consist of not less than six, nor more than twelve,
judges.
The assembly of representatives were (by the second ar-
ticle) to be chosen by the free male citizens and inhabitants
of the several states in the union, all of whom, of the age
of twenty-one years and upwards, were to be entitled to
an equal vote. The first assembly was to consist of one
hundred members, which were distributed among the
states--the most populous state, Virginia, having sixteen,
and the least populous, Delaware, having two representa-
tives. The whole number was never to be less than one
hold it, however, unwise to change that form of government. "* Thus con.
curring with the declaration previously more accurately given, in his own
language, "that the republican theory ought to be adhered to in this country
as long as there was any chance of its success; that the idea of a perfect equal-
ity of all political rights among the citizens, exclusive of all permanent and
hereditary distinctions, was of a nature to engage the good wishes of every
good man, whatever might be his theoretic doubts; that it merited his best
l efforts to give success to it in practice; that hitherto, from an incompetent
structure of the government, it had not had a fair trial; and that the en-
deavour ought then to be, to secure to it a better chance of success, by a gov-
ernment more capable of energy and order. "
We-lrue friend of his fame can regret that ho entertained, and, entertain-
ing, expressed these theoretic doubts; and it is the sublimest aspect of his
character, that, in despite of these doubts, he devoted " the best efforts" of
his life to give this experiment of "a perfect equality of political rights, sue.
cess in practice. " J
* Madison, 893, says in a note: "The explanatory observations, which did not immediately
follow, were to have been furnishc J by Mr. H. . who did not find leisure at the lime to write them
out. and they wore not obtained. " It is not probable Hamilton, approving his report of the
speech, as he alleges, would have omitted such important explanatory observations. But if he
did so omit them, it was incumbent upon Madison to havo given the substance of them. On
reading them, the motive to this omission become* obvious.
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? HAMILTON.
493
hundred, nor more than a given number, which was not
fixed, to be apportioned among the states by a decennial
census of the whole number of free persons, except In-
dians not taxed, and three-fifths of all other persons: the
term of service was to be determined by the legislature, but
was not to exceed three years, and to commence and end
the same day. It was to choose its own officers, to judge
and decide on the qualifications and elections of its mem-
bers, and to have the exclusive power of impeachment;
but the concurrence of two-thirds was necessary to im-
peach a senator.
Revenue bills and appropriations for the support of
fleets and armies, and for the salaries of the officers of gov-
ernment, were to originate in this body, but might be al-
tered or amended by the senate. The acceptance of of-
fice under the United States, vacated a scat in it. Thus,
in the constituency of this branch of the government, (all
the citizens and inhabitants of the union,) the principle of
universal suffrage was recognised, and the democratic
interests were fully represented. Its power over the purse,
the sword, and over impeachments, gave it the means to
resist usurpation, and rendered it an efficient counterpoise
to the more durable members of the government, and the
natural guardian of the rights and liberties of the people.
The third article related to the second branch of the le-
gislature. The senate were also representatives of the
people, but under the modifications that the senators were
to be chosen by electors elected in districts of the states
for that purpose, and only by persons who had an estate
in land for life, or for an unexpired term of not less than
fourteen years. The first senate was to be apportioned
among the states as the convention should decide. For
the purpose of future elections, the states which had more
than one senator, were to be divided into convenient dis-
tricts, to which senators were to be apportioned. A state
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? 494
THE LIFE OF
having one senator, to be a district. In case of death, re-
signation, or the removal of a senator from office, his place
was to be supplied by a new election in the district from
which he came; and upon each election there were not to
be less than six nor more than twelve electors chosen in
a district. The senate was never to consist of less than
forty members, nor was any state to have a less number
than that originally allotted to it; but the number might
be increased in proportion to the whole number of repre-
sentatives in the ratio of forty to one hundred; the increase
to be apportioned among the states according to the re-
spective numbers of their representatives. The senators
were to hold during good behaviour, removable only by
conviction on impeachment for some crime or misdemea-
nor, and might vote by proxy, but no senator present was
to hold more than two proxies. To the senate, thus repre-
senting the numbers and property of the country, compo-
sing a not numerous body, and removed from immediate
popular influences and passions, were confided the sole
power of declaring war, and a control over the patronage
of the government, by requiring its consent to executive
appointments, which consent was also necessary to the
ratification of treaties.
By the fourth article, the president was to be elected by
electors chosen by electors chosen by the people in election
districts. The first electors of each state were to be equal
in number to the whole number of senators and represen-
tatives of such state in the national legislature. They were
to be chosen by its citizens having an estate of inheritance,
or for three lives in land, or a clear personal estate of the
value of a thousand Spanish dollars of the then standard.
These first electors of each state, meeting together, were
to vote for a president by ballot, not being one of their
own number. Then they were to nominate openly two
persons as second electors; and out of the nominees having
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? HAMILTON.
495
the four highest numbers, were to choose by ballot, by plu-
rality of votes, two who were to be the second electors of
each state. These second electors, neither of whom could
be voted for as president, were to meet on an appointed
day, and in the presence of the chief-justice, or of a senior
judge of the supreme court of the United States, were to
open the lists of the persons voted for by the first electors.
The person having a majority of the whole number, was
to be president. If there was not a majority, then the se-
cond electors were to vote for one of the three persons
having the highest number of the votes of the first electors;
and the person having a number of votes equal to a ma-
jority of the whole number of the second electors chosen,
was to be the president. But if no such second choice
should be made, then the person having the highest num-
ber of votes of the first electors, was to be president. By
this complicated process, it was hoped to obtain a correct-
ed expression of the public wishes in the choice of the
chief magistrate, who was still the representative of the
people. v
The president was to take an oath, " faithfully to exe-
cute his office, and to the utmost of his judgment and power
to protect the rights of the people, and preserve the con-
stitution inviolate. " He was to hold his office during good
behaviour, removable only by conviction upon impeach-
ment of some crime or misdemeanor. He was to have
power to convene and to prorogue the legislature; to have
a negative on the acts and resolutions of the assembly and
senate ; to take care that the laws be faithfully executed; to
be commander-in-chief of the army, navy, and militia; and
to have the direction of war when commenced, but not to
take the actual command in the field without the consent
of the senate and assembly; to have the absolute appoint-
ment of the chief officers of the four great executive de-
partments, and the nomination, and, with the advice of the
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? ,190
THE LIFE OF
senate, the appointment of all other officers, except such
as were differently provided for by the constitution, re-
serving to the legislatures the power of appointing by name,
in their laws, persons to execute special trusts, and leaving
to ministerial officers the appointment of their deputies.
He might fill vacancies temporarily in the recess of the
senate, and could pardon all offences except treason, which
required the assent of the senate and assembly. He might
be impeached by two-thirds of the legislature, two-thirds
of each house concurring. If convicted, to be removed
from office, and then tried and punished in the ordinary
course of law. His impeachment was to operate as a sus-
pension, until determined. His compensation was to be
fixed, and not to be increased or diminished during his
term of service. If he departed the United States, his of-
fice was abdicated.
The president of the senate was to be vice-president;
to exercise all the powers of the president in case of his
death, resignation, impeachment, removal from office, or
absence from the United States, until another was chosen.
The chief-justice, and other judges of the supreme court,
were (by the fifth article) to hold during good behaviour,
removable by impeachment and conviction. They were
to have original jurisdiction in all causes in which the
United States shall be a party: in all controversies between
the United States and a particular state, or between two
or more states, except questions of territory; in all cases
affecting foreign ministers, consuls, and agents: and an ap-
pellate jurisdiction, both as to law and fact, in all cases
concerning the citizens of foreign nations; in all questions
between the citizens of different states, and in all others in
which the fundamental rights of the constitution were in-
volved, subject to specified exceptions, and to the regula-
tions of the legislature. The judges of all courts which
might be constituted by the legislature, were also to hold
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? HAMILTON.
497
during good behaviour, removable by impeachment, and
were to have competent salaries, to be paid at stated times,
and not to be diminished during their continuance in office;
but the legislatures might abolish the courts themselves.
All crimes, except on impeachment, were to be tried by
a jury of twelve men, in the state where committed; and
all civil causes arising under the constitution, before triable
by jury in the states, were also to be tried by jury, unless
two-thirds of the national legislature should, in special
cases, concur in a different provision.
When offices were of such duration as good behaviour,
it was felt to be highly important to provide an efficacious
and independent tribunal of impeachment; and as not only
the rights of the nation, but of the states, were to be guarded,
to have reference in its constitution to the general and par-
ticular governments.
With this view, a court of impeachment was to be insti-
tuted, by which the president, vice-president, the senators,
governors, and presidents of the states, the principal offi-
cers of the great executive departments, ambassadors and
public ministers, judges of the supreme court, generals and
admirals of the navy, were to be tried. This court was to
consist of the judges of the supreme court, and of the chief
justice, or first or senior judge, of the supreme court of law
of each state, of whom twelve were to compose a court,
and a majority might convict. All other persons, when
impeached, were to be tried by a court to consist of the
judges of the supreme court and six senators, drawn by
lot, a majority of whom might convict. Provisions were
made for conducting these impeachments. Such was to
have been the permanent structure of this government.
The danger of collisions between the states, arising out
of conflicting claims of territory, had been presented to
Hamilton, in the progress of the controversy between New-
York and Vermotit. Other claims were unsettled. He
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proposed (in a sixth article) that a court should be formed,
when territorial controversies should arise, of persons to
be nominated by the controverting states, not their own
citizens, double the number of the judges of the supreme
court, one-half of whom, elected by the senate, should,
with the judges of that court, decide the appeal.
In the resolutions prepared by Hamilton in seventeen
hundred and eighty-three, it is seen that the leading defect of
the confederation proposed to be corrected by him was, its
"confining the federal government within too narrow limits;
withholding from it that efficacious authority and influence in
all matters of general concern, which are indispensable to
the harmony and welfare of the whole; embarrassing gen-
eral provisions by unnecessary details and inconvenient ex-
ceptions, incompatible with their nature, tending only to cre-
ate jealousies and disputes respecting the proper bounds of
the authority of the United States, and that of the particular
states, and a mutual interference of the one with the other. "
It was a settled maxim in his mind, " that a government
ought to contain within itself every power requisite to the
full accomplishment of the objects committed to its care,
and to the complete execution of the trusts for which it is
responsible; free from every other control but a regard
for the public good, and to the sense of the people. "
Another maxim was," that every power ought to be
commensurate with its object; that there ought to be no
limitation of a power destined to affect a purpose which is
of itself incapable of limitation. " Applying these enlarged
and obvious principles, and having sought to guard, in the
structure of the government, against an abuse of its pow-
ers, he declared, in the seventh article of this constitution,
that " the legislature of the United States shall have power
to pass all laws which they shall judge necessary to the
common defence and general welfare of the union. "
As a check upon this power, every act, bill, or resolu-
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? HAMILTON.
499
tion, was to have the assent of the president, which, if not
given within ten days after such, act being presented to
him, was to become a law, of which the enacting style
was to be, that it was " enacted by the people of the Uni-
ted States of America;" thus recognising in every exer-
cise of legislative power the sovereignty and unity of the
American people. This general power was followed by
the declaration of a few general restrictions in the nature
of a bill of rights, either suggested by the experience of
this country, or having reference to the nature of the gov-
ernment.
The danger of legislative tyranny, and of retrospective
laws, not only to the domestic peace, but to the foreign
relations of the country, had been too immediately before
him not to have commanded his attention. To provide
an efficient check to such pernicious proceedings, he
framed a clause declaring "that no bill of attainder or
ex post facto law shall be passed;" and adopting the lan-
guage of the articles of the confederation, and thus add-
ing guards to the republican system, he provided that no
title of nobility should be granted by the United States, or
either of them, and that no person holding any office or
trust under the United States should, without permission
of the legislature, accept any present, emolument, office, or
title, from a foreign prince or state. "The prohibition of
titles of nobility," he said, " may truly be denominated the
corner-stone of republican government; for, so long as
titles of nobility are excluded, there can never be serious
danger that the government will be any other than that of
the people. "
To preclude the recurrence of such an attempt as he
had recently defeated in the assembly of New-York, and
carrying out the principle that is seen in his system of
public instruction, he embodied in the constitution the
proviso, so important to the interests of religion, to free-
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THE LIFE OF
dom of opinion, and to the peace of society, "nor shall
any religious sect, or denomination, or religious test for
any office or place, be ever established by law. "
In forming a government founded upon a full recogni-
tion of the sovereignty of the people, it is seen that he had
apportioned the representation to the number of free in-
habitants; thus following this great principle to its appro-
priate result. But in apportioning the direct contribu-
tions of the states to the public treasury, there being no
common measure of a nation's wealth, he took a basis
which, in the peculiar condition of this country, promised
a nearer approach to equality than any other. "Taxes
on lands, houses, and other real estate, and capitation
taxes, were to be proportioned in each state to the whole
number of free persons, except Indians not taxed, and
three-fifths of all other persons. "
As the command over the purse of the nation was in-
tended by him to be a real check upon the action of the
government, and with this view the originating revenue
bills had been given to the popular branch, he provided
"that the two houses might by joint ballot appoint a trea-
surer of the United States," thus securing the custody of the
revenues of the nation to the department it had intrusted
with raising and appropriating them.
A government performing its great office of providing
for the common defence and safety, and for the general
welfare, by its own comprehensive organs, acting upon indi-
viduals, the only proper objects of government, would
perhaps have possessed a sufficiently central power to have
maintained its due ascendency. But as the state govern-
ments were to continue in order to prevent collision, it was
declared that the laws of the United States, and treaties
made under the articles of the confederation, and to be
made under the constitution, were to be the supreme law
of the land, and to be so construed by the several courts of
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? n AMILTON.
501
the several states. The legislature was to convene once in
each year, which, unless otherwise provided for by law,
should be on the first Monday in December; to receive a
reasonable compensation fixed by law, no succeeding as-
sembly to increase its own compensation.
The preceding injunction, that the laws and treaties of
the United States "shall be the supreme law of the land,"
obligatory on all the courts, guarded against conflicts with
the legislation of the states, and in theory secured the ne-
cessary supremacy to the judiciary power of the general
government; but that power might be rendered nugatory
by a defective execution of those laws. The position of
New York at that moment indicated the danger to be ap-
prehended from the executive trust of the states being in-
dependent of the government of the union.
To provide against both these evils, he declared (in the
eighth article) that the governor or president of each state
shall be appointed by the authority of the United States,
shall have a negative on all laws about to be passed in the
state of which he shall be governor or president, subject to
such regulations as the legislature of the United States
shall prescribe, but in all other respects, except as to the
appointment of the officers of the militia, to have the same
powers the constitution of the states then did or should
allow. Each governor or president of a state was to
hold his office until a successor was actually appointed,
which could not be during the recess of the senate, "un-
less he died, resigned, or was removed on impeachment. "
The officers of the militia might be appointed under the
authority of the United States, unless its legislature au-
thorized their appointment by the governors or presidents
of the states; and, to avoid any obstruction from that
source, the governors and presidents of the states at the
time of the ratification of the constitution, were to con-
tinue in office in the same manner, and with the same pow-
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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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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.
