Contemporary
expo-
sitions of it, minutes taken by Hamilton in the course of
.
sitions of it, minutes taken by Hamilton in the course of
.
Hamilton - 1834 - Life on Hamilton - v2
net/2027/uva.
x000275492 Public Domain, Google-digitized / http://www.
hathitrust.
org/access_use#pd-google
? HAMILTON.
457
tion, congresses were held at different times to consult
upon measures of common interest, the most important of
which, was that of seventeen hundred and fifty-four, con-
vened at the instance of the parent country, to prepare for
the contingencies of a war with France.
This congress, having more enlarged views than its pre-
decessors, resolved "that an union of the colonies was ab-
solutely necessary for their preservation," and proposed a
plan of federal government, consisting of a general coun-
cil of delegates to be tri-annually chosen by the provincial
assemblies, and a president-general to be appointed by the
crown. In this council were to be invested, subject to
the ultimate negative of the king, the rights of war and
peace with the Indian tribes, the power of raising troops,
building forts, equipping vessels of war, and of making
laws and laying and levying general duties, imposts, and
taxes for those purposes. This projected union was dis-
approved, not only by the crown, but by each colonial
assembly, from mutual jealousy.
A congress for the purpose of resisting Great Britain,
assembled, at the instance of Massachusetts, in seventeen
hundred and sixty-five, and digested a bill of rights, in
which the sole power of taxation was declared to reside in
their own colonial legislatures. This assemblage was the
precursor of that of seventeen hundred and seventy-four,
which concerted the opposition that terminated in the in-
dependence of the United States. Its authority was dis-
cretionary and unlimited, until defined by the articles of
confederation, which have formed so prominent a topic as
to render a further exposition of them unnecessary.
This succinct statement shows that, with the exception
of the plan of seventeen hundred and fifty-four, which, had
it been carried into effect, might have terminated in a sys-
tem modelled upon that of Great Britain, no approxima-
tion to a general government had been made. Nothing
58
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? 458
THE LIFE OF
more had been contemplated beyond the delegation of au-
thority for purposes of common defence, under a joint
commission, to a general deputation of the colonies.
The first elective governments, in their proper accepta-
tion, were those formed in each colony under the recom-
mendation of congress; and of these, the earliest was that
of New-Hampshire, established in January, seventeen hun-
dred and seventy-six; and the latest, that of Massachu-
setts, in seventeen hundred and eighty.
Though these state constitutions varied in many particu-
lars, they show a general concurrence of opinion through-
out America, in some essential points. Most of them di-
vided the legislature into two branches, and established a
judiciary, to hold during good behaviour. The most pro-
minent defect, was the constitution of the executive de-
partment, he being, with few exceptions, a mere pageant
and creature of the legislature, often only forming part of
a council.
The weakness of this department was probably the re-
sult of two causes; the colonial governors appointed by
the crown, having been the obnoxious instruments of its
usurpations, and these constitutions being formed at a time
when the congress had indefinite powers, before the colo-
nies aspired, as states, to a rival sovereignty.
The association of a revisionary council with the execu-
tive, while it diminished the responsibility, lessened the
energy, dignity, and independence of the office; and as the
check of a second branch of the legislature was rather
nominal than real, the democratic influence acquired a
large ascendency.
The effect of this on the general councils of the nation
has been indicated. In the local government of such states
as had fulfilled their federal duties, the inequality caused
by the imperfect machinery of their fiscal systems had
induced a repugnance to the laws. In the delinquent
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? HAMILTON.
459
states, this feeling had been increased by their relaxed
policy.
The momentous problem was now to be solved, whether
the affairs of this extensive confederacy were to be carried
on by a halting compromise between public duties and ab-
stract state rights, until the union should cease, or whether
its humiliation and sufferings had prepared the public mind
for the establishment of a vigorous and stable national
government.
As it may be interesting hereafter to advert to the opin-
ions of leading individuals at this eventful crisis, they are
succinctly given.
Jay was the advocate of a government of proper depart-
ments: a governor-general, limited in his prerogatives and
duration) an upper and a lower house--the former ap-
pointed for life, the latter annually; the governor-general,
(to preserve the balance)--with the advice of a council,
formed for that only purpose of the great judicial officers--
to have a negative on their acts. "Our government," he
said," should, in some degree, be suited to our manners and
circumstances, and they, you know, are not strictly demo-
cratical. " He thought " the more power that was granted
to this government, the better," the states retaining only
so much as may be necessary for domestic purposes; all
their principal officers, civil and military, being commission-
ed and removable by the national government, which was
to derive its authority from the people, the only source of
just authority. "*
Knox was in favour of a government of three depart-
ments: an assembly, chosen for one, two, or three years;
a senate for five, six, or seven; the executive to be chosen
by the legislature for seven years, liable to impeachment and
trial by the senate: all national objects to be designed and
* Jay to Washington, January 7,1787.
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? THE LIFE OF
executed by the general government, without any refer-
ence to the local governments, and its laws to be enforced
upon these governments by a body of armed men. *
It was the opinion of Madison, that it would be well to
retain as much as possible of the old confederation, though
he doubted whether it might not be better to work the
valuable articles into the new system, instead of engrafting
the latter on the former. He proposed, as the ground-work,
a change in the principle of representation, abolishing the
equality of suffrage in the national councils. In addition
to the present federal powers, he would have armed the
national government with positive and complete authority
in all cases which require uniformity, and with a negative
in all cases on the legislative acts of the states, as hereto-
fore exercised by the kingly prerogative. This fie regard-
ed as absolutely necessary, and as the least possible en-
croachment on the state jurisdictions. The national su-
premacy also to be extended to the judiciary department.
The officers administering the executive departments, ap-
pointable by the supreme government. The legislature to
consist of two branches: one eligible by the people at large,
or by the legislatures, for a limited period; the other, of
fewer members, for a longer term, ceasing in rotation.
He thought, as a further check, that a council of revision
might be superadded, including the great ministerial officers,
and that a national executive will also be necessary, but
said that he had "scarcely ventured to form his own opin-
ion yet, either of the manner in which it ought to be con-
stituted, or of the authorities with which it ought to be
clothed. "f The right of coercion, he further stated, should
be expressly declared. To obviate its exertion, he hoped
the negative on the state laws might be sufficient, or per-
haps some defined objects of taxation might be submitted
* Knox to Washington, January 14, 1787.
t Madison to Washington, April 16,1767.
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? HAMILTON. 461
along with commerce to the general authority. The sys-
tem to be ratified by the people.
In the sketch of Hamilton's early life, his progressive
opinions on this subject have been shown. In his anony-
mous letter to Robert Morris, written in seventeen hun-
dred and seventy-nine, he is seen to have first proposed the
instituting a good scheme of administration, throwing " the
public business into proper executive departments. By a
plan of this kind," he remarked, " we should blend the ad-
vantages of a monarchy and a republic in a happy and
beneficial union. " His letter to Duane of the following
year, gives a fuller development of his views.
He there states that "the fundamental defect is a want
of power in congress," and that "the idea of an uncon-
trollable sovereignty in each state over its internal police,
will defeat the other powers given to congress, and make
our union feeble and precarious. "
His fear was of partial combinations among the states
subversive of the general one. "There is a wide difference,"
he observed, "between our situation, and that of an em-
pire under one simple form of government, distributed into
counties, provinces, or districts, which have no legislatures,
but merely magistratical bodies to execute the laws of a
common sovereign. There the danger is, that the sovereign
will have too much power, and oppress the parts of which
it is composed. In our case, that of an empire composed
of confederative states, each with a government com-
pletely organized within itself, having all the means to
draw its subjects to a close dependence on itself, the dan-
ger is directly the reverse. " After indicating the neces-
sity of giving to the confederacy perpetual funds, he
mentions " the want of a proper executive," that " congress
is properly a deliberative corps, and forgets itself when it
attempts to play the executive. " His remedy was a con-
vention of all the states, with full authority to conclude
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? 462
THE LIFE OF
finally upon a general confederation. This confederation
to have complete sovereignty, except "as to that part of
the internal police which relates to the rights of property
and life among individuals, and to raising money by internal
taxes. "--," It is necessary," he said," that every thing belong-
ing to this, should be regulated by the state legislatures. "
The project of appointing a supreme dictator and vice-
dictator, evidently excited his apprehensions. He then
saw the necessity of a radical change in the political struc-
ture, and in his letter to Morris of the following year, re-
newing his suggestion of a convention, he states the ne-
cessity of a final and irrevocable amendment "of the pres-
ent futile and senseless confederation. " The numbers of
the Continentalist of the same period, indicate similar
views. He there proposes to give to congress the collec-
tion and appropriation of a national revenue.
The next. though not fully developed exposition of his
opinions, is seen in his resolutions of seventeen hundred
and eighty-three. These contemplated "a federal govern-
ment, with efficacious authority in all matters of general
concern," having its legislative, executive, and judicial au-
thorities deposited in distinct and separate hands--" a fed-
eral judicature," with appellate jurisdiction, " taking cog-
nizance of all matters of general concern in the last resort,
especially those in which foreign nations and their subjects
are interested. "
Though these resolutions were abandoned for want of
support in congress, they could not be without influence
on some of its members. That they had such an influ-
ence, is to be inferred from the fact that Higginson was
prominent in urging Massachusetts to meet in general con-
vention, and that Madison, though restrained by an appre-
hension of the influence of some powerful opponent in
Virginia, individually wished that no objections should be
presupposed there.
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? HAMILTON.
463
Washington would have vested congress with absolute
powers in all matters relative to the great purposes of war
and of general concern, reserving to the states only those
of local and internal polity. * "I do not conceive," he
said, " that we can exist long as a nation, without having
lodged somewhere a power which will pervade the whole
union in as energetic a manner as the authority of the
state governments extend over the several states. The
commotions in the eastern states exhibit a melancholy
proof of what our transatlantic foe has predicted; and of
another thing, which is still more to be regretted, and is
yet more unaccountable, that mankind, when left to them-
selves, are unfit for their own government. Influence is
not government. Thirteen governments, pulling against
each other, and all tugging at the federal head, will soon
bring ruin on the whole; whereas, a liberal and energetic
constitution, well checked, and well watched, to prevent
encroachments, might restore us to that degree of re-
spectability and consequence to which we had the fairest
prospect of attaining. "--"I confess that my opinion of
public virtue is so far changed, that I have my doubts
whether any system, without means of coercion in the
sovereign, will enforce due obedience to the ordinances
of a general government; without which, every thing
else fails.
"Persuaded I am, that the primary cause of all our dis-
orders lies in the different state governments, and in the
tenacity of that power which pervades their whole sys-
tems. "
These sentiments of Washington and Hamilton were
those of men familiar with the practical operation of the
existing system, in war and in peace: who had seen and
felt the evil of conflicting sovereignties, and whose re-
? AugUst 15, 1786.
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? 461
THE LIFE OF
searches and reflections had compelled them to distrust
federate institutions. * Though the opinions which have
been quoted were those of men of great weight in the
most important members of the union, yet they were not
general. The smaller states, while they sought the pro-
tection of a more efficient general government, would re-
pel any proposal to relinquish that equal suffrage in the
public councils, which they had extorted from their asso-
ciates amid the pressure of the revolution. In the large
states, leading individuals, who did not desire a dissolution
of the confederacy, would prefer an increase of the rela-
tive influence of their states, but were embarrassed as to
the quantity of power to be conferred. Both would in-
cline, as a middle point, to a constitution of enumerated
powers, limited to those primary objects, trade and reve-
nue, to which they had found their separate legislation in-
competent.
With such models, and amid a great diversity of opinions
and interests, the federal convention met at Philadelphia
on the fourteenth of May, seventeen hundred and eighty-
seven, when, a majority of states not being represented, it
adjourned to the twenty-fifth of that month.
On that day, nine states having appeared, General Wash-
ington was, on motion of Robert Morris, chosen to pre-
side, and Major Jackson, at the instance of Hamilton, was
elected secretary. A committee, of Wythe, of Virginia,
Charles Pinckney, of South Carolina, and Hamilton, were
appointed to frame the standing rules for its proceedings.
These required seven states to constitute a quorum; that
all questions were to be decided by the greater number of
states fully represented, and that all committees were to be
appointed by ballot. It is to be remarked, that no pro-
vision was made in the first instance for secrecy of debate:
* See Washington's Writings, vol. ix. Appendix, No. to.
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? HAMILTON.
465
additional rules were adopted on motion of Pierce Butler,
which prescribed " that no copy of any entry on the jour-
nal be taken without the leave of the house;" that it should
be inspected by members only, and " that nothing spoken
in the house be printed, or otherwise published or commu-
nicated, without leave. " So sedulous were the convention
as to the first of these restrictions, that it appears by Madi-
son's report of the debates of the twenty-fifth of July,
seventeen hundred and eighty-seven, that a motion that
the members of the house might take copies of the resolu-
tions which had been agreed to, was negatived. As to
the last, the rule was never rescinded. * In reference to it,
a reply, published by Hamilton in seventeen hundred and
ninety-two, to anonymous charges, f containing a misrepre-
sentation of his course in the convention, and stated by
him " to be of a nature to speak the malignity and turpi-
tude of the accuser, denoting clearly the personal enemy
in the garb of the political opponent," mentions " that the
deliberations of the convention, which were carried on in
private, were to remain unmolested. And every prudent
man," he observed, " must be convinced of the propriety
of the one and the other. Had the deliberations been
open while going on, the clamours of faction would have
prevented any satisfactory result. Had they been after-
wards disclosed, much food would have been afforded to
inflammatory declamation. Propositions, made without
due reflection, and perhaps abandoned by the proposers
themselves on more mature reflection, would have been
handles for a profusion of ill-natured accusation. "
Washington gave as a reason "for not relating any of
the proceedings, that the rules of the convention prevented
him. And nothing," he said, " being suffered to transpire,
? The journal was ordered to be published, March 27, 1818.
t In the National Gazette, established by Jefferson and Madison.
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? 460
THE LIFE OF
no minutes of the proceedings have been, or will be inserted
in this diary. "*
This solemn obligation, which no act of any other body
could annul, was, until recently, sacredly adhered to by
every member of the convention except Luther Martin,
who did not disclose the opinions of individuals, but
gave a statement of the proceedings to the legislature of
Maryland. Notes were taken by Chief Justice Yates,
who, " though often solicited, refused to permit them to be
published, not only because they were originally not writ-
ten for the public eye, but because he conceived himself
under honourable obligations to withhold their publication. "^
Madison, it appears, regarded this obligation in a differ-
ent light. "The curiosity," he observes, " I had felt (as to
the most distinguished confederacies of antiquity,) " deter-
mined me to preserve, as far as I could, an exact account
of what might pass in the convention while executing its
trust; with the magnitude of which I was duly impressed,
as I was by the gratification promised to future curiosity,
by an authentic exhibition of the objects, the opinions,
and the reasonings from which the new system of govern-
ment was to receive its peculiar structure and organiza-
tion. " He adds, that "with a very few exceptions the
speeches were neither furnished, nor revised, nor sanc-
tioned by the speakers. Among these exceptions, he in-
cludes the speech of Hamilton, " who," he says, "happen-
ed to call on me when putting the last hand to it, and who
acknowledged its fidelity, without suggesting more than a
very few verbal alterations, which were made. "J
* 9 Washington, 541.
t Secret Proceedings, p. 306. --These were copied by Lansing, disposed
of by the widow of Yates, and published by Genet (the former minister of
France) in 1821.
t Debates in the Federal Convention, v. 2, p. 717. --Madison survived
every member of that body.
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? HAMILTON.
467
Believing, nevertheless, that no "authentic exhibition"
of these debates exists, a full view of the formation of the
constitution will not be attempted.
Contemporary expo-
sitions of it, minutes taken by Hamilton in the course of
. and for the purpose of debate, which will be only resorted
to as far as absolutely necessary for his vindication, public
statements extorted from him in self-defence, and the
notes of Yates previously referred to, are the only mate-
rials at command. To cull from these such facts as may
enable some faint judgment to be formed of Hamilton's
agency in framing the constitution, or in imparting to it
its character, of his position in the convention, of his theo-
retical opinions, plans, and propositions, will be the sole
aim of the following narrative.
On the twenty-ninth of May, after some preliminary re-
marks, fifteen propositions, concerning the American con-
federation and the establishment of a national government
were laid before the convention by Edmund Randolph,
then governor of Virginia. *
It then decided to resolve itself into a committee of the
whole on the succeeding day for their consideration, when
Charles Pinckney,f of South Carolina, addressed the con-
vention. After depicting the alarming situation of the
country, a situation to be attributed "to the weakness and
impropriety of a government founded on mistaken princi-
ples, incapable of combining the various interests it is in-
tended to unite and support, and destitute of that force and
energy without which no government can exist, he pro-
ceeded to indicate the principal defects of the confedera-
* Madison, 715, says: "The resolutions introduced by Governor Randolph
were the result of a consultation on the subject, with an understanding that
they left all the deputies entirely open to the lights of discussion, and free to
concur in any alterations and modifications which their reflections and judg-
ments might approve. "
t Not General Charles Cotcsworth Pinckney.
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? 46S
THE LIFE OF
tion--defects so great that he was convinced that it would
be politic in the convention to determine that they will con-
sider the subject de novo; that they will pay no further
attention to the confederation than to consider it as good
materials, and view themselves at liberty to form and
recommend such a plan as, from their knowledge of
the temper of the people, and the resources of the states,
will be most likely to render our government firm and uni-
ted. "
With these prefatory remarks, Pinckney submitted his
plan of government. He then proceeded to comment upon
it. From these comments it appears that he contemplated
a legislature of two branches: the first to consist of dele-
gates chosen by the states, in numbers according to their
relative importance, to vote per capita; a senate, elected by
the house of delegates, upon "proportionable principles,
which, though rotative, will give that body a sufficient de-
gree of stability and independence;" each class to be elected
for four years. The executive to be appointed septenni-
ally, but re-eligible. If septennial appointments were sup-
posed to be too frequent, Pinckney stated that he would
have "no objection to elect him for a longer term. " He
was to have a council of revision, and among his other
powers " that of convening and proroguing the legislature
upon special occasions;" and of appointing "all officers
except judges and foreign ministers. " A supreme judiciary
to be instituted by congress, to take cognizance of all offi-
cers of the United States, of questions arising on the law
of nations, the construction of treaties, and of the regula-
tions of congress in pursuance of their powers, and also
courts of admiralty in the several states.
Congress were to have the exclusive powers then vested
in the confederation, and also the regulation of commerce;
the raising money by impost, and of troops in peace and
war; with a proviso that, as to all cases which then re-
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? HAMILTON.
469
quired the assent of nine states, and as to acts regulating
trade, and for levying an impost or raising troops," the as-
sent of two-thirds of both houses should be required. "
After this exposition of Pinckney's plan,* it was resolved
that the Virginia propositions should with it be referred to
a committee of the whole convention.
The discussion of the first six occupied two days. The
result was a declaration that" a national government ought
to be established, consisting of a supreme legislative, judi-
ciary, and executive f all the states concurring except Con-
necticut and New-York--Hamilton voting in favour of the
proposition. The question whether the right of suffrage in
the national legislature ought to be apportioned to the quo-
tas of contribution, or to the number of free inhabitants,
(Hamilton urging the latter,) was postponed. Pennsylva-
nia alone opposed the division of the legislature into two
branches. A majority were in favour of the election of
the first branch by the people, as had been the practice of
* This statement is derived from a pamphlet published in 1788, entitled,
"Observations on the plan of government submitted to the federal conven-
tion, by Mr. Charles Pinckney. "--No. 2687 of select tracts of New-York His-
torical Society. A comparison of the plan in the Observations, with that on
the journaIs,/urnt<<iei by Pinckney, shows great dissimilarity. The "obser-
vations" have no reference to an election of the house of representatives by the
people. On the contrary, it will be perceived by the journal of the sixth of June,
that Pinckney proposed their election by the state legislatures. The power of
appointment is given, in the " observations," to the executive, without the eon.
tent of the senate, which is required by the journal plan. They propose a coun-
cil of revision, not contained in the journal plan; gave the decision of territo.
rial disputes to a court constituted as directed in the confederation. The plan
on the journal vests it in the senate. The journal plan requires the assent of
two-thirds of the members of congress present only in the enactment of laws
regulating commerce. The " observations" speak of seventeen articles. The
journal plan contains sixteen. The " observations" refer to the eighth article
as relating to the post office. The eighth article of the journal plan relates
solely to the executive power. The numerical discrepancy occurs in other
instances.
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? 470
THE LIFE OF
Rhode Island and Connecticut under the confederation.
The proposition that the second should be chosen by the
first branch, out of persons appointed by the state legisla-
tures, was rejected; and it was declared that its members
should be elected by the state legislatures. The sixth re-
solve gave to each branch the right of originating acts, and
conferred on the national legislature the legislative rights
vested in congress by the confederation, and empowered it
to legislate in all cases to which the separate states were
incompetent, or in which the harmony of the United States
may be interrupted by the exercise of individual legislation,
and to negative all laws of the states contravening, in its
opinion, the articles of union, or any treaties subsisting
under the authority of the union--the last clause being sug-
gested by Franklin. It was approved in this form, after
rejecting a section authorizing a resort to the force of the
union against any delinquent state.
The seventh resolution was considered on the first of
June. It declared that a national executive be chosen by
the legislature for a term of years, with a fixed compensa-
tion, not to be increased or diminished so as to affect the
existing magistracy, which was to be ineligible, and, be-
sides a general authority to execute the national laws, that
it ought to enjoy the executive rights vested in congress
by the confederation.
A motion of Wilson, that it should consist of a single
person, was postponed, when Madison, urging that its
powers ought first to be defined, offered an amendment con-
ferring on it the power to carry into execution the nation-
al laws, to appoint to offices in cases not otherwise pro-
vided for, and to execute such other powers, not legislative
or judiciary in their nature, as may from time to time be
delegated by the national legislature. The powers to ex-
ecute the laws, and to appoint to office, were approved;
but the last indefinite clause was rejected, Massachusetts,
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? HAMILTON.
471
Virginia, and South Carolina voting for it. The term of
office was next established at seven years.
Until this period of the proceedings, New-York was
represented by Hamilton and Yates, but on the second of
June, Lansing having taken his seat, Hamilton's vote was
merged in that of his colleagues.
Immediately after, a proposal was made to postpone
the resolution respecting the executive, in order to take up
that relating to the second branch of the legislature: only
three states voted in its favour. A motion was then made
by Wilson, that the executive magistracy should be elected
by electors chosen in districts of the states, in whom the
executive authority of the government should be vested.
This motion was negatived, seven states being against it;
the vote of New-York divided, and its election by the na-
tional legislature being approved. To control this great
object of jealousy, a proposition was made that it should
be removable by the national legislature. This was defeat-
ed, but it was declared to be ineligible a second time; and
instead of giving the legislature a general power of remo-
val, a provision, derived from the constitution of North
Carolina, rendering the executive removable on impeach-
ment, and conviction of malpractice or neglect of duty,
was, at the suggestion of Williamson, substituted. It was
again moved that the executive should consist of one per-
son. The subject was now discussed at large, Butler,
Gerry, Charles Pinckney, Sherman, and Wilson being in
favour of a single, Madison and Randolph of a plural execu-
tive.
In the letters written prior to the meeting of the con-
vention by Madison to Washington in reference to the
executive, he is seen to have stated that he had "scarcely
ventured to form his own opinion yet, either of the man-
ner in which it ought to be constituted, or of the authori-
ties with which it ought to be clothed. " This language
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THE LIFE OF
would seem to imply that he then contemplated a plural
magistracy. He now observed, " the way to prevent a
majority from having an in'erest to oppress the minority,
is to enlarge the sphere. " "Elective monarchies are tur-
bulent and unhappy. " "Men are unwilling to admit so
decided a superiority of merit in an individual, as to ac-
cede to his appointment to so pre-eminent a station. If
several are admitted, as there will be many competitors of
equal merit, they may be all included--contention pre-
vented, and the republican genius consulted. "*
Randolph followed. He remarked, that "the situation
of this country was peculiar. The people were taught an
aversion to monarchy; all their constitutions were opposed
to it. The fixed character of the people was opposed to
it. If proposed, it will prevent a fair discussion of the
plan. Why cannot three execute? Great exertions were
only requisite on particular occasions. Safety to liberty
was the great object; legislatures may appoint a dictator.
He spoke of the seeds of destruction; slaves might be ea-
sily enlisted. The executive may appoint men devoted to
them, and even bribe the legislature by offices. The chief
magistrate will also be free from impeachment. "
Wilson answered, alleging that the extent of the coun-
try, and the diversity of manners, precluded the dangers
alluded to. "A confederated republic," he observed," unites
the advantages and banishes the disadvantages of other
kinds of government. Rendering the executive ineligible,*
he declared," was an infringement of the right of election. "
Bedford concurred in the opinion, that the executive
should be re-eligible. He remarked, that " peculiar talents
were requisite for the executive; therefore, there ought to
be an opportunity of ascertaining his talents, and therefore
frequent change. "
* Hamilton's MSS. notes, vol. 1, p. 74. --Madison does not give these
remarks. --Reports of 1st and 2d June, vol. 2, Madison Papers, p. 762--783.
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? HAMILTON.
473
The question being taken, seven states voted in favour
of a single executive. New-York, (Yates and Lansing
giving the vote,) Delaware, and Maryland in the negative.
The eighth resolve proposed a council of revision, to be
composed of the executive and of a part of the judiciary.
It was to be empowered to revise every act of the national
legislature before it should operate, and of the particular
legislatures of each state, before a negative thereon should
be final. The dissent of the council to amount to a rejec-
tion, unless the act of the national legislature was again
passed, or that of a particular state should be again ne-
gatived by the vote of a certain number of the members
of each branch. Madison was zealous for this revisionary
council. Hamilton was averse to it, from the "danger
that the executive, by too frequent communication with the
judicial, may corrupt it. " As to the argument that this
negative would not be used, he remarked, " it would go
so far as to prove that the revisionary power would not
be exercised, and therefore was useless. " He seconded a
motion of Wilson to vest an unqualified negative in the
executive. This proposal was rejected, but a modified
provision passed, giving this negative to the executive, un-
less two-thirds of the legislature should concur, thus dis-
pensing with the council of revision.
The ninth resolve contemplated a national judiciary, to
hold during good behaviour, to receive a compensation not
to be increased or diminished so as to affect the incum-
bents. It was to consist of a supreme appellate, and infe-
rior tribunals, whose jurisdiction was to extend to pira-
cies and felonies on the seas, and captures from an enemy;
to cases in which foreigners or citizens of other states
might be interested, or which respected the collection of the
revenue; to impeachments of any national officer, and
questions involving the national peace and harmony. Wil-
son moved that the judiciary should be appointed by the
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? 474
THE LIFE OF
executive. Madison was opposed to this. He thought
that the executive should by no means make the appoint-
ment, and pursuing the policy of Virginia, which gave the
appointment to the legislature, he proposed to vest it in
the second branch.
A provision for the admission of new states, was in the
next place adopted. On the sixth of June, proposals to
give the election of the first branch of the national legisla-
ture to those of the several states, and to annex a council
of revision to the executive, to be composed of the nation-
al judiciary, were renewed, and failed. It was urged in
favour of the first proposition, that if " the legislatures did
not partake in the appointment, they would be more jeal-
ous of the general government; and that the state legisla-
tures ought also to elect the senators, so as to bring into
it the sense of the state governments," and thus "lead to a
more respectable choice. "
Madison contended, that at least one branch should be
chosen by the people. He stated that* there were "two
principles on which republics ought to be constituted.
One, that they should have such an extent as to render
combinations on the ground of interest difficult. The
other, by a process of election calculated to refine the rep-
resentation of the people. "f
* Hamilton MSS. v. l,p. 75.
t In reference to these principles, this comment by Hamilton is preserved.
"Maddison's theory. Answer:--There is truth in both these principles, but
they do not conclude as strongly as he supposes. The assembly, when cho-
sen, will meet in one room, if they are drawn from half the globe, and will
be liable to all the passions of popular assemblies.
"If more minute links are wanting, others will supply them. Distinctions
of eastern, middle, and southern states, will come into view, between com.
mcrcial and non-commercial states. Imaginary lines will influence, &c.
"The human mind is prone to limit its view to near and local objects. Pa-
per money is capable of giving a general impulse. It is easy to conceive a
popular sentiment pervading the eastern states. " Madison also observed,
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? HAMILTON. 475 I
The election of the second branch by the state legisla-
tures was proposed, and, after the rejection of a motion
that it should be chosen by the people, was passed unani-
mously.
The term of service of the first branch was fixed at
three, that of the second branch at seven years. The
members were to receive fixed stipends out of the national
treasury, and to be ineligible to any office established by
a state, or by the United States, (except those peculiarly
belonging to the functions of the respective branch,) du-
ring the term of service, and under the national govern-
ment for one year after its expiration. The restriction on
their re-eligibility, and the right to recall those of the se-
cond branch, were expunged. An important motion was
now made as to the power to be confided to the legisla-
ture. It was proposed by Charles Pinckney, and second-
ed by Madison, that it should have a negative on all laws
of the states which to it shall appear improper. This was
sustained by only three states--Massachusetts, Pennsyl-
vania, and Virginia.
After some discussion of the mode of appointing the
executive, the rule of suffrage now existing as to the choice
of the first branch of the legislature was adopted, and a
proposal was made to give to each state an equal vote in
the second branch.
Wilson and Hamilton urged that the rule adopted as to
"that large districts are less liable to be influenced by factious demagogues
than small. " "This," Hamilton noted, "is in some degree true, but not so
generally as may be supposed.
? HAMILTON.
457
tion, congresses were held at different times to consult
upon measures of common interest, the most important of
which, was that of seventeen hundred and fifty-four, con-
vened at the instance of the parent country, to prepare for
the contingencies of a war with France.
This congress, having more enlarged views than its pre-
decessors, resolved "that an union of the colonies was ab-
solutely necessary for their preservation," and proposed a
plan of federal government, consisting of a general coun-
cil of delegates to be tri-annually chosen by the provincial
assemblies, and a president-general to be appointed by the
crown. In this council were to be invested, subject to
the ultimate negative of the king, the rights of war and
peace with the Indian tribes, the power of raising troops,
building forts, equipping vessels of war, and of making
laws and laying and levying general duties, imposts, and
taxes for those purposes. This projected union was dis-
approved, not only by the crown, but by each colonial
assembly, from mutual jealousy.
A congress for the purpose of resisting Great Britain,
assembled, at the instance of Massachusetts, in seventeen
hundred and sixty-five, and digested a bill of rights, in
which the sole power of taxation was declared to reside in
their own colonial legislatures. This assemblage was the
precursor of that of seventeen hundred and seventy-four,
which concerted the opposition that terminated in the in-
dependence of the United States. Its authority was dis-
cretionary and unlimited, until defined by the articles of
confederation, which have formed so prominent a topic as
to render a further exposition of them unnecessary.
This succinct statement shows that, with the exception
of the plan of seventeen hundred and fifty-four, which, had
it been carried into effect, might have terminated in a sys-
tem modelled upon that of Great Britain, no approxima-
tion to a general government had been made. Nothing
58
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? 458
THE LIFE OF
more had been contemplated beyond the delegation of au-
thority for purposes of common defence, under a joint
commission, to a general deputation of the colonies.
The first elective governments, in their proper accepta-
tion, were those formed in each colony under the recom-
mendation of congress; and of these, the earliest was that
of New-Hampshire, established in January, seventeen hun-
dred and seventy-six; and the latest, that of Massachu-
setts, in seventeen hundred and eighty.
Though these state constitutions varied in many particu-
lars, they show a general concurrence of opinion through-
out America, in some essential points. Most of them di-
vided the legislature into two branches, and established a
judiciary, to hold during good behaviour. The most pro-
minent defect, was the constitution of the executive de-
partment, he being, with few exceptions, a mere pageant
and creature of the legislature, often only forming part of
a council.
The weakness of this department was probably the re-
sult of two causes; the colonial governors appointed by
the crown, having been the obnoxious instruments of its
usurpations, and these constitutions being formed at a time
when the congress had indefinite powers, before the colo-
nies aspired, as states, to a rival sovereignty.
The association of a revisionary council with the execu-
tive, while it diminished the responsibility, lessened the
energy, dignity, and independence of the office; and as the
check of a second branch of the legislature was rather
nominal than real, the democratic influence acquired a
large ascendency.
The effect of this on the general councils of the nation
has been indicated. In the local government of such states
as had fulfilled their federal duties, the inequality caused
by the imperfect machinery of their fiscal systems had
induced a repugnance to the laws. In the delinquent
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? HAMILTON.
459
states, this feeling had been increased by their relaxed
policy.
The momentous problem was now to be solved, whether
the affairs of this extensive confederacy were to be carried
on by a halting compromise between public duties and ab-
stract state rights, until the union should cease, or whether
its humiliation and sufferings had prepared the public mind
for the establishment of a vigorous and stable national
government.
As it may be interesting hereafter to advert to the opin-
ions of leading individuals at this eventful crisis, they are
succinctly given.
Jay was the advocate of a government of proper depart-
ments: a governor-general, limited in his prerogatives and
duration) an upper and a lower house--the former ap-
pointed for life, the latter annually; the governor-general,
(to preserve the balance)--with the advice of a council,
formed for that only purpose of the great judicial officers--
to have a negative on their acts. "Our government," he
said," should, in some degree, be suited to our manners and
circumstances, and they, you know, are not strictly demo-
cratical. " He thought " the more power that was granted
to this government, the better," the states retaining only
so much as may be necessary for domestic purposes; all
their principal officers, civil and military, being commission-
ed and removable by the national government, which was
to derive its authority from the people, the only source of
just authority. "*
Knox was in favour of a government of three depart-
ments: an assembly, chosen for one, two, or three years;
a senate for five, six, or seven; the executive to be chosen
by the legislature for seven years, liable to impeachment and
trial by the senate: all national objects to be designed and
* Jay to Washington, January 7,1787.
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? THE LIFE OF
executed by the general government, without any refer-
ence to the local governments, and its laws to be enforced
upon these governments by a body of armed men. *
It was the opinion of Madison, that it would be well to
retain as much as possible of the old confederation, though
he doubted whether it might not be better to work the
valuable articles into the new system, instead of engrafting
the latter on the former. He proposed, as the ground-work,
a change in the principle of representation, abolishing the
equality of suffrage in the national councils. In addition
to the present federal powers, he would have armed the
national government with positive and complete authority
in all cases which require uniformity, and with a negative
in all cases on the legislative acts of the states, as hereto-
fore exercised by the kingly prerogative. This fie regard-
ed as absolutely necessary, and as the least possible en-
croachment on the state jurisdictions. The national su-
premacy also to be extended to the judiciary department.
The officers administering the executive departments, ap-
pointable by the supreme government. The legislature to
consist of two branches: one eligible by the people at large,
or by the legislatures, for a limited period; the other, of
fewer members, for a longer term, ceasing in rotation.
He thought, as a further check, that a council of revision
might be superadded, including the great ministerial officers,
and that a national executive will also be necessary, but
said that he had "scarcely ventured to form his own opin-
ion yet, either of the manner in which it ought to be con-
stituted, or of the authorities with which it ought to be
clothed. "f The right of coercion, he further stated, should
be expressly declared. To obviate its exertion, he hoped
the negative on the state laws might be sufficient, or per-
haps some defined objects of taxation might be submitted
* Knox to Washington, January 14, 1787.
t Madison to Washington, April 16,1767.
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? HAMILTON. 461
along with commerce to the general authority. The sys-
tem to be ratified by the people.
In the sketch of Hamilton's early life, his progressive
opinions on this subject have been shown. In his anony-
mous letter to Robert Morris, written in seventeen hun-
dred and seventy-nine, he is seen to have first proposed the
instituting a good scheme of administration, throwing " the
public business into proper executive departments. By a
plan of this kind," he remarked, " we should blend the ad-
vantages of a monarchy and a republic in a happy and
beneficial union. " His letter to Duane of the following
year, gives a fuller development of his views.
He there states that "the fundamental defect is a want
of power in congress," and that "the idea of an uncon-
trollable sovereignty in each state over its internal police,
will defeat the other powers given to congress, and make
our union feeble and precarious. "
His fear was of partial combinations among the states
subversive of the general one. "There is a wide difference,"
he observed, "between our situation, and that of an em-
pire under one simple form of government, distributed into
counties, provinces, or districts, which have no legislatures,
but merely magistratical bodies to execute the laws of a
common sovereign. There the danger is, that the sovereign
will have too much power, and oppress the parts of which
it is composed. In our case, that of an empire composed
of confederative states, each with a government com-
pletely organized within itself, having all the means to
draw its subjects to a close dependence on itself, the dan-
ger is directly the reverse. " After indicating the neces-
sity of giving to the confederacy perpetual funds, he
mentions " the want of a proper executive," that " congress
is properly a deliberative corps, and forgets itself when it
attempts to play the executive. " His remedy was a con-
vention of all the states, with full authority to conclude
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? 462
THE LIFE OF
finally upon a general confederation. This confederation
to have complete sovereignty, except "as to that part of
the internal police which relates to the rights of property
and life among individuals, and to raising money by internal
taxes. "--," It is necessary," he said," that every thing belong-
ing to this, should be regulated by the state legislatures. "
The project of appointing a supreme dictator and vice-
dictator, evidently excited his apprehensions. He then
saw the necessity of a radical change in the political struc-
ture, and in his letter to Morris of the following year, re-
newing his suggestion of a convention, he states the ne-
cessity of a final and irrevocable amendment "of the pres-
ent futile and senseless confederation. " The numbers of
the Continentalist of the same period, indicate similar
views. He there proposes to give to congress the collec-
tion and appropriation of a national revenue.
The next. though not fully developed exposition of his
opinions, is seen in his resolutions of seventeen hundred
and eighty-three. These contemplated "a federal govern-
ment, with efficacious authority in all matters of general
concern," having its legislative, executive, and judicial au-
thorities deposited in distinct and separate hands--" a fed-
eral judicature," with appellate jurisdiction, " taking cog-
nizance of all matters of general concern in the last resort,
especially those in which foreign nations and their subjects
are interested. "
Though these resolutions were abandoned for want of
support in congress, they could not be without influence
on some of its members. That they had such an influ-
ence, is to be inferred from the fact that Higginson was
prominent in urging Massachusetts to meet in general con-
vention, and that Madison, though restrained by an appre-
hension of the influence of some powerful opponent in
Virginia, individually wished that no objections should be
presupposed there.
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? HAMILTON.
463
Washington would have vested congress with absolute
powers in all matters relative to the great purposes of war
and of general concern, reserving to the states only those
of local and internal polity. * "I do not conceive," he
said, " that we can exist long as a nation, without having
lodged somewhere a power which will pervade the whole
union in as energetic a manner as the authority of the
state governments extend over the several states. The
commotions in the eastern states exhibit a melancholy
proof of what our transatlantic foe has predicted; and of
another thing, which is still more to be regretted, and is
yet more unaccountable, that mankind, when left to them-
selves, are unfit for their own government. Influence is
not government. Thirteen governments, pulling against
each other, and all tugging at the federal head, will soon
bring ruin on the whole; whereas, a liberal and energetic
constitution, well checked, and well watched, to prevent
encroachments, might restore us to that degree of re-
spectability and consequence to which we had the fairest
prospect of attaining. "--"I confess that my opinion of
public virtue is so far changed, that I have my doubts
whether any system, without means of coercion in the
sovereign, will enforce due obedience to the ordinances
of a general government; without which, every thing
else fails.
"Persuaded I am, that the primary cause of all our dis-
orders lies in the different state governments, and in the
tenacity of that power which pervades their whole sys-
tems. "
These sentiments of Washington and Hamilton were
those of men familiar with the practical operation of the
existing system, in war and in peace: who had seen and
felt the evil of conflicting sovereignties, and whose re-
? AugUst 15, 1786.
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? 461
THE LIFE OF
searches and reflections had compelled them to distrust
federate institutions. * Though the opinions which have
been quoted were those of men of great weight in the
most important members of the union, yet they were not
general. The smaller states, while they sought the pro-
tection of a more efficient general government, would re-
pel any proposal to relinquish that equal suffrage in the
public councils, which they had extorted from their asso-
ciates amid the pressure of the revolution. In the large
states, leading individuals, who did not desire a dissolution
of the confederacy, would prefer an increase of the rela-
tive influence of their states, but were embarrassed as to
the quantity of power to be conferred. Both would in-
cline, as a middle point, to a constitution of enumerated
powers, limited to those primary objects, trade and reve-
nue, to which they had found their separate legislation in-
competent.
With such models, and amid a great diversity of opinions
and interests, the federal convention met at Philadelphia
on the fourteenth of May, seventeen hundred and eighty-
seven, when, a majority of states not being represented, it
adjourned to the twenty-fifth of that month.
On that day, nine states having appeared, General Wash-
ington was, on motion of Robert Morris, chosen to pre-
side, and Major Jackson, at the instance of Hamilton, was
elected secretary. A committee, of Wythe, of Virginia,
Charles Pinckney, of South Carolina, and Hamilton, were
appointed to frame the standing rules for its proceedings.
These required seven states to constitute a quorum; that
all questions were to be decided by the greater number of
states fully represented, and that all committees were to be
appointed by ballot. It is to be remarked, that no pro-
vision was made in the first instance for secrecy of debate:
* See Washington's Writings, vol. ix. Appendix, No. to.
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? HAMILTON.
465
additional rules were adopted on motion of Pierce Butler,
which prescribed " that no copy of any entry on the jour-
nal be taken without the leave of the house;" that it should
be inspected by members only, and " that nothing spoken
in the house be printed, or otherwise published or commu-
nicated, without leave. " So sedulous were the convention
as to the first of these restrictions, that it appears by Madi-
son's report of the debates of the twenty-fifth of July,
seventeen hundred and eighty-seven, that a motion that
the members of the house might take copies of the resolu-
tions which had been agreed to, was negatived. As to
the last, the rule was never rescinded. * In reference to it,
a reply, published by Hamilton in seventeen hundred and
ninety-two, to anonymous charges, f containing a misrepre-
sentation of his course in the convention, and stated by
him " to be of a nature to speak the malignity and turpi-
tude of the accuser, denoting clearly the personal enemy
in the garb of the political opponent," mentions " that the
deliberations of the convention, which were carried on in
private, were to remain unmolested. And every prudent
man," he observed, " must be convinced of the propriety
of the one and the other. Had the deliberations been
open while going on, the clamours of faction would have
prevented any satisfactory result. Had they been after-
wards disclosed, much food would have been afforded to
inflammatory declamation. Propositions, made without
due reflection, and perhaps abandoned by the proposers
themselves on more mature reflection, would have been
handles for a profusion of ill-natured accusation. "
Washington gave as a reason "for not relating any of
the proceedings, that the rules of the convention prevented
him. And nothing," he said, " being suffered to transpire,
? The journal was ordered to be published, March 27, 1818.
t In the National Gazette, established by Jefferson and Madison.
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? 460
THE LIFE OF
no minutes of the proceedings have been, or will be inserted
in this diary. "*
This solemn obligation, which no act of any other body
could annul, was, until recently, sacredly adhered to by
every member of the convention except Luther Martin,
who did not disclose the opinions of individuals, but
gave a statement of the proceedings to the legislature of
Maryland. Notes were taken by Chief Justice Yates,
who, " though often solicited, refused to permit them to be
published, not only because they were originally not writ-
ten for the public eye, but because he conceived himself
under honourable obligations to withhold their publication. "^
Madison, it appears, regarded this obligation in a differ-
ent light. "The curiosity," he observes, " I had felt (as to
the most distinguished confederacies of antiquity,) " deter-
mined me to preserve, as far as I could, an exact account
of what might pass in the convention while executing its
trust; with the magnitude of which I was duly impressed,
as I was by the gratification promised to future curiosity,
by an authentic exhibition of the objects, the opinions,
and the reasonings from which the new system of govern-
ment was to receive its peculiar structure and organiza-
tion. " He adds, that "with a very few exceptions the
speeches were neither furnished, nor revised, nor sanc-
tioned by the speakers. Among these exceptions, he in-
cludes the speech of Hamilton, " who," he says, "happen-
ed to call on me when putting the last hand to it, and who
acknowledged its fidelity, without suggesting more than a
very few verbal alterations, which were made. "J
* 9 Washington, 541.
t Secret Proceedings, p. 306. --These were copied by Lansing, disposed
of by the widow of Yates, and published by Genet (the former minister of
France) in 1821.
t Debates in the Federal Convention, v. 2, p. 717. --Madison survived
every member of that body.
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? HAMILTON.
467
Believing, nevertheless, that no "authentic exhibition"
of these debates exists, a full view of the formation of the
constitution will not be attempted.
Contemporary expo-
sitions of it, minutes taken by Hamilton in the course of
. and for the purpose of debate, which will be only resorted
to as far as absolutely necessary for his vindication, public
statements extorted from him in self-defence, and the
notes of Yates previously referred to, are the only mate-
rials at command. To cull from these such facts as may
enable some faint judgment to be formed of Hamilton's
agency in framing the constitution, or in imparting to it
its character, of his position in the convention, of his theo-
retical opinions, plans, and propositions, will be the sole
aim of the following narrative.
On the twenty-ninth of May, after some preliminary re-
marks, fifteen propositions, concerning the American con-
federation and the establishment of a national government
were laid before the convention by Edmund Randolph,
then governor of Virginia. *
It then decided to resolve itself into a committee of the
whole on the succeeding day for their consideration, when
Charles Pinckney,f of South Carolina, addressed the con-
vention. After depicting the alarming situation of the
country, a situation to be attributed "to the weakness and
impropriety of a government founded on mistaken princi-
ples, incapable of combining the various interests it is in-
tended to unite and support, and destitute of that force and
energy without which no government can exist, he pro-
ceeded to indicate the principal defects of the confedera-
* Madison, 715, says: "The resolutions introduced by Governor Randolph
were the result of a consultation on the subject, with an understanding that
they left all the deputies entirely open to the lights of discussion, and free to
concur in any alterations and modifications which their reflections and judg-
ments might approve. "
t Not General Charles Cotcsworth Pinckney.
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? 46S
THE LIFE OF
tion--defects so great that he was convinced that it would
be politic in the convention to determine that they will con-
sider the subject de novo; that they will pay no further
attention to the confederation than to consider it as good
materials, and view themselves at liberty to form and
recommend such a plan as, from their knowledge of
the temper of the people, and the resources of the states,
will be most likely to render our government firm and uni-
ted. "
With these prefatory remarks, Pinckney submitted his
plan of government. He then proceeded to comment upon
it. From these comments it appears that he contemplated
a legislature of two branches: the first to consist of dele-
gates chosen by the states, in numbers according to their
relative importance, to vote per capita; a senate, elected by
the house of delegates, upon "proportionable principles,
which, though rotative, will give that body a sufficient de-
gree of stability and independence;" each class to be elected
for four years. The executive to be appointed septenni-
ally, but re-eligible. If septennial appointments were sup-
posed to be too frequent, Pinckney stated that he would
have "no objection to elect him for a longer term. " He
was to have a council of revision, and among his other
powers " that of convening and proroguing the legislature
upon special occasions;" and of appointing "all officers
except judges and foreign ministers. " A supreme judiciary
to be instituted by congress, to take cognizance of all offi-
cers of the United States, of questions arising on the law
of nations, the construction of treaties, and of the regula-
tions of congress in pursuance of their powers, and also
courts of admiralty in the several states.
Congress were to have the exclusive powers then vested
in the confederation, and also the regulation of commerce;
the raising money by impost, and of troops in peace and
war; with a proviso that, as to all cases which then re-
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? HAMILTON.
469
quired the assent of nine states, and as to acts regulating
trade, and for levying an impost or raising troops," the as-
sent of two-thirds of both houses should be required. "
After this exposition of Pinckney's plan,* it was resolved
that the Virginia propositions should with it be referred to
a committee of the whole convention.
The discussion of the first six occupied two days. The
result was a declaration that" a national government ought
to be established, consisting of a supreme legislative, judi-
ciary, and executive f all the states concurring except Con-
necticut and New-York--Hamilton voting in favour of the
proposition. The question whether the right of suffrage in
the national legislature ought to be apportioned to the quo-
tas of contribution, or to the number of free inhabitants,
(Hamilton urging the latter,) was postponed. Pennsylva-
nia alone opposed the division of the legislature into two
branches. A majority were in favour of the election of
the first branch by the people, as had been the practice of
* This statement is derived from a pamphlet published in 1788, entitled,
"Observations on the plan of government submitted to the federal conven-
tion, by Mr. Charles Pinckney. "--No. 2687 of select tracts of New-York His-
torical Society. A comparison of the plan in the Observations, with that on
the journaIs,/urnt<<iei by Pinckney, shows great dissimilarity. The "obser-
vations" have no reference to an election of the house of representatives by the
people. On the contrary, it will be perceived by the journal of the sixth of June,
that Pinckney proposed their election by the state legislatures. The power of
appointment is given, in the " observations," to the executive, without the eon.
tent of the senate, which is required by the journal plan. They propose a coun-
cil of revision, not contained in the journal plan; gave the decision of territo.
rial disputes to a court constituted as directed in the confederation. The plan
on the journal vests it in the senate. The journal plan requires the assent of
two-thirds of the members of congress present only in the enactment of laws
regulating commerce. The " observations" speak of seventeen articles. The
journal plan contains sixteen. The " observations" refer to the eighth article
as relating to the post office. The eighth article of the journal plan relates
solely to the executive power. The numerical discrepancy occurs in other
instances.
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THE LIFE OF
Rhode Island and Connecticut under the confederation.
The proposition that the second should be chosen by the
first branch, out of persons appointed by the state legisla-
tures, was rejected; and it was declared that its members
should be elected by the state legislatures. The sixth re-
solve gave to each branch the right of originating acts, and
conferred on the national legislature the legislative rights
vested in congress by the confederation, and empowered it
to legislate in all cases to which the separate states were
incompetent, or in which the harmony of the United States
may be interrupted by the exercise of individual legislation,
and to negative all laws of the states contravening, in its
opinion, the articles of union, or any treaties subsisting
under the authority of the union--the last clause being sug-
gested by Franklin. It was approved in this form, after
rejecting a section authorizing a resort to the force of the
union against any delinquent state.
The seventh resolution was considered on the first of
June. It declared that a national executive be chosen by
the legislature for a term of years, with a fixed compensa-
tion, not to be increased or diminished so as to affect the
existing magistracy, which was to be ineligible, and, be-
sides a general authority to execute the national laws, that
it ought to enjoy the executive rights vested in congress
by the confederation.
A motion of Wilson, that it should consist of a single
person, was postponed, when Madison, urging that its
powers ought first to be defined, offered an amendment con-
ferring on it the power to carry into execution the nation-
al laws, to appoint to offices in cases not otherwise pro-
vided for, and to execute such other powers, not legislative
or judiciary in their nature, as may from time to time be
delegated by the national legislature. The powers to ex-
ecute the laws, and to appoint to office, were approved;
but the last indefinite clause was rejected, Massachusetts,
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? HAMILTON.
471
Virginia, and South Carolina voting for it. The term of
office was next established at seven years.
Until this period of the proceedings, New-York was
represented by Hamilton and Yates, but on the second of
June, Lansing having taken his seat, Hamilton's vote was
merged in that of his colleagues.
Immediately after, a proposal was made to postpone
the resolution respecting the executive, in order to take up
that relating to the second branch of the legislature: only
three states voted in its favour. A motion was then made
by Wilson, that the executive magistracy should be elected
by electors chosen in districts of the states, in whom the
executive authority of the government should be vested.
This motion was negatived, seven states being against it;
the vote of New-York divided, and its election by the na-
tional legislature being approved. To control this great
object of jealousy, a proposition was made that it should
be removable by the national legislature. This was defeat-
ed, but it was declared to be ineligible a second time; and
instead of giving the legislature a general power of remo-
val, a provision, derived from the constitution of North
Carolina, rendering the executive removable on impeach-
ment, and conviction of malpractice or neglect of duty,
was, at the suggestion of Williamson, substituted. It was
again moved that the executive should consist of one per-
son. The subject was now discussed at large, Butler,
Gerry, Charles Pinckney, Sherman, and Wilson being in
favour of a single, Madison and Randolph of a plural execu-
tive.
In the letters written prior to the meeting of the con-
vention by Madison to Washington in reference to the
executive, he is seen to have stated that he had "scarcely
ventured to form his own opinion yet, either of the man-
ner in which it ought to be constituted, or of the authori-
ties with which it ought to be clothed. " This language
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? 472
THE LIFE OF
would seem to imply that he then contemplated a plural
magistracy. He now observed, " the way to prevent a
majority from having an in'erest to oppress the minority,
is to enlarge the sphere. " "Elective monarchies are tur-
bulent and unhappy. " "Men are unwilling to admit so
decided a superiority of merit in an individual, as to ac-
cede to his appointment to so pre-eminent a station. If
several are admitted, as there will be many competitors of
equal merit, they may be all included--contention pre-
vented, and the republican genius consulted. "*
Randolph followed. He remarked, that "the situation
of this country was peculiar. The people were taught an
aversion to monarchy; all their constitutions were opposed
to it. The fixed character of the people was opposed to
it. If proposed, it will prevent a fair discussion of the
plan. Why cannot three execute? Great exertions were
only requisite on particular occasions. Safety to liberty
was the great object; legislatures may appoint a dictator.
He spoke of the seeds of destruction; slaves might be ea-
sily enlisted. The executive may appoint men devoted to
them, and even bribe the legislature by offices. The chief
magistrate will also be free from impeachment. "
Wilson answered, alleging that the extent of the coun-
try, and the diversity of manners, precluded the dangers
alluded to. "A confederated republic," he observed," unites
the advantages and banishes the disadvantages of other
kinds of government. Rendering the executive ineligible,*
he declared," was an infringement of the right of election. "
Bedford concurred in the opinion, that the executive
should be re-eligible. He remarked, that " peculiar talents
were requisite for the executive; therefore, there ought to
be an opportunity of ascertaining his talents, and therefore
frequent change. "
* Hamilton's MSS. notes, vol. 1, p. 74. --Madison does not give these
remarks. --Reports of 1st and 2d June, vol. 2, Madison Papers, p. 762--783.
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? HAMILTON.
473
The question being taken, seven states voted in favour
of a single executive. New-York, (Yates and Lansing
giving the vote,) Delaware, and Maryland in the negative.
The eighth resolve proposed a council of revision, to be
composed of the executive and of a part of the judiciary.
It was to be empowered to revise every act of the national
legislature before it should operate, and of the particular
legislatures of each state, before a negative thereon should
be final. The dissent of the council to amount to a rejec-
tion, unless the act of the national legislature was again
passed, or that of a particular state should be again ne-
gatived by the vote of a certain number of the members
of each branch. Madison was zealous for this revisionary
council. Hamilton was averse to it, from the "danger
that the executive, by too frequent communication with the
judicial, may corrupt it. " As to the argument that this
negative would not be used, he remarked, " it would go
so far as to prove that the revisionary power would not
be exercised, and therefore was useless. " He seconded a
motion of Wilson to vest an unqualified negative in the
executive. This proposal was rejected, but a modified
provision passed, giving this negative to the executive, un-
less two-thirds of the legislature should concur, thus dis-
pensing with the council of revision.
The ninth resolve contemplated a national judiciary, to
hold during good behaviour, to receive a compensation not
to be increased or diminished so as to affect the incum-
bents. It was to consist of a supreme appellate, and infe-
rior tribunals, whose jurisdiction was to extend to pira-
cies and felonies on the seas, and captures from an enemy;
to cases in which foreigners or citizens of other states
might be interested, or which respected the collection of the
revenue; to impeachments of any national officer, and
questions involving the national peace and harmony. Wil-
son moved that the judiciary should be appointed by the
60
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? 474
THE LIFE OF
executive. Madison was opposed to this. He thought
that the executive should by no means make the appoint-
ment, and pursuing the policy of Virginia, which gave the
appointment to the legislature, he proposed to vest it in
the second branch.
A provision for the admission of new states, was in the
next place adopted. On the sixth of June, proposals to
give the election of the first branch of the national legisla-
ture to those of the several states, and to annex a council
of revision to the executive, to be composed of the nation-
al judiciary, were renewed, and failed. It was urged in
favour of the first proposition, that if " the legislatures did
not partake in the appointment, they would be more jeal-
ous of the general government; and that the state legisla-
tures ought also to elect the senators, so as to bring into
it the sense of the state governments," and thus "lead to a
more respectable choice. "
Madison contended, that at least one branch should be
chosen by the people. He stated that* there were "two
principles on which republics ought to be constituted.
One, that they should have such an extent as to render
combinations on the ground of interest difficult. The
other, by a process of election calculated to refine the rep-
resentation of the people. "f
* Hamilton MSS. v. l,p. 75.
t In reference to these principles, this comment by Hamilton is preserved.
"Maddison's theory. Answer:--There is truth in both these principles, but
they do not conclude as strongly as he supposes. The assembly, when cho-
sen, will meet in one room, if they are drawn from half the globe, and will
be liable to all the passions of popular assemblies.
"If more minute links are wanting, others will supply them. Distinctions
of eastern, middle, and southern states, will come into view, between com.
mcrcial and non-commercial states. Imaginary lines will influence, &c.
"The human mind is prone to limit its view to near and local objects. Pa-
per money is capable of giving a general impulse. It is easy to conceive a
popular sentiment pervading the eastern states. " Madison also observed,
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? HAMILTON. 475 I
The election of the second branch by the state legisla-
tures was proposed, and, after the rejection of a motion
that it should be chosen by the people, was passed unani-
mously.
The term of service of the first branch was fixed at
three, that of the second branch at seven years. The
members were to receive fixed stipends out of the national
treasury, and to be ineligible to any office established by
a state, or by the United States, (except those peculiarly
belonging to the functions of the respective branch,) du-
ring the term of service, and under the national govern-
ment for one year after its expiration. The restriction on
their re-eligibility, and the right to recall those of the se-
cond branch, were expunged. An important motion was
now made as to the power to be confided to the legisla-
ture. It was proposed by Charles Pinckney, and second-
ed by Madison, that it should have a negative on all laws
of the states which to it shall appear improper. This was
sustained by only three states--Massachusetts, Pennsyl-
vania, and Virginia.
After some discussion of the mode of appointing the
executive, the rule of suffrage now existing as to the choice
of the first branch of the legislature was adopted, and a
proposal was made to give to each state an equal vote in
the second branch.
Wilson and Hamilton urged that the rule adopted as to
"that large districts are less liable to be influenced by factious demagogues
than small. " "This," Hamilton noted, "is in some degree true, but not so
generally as may be supposed.
