Safety to liberty
was the great object; legislatures may appoint a dictator.
was the great object; legislatures may appoint a dictator.
Hamilton - 1834 - Life on Hamilton - v2
net/2027/uva.
x000275492 Public Domain, Google-digitized / http://www.
hathitrust.
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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.
59
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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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? 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. Frequently small portions of large districts
carry elections. An influential demagogue will give an impulse to the
whole. Demagogues are not always inconsiderable persons. Patricians
were frequently demagogues. In large districts, characters are less known,
and a less active interest is taken in them. "
"One great defect of our state governments is, that they do not present ob-
jects sufficiently interesting to the human mind. "
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? 476
THE LIFE OF
the first should govern in the choice of the second branch.
They prevailed for the moment. A guarantee of a repub-
lican constitution, and of its existing laws to each state,
was unanimously approved. It was declared that a pro-
vision ought to be made for the amendment of the consti-
tution; and that the legislative, executive, and judiciary
of each state ought to be bound by oath to support the
articles of union. After an approval of the fifteenth re-
solve, that the amendments to the confederation with the
approbation of congress should be submitted to an assem-
bly, or assemblies, elected by the people, the Virginia reso-
lutions were reported to the house on the thirteenth of
June.
During the discussion of these resolutions, such of the
delegates from Connecticut, New-York, New-Jersey, Dela-
ware, and Maryland, as were in favour of a larger reten-
tion of power in the states, prepared a series of resolves,
which were on the fifteenth of June submitted by Pater-
son. They were designated "the Jersey plan. " This
plan contemplated an enlargement of the powers of con-
gress, without any change in the structure of the gov-
ernment--an apportionment of the ratio of contribution
to the population--the election by congress of a plural
federal executive--a federal judiciary to be appointed by
the executive, to hold during good behaviour--a provision
rendering the acts of congress and treaties the supreme
law, with compulsory authority over the states by the
national force.
This scheme being referred to a committee of the
whole house, with a view to bring the respective systems
into full contrast, it was moved by Rutledge, seconded by
Hamilton, that the amended resolutions from Virginia be
recommitted. The broad question, whether a national
government, or mere articles of confederation were to be
recommended, was now presented. The debate was open-
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? HAMILTON.
ed on the sixteenth of June, by Lansing. He stated, that
the national system proposed to draw the representation
from the whole body of the people, without regard to the
state sovereignties. That the substitute proposed to pre-
serve the state sovereignties. What were the powers
under which the convention acted ? " Different legislatures
had a different object," but the general purpose was to
"revise the confederation. " "Independent states cannot
be supposed to be willing to annihilate the states. " "The
state of New-York would not have agreed to send mem-
bers on this ground. "
It is "in vain," he said, "to devise systems, however
good, which will not be adopted. " "If convulsions hap-
pen, nothing we can do will give them a direction. The
legislatures cannot be expected to make such a sacrifice. "
"The wisest men in forming a system from theory are
apt to be mistaken. " "The present national government
has no precedent, or experience to support it," and the
"general opinion was, that certain additional powers ought
to be given to congress. "
He was followed by Patterson, who observed, first, that
their plan accorded with their powers; second, that it ac-
cords with the "sentiments of the people. If the confed-
eration was radically defective, we ought to return to our
states and tell them so. He came not here to sport senti-
ments of his own, but to speak the sense of his constitu-
ents. " The "states treat as equal; the present compact
gives one vote to each state. By the articles of the con-
federation, 'alterations are to be made by congress, and all
the legislatures. ' All the parties to a contract must as-
sent to its dissolution. The states collectively have advan-
tages, in which the smaller states do not participate; there-
fore individual rules do not apply. "
The "force of government," he observed, "will not de-
pend on the proportion of representation, but on the quan-
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? 478 THE LIFE OF
tity of power. " "A check is not necessary in a general
government of communities, but in an individual state the
spirit of faction is to be checked. " "How have congress
hitherto conducted themselves? The people approve of
congress, but think they have not power enough. "
On a comparison of the different schemes of govern-
ment then before the convention, it is seen that Pinckney
would have clothed the legislature with the powers vested
in congress by the confederation, and also with the regu-
lation of commerce, the raising money by impost, and with
the control of the national force. The Virginia plan
would have conferred on the government powers supreme
in all questions of national interest; a negative on the laws
of the states, with an express declaration of a power to
exert the common force against a delinquent state.
Pinckney also proposed a single executive, while the
Virginia plan, having confided unlimited powers to the
legislature, would have vested the execution of those pow-
ers in a plural magistracy, ineligible a second time, con-
trolled by a council of revision constituted from the judi-
ciary, which would thus have become a political agent--
those powers to be exercised by a resort to force; to ob-
viate which, Madison is seen to have proposed a negative
on the laws of the states.
The Jersey plan was more objectionable. It created a
single legislative body, with the command of the purse and
the sword; derived its authority from the states; estab-
lished an equality of suffrage; proposed that a minority
should govern; contemplated partial objects of legisla-
tion ;* gave no negative upon that of the states; created
a plural executive, removable on the application of a ma-
jority of the executives of the states, without any negative
on the national legislature; and a judiciary, to be appoint-
* The revenue was to be derived from imposts, stamps, and postage.
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? HAMILTON.
479
ed by the executive, with power to try impeachments of
federal officers, but without any other original jurisdiction,
and without inferior tribunals.
Such were the forms of government in contemplation
for an empire of almost boundless territory, and destined
to contain a countless population.
As neither of these forms was adopted, and as the final
result was a compromise, it becomes necessary, in order
to judge correctly of the extent of Hamilton's influence
upon the character of that compromise, to trace the suc-
cessive opinions of leading members of the convention.
With this view, it will be remarked, while the plan of
Madison and Randolph submitted it as an open question,
whether " the right of suffrage in the national legislature
ought to be proportioned to the quotas of contribution, or
to the number of free inhabitants," that Hamilton was the
first to urge the latter as the true basis of a republican
government. *
Both Hamilton and Madison agreed that the choice of
the first branch of it should be by the people; but while
Hamilton would have derived the second branch, or senate,
also from the people. f Madison preferred that it should be
chosen by the first branch.
The proposition of Virginia gave the choice of the ex-
ecutive department of the government to the national
legislature. Hamilton, pursuing the great principle of a
popular government, was in favour of an executive to be
chosen by the people in districts through the medium of
electors.
Madison was the advocate of a plural executive, and
* Journal of Fed. Con. , pp. 67-83. "It was moved by Mr. Hamilton,
seconded by Mr. Spaight, that the resolution be altered so as to read: Re-
solved, that the rights of suffrage in the national legislature ought to be pro-
portioned to the number of free inhabitants. "
t Journal, 112. ,
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? ,180
THE LIFE OF
would have associated with it a revisionary council, to be
formed of the national judiciary, having a qualified nega-
tive. Hamilton, on the other hand, would have imposed
on a single executive an undivided responsibility, without
a council of revision. He would have given the appoint-
ment of the judiciary to the executive, and would have
charged it solely with judicial duties. The judiciary of
Madison was to be appointed by the second branch, to be
connected with the executive, to act politically as its con-
trolling council, and also as the court of impeachments on
the national officers.
Passing from the structure to the powers of the govern-
ment--while Hamilton would have provided that the ex-
ecutive should take care that the laws were faithfully ex-
ecuted, Madison would have authorized the legislature to
delegate to it, from time to time, such other powers, not le-
gislative or judiciary in their nature, as it might choose ;*
and would have given it a negative on the laws of the
states.
As to the national legislature, he would have empowered
it to "negative all laws" of the states " which to them shall
appear improper. "f has been seen that while he thought
that perhaps this negative "might create a mutual depen-
dence between the general and particular authorities," and
thus " that the necessity of operating by force on the col-
lective will of a state might be precluded," he said, " the
right of coercion should be expressly declared. " This was
by far the highest toned form of government submitted to
the convention, and as it intermingled injuriously the dif-
ferent departments, and derived them all from the first le-
gislative branch, would have resulted in an odious and in-
tolerable tyrarny, in which the executive and senate
would have been the creatures and mere instruments
? Journal, p.
? 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.
59
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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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? 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. Frequently small portions of large districts
carry elections. An influential demagogue will give an impulse to the
whole. Demagogues are not always inconsiderable persons. Patricians
were frequently demagogues. In large districts, characters are less known,
and a less active interest is taken in them. "
"One great defect of our state governments is, that they do not present ob-
jects sufficiently interesting to the human mind. "
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? 476
THE LIFE OF
the first should govern in the choice of the second branch.
They prevailed for the moment. A guarantee of a repub-
lican constitution, and of its existing laws to each state,
was unanimously approved. It was declared that a pro-
vision ought to be made for the amendment of the consti-
tution; and that the legislative, executive, and judiciary
of each state ought to be bound by oath to support the
articles of union. After an approval of the fifteenth re-
solve, that the amendments to the confederation with the
approbation of congress should be submitted to an assem-
bly, or assemblies, elected by the people, the Virginia reso-
lutions were reported to the house on the thirteenth of
June.
During the discussion of these resolutions, such of the
delegates from Connecticut, New-York, New-Jersey, Dela-
ware, and Maryland, as were in favour of a larger reten-
tion of power in the states, prepared a series of resolves,
which were on the fifteenth of June submitted by Pater-
son. They were designated "the Jersey plan. " This
plan contemplated an enlargement of the powers of con-
gress, without any change in the structure of the gov-
ernment--an apportionment of the ratio of contribution
to the population--the election by congress of a plural
federal executive--a federal judiciary to be appointed by
the executive, to hold during good behaviour--a provision
rendering the acts of congress and treaties the supreme
law, with compulsory authority over the states by the
national force.
This scheme being referred to a committee of the
whole house, with a view to bring the respective systems
into full contrast, it was moved by Rutledge, seconded by
Hamilton, that the amended resolutions from Virginia be
recommitted. The broad question, whether a national
government, or mere articles of confederation were to be
recommended, was now presented. The debate was open-
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? HAMILTON.
ed on the sixteenth of June, by Lansing. He stated, that
the national system proposed to draw the representation
from the whole body of the people, without regard to the
state sovereignties. That the substitute proposed to pre-
serve the state sovereignties. What were the powers
under which the convention acted ? " Different legislatures
had a different object," but the general purpose was to
"revise the confederation. " "Independent states cannot
be supposed to be willing to annihilate the states. " "The
state of New-York would not have agreed to send mem-
bers on this ground. "
It is "in vain," he said, "to devise systems, however
good, which will not be adopted. " "If convulsions hap-
pen, nothing we can do will give them a direction. The
legislatures cannot be expected to make such a sacrifice. "
"The wisest men in forming a system from theory are
apt to be mistaken. " "The present national government
has no precedent, or experience to support it," and the
"general opinion was, that certain additional powers ought
to be given to congress. "
He was followed by Patterson, who observed, first, that
their plan accorded with their powers; second, that it ac-
cords with the "sentiments of the people. If the confed-
eration was radically defective, we ought to return to our
states and tell them so. He came not here to sport senti-
ments of his own, but to speak the sense of his constitu-
ents. " The "states treat as equal; the present compact
gives one vote to each state. By the articles of the con-
federation, 'alterations are to be made by congress, and all
the legislatures. ' All the parties to a contract must as-
sent to its dissolution. The states collectively have advan-
tages, in which the smaller states do not participate; there-
fore individual rules do not apply. "
The "force of government," he observed, "will not de-
pend on the proportion of representation, but on the quan-
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? 478 THE LIFE OF
tity of power. " "A check is not necessary in a general
government of communities, but in an individual state the
spirit of faction is to be checked. " "How have congress
hitherto conducted themselves? The people approve of
congress, but think they have not power enough. "
On a comparison of the different schemes of govern-
ment then before the convention, it is seen that Pinckney
would have clothed the legislature with the powers vested
in congress by the confederation, and also with the regu-
lation of commerce, the raising money by impost, and with
the control of the national force. The Virginia plan
would have conferred on the government powers supreme
in all questions of national interest; a negative on the laws
of the states, with an express declaration of a power to
exert the common force against a delinquent state.
Pinckney also proposed a single executive, while the
Virginia plan, having confided unlimited powers to the
legislature, would have vested the execution of those pow-
ers in a plural magistracy, ineligible a second time, con-
trolled by a council of revision constituted from the judi-
ciary, which would thus have become a political agent--
those powers to be exercised by a resort to force; to ob-
viate which, Madison is seen to have proposed a negative
on the laws of the states.
The Jersey plan was more objectionable. It created a
single legislative body, with the command of the purse and
the sword; derived its authority from the states; estab-
lished an equality of suffrage; proposed that a minority
should govern; contemplated partial objects of legisla-
tion ;* gave no negative upon that of the states; created
a plural executive, removable on the application of a ma-
jority of the executives of the states, without any negative
on the national legislature; and a judiciary, to be appoint-
* The revenue was to be derived from imposts, stamps, and postage.
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? HAMILTON.
479
ed by the executive, with power to try impeachments of
federal officers, but without any other original jurisdiction,
and without inferior tribunals.
Such were the forms of government in contemplation
for an empire of almost boundless territory, and destined
to contain a countless population.
As neither of these forms was adopted, and as the final
result was a compromise, it becomes necessary, in order
to judge correctly of the extent of Hamilton's influence
upon the character of that compromise, to trace the suc-
cessive opinions of leading members of the convention.
With this view, it will be remarked, while the plan of
Madison and Randolph submitted it as an open question,
whether " the right of suffrage in the national legislature
ought to be proportioned to the quotas of contribution, or
to the number of free inhabitants," that Hamilton was the
first to urge the latter as the true basis of a republican
government. *
Both Hamilton and Madison agreed that the choice of
the first branch of it should be by the people; but while
Hamilton would have derived the second branch, or senate,
also from the people. f Madison preferred that it should be
chosen by the first branch.
The proposition of Virginia gave the choice of the ex-
ecutive department of the government to the national
legislature. Hamilton, pursuing the great principle of a
popular government, was in favour of an executive to be
chosen by the people in districts through the medium of
electors.
Madison was the advocate of a plural executive, and
* Journal of Fed. Con. , pp. 67-83. "It was moved by Mr. Hamilton,
seconded by Mr. Spaight, that the resolution be altered so as to read: Re-
solved, that the rights of suffrage in the national legislature ought to be pro-
portioned to the number of free inhabitants. "
t Journal, 112. ,
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? ,180
THE LIFE OF
would have associated with it a revisionary council, to be
formed of the national judiciary, having a qualified nega-
tive. Hamilton, on the other hand, would have imposed
on a single executive an undivided responsibility, without
a council of revision. He would have given the appoint-
ment of the judiciary to the executive, and would have
charged it solely with judicial duties. The judiciary of
Madison was to be appointed by the second branch, to be
connected with the executive, to act politically as its con-
trolling council, and also as the court of impeachments on
the national officers.
Passing from the structure to the powers of the govern-
ment--while Hamilton would have provided that the ex-
ecutive should take care that the laws were faithfully ex-
ecuted, Madison would have authorized the legislature to
delegate to it, from time to time, such other powers, not le-
gislative or judiciary in their nature, as it might choose ;*
and would have given it a negative on the laws of the
states.
As to the national legislature, he would have empowered
it to "negative all laws" of the states " which to them shall
appear improper. "f has been seen that while he thought
that perhaps this negative "might create a mutual depen-
dence between the general and particular authorities," and
thus " that the necessity of operating by force on the col-
lective will of a state might be precluded," he said, " the
right of coercion should be expressly declared. " This was
by far the highest toned form of government submitted to
the convention, and as it intermingled injuriously the dif-
ferent departments, and derived them all from the first le-
gislative branch, would have resulted in an odious and in-
tolerable tyrarny, in which the executive and senate
would have been the creatures and mere instruments
? Journal, p.
